R v Kalpaxis

[2001] NSWCCA 119

Reported Decision: 122 A Crim R 320

New South Wales

Court of Criminal Appeal

CITATION:	R v Kalpaxis [2001] NSWCCA 119
FILE NUMBER(S):	CCA 60057/01
HEARING DATE(S):	2 April 2001
JUDGMENT DATE:	2 April 2001
PARTIES :	R v Angelo Kalpaxis
JUDGMENT OF:	Stein JA at 1; Wood CJ at CL at 26; Studdert J at 27

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0893
LOWER COURT JUDICIAL OFFICER :	Woods DCJ

COUNSEL :	R Cogswell SC/B Baker (Crown) S J Odgers SC (Respondent)
SOLICITORS:	S E O'Connor (Crown) Macquarie Lawyers (Respondent)
CATCHWORDS:	CRIMINAL LAW - offering to supply cocaine - Drug Misuse and Trafficking Act 1985 - no actual supply - no intent to supply - no ability to supply - CRIMINAL LAW - sentencing - discretion of trial judge - suspended sentence - exceptional and extraordinary case - ND
LEGISLATION CITED:	Criminal Appeal Act 1912, s 5D Drug Misuse and Trafficking Act 1985, s 3, s 25
CASES CITED:	Regina v Dendic and Mazzeo (1987) 34 ACrim R 40
DECISION:	Appeal dismissed

CRIMINAL APPEAL
60057/01

STEIN JA

WOOD CJ at CL
STUDDERT J

Monday, 2 April 2001

R v Angelo KALPAXIS

JUDGMENT

1 STEIN JA: This is a Crown appeal pursuant to s 5D of the Criminal Appeal Act 1912 against a sentence imposed by his Honour, Judge Woods QC in the District Court on 1 December 2000.

2 The respondent, Angelo Kalpaxis, pleaded guilty to a supply (or more accurately the offering to supply) of a large commercial quantity of cocaine contrary to s 25 (2) of the Drug Misuse and Trafficking Act 1985. The offence is liable to a maximum penalty of life imprisonment and/or a fine of $550,000.

3    The respondent was sentenced to imprisonment for a term of two years and the execution of the sentence was suspended for the term of the sentence on condition that he enter into a good behaviour bond for the term of the sentence. The respondent had spent five months and 10 days in custody prior to sentence and referrable to the offence. His Honour took this into account in sentencing the respondent.

4    The facts placed before the Court were agreed and, insofar as material to the appeal, are as follows: In 1995 the respondent met a person called Raymond and in May 1997 Raymond received a call from the respondent who was then in Greece. They had apparently kept contact before the respondent and his family went to Greece where the respondent's father was dying of cancer. In that conversation the respondent said ‘I have some good news for us. Can you handle the marketing of one hundred keys?’ This constitutes the offence of supply the subject of the offence. Raymond understood the respondent to be referring to cocaine and he also understood the term ‘keys’ as commonly used to refer to kilograms of illegal drugs.

5    Raymond then contacted the police and was later introduced to National Crime Authority (NCA) investigators and became a registered informant. Raymond maintained contact with the respondent whilst he was overseas and, on the 4 June 1997 in another telephone conversation, the respondent said that there was 150 coming in in October in sealed packages and percentage 98.

6    There was another telephone conversation on the 7 July 1997 between the respondent and Raymond about the supply of the cocaine in October. The respondent returned to Australia from Greece and met Raymond at Prospect on the 10 July 1997. During that time another conversation took place wherein the respondent said that he had control of the ‘150’, that a boat would be used to import the drugs to Australia and that:

When the stuff's here there's no problems selling it, that's the least of our worries, it is just a matter if you've got someone safe why would you show your face to ten different people?

7    During that conversation the respondent indicated to Raymond that he would need $10,000 to get back to Greece to organise the supply. A little later on the 16 July the respondent and Raymond met again at Prospect and in that conversation Raymond gave to the respondent air tickets to Greece and $7,950. The money and ticket had been provided by the NCA.

8    During the conversation the respondent showed Raymond a photograph of the boat named Iliki which he indicated would be purchased in Greece to transport the cocaine to Australia. Three days later Raymond drove the respondent to the airport to catch the plane to Greece and further organise the cocaine. This conversation was recorded and contains other detail.

9    Over the following months the two of them maintained contact relative to the supply of cocaine and on 10 September 1997 they met again at Prospect. Again this meeting was recorded and the respondent told Raymond that the boat would be leaving with the drugs in 10 days. This did not occur and during the next few months there were further conversations between the two of them and in the last conversation about the supply the respondent indicated that it had been delayed. This conversation occurred on 17 December 1997.

