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Petkos v R

Petkos v R

Case [2020] NSWCCA 55 31 March 2020

Sentencing

Drug Offences

Supplying Large Commercial Quantity of Gamma-Butyrolactone

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Petkos v R [2020] NSWCCA 55
Hearing dates: 23 March 2020
Date of orders: 31 March 2020
Decision date: 31 March 2020
Before: R A Hulme J [1]
Hamill J [2]
Wilson J [44]
Decision:
(1) Application for leave to appeal against sentence granted
(2) Appeal dismissed

Catchwords: CRIMINAL LAW – sentencing – drug offences – supplying large commercial quantity of gamma-butyrolactone – GBL – drug imported from China – whether Judge erred in assessment of objective criminality – whether sentence manifestly excessive – whether error in failing to apply Victorian authority relating to importation of the same drug – authority described GBL as “low reward drug” – where Judge referred to “modest profit” received or expected – relevant matter was taken into account – no error in approach
Legislation Cited: Criminal Code (Cth)
Drug Misuse and Trafficking Act 1985 (NSW), ss 24A(1)(a), 25(1), 25(2)
Cases Cited: Adams v The Queen (2008) 234 CLR 143; [2008] HCA 15
Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150
Director of Public Prosecutions (Cth) v Maxwell [2013] VSCA 50; 228 A Crim R 218
Director of Public Prosecutions (Vic) v Fatho [2019] VSCA 311
Ellis v The Queen [2018] VSCA 221
JM v R [2014] NSWCCA 297; 246 A Crim R 528
Mulato v R [2006] NSWCCA 282
R v Petkos (No. 2) [2019] NSWDC 330
The Director of Public Prosecutions v Maxwell [2013] HCATrans 178
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category: Principal judgment
Parties: Jim Petkos (Applicant)
Regina (Respondent)
Representation:
Counsel:
I. Lloyd QC (Applicant)
M. Kumar (Respondent)
Solicitors:
Proctor & Associates (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2018/160433
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

[2019] NSWDC 330

Date of Decision:

17 June 2019

Before:

Judge Colefax SC

File Number(s):

2018/160433

Judgment

R A HULME J: I agree with Hamill J.
HAMILL J: Jim Petkos seeks leave to appeal against a sentence imposed on him by his Honour Judge Colefax SC in the District Court on 17 June 2019. Mr Petkos pleaded guilty in the Local Court to two drug offences and asked that two further offences on a Form 1 be taken into account in sentencing him. The first offence was supplying a large commercial quantity of a prohibited drug (5.624 kilograms of gamma-butyrolactone, a drug known as “GBL”). The two offences taken into account in sentencing for that charge were possession of a prohibited weapon (a Taser disguised as a torch) and possession of a precursor for the manufacture of a prohibited drug (5 litres of hypophosphorous acid, used in the manufacture of methylamphetamine). The second offence for which Mr Petkos was sentenced was an attempt to supply a prohibited drug (584.3 grams of GBL). The first offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Petkos v R

Details

AGLC: Petkos v The Queen [2020] NSWCCA 55
Case: [2020] NSWCCA 55
Decision Date: 31 March 2020

CaseChat Overview and Summary

Petkos v R was a case heard in the Court of Appeal of a State in Australia. The appellant, Petkos, was convicted of supplying a large commercial quantity of gamma-butyrolactone (GBL), a drug that had been imported from China. The nature of the dispute was whether the sentence imposed by the trial judge was appropriate and whether there were any errors in the assessment of the objective criminality and sentencing of the offence. Petkos contended that the sentence was manifestly excessive and that the judge erred in failing to apply a relevant Victorian authority which described GBL as a "low reward drug."

The court was required to determine whether the trial judge had erred in assessing the objective criminality of the offence. It was also necessary to consider whether the sentence imposed was manifestly excessive. Additionally, the court needed to examine whether there was an error in the trial judge's approach in failing to apply the Victorian authority regarding the importation of GBL. The court had to determine if the relevant matter was taken into account and whether the judge's reference to a "modest profit" received or expected was an error in approach.

The court found that there was no error in the trial judge's approach to assessing the objective criminality of the offence. The court noted that the relevant matter had been taken into account, and the judge's reference to a "modest profit" was not an error. The court further held that there was no manifest excess in the sentence imposed by the trial judge. The Victorian authority relied upon by Petkos did not affect the assessment of the objective criminality or the sentence. The court concluded that the sentence was appropriate and that there were no errors in the trial judge's approach.

The court did not order any changes to the sentence or the assessment of the objective criminality. The conviction and sentence were upheld, and the appeal was dismissed.

Orders