Regina v Karabatsos

[2002] NSWCCA 526

CITATION:	Regina v Karabatsos [2002] NSWCCA 526
FILE NUMBER(S):	CCA 60785/01
HEARING DATE(S):	20 December 2002
JUDGMENT DATE:	20 December 2002
PARTIES :	Regina v Peter Karabatsos
JUDGMENT OF:	Smart AJ at 1; Adams J at 26

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/21/1060
LOWER COURT JUDICIAL OFFICER :	Gibson DCJ

COUNSEL :	(A) A Francis (C) L Lampratti
SOLICITORS:	(A) Michael Croke & Company (C) S E O'Connor
CATCHWORDS:	Sentencing - Lack of parity requiring re-sentencing - no question of principle.
CASES CITED:	Postiglione v The Queen (1997) 98 A Crim R 134
DECISION:	See para 26

IN THE COURT OF
CRIMINAL APPEAL

ADAMS J

SMART AJ

Friday 20 December 2002

REGINA v PETER KARABATSOS

JUDGMENT

1. SMART AJ: Peter Karabatsos seeks leave to appeal against the asserted severity of a sentence of imprisonment of five years with a non-parole period of three years, nine month for between 13 February 2000 and 2 June 2000 at Belfield, knowingly taking part in the manufacture of a prohibited drug, namely methylamphetamine.

2. The police were investigating a large scale business of manufacturing and supplying amphetamines in Western Sydney conducted by one Ivan Tesic. During that investigation Peter Karabatsos was identified through telephone intercepts and physical surveillance. Between 14 February and 11 March 2000 the police intercepted 22 separate calls between the applicant and Tesic relating to the procedures used in manufacturing amphetamines.

3. At 5.20pm on 1 June 2000 detectives arrested the applicant. He was searched, and located in a bag he was wearing was a piece of paper with a ledger of names, amounts owed and drug amounts, and a detailed recipe on how to conduct a Sudafed extraction.

4. On executing a search warrant upon the applicant's premises, police located seven clear plastic containers, each containing liquid pseudoephedrine. The applicant's fingerprints were on three of the seven containers. There was also a number of different chemicals used in the pseudoephedrine extraction process. Police found a large number of Sudafed boxes and blister packs, both full and used. The applicant's fingerprints were on one of these packets/boxes. There was a large number of Sudafed tablets in a plastic container, a set of electronic scales and a blender with traces of Sudafed powder in it.

5. The pseudoephedrine at the applicant's premises had the capacity to produce at least 117 grams of pure methylamphetamine. This could have resulted in street sales having an approximate value of $292,000. This estimate should be treated with some caution.

6. The evidence supported the conclusion that the applicant was the manufacturer and a principal in the manufacturing operation, as the judge found.

7. The applicant was born on 21 February 1968. In 1988 and 1993 he was convicted of offences of dishonesty and fined. He had never previously received a custodial sentence. The judge was under considerable difficulty in dealing with the subjective features of the applicant. He did not give evidence, nor was evidence called on his behalf. A medical certificate from Doctor Vargo was tendered on his behalf and there was a pre-sentence report. That report discloses that the applicant was born in Australia and raised in a stable and materially comfortable environment, and enjoys a good and supportive relationship with his parents and sibling. He is married and has a son aged five years. After some break down of his relationship with his wife, due to his arrest and offending behaviour, his wife is now supportive of him.

8.. The applicant left school at the age of 16, having obtained his School Certificate. He completed an apprenticeship as a mechanic. In 1989 he was self-employed as a mechanic, but that business suffered a loss. He has always been employed. Prior to sentencing he had been self-employed as a car detailer for about six years. The applicant told the Probation and Parole Officer that his business was running at a loss around the time of the offence and that he was struggling financially. He was afraid of losing everything as he had in 1989. No details were given.

9. The applicant acknowledged the foolishness of his actions and claimed that his burdened financial position was a contributing factor in his criminal behaviour. He has given consideration to better and honest ways of dealing with future financial difficulties. He told the officer that he regretted his involvement. He was concerned about the court outcome.

10. Doctor Vargo, who examined the applicant on 3 October 2001, has reported that he "suffers from severe obesity and unstable anginal symptoms, worse over the last month". Doctor Vargo stated that the applicant needed urgent cardiac assessment and treatment for his current anxiety state and depression. It is not clear how large a part the then imminent sentencing proceedings played in his condition.

11. The judge took into the account that the applicant entered a plea of guilty at the earliest opportunity and that this was some evidence of remorse. The judge said:

"He is entitled to the utilitarian value of his plea in saving a trial which in this type of case can be lengthy and costly, but it was a strong Crown case. I assess that value as 17 percent".

