R v Georgiou - [2005] NSWCCA 237

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v GEORGIOU [2005] NSWCCA 237

FILE NUMBER(S):
60494/02

HEARING DATE(S): 8 December 2004

JUDGMENT DATE: 04/07/2005

PARTIES:
Regina
Constantinos Georgiou

JUDGMENT OF: Santow JA Hulme J Hidden J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/11/0142

LOWER COURT JUDICIAL OFFICER: Shillington DCJ

COUNSEL:
Crown: P Ingram
Appellant: M O'Brien

SOLICITORS:
Crown: SE O'Connor
Appellant: J Jordan

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Dismiss the appeal against conviction
Grant leave to appeal against sentence
Dismiss the appeal against the sentences imposed in respect of counts 1, 5, 6, 7 and 8
Allow the appeal againt the sentences imposed in respect of counts 3 and 4 and quash those sentences
In respect of count 3 sentence the Appellant to imprisonment for a term of 5 years including a non-parole period of 3 years and 9 months both such periods commencing on 3 February 1998
In respect of count 4 sentence the Appellant to imprisonment for a term of 4 years including a non-parole period of 3 years both such periods commencing on 3 February 1998

JUDGMENT:

- 20 -

IN THE COURT OF
CRIMINAL APPEAL

6094/02
SANTOW JA
HULME J
HIDDEN J
Monday, 4 July 2005

R v Constantinos GEORGIOU

Judgment

SANTOW JA: I agree in both reasons and result with Hulme J as regards the appeal against conviction.
So far as sentence is concerned, I agree with Hulme J as to the result, and essentially with his reasons. However, like Hidden J I would prefer to hear fuller argument before concluding that the statistics by themselves “strongly suggest” undue leniency in drug conviction sentence for this category of offence. That said, I agree with Hulme J that continuing discrepancy between the maximum sentence for an offence, and a lower top end of the actual sentencing range is clear cause for concern, and may indeed suggest undue leniency. But one would need to view carefully the features of the cases in that (lower) top range before reaching any concluded view on that matter.
HULME J: On 4 June 2003, the above named Appellant was arraigned on 8 counts.
(i)On 13 May 1996 supplying 105 grams of methylamphetamine.
(ii) On 13 May 1996 supplying 112 grams of cocaine.
(iii) On 15 May 1996 supplying 52.28 grams of cocaine.
(iv)On 15 May 1996 supplying 14.9 grams of methylamphetamine.
(v)On 15 May 1996 possessing a prohibited weapon viz a butterfly knife.
(vi)On 15 May 1996 possessing a prohibited weapon viz an electrical discharge device.
(vii)On 15 May 1996 possessing a prohibited weapon viz an nunchaku.
(viii)On 15 May 1996 possessing a prohibited article, namely handcuffs.
On 24 June 2002 a jury convicted him in respect of the first and third to eighth of these offences. Earlier they had been directed to find a verdict of not guilty on the second count. On 28 June 2002 Judge Shillington sentenced the Appellant. On the first, third and fourth charges imprisonment for a period of 8 years including a non-parole period of 6 years commencing on 3 February 1998 was imposed and in respect of the fifth to eighth charges the Appellant was sentenced to concurrent fixed terms of 1 year also commencing on 3 February 1998.
In his remarks on sentence Judge Shillington observed that the Appellant had been the subject of 24 hour surveillance for a period prior to his arrest on 15 May 1996 and that it was clear that the Appellant had dealt over a period on a large scale in methylamphetamine and cocaine. In or near the premises quantities of these drugs and indicia of drug dealing had been found together with the four items, the subject of counts five to eight. Counts 3 and 4 related to the “deemed supply” of drugs found and count 1 to an actual supply to 2 persons, Messrs Mouhalos and Putland.
Judge Shillington took the view that all of the Appellant’s offences should be regarded as incidents of his drug dealing activities and that the offences should be regarded “globally”.
There are two grounds of appeal, one against conviction and one against sentence. In addition the Appellant, who appeared for himself, raised with the Court the condition of his health and this also is a matter to which I will later refer. The grounds of appeal were:-
1.The learned trial Judge erred in law in that he allowed into evidence purported transcripts of conversations allegedly between the Appellant and other persons when the Jury had available to it copies of the tape recordings from which those transcripts were purportedly made.
2.The learned trial Judge imposed sentences which were manifestly unfair in that the sentences -
(a) Were significantly longer than those imposed by Courts for similar types of offences.
(b) Were not on par with the sentences imposed on and did not properly differentiate between the circumstances applicable to the Appellant’s co-accused.
Ground 1
