R v Kantzidis
[1998] VSCA 133
•30 November 1998
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 183 of 1998
THE QUEEN
v
GREGORY KANTZIDIS
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JUDGES: TADGELL, BATT and BUCHANAN, JJ.A. WHERE HELD: MELBOURNE DATE OF HEARING: 30 November 1998 DATE OF JUDGMENT: 30 November 1998 MEDIA NEUTRAL CITATION: [1998] VSCA 133 ---
CRIMINAL LAW - Sentence - Trafficking in heroin - Giretti-type business - Equal partners, one of whom pleaded guilty early and informed against the other - Disparity of 2 years in sentences of imprisonment not unwarrantable - 5½ years with 3½ years minimum not manifestly excessive.
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APPEARANCES: Counsel Solicitors For the Crown Mr P.A. Coghlan, Q.C. P.C. Wood, Solicitor for
Public ProsecutionsFor the Applicant Mr D. Grace, Q.C. Office of David Grace, Q.C. TADGELL, J.A.:
The applicant, Gregory Kantzidis, pleaded guilty in the County Court on 6 July last to one count of trafficking in heroin between 1 February and 21 July 1995 contrary to s.71(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981. The relevant maximum custodial penalty was imprisonment for 15 years. The applicant was on 13 July sentenced to be imprisoned for five-and-a-half years and three-and-a- half years was fixed as the period to be served before he should become eligible for release on parole. The learned judge treated the matter as though s.10 of the Sentencing Act applied, although it had relevantly ceased to have effect. The applicant now seeks leave to appeal against sentence.
The relevant facts giving rise to the offence were the subject of a fairly succinct summary by the learned judge in the course of his sentencing remarks, which summary I am content to adopt. An undercover operation by police commenced in February 1995 and brought to light a group of persons trafficking in heroin. The applicant and one Sofocli Orphanides were supplying heroin to a number of persons so that they in turn could on-sell it to others. Those persons, sub-dealers as the learned judge designated them, then accounted to both the applicant and Orphanides for the proceeds of their sales, retaining for themselves a small percentage of the sale's price.
There were at least four sub-dealers of this kind discovered, named Boundris, Barragin, Franklin and Delphin. In addition, Orphanides's wife was involved with the business. Each sub-dealer was given a list of customers, a pager and later a mobile telephone, and customers were in the habit of calling to place orders and arrange delivery from one of the sub-dealers. Each would service his regular customers on a daily basis and, so far as Orphanides was concerned, he was expected to pursue new and old customers when business was quiet. Codes and aliases were used which were detected in the course of a large number of telephone interceptions made by the authorities. The sub-dealers worked generally out of Orphanides's house and later, after his wife complained, out of a motel room for which Orphanides paid rental. Orphanides was responsible for keeping accounts and other book-work and he rented a hire-car or cars for use by the sub-dealers in making deliveries, paying, it was said, in excess of $10,000 for the hire of these cars during the relevant period, February to July 1995. Heroin was acquired by the applicant for the business, and for a time when Orphanides went on holiday the applicant took over the day-to-day organisation of it.
Heroin was sold by the sub-dealers at $2,300 per quarter-ounce or $300 per quarter-gram or $200 per one-eighth of a gram or $100 per one-sixteenth of a gram. The heroin acquired by the applicant for the business was of a high degree of purity, some 50 to 60 percent. There were undercover purchases by police in April, May and July 1995, and on a couple of occasions Orphanides gave undercover police samples of heroin with a high degree of purity. Those examples of trafficking instanced by the judge in the course of his reasons for sentence of the applicant were said to be examples of the trafficking carried on by the business during the relevant period. The business came to an end by the arrest of the applicant and Orphanides on 21 July 1995.
The learned judge characterised the business as one of what he called the Giretti type, exemplified by R. v. Giretti (1986) 24 A.Crim.R. 112. That is to say, there was evidence of a number of individual transactions each of which would have constituted trafficking. The business, as the judge found, was run along commercial lines with appropriate modern equipment. Orphanides was the administrator and recruited sub-dealers. The applicant had access to large amounts of heroin. It was an ongoing business brought to an end only by the arrest of the principals. His Honour found, from the material available to him and from the plea by the applicant, that the business affected large numbers of people and was designed to do so. It was, as his Honour found, a business of a major operation with a potential for large profits and potential for grave harm to the community. The applicant and Orphanides were the only partners in the business and they ran it jointly, the assumption being that they shared profits equally.
