Giannopoulos v The Queen

[2000] WASCA 396

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   COURT OF CRIMINAL APPEAL

CITATION:   GIANNOPOULOS -v- THE QUEEN [2000] WASCA 396

CORAM:   PIDGEON J

WALLWORK J
PARKER J

HEARD:   15 SEPTEMBER 2000

DELIVERED          :   13 DECEMBER 2000

FILE NO/S:   CCA 140 of 2000

BETWEEN:   CONSTANTINOS GIANNOPOULOS

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law - Sentencing - Possession of 24.8 gms of cocaine with intent - Also 12.8 gms of amphetamine - Effective total sentence of 5 years imprisonment - Whether excessive

Legislation:

Misuse of Drugs Act 1981

Result:

Application refused

Representation:

Counsel:

Applicant:     Mr M T Trowell QC

Respondent:     Ms J A Girdham

Solicitors:

Applicant:     Fiocco Hopkins Nash

Respondent:     State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Bellissimo (1996) 84 A Crim R 464

Lowndes v The Queen (1999) 195 CLR 665

R v Ruich [2000] WASCA 84

Case(s) also cited:

Rose v The Queen [2000] WASCA 238

1. PIDGEON J:  I agree with the reasons of Wallwork J.

2. WALLWORK J:  The applicant applies for leave to appeal against a total effective sentence of 5 years' imprisonment which he received on 2 June this year after he had been tried on three counts in an indictment.  Those counts had charged him, firstly, with selling cocaine to another; secondly, with having in his possession amphetamine with intent to sell or supply it to another; and thirdly, with having in his possession cocaine with intent to sell or supply it to another. 

3. After the jury had been unable to agree on the first count concerning the allegation that he sold cocaine to another but convicted him of the other two offences, the learned Judge sentenced the applicant for the two offences of which he had been found guilty; also on a third charge to which he had pleaded guilty of having in his possession cannabis with intent to sell or supply to another.

4. The learned Judge sentenced the applicant to 5 years' imprisonment for the possession of cocaine with intent to sell or supply it to another; to 3 years' imprisonment for the possession of amphetamine with intent to sell or supply it to another and to 6 months' imprisonment for the possession of cannabis with intent to sell or supply it to another.  The three sentences were ordered to be served concurrently.  The applicant was made eligible for parole and the sentences were backdated to 17 April 2000.

5. At the hearing of this application, counsel for the applicant said that the real contention was that the aggregate term for the three offences was excessive in all the circumstances.  Amongst other things it was said that the applicant was not a commercial dealer; that he had had the drugs in his possession with intent to sell them to maintain his habit.  It was also said that the drugs were of a very low level of purity and that the learned Judge had not taken sufficient regard of other factors which would have resulted in the applicant receiving a lower aggregate sentence.

6. The amphetamine and cocaine were found in the applicant's car.  There was 12.8 gms of amphetamine of 3.5 per cent purity and 24.8 gms of cocaine which was of 20 per cent purity. 

7. The applicant had maintained that the drugs were for his own use but by its verdict the jury rejected that proposition and found him in possession of the drugs with intent to sell or supply them. 

1. After the drugs had been found in the applicant's car, the police had searched his house and found a quantity of cannabis leaf, being 451 gms.  That matter was capable of being dealt with summarily but was dealt by the learned sentencing Judge under a s 32 Notice. 

2. There were no relevant prior convictions.  It was contended before her Honour that the quantity and purity of the drugs were clearly at the lower end of the scale.  The total value of the drugs was said to have been between $5,300 and $6,500 in total.  It was submitted that it had been the professional opinion at the trial that both the cocaine and the amphetamine had been of a purity which could not effectively be cut down any further.  When sentencing the applicant, the learned trial Judge said that she accepted that the amphetamine was at the bottom of the street purity range but it was six times the presumptive amount.  With respect to the cocaine, it was twelve times the presumptive amount. 

3. The applicant had said in evidence that he was using about 2 to 3 gms of cocaine a day.  There had been 24.8 gms of it found in his car.  With respect to the cannabis the learned Judge had been told that the applicant had been using cannabis since he had left school.  Most of the 451 gms of cannabis which had been found in the back shed of his house was for his own use but from time to time he would supply some to friends.

4. The learned Judge said that the applicant had been introduced to cocaine in 1996.  Prior to that he had been using speed, amphetamine, ecstasy and cannabis.  He had commenced using cocaine by buying 1 or 2 gms for use on weekends but by 1998 he had become a regular user of cocaine and that was his preferred drug.  By December 1998 he was fully addicted to cocaine.  He had said he was using 2 to 3 gms a day. 