The learned trial Judge erred in law in that he allowed into evidence purported transcripts of conversations allegedly between the Appellant and other persons when the Jury had available to it copies of the tape recordings from which those transcripts were purportedly made.
The answer to this ground lies in the terms of the Evidence Act which, so far as is relevant, provides:-
29(4)      Evidence may be given in the form of charts, summaries, or other explanatory material if it appears to the Court that the material would be likely to aid its comprehension of other evidence that has been given or is to be given.
48(1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods:-
(a)          …
(b)          Tendering a document that:-
(i)is or purports to be a copy of the document in question; and
(ii)has been produced, or purports to have been produced, by a device that reproduces the contents of documents;
(c)If the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound… - tendering a document that is or purports to be a transcript of the words.
51           The principles and rules of the common law that relate to the means of proving the contents of documents are abolished.
The primary matter that the Crown was seeking to prove by the tapes and transcript which were tendered was the content of the conversations. These conversations had been recorded on the original tapes but these tapes, copies thereof and the transcripts were but means to an end, viz. the terms or content of those conversations. At common law evidence of those conversations would be provided by the playing of the original tape in Court; if the tape was not available and its absence satisfactorily accounted for, evidence of its contents could be given by someone who had heard it, such evidence being admitted as secondary evidence – Butera v DPP [1987-1988] 164 CLR 180 at 186. A transcript of those contents could be admitted if the circumstances justified it - Butera v DPP at 190.
Within the terms of the Evidence Act a tape recording is a document and s51 removes the common law restrictions on proof of its contents. Hence, providing there was evidence that the transcripts reproduced the contents of the tapes those transcripts were, subject to an argument to which I shall come, admissible. There was such evidence.
Written submissions advanced on behalf of the Appellant however drew attention to the opening paragraph of s48 and in particular to the presence of the word “or”. It was submitted that the section provided mutually exclusive alternatives in the form of the tender of the original document or the secondary evidence to which the section referred: One or more of those types of secondary evidence could be given if the original was not tendered but one could not have the original and secondary evidence.
I do not need to consider the correctness of this submission. The evidence indicates that the recording which had occurred was done on a continually recording master tape and, when it appeared that something apparently of significance was being said, those parts of the conversations were recorded on additional tapes referred to as “highlight tapes”. Evidence from a Detective Sergeant Seary suggests that these were prepared simultaneously with the master tapes although later Detective Sergeant Heenan seems to indicate at times that the highlight tapes were “cut from” the master tapes, an expression which suggest that the highlight tapes were not themselves “originals”. The transcript also makes it clear that there were some discussions between counsel at the trial concerning the tapes and then that edited copies of some of the highlight tapes, and in one case of a portion of a master tape, were made. Such edited copies became MFIs 11 to 14 and 17, and later Exhibits BV, CB, BZ, BX and BN respectively.
The transcript, circa page 81, is not as clear as it might be in relation to MFIs 15 and 16 although at page 347 et seq, the evidence indicates that MFI 15, which was then marked Exhibit BP was also a copy of an earlier recorded tape. When the Crown sought to tender what had been marked MFI 16, the situation seems to have become very confused. I do not need to detail all of this but it appears that ultimately what occurred was that an original master, or more probably highlight, tape was marked Exhibit BT, a large amount of transcript presumably corresponding to at least the highlight tape was marked Exhibit BU and handed to the jury and then a short section of the tape played to the jury. There then seems to have been retreat from this. All of the transcript except the first page was then handed back by the jury – T362-4 – and on the following day an edited version of Exhibit BT and a corresponding portion of Exhibit BU (shorter than the full first page) substituted for the documents which had constituted those exhibits – T414 et seq.
Another exhibit, Exhibit BR, was also an audio tape. The transcript of that tape which became Exhibit S indicates that the tape is but a short extract of a longer document.