The plea before the learned judge was conducted on the footing that the applicant and Orphanides were on the same level in the hierarchy of the heroin distribution, neither being at a higher level than the other, notwithstanding that, as his Honour supposed, the supplier, or at all events the principal supplier, of heroin was the applicant. It was also apparently accepted upon the plea that, for sentencing purposes, his Honour should draw no distinction between the roles of the applicant and Orphanides in the operation. As his Honour said, and it was no doubt very obvious, the question of parity of sentences therefore arose.
It is necessary to say something of the events which preceded the plea by the applicant in July of this year. Orphanides had pleaded guilty to the same charge of trafficking in heroin as that which was preferred against the applicant and also to two other charges, one of trafficking in amphetamine on 1 June 1995 and one of possession of methylamphetamine on 21 July 1995. Orphanides pleaded guilty, however, in June 1996, to these charges, that is to say over two years earlier than the applicant had pleaded guilty to the single charge that was preferred against him. Orphanides was sentenced on 14 June 1996 by the same judge who later sentenced the applicant. Upon the charge of trafficking in heroin Orphanides was sentenced to be imprisoned for three years and six months, on the charge of trafficking in amphetamine he was sentenced to 12 months' imprisonment and on the charge of possession of methylamphetamine he was sentenced to three months' imprisonment, all concurrent. The sentence to be served by Orphanides therefore was one of three years and six months and 18 months was fixed as the non-parole period.
There were sentenced, along with Orphanides, his wife, Boundris, Barragin and Franklin. Each of these received a sentence lesser than that received by Orphanides and, in the case of each of them, that part of the sentence which had not been served by the time the sentence was imposed was wholly suspended.
The applicant had been committed for trial in July 1996 on a number of charges, after a contested thirteen-day committal hearing during which Orphanides and his wife gave evidence for the Crown. In August 1996 a presentment was filed against the applicant alleging two counts, one of trafficking in heroin and the other of making a threat to inflict serious injury, to which the applicant indicated that he would plead not guilty. No resources of the County Court being available to conduct the trial, his trial was delayed, but ultimately he pleaded guilty in July 1998 as I have described, upon an amended presentment.
The circumstances in which the applicant changed his mind, resulting in a change of plea, were summarised before the judge upon the hearing of the plea. Apparently the applicant desired to contend that Orphanides had over-emphasised his (the applicant's) part in the business jointly conducted between them and for that reason wanted a trial at which he could give evidence. It was said to the judge that at length, after it had been explained to him that the court would be apprised of the applicant's apprehension that Orphanides was exaggerating the applicant's role, the change of plea resulted.
The greater emphasis of the applicant's argument in this Court this morning was that the disparity between his sentence and that of Orphanides for the offence of trafficking in heroin was unwarrantable. The learned judge, as he indicated, was at some pains to draw what he saw as appropriate distinctions between the two men so far as they affected the charge of trafficking in heroin. The two had much in common for sentencing purposes. Orphanides was aged about 33 at the time of his offences and the applicant about 26, having been born on 13 January 1969, but the judge found that there was no reason to think that Orphanides had been dominant on account of his age. The two men were treated by the learned judge as essentially equal partners in their joint enterprise with equal responsibility for it. That was as it was put by counsel for the applicant upon the plea. In the course of his reply this morning, Mr Grace, who appeared before us on behalf of the applicant, made a point which was not really a point in reply, I think. He submitted that the judge might, upon sentencing Orphanides, have misapprehended or incorrectly characterised Orphanides's place in the hierarchy as between himself and the applicant. We were referred to portion of the learned judge's sentencing remarks in the case of Orphanides, particularly at the foot of p.3 and the top of p.4. I shall not refer in terms to what the judge there said. Having looked at it, I am not persuaded that the judge made any error in characterisation of the kind contended for.
