R v Siljanovski and Kostadinovic

[2003] NSWCCA 38

CITATION:	R v Siljanovski and Kostadinovic [2003] NSWCCA 38
HEARING DATE(S):	14/08/02
JUDGMENT DATE:	28 February 2003
JUDGMENT OF:	Hidden J at 1; Adams J at 39
DECISION:	See paras 30 and 38
CATCHWORDS:	CRIMINAL LAW: Sentence - drug supply offences - two co-offenders - whether undue disparity between sentences imposed upon them.
LEGISLATION CITED:	Drug Misuse and Trafficking Act, 1985
CASES CITED:	R Hoon and Pouoa [2000] NSWCCA 137 R v Huang and Lin [2001] NSWCCA 76 R v Radford [2002] NSWCCA 122
PARTIES :	Regina Trajan Siljanovski Sasha Kostadinovic
FILE NUMBER(S):	CCA 60221/02; 60223/02
COUNSEL:	R Hulme - Crown P Nematalla - appellant Siljanovski J Mundey - appellant Kostadinovic
SOLICITORS:	S E O'Connor - Crown DJ Humphreys - appellant Siljanovski Chegwidden Solicitors - appellant Kostadinovic

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/41/0245 01/41/0248
LOWER COURT JUDICIAL OFFICER :	Goldring DCJ

60221/2002
60223/2002

HIDDEN J
ADAMS J

Friday, 28 February, 2003

REGINA v Trajan SILJANOVSKI

REGINA v Sasha KOSTADINOVIC

Judgment

1 HIDDEN J: These applications for leave to appeal against sentence were heard together, as the applicants were sentenced in the District Court for offences arising largely out of criminality in which they were jointly involved.

2 Trajan Siljanovski pleaded guilty to a charge of ongoing supply of heroin (s 25A(1) of the Drug Misuse and Trafficking Act, 1985) and two charges of supplying heroin (s 25(1) of the Act). He asked that two further offences of supplying heroin be taken into account on a Form 1. On the charge of ongoing supply of heroin, taking into account the offences on the Form 1, he was sentenced to imprisonment for seven and a half years with a non-parole period of four years. On each of the charges of supplying heroin he was sentenced to concurrent fixed terms of imprisonment for two years, those sentences also being concurrent with the sentence on the ongoing supply charge. The overall effective sentence, then, was imprisonment for seven and a half years with a non-parole period of four years.

3 Sasha Kostadinovic pleaded guilty to four counts of knowingly taking part in the supply of heroin. He asked that four further charges of supplying heroin, together with charges of possessing heroin, goods in custody and driving whilst disqualified, be taken into account. On the first charge of knowingly taking part in the supply of heroin, taking into account the matters on the Form 1, he was sentenced to imprisonment for three years with a non-parole period of one year and ten months. On the other three charges he was sentenced to concurrent terms of imprisonment for two and a half years, those terms also being concurrent with the sentence on the first charge. The overall effective sentence in his case, then, was imprisonment for three years with a non-parole period of one year and ten months. (He was also disqualified from holding a driver’s licence for a further period.)

Facts

4 The applicants were targets of a coordinated police investigation involving the use of undercover operatives, listening devices and telephone intercepts.

5 In the early part of July 2001 a female undercover operative contacted Mr Kostadinovic to arrange the purchase of a quarter of an ounce of heroin for $3,500. On 16 July she met both applicants at Mr Kostadinovic’s home, where Mr Siljanovski took control of the negotiations. The applicants left for a short time and returned with the heroin. Mr Siljanovski handed the drug to the undercover officer and took possession of the money. He weighed the drug on electronic scales and gave the officer detailed instructions about how best to cut it to obtain maximum profit. Analysis revealed that there was 6.8 grams of the drug with a purity of eight percent.

6 On 30 July 2001 the undercover officer rang Mr Kostadinovic to arrange for the purchase of another quarter ounce of heroin. After further phone calls between the officer and Mr Kostadinovic and between the applicants, the officer met Mr Siljanovski in a street in Wollongong, where he supplied her with the drug for $3,700. There was 6.7 grams of the drug with a purity of ten percent.

7 On 8 August 2001 the officer rang Mr Kostadinovic to arrange the purchase of yet another quarter ounce of heroin. On the same day, after telephone calls between the applicants, she met Mr Siljanovski in the same street where, again, he supplied her with a quantity of drug for $3,700. On this occasion there was 6.8 grams of the drug, with a purity of twelve percent.