Thus, save and except for the short playing of what might have been an original in the case of Exhibit BT, and which was then replaced by a copy, none of the documents which purported to record the conversations referred to in this ground were originals. Consequently, except in relation to the first version of Exhibit BT, there is no factual basis to support the argument based on s48.
So far as Exhibit BT is concerned, an examination of the transcript Exhibit BU shows that it consists of some 16 lines, a number of them very short. The significant part was apparently the communication of a phone number which, if significant and not readily available to the jury in the absence of a transcript, would no doubt have been brought to their attention in one or more of the addresses and the summing up. Assuming in the case of this conversation that s48 precluded the tender of both Exhibit BT and the transcript Exhibit BU, and that the matter was not in any event cured by the substitution of an edited version of Exhibit BT, the situation is obviously one for the application of the proviso to s6(1) of the Criminal Appeal Act.
In any event, s29(4) of the Evidence Act permitted the admission into evidence of the transcripts. The sub-section provides:-
29(4) Evidence may be given in the form of charts, summaries, or other explanatory material if it appears to the Court that the material would be likely to aid its comprehension of other evidence that has been given or is to be given.
There can be no reasonable argument against the view that the transcripts would be likely to aid the jury’s comprehension of the considerable volume of taped recording which was in evidence in the Appellant’s trial. Furthermore, the trial judge emphasised to the jury on numerous occasions the primacy of the tapes and that the transcripts were merely aide memoirs to use as assistance.
Accordingly the ground of appeal against conviction is not made out and that appeal fails and should be dismissed.
Ground 2
The learned trial Judge imposed sentences which were manifestly unfair in that the sentences -
(a) Were significantly longer than those imposed by Courts for similar types of offences.
(b) Were not on par with the sentences imposed on and did not properly differentiate between the circumstances applicable to the Appellant’s co-accused.
Before I turn to the issues raised by these grounds it is not inappropriate to recognise, as was conceded by the Crown, that there was error in his Honour’s sentencing of the Appellant. In his remarks on sentence his Honour said:-
“I take the view that the crime (sic) should be regarded globally being activities carried on at the same time and relating to the business in my view of large scale drug dealing.”
Thus it was that his Honour then imposed on counts 1, 3 and 4 concurrent identical sentences notwithstanding the substantial difference in quantities involved in the 3 charges. I would infer also that this approach also influenced his Honour to make the sentences on all of the other charges also concurrent and, may well have led to the criminality inherent in the offences the subject of those charges being taken into account in the determination of the sentences for counts 1, 3 and 4.
His Honour’s approach was wrong. In Pearce v R (1998) 194 CLR 610, McHugh, Hayne and Callinan JJ said at [45]:-
“A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.”
Having regard to Judge Shillington’s remarks last quoted, to the difference in quantities and other circumstances between the offence the subject of count 1 on the one hand and the offences the subject of counts 3 and 4 on the other, the only conclusion open is that his Honour disregarded the course dictated by the High Court. Subject to the limitations imposed by s6(3) of the Criminal Appeal Act – a topic to which I refer in more detail below - this Court should approach a consideration of the sentencing of the Appellant afresh.
I turn next to the specific complaints in the Appellant’s Notice of Appeal.
The Appellant supported his claim that the sentences imposed on him were significantly longer than those imposed by Courts for similar types of offences by reference to the statistics kept and published by the Judicial Commission for the offences of the supply (including deemed supply) of less than a commercial quantity of amphetamines and cocaine and also for the offences of the supply of commercial quantities of those drugs.