Orphanides had no prior convictions. The applicant had some, incurred as a youth (they were not drug related), two of dishonesty and one, I think, a street offence; but the judge, on the applicant's sentence, regarded them as "inconsequential in the circumstances". Counsel for the respondent this morning submitted that we should not, by those remarks of the learned judge, treat him as having put to one side entirely the applicant's prior convictions. The judge was entitled to treat, and did express himself as treating, Orphanides as a man of hitherto unblemished record. The same could not be said for the applicant, although the judge no doubt did not treat the prior convictions as factors aggravating his position for sentencing purposes. In that submission the Crown may very well be correct. There seems, however, very little to be gained in pursuing the point.
The learned judge treated the substantial matter that differentiated Orphanides from the applicant as the sentencing discount he was entitled to receive for his co-operation with and assistance to the authorities and his willingness to give, and his having given at the committal proceeding, evidence against him. The learned judge pointed out in his sentencing remarks in relation to the applicant that, when dealing with Orphanides two years earlier, he had assessed his assistance to the authorities as "of great value" and such "as to place him in real and ongoing danger", requiring protective custody and subsequent entry into the witness protection programme. The judge said that he had formed the opinion that the informer's discount Orphanides should receive should be "significant", and that he had, when sentencing him, stated clearly that he was receiving a sentence "very considerably less indeed" than he would have received without such a discount, and that the disparity between his effective sentence and those of the underlings, Barragin, Boundris and Franklin, was "not nearly so great as it otherwise would have been" had it not been for the informer's discount. I take that to mean that, but for the informer's discount that Orphanides received, his sentence would have been far greater than those of the sub-dealers than it was. His Honour did not in terms quantify the sentencing discount that Orphanides received on account of his co- operation with the authorities.
Mr Grace this morning acknowledged that his Honour had been entitled to award a heavier sentence to the applicant than that which he awarded to Orphanides, but submitted that the discrepancy was too much having regard to what is sometimes called the principle of parity. This was in essence ground 5, which I need not read. Grounds 2, 3 and 4 of the application were treated by counsel as particulars of ground 5, which also I need not read, for, so far as they were the subject of argument, they are otherwise covered.
The so-called principle of parity means, as it seems to me, no more than a recognition that, relevant matters being equal, co-offenders should be entitled to expect equal sentences, and that therefore any substantial discrepancy between their sentences should be capable of rational justification. The difference in the head sentences of the applicant and Orphanides was two years. The difference in the periods of parole allowed for in the two sentences was also two years. Mr Grace attempted, by reference to percentages, to show that the portion of the head sentence that was to be served before parole was greater in the case of the applicant than in the case of Orphanides. He then asked the rhetorical question whether the difference in those two proportions was manifestly excessive, and answered that it was. Why? Because the learned judge had not given proper weight to the principle of parity. This, if I may say so, seemed to me to be a somewhat circular argument. I must also say that I did not derive from it with its arithmetical component anything in favour of the applicant that I could not derive without it.
The question for us is whether the difference in the two sentences, looked at proportionally or absolutely, can be seen to be unwarrantable. While the learned judge apparently relied chiefly on the informer's discount as a mitigating factor in the case of Orphanides that was not available to the applicant, he referred also to the early plea of guilty which Orphanides had made.
Counsel for the respondent before us relied heavily on these two factors, the informer's discount and the early plea of guilty, in combination as having justified a heavy discount. Counsel added to that Orphanides's characterisation as a first offender of unblemished record, which the applicant was not. In summary, it was said against the applicant that, whatever features the applicant had resulting in an exercise of discretion in his favour, those of Orphanides were, it was said, bigger and better. It was submitted on behalf of the respondent that one might even begin by supposing that the learned judge, when considering what sentence to award to the applicant, started with a sentence of eight years' imprisonment, reducing it by reference to the factors which deserved to be treated as factors of mitigation, and in that way a sentence of five-and-a-half years for the offence, giving proper effect to all mitigating factors, would be justified. It is, of course, dangerous to play with figures in that way, and counsel for the respondent recognised as much. It is a matter of impression, an intuitive process, in deciding whether a discrepancy between what the judge awarded to the applicant and that which he awarded to Orphanides was rationally justifiable. I can only say that, in my opinion, the two-year disparity between head sentence and between minimum term in the case of the two has not been shown to be beyond the range of discrepancy founded on the obvious differences between the two.
