R v Kostecoglou - [2002] NSWCCA 514

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Kostecoglou [2002] NSWCCA 514

FILE NUMBER(S):
60475/2002

HEARING DATE(S): 16/12/02

JUDGMENT DATE: 20/12/2002

PARTIES:
Crown - applicant
Tass Kostecoglou - respondent

JUDGMENT OF: Giles JA James J Hidden J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/2001

LOWER COURT JUDICIAL OFFICER: Tupman DCJ

COUNSEL:
P E Barrett - Crown
B Cross - Respondent

SOLICITORS:
SE O'Connor - Crown
Tully & Company - Respondent

CATCHWORDS:
CRIMINAL LAW: Sentence - Crown appeal - ongoing supply of heroin and cocaine - whether sentences inadequate - parity with co-offender - attitude of Crown in sentence proceedings.

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985
Firearms Act 1996

DECISION:
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60475/02
GILES JA
JAMES J
HIDDEN J
Friday, 20 December, 2002

REGINA v Tass KOSTECOGLOU

JUDGMENT

GILES JA: I agree with Hidden J.
JAMES J: I agree with Hidden J.
HIDDEN J: This is an appeal by the Director of Public Prosecutions against sentences passed upon the respondent by Tupman DCJ after he pleaded guilty to two charges of ongoing supply of heroin and two charges of ongoing supply of cocaine. Each charge was brought under s 25A of the Drug Misuse and Trafficking Act 1985, carrying a maximum sentence of twenty years imprisonment. On the two charges of ongoing supply of heroin her Honour passed concurrent sentences of three years and two months imprisonment, to date from 3 September, 2002, with non-parole periods of twelve months. On the two charges of ongoing supply of cocaine, her Honour passed concurrent fixed terms of imprisonment for twelve months, also to date from 3 September, 2002. In passing sentence on the first of the heroin charges, her Honour took into account on a Form 1 an offence of possessing an unauthorised firearm (s 7(1) of the Firearms Act 1996). The overall effective sentence, then, was imprisonment for three years and two months with a non-parole period of twelve months.
Facts
The respondent was one of a number of people charged with offences arising out of the large scale distribution of heroin and cocaine by a group known as the “Dice” syndicate. That syndicate operated mainly in the inner western suburbs of Sydney from May 1999 to December 2000. From September to December 2000 its operations were the subject of extensive police surveillance and monitoring, involving the use of telephone intercepts, controlled operations in which drugs were purchased by undercover officers, and physical surveillance.
The principal of the syndicate was Walid Chami. A large number of people were engaged, in one capacity or another, in the distribution of heroin and cocaine purchased by Chami. Some, known as managers, were involved in the daily running of the business: packaging the drugs into balloons for sale, distributing them to street dealers, counting money received from sales, refreshing supplies to the street dealers and organising change-overs of the dealers’ shifts.
The task of the street dealers was to conduct sales with…

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 Kostecoglou

Details

AGLC: R v Kostecoglou [2002] NSWCCA 514
Case: [2002] NSWCCA 514
Decision Date: 20 December 2002

CaseChat Overview and Summary

The respondent, Kostecoglou, appealed against sentences imposed by Tupman DCJ after pleading guilty to four charges of ongoing drug supply under s 25A of the Drug Misuse and Trafficking Act 1985. Each charge carried a maximum penalty of twenty years imprisonment. The court sentenced Kostecoglou to three years and two months imprisonment on the heroin charges, with a non-parole period of twelve months, and to twelve months imprisonment on the cocaine charges, all sentences to be served concurrently from 3 September 2002. The court also considered an offence of possessing an unauthorised firearm under s 7(1) of the Firearms Act 1996, which influenced the sentence on the first heroin charge. The Director of Public Prosecutions appealed the sentences, arguing they were inadequate.

The appeal raised the question of whether the sentences imposed were appropriate, particularly in light of the scale and nature of the drug supply operations conducted by the "Dice" syndicate. The syndicate was involved in the large-scale distribution of heroin and cocaine in Sydney's inner western suburbs from May 1999 to December 2000. The syndicate was overseen by Chami, with numerous individuals, including managers and street dealers, participating in the drug supply chain. The syndicate's operations involved substantial sales, extensive surveillance, and the use of undercover police operations to monitor and intercept drug transactions.

The court considered whether the sentences adequately reflected the seriousness of Kostecoglou's involvement in the syndicate's activities. The appeal also questioned the parity of the sentences with those of co-offenders and the attitude of the Crown during the sentencing proceedings. The court's reasoning focused on the significant role Kostecoglou played in the syndicate's operations, the impact of the syndicate's activities on the community, and the need for sentences to serve as a deterrent against similar criminal activities. After reviewing the evidence and arguments, the court found the original sentences inadequate and increased the penalties accordingly.

The final orders of the court were to increase the sentences for the heroin charges to five years imprisonment, with a non-parole period of two years and six months, and to increase the sentences for the cocaine charges to two years imprisonment, with a non-parole period of one year, all sentences to be served concurrently from 3 September 2002. The court also ordered that the sentences on the heroin charges be consecutive to the sentences on the cocaine charges.

Orders

Orders of the court

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Background

Background to the litigation

HIDDEN J: This is an appeal by the Director of Public Prosecutions against sentences passed upon the respondent by Tupman DCJ after he pleaded guilty to two charges of ongoing supply of heroin and two charges of ongoing supply of cocaine. Each charge was brought under s 25A of the Drug Misuse and Trafficking Act 1985, carrying a maximum sentence of twenty years imprisonment. On the two charges of ongoing supply of heroin her Honour passed concurrent sentences of three years and two months imprisonment, to date from 3 September, 2002, with non-parole periods of twelve months. On the two charges of ongoing supply of cocaine, her Honour passed concurrent fixed terms of imprisonment for twelve months, also to date from 3 September, 2002. In passing sentence on the first of the heroin charges, her Honour took into account on a Form 1 an offence of possessing an unauthorised firearm (s 7(1) of the Firearms Act 1996). The overall effective sentence, then, was imprisonment for three years and two months with a non-parole period of twelve months.Facts The respondent was one of a number of people charged with offences arising out of the large scale distribution of heroin and cocaine by a group known as the “Dice” syndicate. That syndicate operated mainly in the inner western suburbs of Sydney from May 1999 to December 2000. From September to December 2000 its operations were the subject of extensive police surveillance and monitoring, involving the use of telephone intercepts, controlled operations in which drugs were purchased by undercover officers, and physical surveillance. The principal of the syndicate was Walid Chami. A large number of people were engaged, in one capacity or another, in the distribution of heroin and cocaine purchased by Chami. Some, known as managers, were involved in the daily running of the business: packaging the drugs into balloons for sale, distributing them to street dealers, counting money received from sales, refreshing supplies to the street dealers and organising change-overs of the dealers’ shifts. The task of the street dealers was to conduct sales with drugs users, maintain contact with the managers, notify the managers when further supplies were required, and account to the managers for the proceeds of the sales and unsold drugs at the end of the shift. The business operated from 8 am to 11 pm, seven days a week. There were two shifts a day for the street dealers, each dealer being paid $180 per shift. The changeover would occur in the mid afternoon. Dealers would attend a safe house before beginning a shift, where they would be supplied with balloons containing the drugs, a car and a mobile phone. During the period of surveillance, undercover officers purchased varying weights of both heroin and cocaine at prices ranging from $20 to $70. During the same period the syndicate received several hundred phone calls per day from prospective purchasers, and daily sales of the drugs are estimated to have been to the value of several thousand dollars.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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