The statistics, as at September 2002 supplied by the Appellant show that the head sentences of imprisonment imposed by the higher courts for supplying (including the deemed supply of) less than a commercial quantity of amphetamines ranged, in the period between January 1995 and December 2000 or 2001 (the final digit of the date is cut off in the photocopy supplied) between 6 months and 6 years and in the case of a commercial quantity ranged between 18 months and 9 years. In the case of the supply of cocaine the corresponding ranges were 6 months to 6 years and between 18 months and 6 years. Except in the case of the supply of a commercial quantity of cocaine, where there were 11 offenders, there were over 60 offenders in each of the other groups. In the case of the supply of less than a commercial quantity of amphetamines, there were 242 offenders.
There are a number of points to be made about these statistics. In R v Le (2002) 54 NSWLR 474, Heydon JA, with whom Dunford and Buddin JJ agreed, said, at [121]:-
So far as the appellant relies on Judicial Commission statistics, they are of limited utility. Statistical averaging glosses over the inevitable variations in circumstances, objective and subjective: R v Hofer [2001] NSWCCA 554 at [23]. Further, as Grove J said with Howie J’s concurrence in R v Hayes [2001] NSWCCA 410 at [14]-[15]:
"there is a misconception that the upper limit of the range of sentence is that of the statistical publications of sentence information by the Judicial Commission. Such statistics were apparently available to the applicant and indeed have been attached to Crown submissions.
The upper limit of sentence is in fact the maximum set by Parliament. If the upper limit of the statistical range is treated as reserved for the worst case or the worst offenders then persistent selection of sentences for others within that range will inevitably reduce the upper figure. This is not a matter of jurisprudence but a matter of arithmetic."
In R v Derbas [2003] NSWCCA 44, I said with the concurrence of Bell and Shaw JJ, at [33-34]:-
“On the other hand the place of such statistics must be recognised. In the first place they tend to be self-perpetuating in that as soon as the first few cases suggest a particular figure or range, other judges are urged and there is a tendency to follow that figure or range. If that early figure or range is wrong, the fact that it is later often followed does not make it right. Secondly, the statistics in the main reflect the decisions of first instance judges and while there is authority that their decisions must be regarded with respect – Ferrer-Esis (1991) 55 A Crim R 231 at 237; Griffiths v R (1976-1977) 137 CLR 293 at 310 (although it seems to me that Barwick CJ was directing attention to the circumstances of individual cases rather than to patterns or general standards) - for this Court to simply follow patterns of sentencing in the District Court is, as has been submitted in the past, "to allow the tail to wag the dog". The number of cases which come before this Court, the extent of argument and consideration of principle which occurs, places it in a better position to determine proper standards of sentencing than the judges of the District Court, whose decisions are often made quickly and in the course of a busy case schedule.
Thirdly, the statistics but represent the application by other judges, rightly or wrongly, to particular offenders and fact situations which come before them. It seems to me far preferable in this Court to consider the proper sentence in a particular case in the light of the statutory provision and the established principles of sentencing. The statistics provide a check, but they should not be allowed to govern the process. As to limitations on their use, see R v Bloomfield (1998) 44 NSWLR at 734; R v AEM Snr, KEM, MM [2002] NSWCCA 58 at [116].
Another point, which I have made on prior occasions, including in R v Shepherd 2003 NSWCCA 9, is that the statistics relied on strongly suggest systemic undue leniency in sentencing and that inadequate attention is being paid by sentencing judges to what Parliament has prescribed. The offences the subject of the first, third and fourth counts and those the subject of the statistics supplied relating to the supply of less than a commercial quantity arose pursuant to s25(1) of the Drug (Misuse and Trafficking) Act and rendered an offender liable to imprisonment for a period of 15 years. The relevant ranges of quantity within which these offences fell were each 5 to 250 grams. Offences involving the supply of a commercial quantity, i.e. between 250 grams and I kilogram, render an offender liable to imprisonment for 20 years.
It is extraordinary that of over 370 offenders represented in the statistics, not one has been sentenced to as much as half of the maximum prescribed by Parliament for the offences. It is difficult to believe that all of the offences including cocaine were, taking account of subjective circumstances also, no worse than in the bottom half of seriousness of those involving less than commercial quantities. That said, I adhere to the view that I expressed in R v Derbas that the statistics are useful as a check but it is preferable in this Court to approach a consideration of the Appellant’s sentences from first principles.