10    The facts then record that there were three further contacts between the respondent and Raymond in March 1998, the last of these occurring on the 25 March 1998 where nothing occurred in relation to the provision of the cocaine. On 27 March 1998 a search warrant was executed at the respondent's home but nothing relevant to this offence was located.

11    The other matter recorded in the agreed statement of facts is that the Crown accepts that there was no evidence that the respondent could in fact supply the amount of drugs offered.

12    The respondent is aged 52 years and there are two matters on his criminal record, a false pretences offence which occurred some 23 years ago and in respect of which the respondent was required to enter into a recognisance to be of good behaviour for two years. The other was a charge of supplying a prohibited drug, namely amphetamines, which occurred in 1992 and in respect of which he was sentenced in 1993 to 200 hours community service.

13    In relation to the air ticket and sum of money that was given to him by Raymond, the respondent made restitution to the NCA in the sum of $10,070.

14    In my view the offence needs to be put in its true perspective and context. In this regard, his Honour made the following findings at pp 8 and 9 of his remarks on sentence:

1. That the offender did not intend to supply 100, 150 or 200 kilograms of cocaine or indeed any cocaine.
2. That there was no actual supply of cocaine or anything else.
3. That the proposal by Mr Kalpaxis was never genuine.
4. That not only did the respondent not have the intention to supply cocaine, he did not have the ability to supply cocaine.

15    Those findings, it seems to me, were all open to his Honour on the evidence and the agreed facts.

16    His Honour described the case as ‘extraordinary’. Indeed it is. From beginning to end the respondent was carrying on a ruse to obtain money from the person Raymond. The purpose was clear on the evidence, that is, so he would be able to spend time with his father and family in Greece whilst his father was dying of cancer. His father succumbed on the 8 January 1998. It needs to be emphasised that the $10,000 that the respondent obtained from Raymond had nothing to do with any drug deal.

17    In written submissions the appellant is critical of his Honour for describing the true character of the offence as more akin to obtaining money by a false pretence. It is submitted that his Honour made an erroneous classification of the offence and that this led him to impose a sentence which was far too short and to exercise his discretion to direct that the execution of the sentence be suspended. In my view, what his Honour said was no more than a comment which, with respect, was appropriate.

18 Given the wide definition of supply in s 3 of the Drug Misuse and Trafficking Act, the undisputed facts came within s 25. However, this does not require that a lengthy term of imprisonment be imposed. Indeed, the facts belie this. While Regina v Dendic and Mazzeo (1987) 34 ACrim R 40 is authority for the proposition that the circumstances encompass an offence of offering to supply notwithstanding that there was no intention of actual supply, the facts relating to the two offenders in that case bear no real parallel with the instant case. In particular, the subjective factors are to be distinguished as indeed are the objective circumstances of the offence.

19    Some of the subjective circumstances relating to the respondent have already been mentioned but it should be added that there is ample medical evidence that at the time of the offence the respondent was suffering from severe depression. According to Dr Roberts the depression was accompanied by psychosis in which there was a substantial departure from reality (see appeal book 81).

20    In my view, his Honour was entitled to describe the present case as exceptional and extraordinary. It is, and given the facts and circumstances, the concern of the Legislature with the actual supply of drugs has little application.

21 The offence itself must be seen as falling at the least serious end of the spectrum encompassed by the breadth of the provision and the definition of supply in s 3. It needs to be emphasised again that there was no actual supply nor any intention or ability to supply drugs.

22    There is, it seems to me, an argument that offences of this nature, which apparently occur infrequently, ought be dealt with by a separate section of the legislation which can have as its maximum penalty a different penalty than life imprisonment. There is concern, that at least I have, that if it continues in the present situation there may be a skew in the JIRS statistics relating to offences under this provision which may have the capacity to mislead courts in the future.

23    Returning to this particular appeal I can discern no error of principle by his Honour. In my view the sentence cannot be said to amount to the kind of inadequacy in sentencing standards as to constitute an error.

24    It cannot be said that the sentencing discretion has been improperly exercised and, given the discretionary nature of the exercise, I do not see that the intervention of the Court can be justified.

25    In my view the appeal should be dismissed.

26    WOOD CJ AT CL: I agree and I similarly share his Honour's concerns as to the appropriateness of charging offences of the present kind under supply provisions.

27    STUDDERT J: I also agree.

28    STEIN JA: The order of the Court will be the appeal is dismissed.