Koster v The King

[2025] NSWCCA 4

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Koster v R [2025] NSWCCA 4

Hearing dates:

7 February 2025

Date of orders:

14 February 2025

Decision date:

14 February 2025

Before:

Adamson JA at [1]
Ball JA at [2]
Fagan J at [27]

Decision:

Application for leave to appeal dismissed

Catchwords:

CRIME – appeals – appeal against sentence – manifest excess – where the applicant was sentenced for 2 counts of supplying not less than a large commercial quantity of lysergide (LSD) – whether sentence was unreasonable or plainly unjust

Legislation Cited:

Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7; 44(2); 68

Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2); 33(3)

Cases Cited:

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Category:

Principal judgment

Parties:

William Koster (Applicant)
Rex (Respondent)

Representation:

Counsel:
L Tyndall with T Woods (Applicant)
A Bonnor (Respondent)

Solicitors:
Daoud Legal, Sydney Criminal Defence and Traffic Lawyers (Applicant)
Office of Director of Public Prosecutions (Respondent)

File Number(s):

2020/70771

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

5 April 2024

Before:

Girdham SC DCJ

File Number(s):

2020/70771

HEADNOTE

[This headnote is not to be read as part of the judgment]

Following a trial before a jury and Girdham SC DCJ (the sentencing judge) in the District Court at Sydney, the applicant, Mr William Koster, was convicted on two counts of supplying not less than a large commercial quantity of lysergide (LSD) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW).

The Crown case at trial was that the applicant was an “up” supplier to a Mr James Calleja, who was the target of a controlled operation by Police.

On 5 April 2024, the sentencing judge imposed an aggregate sentence in respect of the two counts of four years and three months imprisonment with a non‑parole period of two years and six months imprisonment.

The applicant sought leave to appeal pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on him by the sentencing judge. The applicant’s sole ground of appeal was that the sentence was manifestly excessive. The applicant contended that having regard to the fact that each offence fell towards the low end on the scale of objective seriousness and to the applicant’s strong subjective case, any sentence in excess of three years imprisonment was unreasonable or plainly unjust, and instead an intensive correction order should have been made under s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The Court held (Ball JA, Adamson JA and Fagan J agreeing), dismissing the application for leave to appeal:

(1) There was no reasonable prospect of establishing that the sentence imposed by the sentencing judge was unreasonable or plainly unjust: [25].

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, applied.

JUDGMENT

1. ADAMSON JA: I agree with Ball JA.

2. BALL JA: Following a trial by jury, the applicant was convicted on two counts of supplying not less than a large commercial quantity of lysergide (LSD) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMT Act). The first count concerned the supply between 16 and 20 November 2019 of 6.9 grams of LSD. The second concerned the supply between 3 and 6 February 2020 of 9.7 grams of LSD. Both supplies were to a James Calleja, who resupplied the drugs to Ashley, an undercover police officer engaged in a controlled operation against Mr Calleja. Mr Calleja gave evidence against the applicant at trial.

3. The maximum custodial sentence for the supply of a large commercial quantity of LSD in contravention of s 25(2) is life imprisonment: s 33(3). The standard non‑parole period is 15 years. In the case of LSD, a “large commercial quantity” is defined to be 2 grams: DMT Act, Sch 1.

4. On 5 April 2024, the sentencing judge (Girdham SC DCJ) imposed an aggregate sentence in respect of the two counts of four years and three months imprisonment with a non‑parole period of two years and six months imprisonment. The sentencing judge indicated that if separate sentences had been imposed for each offence she would have imposed a sentence of three years and six months imprisonment with a non‑parole period of two years imprisonment in respect of the first count and a sentence of four years imprisonment with a non‑parole period of two years and three months in respect of the second count.

5. The sentencing judge also directed that consistently with a report obtained from Dr Richard Furst, a psychiatrist, that “regular reviews be undertaken with a psychiatrist and mental health nurse working for Justice Health, that the offender requires treatment with medication for his anxiety, depression, panic and PTSD”. The sentencing judge also recommended “Psychological treatment … including cognitive behavioural therapy or similar therapy by a psychologist working for Corrective Services New South Wales” and that the applicant:

engage in drug and alcohol counselling, such as with the EQUIPS addiction program offered by Corrective Services New South Wales, preferably when his symptoms of PTSD are under better control and that upon his release to parole the offender be placed under the care of his local GP with a view to ongoing management under a Mental Health care plan and with the following treatment plan, that he attend appointment with his treatment doctor at a frequency as directed, probably second monthly in the first instance, long [sic] with attending appointments with his treating psychologist at a frequency as directed, that he accepts medication as prescribed by his treating doctor, that he engages in alcohol counselling with a focus on relapse prevention and that he assesses [sic] Victim Services New South Wales regarding the assault victimisation and provision of longer term counselling and support.