I should perhaps add that I have also considered more up to date statistics than those supplied by the Appellant. They show a similar picture and do not cause me to change the views at which I have otherwise arrived. Thus:-
Those from October 2001 to September 2004 for the supply, including deemed supply, of less than a commercial quantity of amphetamines show that of 128 offenders sentenced to non-consecutive terms of imprisonment, the total sentences ranged from 6 months to 8 years, only one person receiving that sentence, none receiving 7 years and only 2 receiving 6 years. The fixed or non-parole periods varied between 6 months and 6 years with only 3 offenders receiving more than 3 years.
The statistics from October 1997 to September 2004 for the supply, including deemed supply, of a commercial quantity of amphetamines show that of 50 offenders sentenced to non-consecutive terms of imprisonment, the total sentences ranged from 18 months to 9 years with only 5 offenders receiving sentences in excess of 6 years. The fixed or non-parole periods varied between 6 months and 7 years with only 3 offenders receiving more than 4½ years.
The statistics from October 1997 to September 2004 for the supply, including deemed supply, of less than a commercial quantity of cocaine show that of 61 offenders sentenced to non-consecutive terms of imprisonment, the total sentences ranged from 6 months to 5 years with 8 offenders receiving sentences of 4 years or more. The fixed or non-parole periods varied between 6 months and 4 years with only 4 offenders receiving more than 3 years.
The statistics from October 1997 to September 2004 for the supply, including deemed supply, of a commercial quantity of cocaine show that of 13 offenders sentenced to non-consecutive terms of imprisonment, the total sentences ranged from 3 years to 9 years with only 1 offender receiving a sentence in excess of 6 years. The fixed or non-parole periods varied between 1 year and 6 years with only 1 offender receiving more than 4 years.
The commencing point in any consideration of an appropriate sentence for a statutory offence is the statute itself, recognising that “the maximum penalty prescribed for an offence is intended for the worst category of case for which that penalty is prescribed” – Veen v R (No 2) (1987-1988) 164 CLR 465 at 478. “In determining the proper penalty… the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the respondent’s conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug” - R v Peel (1971) 1 NSWLR 247 at 262. The offence in that case involved importing drugs. Earlier at 261-2, the Court had said,
“… the primary objectives of the legislation must be recognised and upon the detection of offenders penalties must be imposed which are calculated to secure those objectives. We agree, therefore, with his Honour that the objectives cannot effectively be secured unless, as he said, one is prepared to resort to a sentence sufficiently heavy to act as a real deterrent against intending importers.”
This passage was quoted with approval by Wood J in R v Schall (unreported, 8 September 1989) – see also R v Bimahendali [1999] NSWCCA 409 at [17] although, given the extent of drug dealing which still occurs, and the statistics above, I doubt that sufficient effect has been given to it.
The terms of the legislation reflect what the courts see day after day, that usage of the drugs the subject of the charges against the Appellant commonly results in very substantial harm to those who use them and to the rest of the community who have to suffer the depredations of the users in an attempt to obtain the funds with which to reward persons such as the Appellant for the supply of the drugs and to provide many of such users with social services, and food and the like which, due to their drug-taking, they are unable to provide for themselves. Judge Shillington’s conclusion that the Appellant had dealt over a period on a large scale in methylamphetamine and cocaine indicates, as does the evidence, that the offending the subject of counts 1, 3 and 4 were not isolated events but mere incidents of a business operation, conducted presumably for profit, and calculated to contribute to the harm to which reference has just been made. He is, of course, not to be punished for other drug dealing not the subject of charges but the finding to which reference has been made makes it clear that he is entitled to none of the leniency which might be extended to someone whose offending may have been something of an aberration.
So far as the Appellant’s role in supply is concerned, his offending was at close to the top of the criminality against which Parliament has legislated.
On the other hand the quantities involved in the offences charged were not. The quantity the subject of the first count was something above 40% of the 250 gram maximum encompassed by the less than commercial range, while the quantities the subject of counts 3 and 4 were substantially less than this. However, it must also be recognised that the charges reflected his choice to offend on more than one occasion and to do so in relation to more than one drug. And this offending was against a background of prior convictions associated with the using and, in 2 cases, selling of prohibited drugs, even though the penalties imposed on those earlier occasions were not high.
