R v Lyberopoulos - [2017] SASC 92

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v LYBEROPOULOS
[2017] SASC 92
Judgment of The Honourable Justice Peek
20 June 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Application for permission to appeal against sentence.
The applicant pleaded guilty to three counts of trafficking in a commercial quantity of cannabis contrary to s 19A of the Criminal Law Consolidation Act 1935. A District Court Judge sentenced the applicant to a single sentence of nine years imprisonment, reduced from ten years on account of the applicant’s late guilty plea, with a non-parole period of six years nine months.
The applicant sought permission to appeal on the sole ground that the sentence was manifestly excessive.
Held per Peek J (refusing permission to appeal):
Having regard to the relevant authorities, all of the personal circumstances of the applicant, and the applicant’s continued flouting of the law concerning trafficking in cannabis, the sentence is clearly within the range of sentencing discretion that was available to the sentencing Judge. It is not reasonably arguable that the sentence is manifestly excessive, and accordingly, permission to appeal is refused.
Criminal Law Consolidation Act 1935 s 19A, referred to.
House v The King (1936) 55 CLR 499; R v Hunt; R v Yates [2012] SASCFC 74; R v Mema [2011] SASCFC 56; R v Mustac [2013] SASCFC 21; R v Faehrmann (2014) 118 SASR 549; R v Robins [2016] SASCFC 55; R v Hucks [2016] SASCFC 92; R v Skinner [2016] SASCFC 106; R v Young [2016] SASCFC 102; R v Donald [2016] SASCFC 117; R v Standley [2016] SASCFC 141; R v Dell [2016] SASCFC 156, considered.

R v LYBEROPOULOS
[2017] SASC 92
Criminal
PEEK J.