5. Her Honour accepted that the applicant was using 2 to 3 gms a day and that he had health problems as a result of it.  Her Honour noted that the applicant was only 33 years of age.  He had a wife and 3-year old daughter.  His wife was expecting another child in September 2000.  A Court Diversion Service report had revealed that the applicant had undergone detoxification in January 1999 after self-referring to the Court Diversion Service in December 1998.  It was said that his compliance with the program had been unsatisfactory. 

6. Her Honour took note of the very complimentary references which testified to the applicant being a good worker and a trusted friend and that apart from his drug use he had been a good citizen and a hard worker.  Her Honour said that apart from the relevant offences the applicant appeared to be an asset to the community. 

7. Her Honour accepted that the purity of the cocaine and amphetamine were such that they could not be cut down without reducing the effect of the drugs to almost zero.  The learned Judge also accepted that the applicant would not have made any great degree of profit from selling the drugs; also that a quantity of each of the drugs was for his own personal use, with the cocaine obviously being so, because he was heavily addicted to it.  Her Honour accepted that the amphetamine was used by the applicant as a substitute for cocaine when cocaine was scarce or unavailable.  Her Honour said, "Thus for present sentencing purposes I don't regard you as a commercial drug dealer."  The learned Judge said that the applicant must be sentenced on the basis of the jury's verdict that he had intended to sell or supply two very destructive drugs. 

8. Her Honour referred to the fact that amphetamine use seemed to be the immediate cause of crimes of dishonesty and that cocaine and amphetamine were regarded for sentencing purposes as on a level with heroin.  She accepted that the applicant had come to a realistic assessment of the destructive nature of the drugs but said that given the quantity of each drug and the applicant's intention to on-sell or supply a quantity of each and the principles of personal and general deterrence which must be given prime importance in cases such as the one she was dealing with, that a sentence of imprisonment was warranted.  Her Honour said that she had taken into account the personal matters which had been brought to her attention and said that the starting point with respect to the cocaine was 6 years' imprisonment and for the amphetamine the starting point would be 4 years' imprisonment. 

9. Taking into account the applicant's personal circumstances, her Honour reduced each starting point by one year.  She said that she did not regard the amphetamine and cocaine offences as part of the one transaction.  However her Honour ordered that the sentences be served concurrently to reflect the combination of factors which she had taken into account.

10. It is obvious from the learned Judges' sentencing remarks that she took into account all the relevant considerations.  In particular her Honour made it clear that by making the sentences concurrent, she was taking into account the matters in mitigation.

1. On this application, counsel for the Director of Public Prosecution pointed out that in this case there had been three different types of drugs.  The quantity of cocaine was approximately twelve times the presumptive amount and the quantity of amphetamine was more than six times the prescribed amount.  The applicant had not pleaded guilty to the offences.  Counsel relied on the dicta of Pidgeon J in R v Ruich [2000] WASCA 84 at [17] where his Honour said that notice must be taken of the fact that the need to support a habit is a reason for much of the illicit distribution of harmful drugs.

2. In Bellissimo (1996) 84 A Crim R 464 at 471, Anderson J said:

   "The major sentencing considerations for offences of trafficking in dangerous drugs of addiction such as amphetamine, cocaine and heroin are general and personal deterrence, the major objective being to stop people doing it.  It is quite obvious to anyone concerned with criminal justice administration that trafficking in amphetamines is rife in this State and part of its tragedy is that very young people in the community are being exposed to it.  This has caused widespread community concern."

3. In this case the learned Judge knew that the maximum sentence for the offences concerning the cocaine and amphetamine was a sentence of 25 years' imprisonment and/or a $100,000 fine.  The sentence imposed for the amphetamine was made concurrent with the sentence for the cocaine.  In my opinion, in no way could it be said that an effective sentence of 5 years' imprisonment for the two offences concerning the cocaine and the amphetamine was excessive in all the circumstances.  The sentence for the amphetamine could have been made cumulative upon that concerning the cocaine.

4. In Lowndes v The Queen (1999) 195 CLR 665 at 672, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Haine and Callaghan JJ said:

   "The discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice."

5. In my view, there has been no error demonstrated in this case.  I would refuse the application for leave to appeal.

6. PARKER J:  I agree for the reasons now published by Wallwork J that this application for leave to appeal should be refused.