In any consideration of the sentences imposed on the Appellant, consideration of his subjective circumstances is also required. There is little which operates in his favour. Having pleaded not guilty, the Appellant was not entitled to the discount awarded to persons who do. Judge Shillington found that the Appellant showed no contrition. His Honour also observed:-
“It is said that he now avoids all drugs, although he gave evidence at the trial that at the time of his arrest he was addicted to cocaine.”
However, his Honour made no findings in this regard and it is not possible for this Court, not having heard the totality of the evidence in this regard to do so. But even if his own addiction contributed to his offending, remarks of this Court in R v Henry (1999) 46 NSWLR 346 indicate that it is entitled to, at most, limited weight – see the discussion at [171 – 202, 212] per Spigelman CJ, [215 – 259] per Wood CJ at CL, [ 278] per Newman J, [331] per Hulme J, [335 – 349] per Simpson J.
Judge Shillington declined to find special circumstances. Leaving aside the issue of parity, against the statutory criteria it does not seem to me possible to say that the sentence imposed on the first count is excessive. In his role, “the degree by which … the (Appellant’s) conduct (offended) against the legislative objective of suppressing the illicit traffic in the prohibited drug” was gross. The quantity of 105 grams, as has been said, was less than half the upper limit of a trafficable quantity and in that regard his offence fell substantially short of a worst case. However, as I said in R v Spiteri [1999] NSWCCA 3
“I take the view that actual imprisonment for, say, 10 years is more than twice as severe as one of imprisonment for 5 years. Having regard to the sorts of terms under consideration for drug dealing a sentence of one of the longer periods is likely to have an impact on an offender’s life in terms of wife, children, job prospects and the like from which he may well never recover and these sorts of considerations also have to be borne in mind.”
Furthermore, while quantity is an important consideration, sentences are not simply proportional to quantity. A consideration of the legislation demonstrates that Parliament has eschewed such an approach and so have the courts - see e.g. R v Doan (unreported, CCA, 27 September 1996); Postiglione (1991) 57 A Crim R 301. The sentence of 8 years imposed in respect of the first count was little more than half of that to which his offending rendered him liable and given the major extent of his role, and the other matters to which I have referred particularly the existence of prior offending in this area and the relative absence of mitigating circumstances, I do not regard 8 years imprisonment as excessive for that offence.
Section 6(3) of the Criminal Appeal Act provides that:
“On an appeal … against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and in any other case shall dismiss the appeal.”
Subject to the issue of parity, I do not regard some other sentence less severe as warranted and one which should have been passed in respect of the first count.
Having regard to the appreciably lesser quantities involved, the sentences imposed in respect of the third and fourth counts should have been less but, involving criminality additional to that properly considered under the first count – on a different day and in the case of one charge a different drug - there should have been at least some accumulation of these sentences with the sentence imposed in respect of the first count.
I take the same view in relation to the sentences imposed in respect of counts 5 to 8. Firstly, they each related to different weapons and, subject to issues of totality (and, given the number of offences, convenience), there should have been some accumulation of these counts one on another. Secondly, even if the Appellant’s possession of the items the subject of these counts was in consequence of his drug dealing business, it does not follow that the sentences for these 4 counts should have been made wholly concurrent. The possession of the items added to the Appellant’s criminality and the final sentence otherwise appropriate should have been increased to reflect this fact.
The maximum penalty provided for the offences the subject of counts 5 to 7 is, pursuant to s5(1)(a) of the Prohibited Weapons Act, 14 years imprisonment and for the offence the subject of count 8, 7 years – see s6 of that Act. In these circumstances, I see no error unfavourable to the Appellant in the length of the sentences his Honour imposed on counts 5 to 8, and this even though the offences could have been prosecuted summarily and the maximum period of imprisonment available in that case was, under the sections mentioned, 2 years.
That said, it is appropriate to recognise that, although the Notice of Appeal was general and in that respect indicated that the Appellant was appealing against the sentence on counts 5 to 8 in addition to counts 1, 3 and 4, his written submissions made no complaint about the sentences imposed on counts 5 to 8.
