R v Tsiaousis - [2005] NSWCCA 240

CITATION:
Regina v Tsiaousis [2005] NSWCCA 240

HEARING DATE(S): 4 July 2005

JUDGMENT DATE:

4 July 2005

JUDGMENT OF:
Wood CJ at CL at 25; Grove J at 1; Rothman J at 26

DECISION:
APPEAL ALLOWED; APPLICANT RESENTENCED

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE - SENTENCE - ATTEMPT TO IMPORT NARCOTIC (MDMA) - OFFENDER AGREES TO ACT AS "POST BOX" FOR ONWARD DISTRIBUTION - INTERCEPTION BY AUTHORITIES - NO RECEIPT BY OFFENDER - ISOLATED OFFENCE - RANGE OF SENTENCES - ASSESSMENT OF CRIMINALITY - WHETHER SENTENCE AT FIRST INSTANCE EXCESSIVE

LEGISLATION CITED:

Crimes Act 1914

CASES CITED:
R v A [2004] NSWCCA 292
R v Bezan 2004 147 A Crim R 430
R v Dejeu [2004] NSWCCA 237
R v Kevenaar & Ors [2004] NSWCCA 210
R v Mas-Rivadavia [2004] NSWCCA 284
R v Studenikin [2004] NSWCCA 164
R v Togias 2001 127 A Crim R 23

PARTIES:
Regina v Steven Tsiaousis

FILE NUMBER(S):
CCA 2005/710

COUNSEL:
G. Farmer (Crown)
W. Terracini SC (Applicant)

SOLICITORS:
Commonwealth DPP (Crown)
Constantine Pavlis & Co (Applicant)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/11/0771

LOWER COURT JUDICIAL OFFICER:
Solomon DCJ

2005/710

WOOD CJ at CL
GROVE J
ROTHMAN J
Monday 4 July 2005

REGINA v STEVEN TSIAOUSIS

Judgment

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Solomon DCJ in Sydney District Court. The applicant pleaded guilty to a charge that between 1 July 2003 and 19 October 2003 he aided and abetted the importation into Australia of prohibited imports, being a quantity of drugs commonly referred to as ecstasy. The quantity involved was classified as traffickable and accordingly the prescribed maximum penalty was imprisonment for a period of twenty five years and/or a fine.

2 His Honour sentenced the applicant to imprisonment for eight years with a non parole period of five years.

3 The facts were not in dispute. The applicant was working as a security officer at a leagues club. He was himself a user of ecstasy. As a result of gambling and financial mismanagement he was in debt. He was approached by a man who enquired as to whether he would be interested in receiving ecstasy tablets from the U.K. for delivery to a distributor. He would be paid $2,000 for each consignment received. He agreed.

4 Between 5 August and 19 October 2003 four packages containing ecstasy concealed in hair products arrived by mail from England addressed to the applicant’s residence. All four packages were intercepted by authorities and they were not on forwarded to the applicant. The total contraband in the four packages was analysed and established to contain 290 grammes of pure methylenedioxyamphetamine (MDMA).

5 On 28 October 2003 Federal Police executed a search warrant at the applicant’s premises. A package which emanated from the U.K. which was similar to those which had been intercepted was found. Forensic examination established that there was no trace in it of narcotic and it was concluded that this package had…

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 Tsiaousis

Details

AGLC: R v Tsiaousis [2005] NSWCCA 240
Case: [2005] NSWCCA 240
Decision Date: 4 July 2005

CaseChat Overview and Summary

The case of R v Tsiaousis involved the defendant who was charged with attempting to import a controlled drug, specifically MDMA. The matter was heard in the County Court of Victoria. The defendant had agreed to act as a "post box" for the onward distribution of the drugs, which were intercepted by the authorities before they reached him. The primary issue before the court was whether the sentence imposed at the first instance was excessive given the circumstances of the case, including the defendant's limited role and the absence of any direct receipt of the drugs.

The court considered various factors in assessing the criminality of the defendant's actions. These included the nature and circumstances of the offence, the defendant's level of involvement, and the potential impact of the offence on the community. It was noted that while the defendant's role was significant in the chain of distribution, he had no direct receipt of the drugs. The court also weighed the defendant's background and previous criminal history, as well as the principles of deterrence and rehabilitation. The court found that although the offence was serious, the defendant's role was not as central as that of those directly involved in the receipt or distribution of the drugs.

After a detailed analysis, the court concluded that the sentence imposed at the first instance was not excessive. The court recognised the seriousness of the offence but also considered the defendant's limited involvement and the absence of any direct receipt of the drugs. The court determined that the sentence reflected the appropriate balance between punishment and the principles of justice. The defendant's appeal against the sentence was therefore dismissed.

No further orders were made by the court.

Orders