R v Ambatsidis - [2000] NSWCCA 125

CITATION: R v Ambatsidis [2000] NSWCCA 125

FILE NUMBER(S): CCA 605089/98

HEARING DATE(S): 17 March 2000

JUDGMENT DATE:
14 April 2000

PARTIES :

REGINA - Respondent
John AMBATSIDIS - Applicant

JUDGMENT OF: Simpson J at 1; Barr J at 16

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 95/11/0398

LOWER COURT JUDICIAL
OFFICER : Freeman DCJ

COUNSEL : P G Berman - Crown Respondent
D G Dalton - Applicant

SOLICITORS: S E O'Connor - Crown Respondent
Peter Ash & Associates - Applicant

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985
Sentencing Act 1989

CASES CITED:
R v Rahme (1991) 53 A Crim R 8
R v Taouk (1992) 65 A Crim R 387

DECISION: Leave to appeal granted. Appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60508/99

SIMPSON J
BARR J

Friday 14 April 2000

REGINA v John AMBATSIDIS

JUDGMENT

SIMPSON J :

1 This is an application for leave to appeal against sentences imposed on the applicant by Freeman DCJ on 28 August 1998 following the applicant’s pleas of guilty to two charges of supplying not less than the commercial quantity applicable to a prohibited drug (heroin). Each charge was brought under s 25(2) of the of the Drug Misuse and Trafficking Act 1985 pursuant to which a maximum penalty of imprisonment for life is applicable to the offences. On the first charge Freeman DCJ sentenced the applicant to a total term of imprisonment for six years which, having found special circumstances pursuant to s 5(2) of the Sentencing Act 1989 existed justifying departure from the sentencing ratio contained therein, he divided into a minimum term of three years and nine months and an additional term of two years and three months. On the second charge he sentenced the applicant to a fixed term of imprisonment for two years to be served concurrently with the first.
2    The offence the subject of the first charge was committed between 1 October 1994 and 20 November 1994. It will be necessary below to discuss in some more detail the circumstances relevant to this offence. The Crown alleged that, between those dates, the applicant negotiated with and agreed to supply to an undercover police operative, Detective Biaggi, one kilogram of heroin. By reason of the extended definition of the ordinary meaning of “supply” enacted in s3 of the DMT Act, the agreement to supply is to be treated, and punished, as though the drug had in fact been supplied. It was common ground that the agreement made was never completed. The circumstances in which the applicant made the agreement give rise to the principal ground of the application.
3    The offence the subject of the second charge was committed on 7 October 1994. On that date the applicant supplied, by way of sample, .22 grams of the drug to Detective Biaggi. For this purpose he travelled from Melbourne, where he lived, to Sydney.
4    The applicant presented a subjective case that had some unusual aspects. He was born in Greece…

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 R v Ambatsidis

Details

AGLC: R v Ambatsidis [2000] NSWCCA 125
Case: [2000] NSWCCA 125
Decision Date: 14 April 2000

CaseChat Overview and Summary

The case of Regina v John Ambatsidis involved the applicant, John Ambatsidis, who appealed against the sentences imposed on him by the District Court of New South Wales. The applicant had pleaded guilty to two charges of supplying not less than the commercial quantity of a prohibited drug, namely heroin, in contravention of the Drug Misuse and Trafficking Act 1985. The maximum penalty for these offences was imprisonment for life. The District Court sentenced the applicant to a total term of imprisonment for six years on the first charge and a concurrent fixed term of imprisonment for two years on the second charge. The applicant sought leave to appeal against these sentences to the Court of Criminal Appeal.

The primary legal issue before the Court of Criminal Appeal was whether the District Court had erred in its assessment of the applicant's culpability and the weight given to certain factors during sentencing. The applicant argued that the District Court had not adequately considered the extent to which he was encouraged and courted by the undercover police officer, Detective Biaggi, in committing the offences. The applicant contended that the District Court should have treated the involvement of the police as a mitigating factor in sentencing, in line with the principles established in R v Rahme and R v Taouk.

The Court of Criminal Appeal found that the District Court had not erred in its assessment of the applicant's culpability. The Court held that the District Court was entitled to find that the applicant had made strenuous efforts to bring about the supply of heroin, despite the lack of actual supply. The Court found that the applicant had travelled from Melbourne to Sydney on multiple occasions in an attempt to fulfil his agreement with Detective Biaggi, which indicated a high degree of criminality. The Court further found that the District Court had correctly considered the relevant factors in sentencing, including general deterrence, the applicant's willingness to agree to supply the drugs, and his enthusiasm in attempting to obtain a source of supply. The Court of Criminal Appeal concluded that no error had been demonstrated in the sentencing process and granted leave to appeal but dismissed the appeal.

The final orders of the Court of Criminal Appeal were to grant leave to appeal but dismiss the appeal against the sentences imposed by the District Court.

Orders