R v Kandarakis

[2000] QCA 275

[2000] QCA 275
COURT OF APPEAL

de JERSEY CJ
THOMAS JA
MULLINS J

[R v KANDARAKIS]

CA No 110 of 2000

THE QUEEN

v.

STEVEN KANDARAKIS  Applicant

BRISBANE

..DATE 13/07/2000

JUDGMENT

MULLINS J:  This is an application for leave to appeal against the sentence imposed on the applicant for trafficking in heroin between 2 October 1987 and 23 December 1987.  He was sentenced to six years' imprisonment with a recommendation for parole after two years.

The applicant seeks to have only the recommendation for parole varied.  The applicant contends that the range for the recommendation for parole which should have been made was six to 12 months and seeks for this Court to vary the recommendation to six months.

There were unusual features to this sentence.  Although the applicant had been arrested on 22 December 1987, he absconded after being granted bail in May 1988.  He used a false passport to flee to Greece and lived an exemplary life there returning to Australia in November 1998.

In relation to this offence, he surrendered to authorities in February 1999 and was granted bail on conditions.  He pleaded guilty and was sentenced on 3 April 2000. 

The applicant was born on 9 June 1950.  He had come to Brisbane in 1987 after his marriage breakdown.  He had little money and attempted to develop a business which was unsuccessful.  The applicant's elder brother, Tony, was involved in the drug trade.  He suggested to the applicant that he could get some easy money by being involved in supplying drugs.

Because of his brother's importuning and his poor financial circumstances the applicant acted as he did in the period, the subject of the charge.  The applicant was apprehended as a result of a covert police operation.  At the same time
co-offenders Maginley and Russo were also arrested.

The details of the drugs found in the applicant's possession, and the amount of cash from drug trafficking found in the applicant's possession, or admitted to by the applicant is as set out in the learned sentencing Judge's sentencing remarks.  The applicant was not a user of drugs but was using the proceeds from supplying heroin to improve his lifestyle. 

Russo was convicted after trial and, on re-sentence, a sentence of six years' imprisonment with a recommendation for release on parole after two years was ordered.  The recommendation for parole took into account that Russo was a user and he had spent a year in prison prior to conviction.

The reason given by the applicant for absconding whilst on bail was that his life was at risk if he were to go to prison because of things his brother Tony had done.  His brother Tony was murdered whilst in prison in 1996.  It was after Tony's death that the applicant decided to return to Australia to look after his mother and be reunited with his family.

On sentencing the learned sentencing Judge took into account the plea of guilty and the remorse shown by the applicant in returning to Australia voluntarily, surrendering to the Court, and pleading guilty.  It was submitted that because of Tony's involvement in the drug trade, and his association with the police, the applicant's period in prison may be a little harder than otherwise would be the case.  That was taken into account by the learned sentencing Judge.

The learned sentencing Judge stated that "Absconding from custody is, in my view, a serious, aggravating factor."  That statement was made in the context of the learned sentencing Judge being asked to take into account the applicant's good behaviour over the previous 10 to 12 years which only arose because of the applicant having absconded from custody.  The learned sentencing Judge determined that the appropriate sentence was that which was ultimately imposed by the Court on the co-offender Russo. 

On this application the applicant submits that his absconding was balanced by his voluntary return to Australia and his surrender to authorities, and that his obvious rehabilitation whilst in Greece together with his absence of prior criminal conduct, should have resulted in a much earlier recommendation for release on parole.

It is apparent that the learned sentencing Judge did not take into account the applicant's good behaviour over the previous 10 to 12 years when that came about only because of the fact that the applicant absconded from custody.  That is the only approach which can be taken to circumstances which arise as a consequence of absconding.  To do otherwise would be to reward the applicant for absconding.  The reason put forward by the applicant for his absconding does not alter the situation.

The learned sentencing Judge otherwise took into account all facts relevant to determining an appropriate recommendation for early parole.  It was not manifestly excessive to fix two years as the period of imprisonment before recommendation for eligibility for parole.  I therefore would refuse the application.

THE CHIEF JUSTICE:  I agree.

THOMAS JA:  I agree.  I would simply reserve my own
position on the question of whether it might be possible
to regard a degree of rehabilitation as a mitigating factor notwithstanding that absconding had occurred.

THE CHIEF JUSTICE:  The application is refused.

-----