Basis of appeal

6. The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed by the sentencing judge. The sole ground of appeal is that the sentence is manifestly excessive. It is not in dispute that in order to succeed on that ground, the applicant must establish that the sentence was “unreasonable or plainly unjust”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (per Gleeson CJ and Hayne J); Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (per Gleeson CJ, Gummow, Hayne and Callinan JJ). It is not sufficient that this Court might have exercised the sentencing discretion in a different way: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15] (per Gleeson CJ, Callinan, Gaudron, Gummow, Hayne and McHugh JJ).

Remarks on sentence

7. In relation to the objective features of the offences, the sentencing judge accepted that “the objective seriousness of each offence is that each are far less serious as many such offences dealt with in this Court”, that “[t]he weight involved in each count is not great” and that “the supply was not attended with … much sophistication at all”. Essentially, on each occasion Mr Calleja attended the applicant’s home to collect the LSD, apparently after arranging to do so over the telephone. On each occasion, the applicant provided Mr Calleja with three vials containing the LSD. There was no evidence concerning the LSD’s purity. The sentencing judge proceeded “on the commonsense basis that the offender engaged in the conduct for some financial reward”. The evidence is that at least on the first occasion Mr Calleja paid the applicant $800 per vial after he was paid for the drugs by the under-cover police officer.

8. The sentencing judge dealt extensively with the subjective elements of the offences. Her Honour pointed out that the applicant was at the time sentence was pronounced 42 years old (he was born in January 1982). He had had a difficult childhood, struggling at times to fit in. He started smoking marijuana at an early age and at the age of 15 tried LSD, MDMA and magic mushrooms. He was an average student who attended high school up until mid‑way through Year 8, when at the age of 15 he left school and home. He returned to studies in his late 20s going on to complete a Bachelor’s degree in audio engineering. Following that, he was heavily involved in the music festival and rave scene which led to an increase in drug use and connections with anti‑social people. More recently, following his arrest in 2020 he removed himself from that environment and worked as a gardener and assisted his partner of nine years, Abbey, with whom he has a five year old son. He also has a step-daughter. Before he was sentenced, he lived together with his family in Wentworth Falls. The applicant’s subjective case was supported by 23 references from family and friends, who gave evidence of the applicant’s good character.

9. As a result of his self‑diagnosis with PTSD, the applicant was referred to Dr Furst in connection with his sentencing hearing. Dr Furst concluded that the applicant did suffer from PTSD and alcohol and cannabis use disorder. According to Dr Furst, the PTSD has been the result of the treatment the applicant received while he was held on remand for a period of 14 days following his arrest. The applicant gave evidence that during that time, he was assaulted, threatened with a knife and sexually assaulted by three Aboriginal inmates when he was locked in the same cell as them one night and made to sleep on the concrete floor.

10. The applicant did not plead guilty and initially maintained an attitude which suggested that he had no remorse. However, the sentencing judge concluded that “I am satisfied that now he has had the opportunity to reflect, he deeply regrets his involvement not just with Mr Calleja but in the supply of drugs. He clearly was deeply immersed in a culture which normalised drug use and may well have struggled to come to terms with the requirements of the law”.

11. The sentencing judge also concluded that the applicant’s risk of reoffending was low. On that issue, her Honour said:

In my view, the offender has made advances towards his rehabilitation, certainly since his conviction and since engaging with [Dr Furst]. He is now full of regret, albeit driven by the impact his offending and its repercussions has had on his partner and children. I accept that he is motivated to remain drug‑free and compliant with the law. Prior to these matters he had minor convictions. Undoubtedly he has come a long way since he committed these offences and since his conviction at trial. I am satisfied, on balance, that the risk of him reoffending, by reason of the motivation he sees with his family, is low and that he has good prospects of being rehabilitated.

12. The sentencing judge referred to the fact that “[p]rior to these matters [the applicant] had minor convictions”, which presumably included a reference to fines in Queensland in 2010 and 2013 for the possession of dangerous drugs and the imposition of a 12-month conditional release order for driving with an illicit drug present in his blood, where in each case no conviction was recorded.