The applicant pleaded guilty to three charges of trafficking in a commercial quantity of cannabis contrary to s 19A of the Criminal Law Consolidation Act 1935. The maximum penalty for that offence is life imprisonment.
The sentencing of the applicant
On 6 April 2017, the applicant was sentenced by District Court Judge Tilmouth to nine years imprisonment with a non-parole period of six years nine months for the three offences. The Judge summarised the facts thus:
The first, count 6, relates to the supply of 10 pounds of cannabis organised by you for delivery interstate to the recipient NS, between late May 2014 and 1 June 2014 as detected by telephone intercepts. The second, count 8, involves the supply of 14 pounds of cannabis from South Australia to the Northern Territory to NS between mid June and mid July 2014. The third count, count 10, took place between mid and the end of July 2014 and involved the seizure of 14 pounds of cannabis at the Darwin Airport, the recipient again being NS. It is further accepted that you played a minor role inasmuch as you made telephone contact in relation to an uncharged transaction, count 14, involving the supply of 30 pounds of cannabis in the Northern Territory.
The quantity of cannabis involved over the period of about two and a half months, together with the combined potential value of between $50,000 and $100,000 or more, renders these offences particularly serious.
…
Your role in these offences was to co-ordinate communications between the three persons involved so as to facilitate the three specific transactions charged. These involved discussions about pricing, delivering and negotiating the transaction on each occasion.
The appellant was born on 6 December 1948 and is presently aged 68 years. He suffered two minor strokes in 2014 but has made a good recovery. He has behaved well while in custody. Although he has proffered various reasons for his offending over the years, it appears that he now accepts responsibility for his criminal behaviour. The Judge took into account the contents of a medical report and a pre-sentence report. In the medical report, Mr Mark Reid observes:
There were no clinical indications of any major mood disorder, such as depression or anxiety, rather his demeanour was consistent with a considerable degree of concern about his current situation, but without any psychiatric features. Similarly, there were no indications of any disorder of thinking, either in form or content, which would suggest an underlying Psychotic Disorder.
…
I could not identify any form of mental illness, nor any intellectual disability. Furthermore, any residual effect from his stroke (disability or impairment of the mind resulting from senility), is now quite minor or subtle.
In a similar vein, the writer of the pre-sentence report aptly observes:
Although Mr Lyberopoulos is recorded as having suffered mental health and physical health problems and that he indulged in criminal activities for the sake of his son, there has to be a stage reached where he takes responsibility for his own actions, and it would appear that he has reached that stage now.
The defendant does not appear to have a substance abuse problem to explain his actions, and therefore his criminogenic factors must be seen to revolve around his own anti-social attitudes/values, possible susceptibility to the influence of negative peer pressure and lack of problem-solving skills.
The Judge imposed a sentence of nine years imprisonment (reduced from ten years for a late plea of guilty) to which he added the unexpired portion of the previous sentence of two months and 22 days. The head sentence was thus nine years two months and 22 days imprisonment. His Honour indicated that he had lowered the starting point of ten years from the 12 years that his Honour considered that the offending deserved so as to avoid a “crushing sentence” having regard to the applicant’s age which was 68 at the time of sentencing. His Honour fixed a non-parole period of six years nine months.
Relevant prior offending and the need for personal deterrence
The applicant has a number of prior offences, but of present relevance has previously been convicted of and sentenced for a number of offences involving trafficking in cannabis in 2001, 2009, and 2012.
On 31 October 2001 the applicant was sentenced in the New South Wales District Court to two years imprisonment for supplying cannabis.
On 19 November 2009 the applicant was sentenced by District Court Judge Beazley for an offence against the Commonwealth Criminal Code of trafficking in about ten kilograms of cannabis in the context of quite sophisticated large scale interstate cannabis trading. His role was to arrange and supply amounts of cannabis and its interstate delivery by couriers on a number of occasions over an extended period. He was sentenced on the basis that he was a mid-tier dealer but the principal offender in that mid-tier group. The Judge adopted a sentencing starting point of four years six months but reduced it by 40 per cent for his early plea of guilty and made a recognisance order that he be released on recognisance after serving 18 months of the sentence. The applicant was then 61 years old.
After the merciful disposition of the 2009 offending, the applicant breached his recognisance by again committing the offence of trafficking in a commercial quantity of cannabis on 11 April 2011. On 12 October 2012 he was sentenced by District Court Judge Brebner to three years imprisonment. The Commonwealth recognisance was estreated and the unserved portion was ordered to be served concurrently with that sentence. Given that the recognisance was for a Commonwealth offence, I am not sure that that order for concurrency with a State sentence was appropriate but it is unnecessary to consider that matter further. The applicant was then 64 years old.
It was while still on parole for that 2011 offending that the applicant proceeded to commit the current offences.
The application for permission to appeal
On 24 April 2017, the applicant filed a notice of appeal against the present sentence. The sole ground of appeal is that the sentence is manifestly excessive. On 17 May 2017, Ms Demertzis, the solicitor for the applicant, was notified by email that the matter was listed for the permission to appeal hearing on Monday 29 May 2017.
On Monday 29 May 2017, the application for permission to appeal was heard. There were no additional grounds of appeal. Ms Demertzis submitted that the sentence was manifestly excessive in that the starting point was too high. She did not suggest that the Judge had otherwise committed House v The King[1] error or procedural error. She referred to only one authority, that of R v Hunt and Yates,[2] to which she had not referred the Court nor the prosecution prior to the hearing.
[1] (1936) 55 CLR 499.
[2] [2012] SASCFC 74.
The Court indicated that there were a number of relevant recent authorities and gave the parties permission to forward to the Court a list of authorities if they wished to do so. Both parties drew additional authorities to the attention of the Court by email on 31 May 2017.
Consideration
Relevant recent decisions of the Court of Criminal Appeal include the following: R v Mema,[3] R v Hunt and Yates,[4] R v Mustac,[5] R v Faehrmann et ors,[6] R v Robins,[7] R v Hucks,[8] R v Skinner,[9] R v Young,[10]R v Donald et ors,[11] R v Standley[12] and R v Dell.[13]
[3] [2011] SASCFC 56.
[4] [2012] SASCFC 74.
[5] [2013] SASCFC 21.
[6] (2014) 118 SASR 549.
[7] [2016] SASCFC 55.
[8] [2016] SASCFC 92.
[9] [2016] SASCFC 106.
[10] [2016] SASCFC 102.
[11] [2016] SASCFC 117.
[12] [2016] SASCFC 141.
[13] [2016] SASCFC 156.
I have regard to the authorities (including the above decisions), to all of the personal circumstances of the applicant and to the fact that the applicant’s continued flouting of the law concerning trafficking in cannabis (including his breaching of recognisance and parole schemes) demonstrates a clear need for the personal deterrence that has not been previously achieved by the imposition of the previous sentences for similar offending on three separate occasions.
Disposition
The head sentence for the three offences is a heavy one but it is clearly within the range of sentencing discretion that was available to the Judge. It is not reasonably arguable that the sentence is manifestly excessive in all of the circumstances. I dismiss the application for permission to appeal.