8 This course of events led to the charge of ongoing supply against Mr Siljanovski and the first three charges of knowingly taking part in supply against Mr Kostadinovic.

9 In the first half of September 2001, in the course of a number of phone calls with Mr Kostadinovic, the same undercover officer negotiated the purchase of a half ounce of heroin for $7,000. The transaction took place at Mr Siljanovski’s home on 26 September. Yet again, it was he who handed over the drug and received the money. There was found to 13.9 grams of the drug, with a purity of 9.5 percent. This led to the first charge of supplying heroin against Mr Siljanovski, and the fourth charge of knowingly take part in supply against Mr Kostadinovic.

10 It was on this occasion that the applicants were arrested. Police searched Mr Siljanovski’s premises and found further heroin, individually wrapped in fifty six plastic packages. There was a total of 13.4 grams of the drug, with a purity of ten percent. This gave rise to the second charge of (deemed) supplying heroin brought against him. The two charges of supplying heroin on the Form 1 arose from his sale of small quantities of the drug to the same undercover officer on two occasions in May 2001.

11 Mr Kostadinovic was found to be in possession of some caps of heroin and $570 in cash. He admitted to police that the money was the proceeds of the sale of heroin and that he had intended to sell the caps. This led to the charges of possessing heroin and goods in custody, and one of the charges of supplying heroin, on the Form 1. The other three charges of supplying heroin on the Form 1 arose from his sale of small amounts of the drug to the undercover officer in June and July 2001. On one of those occasions he had the drug delivered by a fourteen year old boy, although he told police he believed him to be sixteen. It was his driving a motor vehicle on another of those occasions which led to the charge of disqualified driving on the Form 1.

12 For a period of a little over a month between July and August 2001 police intercepted more than five and a half thousand calls to Mr Kostadinovic’s mobile phone, most of which related to drug transactions.

13 Mr Siljanovski declined to be interviewed on legal advice. Mr Kostadinovic took part in an electronically recorded interview, in which he admitted having supplied heroin for Mr Siljanovski daily over a period of three months. He said that he was usually giving Mr Siljanovski $2,000 a day from the proceeds of the sales. He estimated that, for his participation, Mr Siljanovski had paid him amounts totalling about $5,000 over the three month period.

Subjective Cases

14 Mr Siljanovski was thirty three years old at the time of the offences and is now thirty four. He has no prior convictions. At the age of three, he came to this country with his family from Macedonia. He has been married twice, and has two children from the second relationship. He was educated to school certificate standard, and had a satisfactory history of employment until he injured his back working in a factory in 1989. He did not return to fulltime employment, and at the time of the offences he was working as a drummer in a band.

15 He had been using marijuana and heroin for about a year prior to the offences, although it seems that he was not addicted to either. He had a long standing gambling problem and it was the need to repay a substantial gambling debt that led to his becoming involved in the distribution of heroin.

16 The sentencing judge accepted that he was remorseful, noting that he had been drug free since being taken into custody and had responded well to counselling. His behaviour had been positive, a fact which was particularly evident from his assistance to other prisoners by affording them musical training.

17 Mr Kostadinovic was aged between twenty and twenty one at the time of the offences, and is now twenty two. He has a criminal record, consisting mainly of traffic offences. These include eight prior convictions for driving whilst disqualified. For three of those he was dealt with after his arrest for the offences the subject of this application, and was sentenced to concurrent terms of imprisonment for twelve months with a non-parole period of three months, to date from the day of that arrest. Putting aside a lengthy period of further disqualification, those sentences are of no practical effect because they are wholly concurrent with the sentences for the drug matters.

18 He has a very disturbed background. He was born in Serbia, but his parents separated when he was an infant and were divorced when he was two years old. He was cared for by his grandparents until he was ten. In the meantime his father had remarried, and when he was eleven he came to this country with his father and stepmother. He had a poor relationship with his stepmother and his father was violent towards him.

19 His schooling was unsatisfactory and he left before completing year 10, although he had excelled at soccer. His education was disrupted by his return to Serbia on two occasions to live with his mother. It was upon his return to Australia after the second of those occasions that he obtained employment and moved out of the family home. To his credit, he completed year 10 at a TAFE college and continued his studies, attaining his higher school certificate. To enable him to maintain his employment and his study he bought a car, but he never obtained a driver’s licence. It was in these circumstances that he acquired his unenviable traffic record, particularly for driving whilst disqualified.

