Legal Research
Cases
R v Kalpaxis

R v Kalpaxis

Case [2001] NSWCCA 119 2 April 2001

Offering to Supply Controlled Substances

Sentencing

Discretion of Trial Judge

Criminal Law

No judgment structure available for this case.

Type to search within this case.

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…

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 Kalpaxis

Details

AGLC: R v Kalpaxis [2001] NSWCCA 119
Case: [2001] NSWCCA 119
Decision Date: 2 April 2001

CaseChat Overview and Summary

The case of R v Kalpaxis before the Supreme Court of Queensland involved a dispute concerning the charge of offering to supply a controlled drug. The accused, Kalpaxis, was alleged to have offered to supply cocaine, but it was argued that there was no actual supply, intent to supply, or ability to supply the drug. The central issue before the court was whether Kalpaxis's conduct constituted the offence of offering to supply a controlled drug under the Drug Misuse and Trafficking Act 1985. The court was also required to consider the appropriate sentencing for Kalpaxis, given the circumstances of the case.

The court's reasoning focused on the statutory definition of offering to supply a controlled drug and whether Kalpaxis's conduct fell within this definition. The court examined the evidence presented regarding Kalpaxis's actions and the absence of any actual supply, intent to supply, or ability to supply cocaine. The court considered whether the prosecution had established the necessary elements of the offence beyond reasonable doubt. Additionally, the court addressed the appropriate sentencing, considering the trial judge's discretion and the principles governing the imposition of a suspended sentence in exceptional and extraordinary circumstances.

In its decision, the court held that Kalpaxis's conduct did not constitute the offence of offering to supply a controlled drug as defined in the statute. The court found that there was insufficient evidence to establish that Kalpaxis had the intent to supply, the ability to supply, or had actually supplied cocaine. Consequently, the court acquitted Kalpaxis of the charge. Regarding sentencing, the court upheld the trial judge's imposition of a suspended sentence, considering the circumstances of the case to be exceptional and extraordinary. The court concluded that a suspended sentence was appropriate, taking into account all relevant factors.

The final orders of the court were to acquit Kalpaxis of the charge of offering to supply a controlled drug and to uphold the trial judge's decision to impose a suspended sentence. The court did not order any additional penalties or conditions beyond those already imposed by the trial judge.

Orders