R v. Nabhan ; R v Kostopoulos - [2007] QCA 266

SUPREME COURT OF QUEENSLAND

CITATION:

R v Nabhan; R v Kostopoulos [2007] QCA 266

PARTIES:

R
v
NABHAN, Jim
(applicant)

R
v
KOSTOPOULOS, Chrisanthos
(applicant)

FILE NO/S:

CA No 38 of 2007
CA No 101 of 2007
SC No 552 of 2006
SC No 290 of 2007
SC No 247 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence
Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

30 July 2007

JUDGES:

Williams, Jerrard and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. In CA No 38 of 2007, strike out appeal against conviction in respect of the possession counts

2. In CA No 38 of 2007, application for leave to appeal against sentence refused

3. In CA No 101 of 2007, application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where applicant pleaded guilty to trafficking in cocaine, methylamphetamine, MDMA and GHB – where applicant sentenced to 13 years imprisonment with a serious violent offence declaration automatically imposed – whether guilty plea, cooperation with police and compliance with bail undertaking given sufficient weight – whether sentence manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where applicant pleaded guilty to trafficking in cocaine, methylamphetamine, MDMA and GHB – where offence committed while applicant subject to suspended sentence – where applicant sentenced to 15 years imprisonment and declared to be convicted of serious violent offence and ordered to serve balance of suspended sentence cumulatively – whether applicant's guilty plea and prospects of rehabilitation given sufficient weight – whether comparative sentences, principle of totality, and parity with applicant in CA No 38 of 2007 adequately considered – whether sentence manifestly excessive

R v Cannon [2007] QCA 205; CA 317 of 2005, 22 June 2007, distinguished
R v George [2001] QCA 135; CA No 339 of 2000, 6 April 2001, cited
Markarian v The Queen (2005) 215 ALR 213, cited
R v Mustafa [2006] QCA 231; CA No 95 of 2006, 21 June 2006, cited
R v Tran [2006] QCA 174; CA No 60 of 2006, 26 May 2006, cited
R v Omer-Noori[2006] QCA 311; CA No 50 of 2006,
25 August 2006, distinguished
R v Slivo [2007] QCA 64; CA No 344 of 2006, 9 March 2007, cited
R v Truong & Nguyen [2001] QCA 98; CA No 278 of 2000,
15 March 2001, cited

COUNSEL:

S Di Carlo for the applicant in CA No 101 of 2007 (pro bono)
The applicant…

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.

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Details

Case: [2007] QCA 266
Decision Date: 17 August 2007

CaseChat Overview and Summary

The applicants, Nabhan and Kostopoulos, appealed against their convictions and sentences for trafficking in various drugs, including cocaine, methylamphetamine, MDMA, and GHB. Nabhan was sentenced to 13 years imprisonment with a serious violent offence declaration, while Kostopoulos received a 15-year sentence, also with a serious violent offence declaration, and was ordered to serve the balance of a previously suspended sentence cumulatively. Both applicants argued that their sentences were manifestly excessive and that their guilty pleas, cooperation with police, and prospects of rehabilitation were not sufficiently considered. The appeals were heard in the Court of Appeal of New South Wales.

The primary legal issues in these appeals were whether the applicants' guilty pleas, cooperation with law enforcement, and prospects for rehabilitation were adequately taken into account in the sentencing process. Additionally, the court had to determine if the principle of totality, the comparative sentences of other offenders, and parity with the applicant in a related case (CA No 38 of 2007) were appropriately considered in the sentencing decisions. The applicants contended that their sentences were manifestly excessive and did not reflect the appropriate balance between punishment and rehabilitation.

The court found that the applicants' guilty pleas, cooperation with the police, and prospects of rehabilitation were indeed considered in the sentencing process. The judges noted that the sentences imposed were within the range of penalties typically meted out for such serious drug trafficking offences. The court also emphasised the importance of the principle of totality in sentencing, which ensures that the cumulative effect of multiple sentences is taken into account. In weighing the principle of totality, comparative sentences, and parity with the applicant in CA No 38 of 2007, the court concluded that the sentences were not manifestly excessive. Consequently, the appeals against the sentences were dismissed, and the appeals against the convictions in respect of the possession counts in CA No 38 of 2007 were struck out.

Orders

Orders of the court

1. In CA No 38 of 2007, strike out appeal against conviction in respect of the possession counts

2. In CA No 38 of 2007, application for leave to appeal against sentence refused

3. In CA No 101 of 2007, application for leave to appeal against sentence refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Nabhan; R v Kostopoulos [2007] QCA 266
PARTIES:	R v NABHAN, Jim (applicant) R v KOSTOPOULOS, Chrisanthos (applicant)
FILE NO/S:	CA No 38 of 2007 CA No 101 of 2007 SC No 552 of 2006 SC No 290 of 2007 SC No 247 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	17 August 2007
DELIVERED AT:	Brisbane
HEARING DATE:	30 July 2007
JUDGES:	Williams, Jerrard and Keane JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. In CA No 38 of 2007, strike out appeal against conviction in respect of the possession counts 2. In CA No 38 of 2007, application for leave to appeal against sentence refused 3. In CA No 101 of 2007, application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where applicant pleaded guilty to trafficking in cocaine, methylamphetamine, MDMA and GHB – where applicant sentenced to 13 years imprisonment with a serious violent offence declaration automatically imposed – whether guilty plea, cooperation with police and compliance with bail undertaking given sufficient weight – whether sentence manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where applicant pleaded guilty to trafficking in cocaine, methylamphetamine, MDMA and GHB – where offence committed while applicant subject to suspended sentence – where applicant sentenced to 15 years imprisonment and declared to be convicted of serious violent offence and ordered to serve balance of suspended sentence cumulatively – whether applicant's guilty plea and prospects of rehabilitation given sufficient weight – whether comparative sentences, principle of totality, and parity with applicant in CA No 38 of 2007 adequately considered – whether sentence manifestly excessive R v Cannon [2007] QCA 205; CA 317 of 2005, 22 June 2007, distinguished R v George [2001] QCA 135; CA No 339 of 2000, 6 April 2001, cited Markarian v The Queen (2005) 215 ALR 213, cited R v Mustafa [2006] QCA 231; CA No 95 of 2006, 21 June 2006, cited R v Tran [2006] QCA 174; CA No 60 of 2006, 26 May 2006, cited R v Omer-Noori[2006] QCA 311; CA No 50 of 2006, 25 August 2006, distinguished R v Slivo [2007] QCA 64; CA No 344 of 2006, 9 March 2007, cited R v Truong & Nguyen [2001] QCA 98; CA No 278 of 2000, 15 March 2001, cited
COUNSEL:	S Di Carlo for the applicant in CA No 101 of 2007 (pro bono) The applicant…