20 It was Mr Siljanovski who involved him in the offences, offering him money for his participation. His mother had been diagnosed with breast cancer, and he sent her what the sentencing judge described as “fairly significant sums of money” for treatment. His Honour appears to have accepted that the need to raise money for that purpose was part of the motivation for his involvement. He also owed a substantial sum to the State Debt Recovery Office for traffic fines. He was depressed, and began to drink heavily and use heroin.

21 A psychiatrist who examined him in custody diagnosed a major depressive disorder with chronic dysthymia. In his case, like that of Mr Siljanovski, there was evidence of remorse. He had attended alcohol and drug counselling in custody and was considered suitable for a residential rehabilitation program. His Honour found his prospects of rehabilitation to be “very good.”

Sentencing factors

22 In relation to Mr Siljanovski, his Honour considered the offence of ongoing supply of heroin to be “much more serious” than the other two charges. Taking into account the matters on the Form 1, he saw that offence as calling for a head sentence in the vicinity of ten years, notwithstanding Mr Siljanovski’s prior good character. He reduced that figure by twenty five percent because of the plea of guilty, so as to arrive at the sentence of seven and a half years.

23 His Honour distinguished Mr Kostadinovic from Mr Siljanovski on the bases that he was a significantly younger man, was not charged with the more serious offence of ongoing supply, and was “the minor figure in this operation.” What his Honour had to say about the effect of the plea of guilty is, with respect, a little ambiguous. However, a fair reading of that part of the remarks on sentence is that he saw the first charge, taking into account the matters on the Form 1, as calling for imprisonment for four years, which he also discounted by twenty five percent so as to arrive at the sentence of three years. It was the fact that other offences were to be taken into account which led to the sentence on that charge being six months longer than those passed in respect of the other charges.

24 In the case of each applicant, his Honour found special circumstances in the light of his subjective case and prospects of rehabilitation.

Mr Kostadinovic’s application

25 It is convenient to deal with Mr Kostadinovic’s application first, as part of the basis of the application by Mr Siljanovski is an assertion of unwarranted disparity between the effective sentence of seven and a half years passed on him and that of three years passed upon Mr Kostadinovic.

26 In his remarks on sentence, his Honour distinguished the case against Mr Kostadinovic from the facts in R v Hoon and Pouoa [2000] NSWCCA 137, in which the Crown appealed unsuccessfully against sentences of fourteen months imprisonment imposed upon each offender, also by his Honour, for ongoing supply of heroin. For reasons which he expressed, his Honour found the criminality of Mr Kostadinovic to be greater than that of the respondents in that case.

27 Whether his Honour was using the sentences upheld in Hoon and Pouoa as a benchmark for determining the appropriate sentence in the present case is unclear. Upon the assumption that he was, counsel for Mr Kostadinovic in this Court devoted much of her argument to a detailed analysis of the similarities and differences between the two cases, noting that her client was not charged with ongoing supply. However, putting aside the difference between the charges, his Honour’s comparison between the criminality of Mr Kostadinovic and that disclosed in Hoon and Pouoa appears to me to be justified. More importantly, it would rarely be a profitable exercise to attempt to determine the appropriateness of a sentence by reference to a single decision of this Court, particularly one given in a Crown appeal in which appellate intervention is governed by special considerations.

28 It was also argued that the effective sentence afforded inadequate weight to Mr Kostadinovic’s plea of guilty and his strong subjective case. The argument about the plea of guilty proceeds from what I consider to be a misreading of the passage in the remarks on sentence to which I have referred above. Effectively, the plea of guilty led to a twenty five percent reduction of the sentence which his Honour considered otherwise appropriate, a discount about which no complaint could be made. I consider that Mr Kostadinovic’s subjective case, powerful as it was, is adequately reflected in the sentences which were passed.

29 Justifiably, his Honour found that Mr Kostadinovic was aware that he was taking part in a large scale, ongoing commercial operation. Equally justifiably, his Honour saw the involvement of the teenage boy as an aggravating feature. In addition to the four charges of knowingly taking part in the supply of heroin, Mr Kostadinovic stood to be punished for the other offences on the Form 1. As all the sentences were concurrent, the three year sentence embraced the whole of a course of criminal conduct over a three month period. As I have said, that sentence also absorbed sentences imposed upon him for other charges of driving whilst disqualified.