I turn to the issue of parity and to the sentences imposed on those referred to in the grounds of appeal as the “Appellant’s co-accused”. They are identified as Bill Mouhalos and Philip Putland.
They were dealt with in South Australia for the offence under the laws of that state of possessing methylamphetamine for sale, the former having been found guilty after a trial and the latter having pleaded guilty. Both had travelled to Sydney and purchased the amphetamine from the Appellant. Mouhalos was regarded as the principal and was found to have made arrangements for the travel, for money to be sent and for future transactions. His offending was regarded as part of an ongoing enterprise. Putland was found to have played very much a secondary role. Both were arrested in South Australia during their return journey from Sydney.
Each had a long criminal history since his teens. Mouhalos was sentenced to imprisonment for 4 years and 3 months including a non-parole period of 3 years. Putland would have been sentenced to imprisonment for 3 years but, because of his plea, this was discounted to 2 years including a non-parole period of 1 year. He had not previously served a term of imprisonment.
The first and most obvious point to make is that, although the drugs the subject of the charges against Mouhalos and Putland would seem to have been acquired by them in the transaction which was the subject of the first count against the Appellant, they were sentenced in South Australia for offences against the law of that state. Both the statute law and the law which is represented by sentencing practice, is liable to differ state to state and there is no principle of parity which requires sentences in this state to reflect sentences imposed under such different regimes.
Secondly, the offence for which Messrs Mouhalos and Putland were sentenced was possession for sale. The Appellant’s offence the subject of the first count was an instance of actual sale, an offence which, because it lies in action rather than, to an appreciable degree intention, reflects greater criminality. On account both of this, and of the matters referred to in the immediately preceding paragraph, Messrs Mouhalos and Putland were not co-accused of the Appellant.
But even if it were correct to regard Messrs Mouhalos and Putland as co-accused of the Appellant, I would not be influenced to adjust the Appellant’s sentence on account of the sentence imposed on either of them. Disparity between the sentences imposed on co-accused gives rise to a discretion, not an obligation, to reduce a higher sentence to one which is comparable to a lower one – see R v Diamond (Unreported, CCA, 18 February 1993); R v Doan (2000) 50 NSWLR 115 at 120, R v Steele (Unreported, CCA, 17 April 1997) and R v Ismunandar and Siregar [2002] NSWCCA 477 at [23]. To reduce the Appellant’s sentence on the first count to one which approximated that imposed on either of Messrs Mouhalos and Putland would be to impose a sentence which was so inadequate to his offending when judged by the statutory provisions and sentencing principles that such a reduction should not occur.
As I have said, the Appellant raised the condition of his health. This seems first to have occurred when his appeal was before the Court on 3 September 2004. The matter was left with advice to the Appellant to the effect that if he wished to rely on the topic he should arrange for the gaol to forward his records to the Court.
Subsequently, one of the judges who heard the matter on that occasion resigned. It is unnecessary to record all that happened in the interim but the matter came before the Court again on 17 November last. Some documents had been provided but Wood CJ at CL then requested the Corrections Health Service to provide an up to date report. The point was also made that the Appellant had not then made any submissions directed to the topic. Subsequently a letter dated 2 December was received from the Goulburn Correctional Centre to the effect that the Appellant had refused to sign a “Release of Information” form apparently regarded as necessary for the information to be provided. A letter from the Appellant confirmed this, provided some reasons for this approach and referred to a number of health problems.
Despite this refusal, when his appeal came on for hearing on 8 December, the Appellant indicated that he still wished to rely on his medical condition. The Court heard the balance of the appeal and made directions for the supply of further evidence and written submissions. Following those directions the Appellant apparently consented to the provision of his records and a report by a Dr Jill Roberts was prepared and provided to the Respondent and the Court. By written submissions dated 24 February 2005 the Crown responded to the report but the Appellant has not done so. In the last paragraph Dr Roberts expressed her conclusions:-