12. I respectfully agree with the judge that the trial could have been quite costly and lengthy. A number of tape recordings of telephone conversations would have had to be played, and surveillance evidence can take some time. I also agree with the Crown submission that the trial would not have been a complex one. It could, however, taken one to two weeks.

13. The judge held that the material manufactured was never going to hit the street, although the applicant was not to know that, and that the operation was not a big one. However, the applicant entered into manufacturing amphetamine for a profit, and no other reason.

14. The judge emphasised the importance of deterrence. He noted that sentencing statistics in relation to manufacturing a non-commercial quantity of amphetamines were virtually non existent.

15. The judge concluded that the appropriate sentence was one of six years from which he deducted 17 percent for the utilitarian value of the plea. That resulted in the sentence of five years. It seems the judge took the view that there was insufficient material to justify a finding of special circumstances, although he did not say so expressly.

16. A clerical slip occurred when the judge fixed the commencing date of the sentence. The applicant had served three months, one week in pre-sentence custody. The judge allowed for three month when fixing the commencing date of the sentence.

17. Counsel for the applicant advanced detailed arguments as to why the judge should have found special circumstances and why the judge should have granted a greater discount than 17 percent. Indeed, it was submitted that the discount granted should have been of the order of 25 percent. However, apart from noting these grounds and the submissions advanced in relation to them, they are really subsumed by the third ground, namely, that the sentence imposed lacked parity.

18. The applicant contends that there is an absence of proportion between the applicant's sentence and that imposed on the co-offender Tesic, and that this gives rise to a justifiable sense of grievance. Ivan Tesic was sentenced by Finnane DCJ for one count of knowingly take part in the manufacture of prohibited drug methylamphetamine being not less that the commercial quantity, and one count of knowingly take part in the supply of a prohibited drug (cannabis) being not less than the commercial quantity.

19. Tesic asked that two other offences be taken into account in sentencing in respect of count 1; namely, supplying a prohibited drug and knowingly take part in the manufacture of a prohibited drug. The manufacturing offence on the Form 1 related to Tesic's involvement with the applicant in the manufacture of methylamphetamine, the offence the subject of this application.

20. On count 1, taking into account the offences on the Form 1, Tesic was sentenced to imprisonment for six years with a non-parole period of three years. In imposing that sentence of six years, the judge said that he should impose the same sentences he had on Snow with whom Tesic had combined and cooperated in the manufacture of methylamphetamine, taking into account a discount of 25 percent for the plea of guilty.

21. As to the second count, the judge, after allowing a discount of 25 percent for the plea of guilty, imposed a sentence of three years, nine months. This sentence was partly cumulative on the first sentence. He fixed a non-parole periods of one year. As to special circumstances the judge said:

"In the special circumstances of the case, they being in his case his rehabilitation, the fact he has not previously been involved in serious drug offences, his strong ties with his de facto, the high repute that he has amongst other persons in the community, the fact that he is a prisoner of good behaviour who was assisting the authorities in the gaol, and in the general way in which he conducts himself, entitle him to a finding of special circumstances."

22. I have considerable doubt whether most of the factors mentioned by Finnane DCJ are capable of constituting special circumstances, but it is not necessary to pursue that matter.

23. The sentence in Tesic creates some difficulties. Tesic was obviously the organiser behind a substantial methylamphetamine manufacturing and distribution business. The offence with which he was involved with the applicant was treated as subsidiary to that involving Snow, no doubt because that involved a commercial quantity and carried a maximum penalty of 20 years. The applicant's offence (in which Tesic was a co-offender) involved a much smaller quantity, and the maximum penalty was 15 years. Assuming that Tesic's sentence was increased because of the Form 1 offences, it is apparent that Tesic's punishment for his participation with the applicant in the lesser offence did not involve punishment remotely approaching that meted out to the applicant. Even allowing for principles of totality and the benefit to an offender of using the Form 1 procedure, the result is unfair. The applicant would have a justifiable sense of grievance.

24. Considerations of due proportion, as explained in Postiglione v The Queen (1997) 98 A Crim R 134, compel re-sentencing. In all the circumstances and taking into account the discount to which the applicant is entitled, the appropriate sentence is one of three years with a non-parole period of two years. The dominant special circumstances arises from parity considerations. I would not have proposed these reductions in sentence had it not been for parity considerations.

25. I have also had regard to the affidavit of Peter Karabatsos sworn on 20 December 2002 which indicates his rehabilitation progress while in custody.

26. I propose the following orders:

1. Leave to appeal granted.

2. Appeal allowed; sentence quashed.

3. In lieu thereof, the applicant is sentenced to imprisonment for three years commencing on 19 July 2001 with a non-parole period of two years commencing that day and ending on 18 July 2003 on which day the applicant is to be released on parole.

27. ADAMS J: I agree. The orders of the Court will therefore be as proposed by Smart AJ.

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