30 The matter was worthy of argument but, in all the circumstances, this Court’s intervention is not called for. I would grant Mr Kostadinovic leave to appeal but dismiss his appeal.

Mr Siljanovski’s application

31 Mr Siljanovski complains that the effective sentence passed upon him, viewed in isolation from that passed upon Mr Kostadinovic, is manifestly excessive. In addition, as I have said, he complains of excessive disparity between his sentence and that passed upon Mr Kostadinovic.

32 The Crown prosecutor before us supplied details of the eighteen cases of ongoing supply of heroin or cocaine which have so far come before this Court. The heaviest sentence disclosed by those cases was in R v Huang and Lin [2001] NSWCCA 76, where appeals against imprisonment for eight years imposed upon each offender were dismissed. That was a very serious case, involving the supply to an undercover officer of a large amount of heroin of a high degree of purity. The next most serious was R v Radford [2002] NSWCCA 122, the only one of the eighteen cases in which the offender had pleaded not guilty, where the Court affirmed a sentence of six years. That offender had a lengthy criminal history and had also been sentenced to shorter concurrent terms of imprisonment for related offences. In the other cases, sentences, either affirmed or imposed by this Court, ranged from fourteen months to five and a half years, the majority being in the order of three to four years.

33 A somewhat more lenient trend is disclosed by the Judicial Commission sentencing statistics for this offence, a total of ninety nine cases of which eighty one resulted in fulltime custodial sentences. Indeed, the Crown prosecutor submitted that those statistics demonstrate “a surprising pattern of leniency”, but that was not a matter which was fully argued and, in any event, it ought not be the subject of pronouncement by a two judge bench.

34 Insofar as a pattern of sentence can be divined from the eighteen cases which have come to this Court, the sentence of seven and a half years passed upon Mr Siljanovski does seem severe. This is so notwithstanding his leading role in the offence and the fact that the quantity supplied on the three occasions was significantly greater than in most of the cases. His Honour seems to have considered the use of a teenager as a “runner” to be an aggravating feature in Mr Siljanovski’s case, but I have some misgivings about that. The evidence about it appears to emerge only in Mr Kostadinovic’s police interview, and there is no reference to it in the separate brief of evidence tendered against Mr Siljanovski.

35 On the other hand, Mr Siljanovski had the benefit of concurrent sentences on the charges of supplying heroin on 26 September, 2001, the first of those charges being a significant escalation of the course of dealing evidenced by the charge of ongoing supply. Rather like Mr Kostadinovic, when one has regard to the two further charges of supplying heroin on the Form 1, the sentence of seven and a half years encompasses a course of criminality extending over a period of more than five months. However, I find it unnecessary to determine whether that sentence is manifestly excessive because I am persuaded by the argument based upon disparity.

36 Putting aside the matters which each applicant asked to be taken into account on a Form 1, the two men were engaged in the same criminal enterprise and it was necessary that there be an appropriate relationship between the sentences passed upon them. Unquestionably, Mr Siljanovski stood to be dealt with more severely. As well as the charges of supplying heroin he had pleaded guilty to the more serious charge of ongoing supply and, clearly, it was he who was in control of the operation. On the other hand, the part played by Mr Kostadinovic was active and significant, he was to be dealt with for a greater number of offences on a Form 1 and, unlike Mr Siljanovski, he had some criminal history. In all the circumstances, I am satisfied that Mr Siljanovski would have a justifiable sense of grievance facing an effective sentence two and a half times greater than that imposed upon Mr Kostadinovic.

37 I find it unnecessary to restructure the sentence on all three of the charges on the committal document. Practical justice would be achieved by reducing the sentence and non-parole period on the first charge. In my view, an effective sentence of six years with a non-parole period of three years is appropriate.

38 I would grant Mr Siljanovski leave to appeal and allow the appeal. I would quash the sentence on the charge of ongoing supply of heroin. On that charge, taking into account the matters on the Form 1, I would impose a sentence of imprisonment for six years, to date from 26 September 2001, with a non-parole period of three years. I would affirm the sentences on the other two charges.

39 ADAMS J: I agree with the reasons of Hidden J and the orders which he proposes.

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Last Modified: 03/03/2003