Counsel for the applicant went on to rely on grounds 1 and 6 to 9, either independently of the parity point or in combination with it. Ground 1 was that the sentence was in all the circumstances manifestly excessive. Grounds 6 to 9 were treated in essence as particulars of ground 1. It was contended that the judge erred in having no or no sufficient regard to the delay between arrest and sentence, to remorse in the applicant, to matters personal to him and, in particular, to the anxiety reaction suffered by him following his arrest, and to the plea of guilty.
It is plain enough that there had a been delay of three years between the time of arrest and the time of sentence. That was explained to some extent by the applicant's own choice, from which he ultimately resiled. The applicant was entitled to have had taken into account that there was the burden hanging over him of the prospect, the virtually certain prospect, of a prison sentence. He had been released on bail in August 1996, having been in custody for about 13 months following his arrest. Following the grant of bail he was able ultimately to obtain employment and to take some steps to rehabilitate himself. He was a family man who supported his family. The judge took into account each of the matters I have mentioned but, it was said, he did so insufficiently.
Then it was said that no heed or insufficient heed was paid by the judge to the applicant's remorse which he had shown. The judge expressed himself to be unsatisfied that remorse had been shown, and I am disposed to agree with him. Certainly there was evidence that the applicant had shown a certain sorrow for himself. There was not, I think, appreciable evidence from which one could draw a conclusion that he harboured regret for his infraction of the law or for the damage and potential damage to others as a consequence of it. I think the judge cannot be criticised for being unimpressed by any demonstration of remorse on the part of the applicant.
Then there was the anxiety reaction which the applicant is said to have demonstrated as a consequence of the circumstances of his arrest by the police in July 1995. The evidence of this came largely from Mr Jeffrey Cummins, psychologist, relaying what the applicant had told him in the course of a number of interviews. Mr Cummins concluded that the applicant was suffering from post-traumatic stress disorder as a result of the circumstances of his arrest and of his incarceration, and exacerbated, I think, by the apprehension with which he had to contend over a number of years that he would be returned ultimately to custody. The judge frankly stated that he was at a loss to know what to make of this disorder. He said that, whilst he would bear it in mind, it would not figure prominently in his considerations. It was submitted on behalf of the applicant that the matter ought to have figured prominently in his Honour's considerations and that he was in error not to have allowed it to do so. I must say that the evidence is to my mind unsatisfactory. It is obviously hearsay, but, more than that, it tells one side only of the story, so far as it does even that. This, I think, is the kind of case where, if something were to be made of this point, there ought to have been other evidence called, but preferably, of course, from the applicant himself. In all the circumstances, the material before the judge which was said to explain this really did not explain it, and I cannot criticise the judge for discounting it.
Then there was the plea of guilty to which the judge, according to the submission, accorded insufficient weight. The judge did accord it some weight. It was a very late plea and the circumstances in which it was made were taken into account by him. I cannot see that the judge erred in the sentence he passed having regard to the late plea of guilty.
All in all, I am not satisfied that any ground is made out, and in my opinion the application should be dismissed.
BATT, J.A.:
I agree. I wish to add the following few supplementary comments of my own. As to the suggestion made by Mr Grace in reply that his Honour, when sentencing Orphanides, had incorrectly characterised that man's part, in addition to what Tadgell, J.A. has said, I would say that it is to be noted that when sentencing the applicant his Honour treated him as being on an equal footing with Orphanides in respect of the business of heroin distribution: thus the effect of earlier incorrect characterisation, even if there were any, was nullified.
Mr Coghlan, for the respondent, has satisfied me by his submissions that the non-parole period which his Honour fixed in the case of Orphanides was not weighted by his Honour by reference to the two other convictions sustained by Orphanides arising out of the police surveillance and apprehension of him.
With regard to the applicant's depression and anxiety reaction, his Honour was, in my view, entitled to give that condition little weight, particularly when the applicant himself had given no evidence about it. It did not bear on culpability, obviously. So far as it might have been relevant in the other way possible, that is, so far as it might have made time in prison more burdensome on the applicant than on other prisoners, the evidence was clear that medication was effective to treat it.
In my view, none of the grounds is made out.
BUCHANAN, J.A.:
I agree that the application should be dismissed, for the reasons stated by my
brethren.
TADGELL, J.A.:
The application is dismissed.
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