“Mr Georgiou’s notes reflect regular medical and nursing review has occurred since he has been placed in HRMU. There have been instances of mild to moderate elevation in his blood pressure at times of negative interaction with Department of Corrective Services Officers however his blood pressure has mostly been stable. His notes do not reflect any significant recent deterioration in health.”
The report contains no new evidence or anything else which would justify this Court in interfering with the sentences imposed by Judge Shillington.
Giving effect to the conclusions at which I have arrived would have the effect of adding, to the eight year’s imprisonment ordered by Judge Shillington, something on account of counts 3 to 8. Even had I taken a different view on the topic of the appropriateness of his Honour’s sentence on the first count, the overall sentence would not have been reduced. Furthermore of course, any increases consequent on counts 3 to 8 would not be subject to the parity argument.
As it is, there is no appeal by the Crown and in that situation, it would not be appropriate to increase the Appellant’s sentence. For reasons indicated above, I would not interfere with the sentence imposed on count 1. The sentences imposed on counts 3 and 4 were excessive and should be reduced but, in order not to increase the Appellant’s total sentence I would leave the commencing points as the same as that for count 1. For a similar reason, I would not alter the commencing dates of the sentences on counts 5 to 8. Having regard to the fact that in his submissions the Appellant made no complaint about those sentences and I regard them as not excessive, I would not interfere with the length of those sentences.
I should add that, although no attention was given to the matter during the hearing of the appeal, I have considered the terms of s21A of the Crimes (Sentencing Procedure) Act. Apart from the matters to which I have referred, none of the matters referred to in that section requires reference here.
Accordingly I propose the following orders:-
1. Dismiss the appeal against conviction.
2. Grant leave to appeal against sentence.
3.Dismiss the appeal against the sentences imposed in respect of counts 1, 5, 6, 7 and 8.
4.Allow the appeal against the sentences imposed in respect of counts 3 and 4 and quash those sentences.
5.In respect of count 3, sentence the Appellant to imprisonment for a term of 5 years including a non-parole period of 3 years and 9 months, both such periods commencing on 3 February 1998.
6.In respect of count 4, sentence the Appellant to imprisonment for a term of 4 years including a non-parole period of 3 years, both such periods commencing on 3 February 1998.
HIDDEN J: I have had the benefit of reading in draft the judgment of Hulme J. I agree, for the reasons his Honour has expressed, that the appeal against conviction should be dismissed.
However, I would approach the application for leave to appeal against sentence differently from his Honour, although the practical result would be the same. I agree that the applicant’s arguments based upon the interpretation of the Judicial Commission statistics, parity with the two offenders’ sentences in South Australia, and the state of his health must fail.
That said, I cannot agree with Hulme J that the statistics “strongly suggest” a pattern of undue leniency – certainly in the absence of full argument about the matter. To draw such an inference from the bare figures, it seems to me, is itself bedevilled by the limitations on the use of the statistics identified in cases such as Bloomfield and AEM, to which his Honour has referred. As to parity, I would place primary emphasis upon the fact that, while the criminality of the other two men is clearly related to that of the applicant, those other men were sentenced in another jurisdiction for offences different from those of the applicant.
It is clear from his remarks that the learned sentencing judge saw the sentence of eight years with a non-parole period of six years as appropriate to reflect the criminality disclosed by all of the applicant’s offences. I agree with Hulme J that, in failing to distinguish between the criminality of the three offences of supplying drugs, his Honour fell into the error identified by the High Court in Pearce. However, I find it unnecessary to consider what might have been the appropriate sentence for each of those offences, viewed in isolation. A global sentence of eight years with a non-parole period of six years could not be said to be manifestly excessive and, if that had been the result of the partial accumulation of sentences, the applicant would have had no legitimate complaint.

Generally speaking, in cases such as this no purpose would be served by recasting the sentences for particular offences when the global sentence is an appropriate measure of the overall criminality. For the purposes of s6(3) of the Criminal Appeal Act, the focus should be upon that global sentence and, unless it is more severe than is warranted in law, this Court normally should not intervene at all. I would hesitate to say that intervention would never be called for in this situation but, in my view, this is not such a case.
I would grant leave to appeal against sentence but dismiss the appeal.

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LAST UPDATED: 19/07/2005