13. As the sentencing judge pointed out, the resolution of the matter had been protracted, through no fault of the applicant. During that time, apart from the 14 days he spent on remand, the applicant was on bail on terms which the sentencing judge was prepared to accept “have been stringent, albeit it is not suggested that they have been approaching quasi custody”.

14. The sentencing judge also accepted that:

[T]he offender’s history of anxiety, depression, panic attacks, PTSD and related sensitivity invariably will make any custodial sentence more onerous, and that he is particularly vulnerable to the effects of stress in the prison environment, and especially so given the asserted traumatic events when in custody previously. Just so, the stress of being incarcerated would most likely increased [sic] his diagnosed conditions of depression, anxiety, panic and re‑experiencing trauma phenomena. That fact impacts on the length of the term of the imprisonment.

15. Taking these matters into account, the sentencing judge concluded that there were “special circumstances” within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) which justified the imposition of a non‑parole period which was less than the proportion (two-thirds) stipulated in that section.

16. The sentencing judge also considered the application of the principle of parity in relation to the sentence imposed on Mr Calleja (seven years and six months’ imprisonment with a non-parole period of four years and six months imprisonment, after a combined discount of 35% for his plea of guilty and future assistance to authorities), although, as the sentencing judge pointed out, there were substantial differences in both the objective and subjective aspects of the offences which made any comparison of limited value.

17. Militating against aspects of the applicant’s subjective case were the principles of “denunciation, just punishment, general deterrence and the protection of the community”. In relation to those considerations, the sentencing judge said:

Drug supply is an offence which causes great harm to society. Individuals who become involved in the business of selling drugs do so to often vulnerable and addicted members of the community and the law says, they need to know that such conduct will be severely punished.

18. The sentencing judge concluded that taking account the various matters she had referred to, this was a case where “no other penalty is appropriate than a sentence of imprisonment, the term of which exceeds three years”. Having reached that conclusion, she imposed the sentence referred to earlier.

Consideration

19. The gravamen of the applicant’s appeal is that having regard to the fact that each offence fell towards the low end on the scale of objective seriousness and to the applicant’s strong subjective case, any sentence in excess of three years imprisonment was unreasonable or plainly unjust. The applicant’s case is that any sentence should have been for a period of less than three years and an intensive correction order should have been made under s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) directing that the sentence be served by way of intensive correction in the community. The court may not make such an order where an aggregate sentence exceeds three years: s 68.

20. In my opinion, there is no reasonable prospect that the appeal will succeed, with the result that the application for leave to appeal must be dismissed.

21. The applicant does not point to any other cases which might be regarded as comparators and which suggest that the sentence imposed by the sentencing judge was unreasonable or plainly unjust.

22. Although the sentencing judge correctly concluded that both offences were at the lower end of objective seriousness, it is important to bear in mind that there were two separate offences, that both offences are classified by the legislature as falling within the class of the most serious offences, carrying as they do a maximum sentence of life imprisonment, and that both offences involved the supply of a quantity of LSD that put them squarely within that class. Any sentence was required to take account of those matters.

23. The sentencing judge also correctly recognised that there were strong subjective elements that favoured a more lenient sentence. But again, this is not a case where the subjective elements all pointed in one direction. The applicant had committed drug-related offences, albeit that they were minor in nature. As the sentencing judge remarked, the applicant did not plead guilty and following his conviction “maintained an attitude which suggested he had no remorse”. Only recently, and about four years after the offences, has the applicant accepted responsibility for his conduct.

24. Lastly, it is plain that the sentencing judge correctly placed considerable weight on the social harm caused by the supply of drugs to members of the community, who are often vulnerable, and the need for general deterrence of conduct of that type.

25. Taking these matters into account, it could not be said that the sentence imposed by the sentencing judge was unreasonable or plainly unjust. It was at the low end of the available range for such offences. The non-parole period was reduced as a proportion of the head sentence from that which is prescribed. Those reductions from the statutory prescriptions fell within a range that adequately took account of the subjective circumstances of the case while paying sufficient regard to the serious nature of the offences and the need for general deterrence.

26. Accordingly, the application for leave to appeal should be dismissed.

27. FAGAN J: I agree with Ball JA.

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Decision last updated: 14 February 2025