Sevastopoulos v R

[2011] NSWCCA 201

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

SEVASTOPOULOS v REGINA [2011] NSWCCA 201

Hearing dates:

Friday 13 May 2011

Decision date:

06 September 2011

Before:

Tobias AJA at [1]
Johnson J at [2]
Hall J at [3]

Decision:

(1) Leave to appeal be granted.

(2) The appeal, in part, be upheld.

(3) That the applicant be re-sentenced to a non-parole period of 8 years and 6 months commencing on 9 May 2005 and expiring on 8 November 2013 with an additional 4 years expiring on 8 November 2017.

(4) Accordingly, the earliest date upon which the applicant will be eligible for release on parole will be 8 November 2013.

Catchwords:

CRIMINAL LAW - appeal against sentence - supply of large commercial quantity of prohibited drugs - whether applicant's role as "broker", with no managerial function, entitled him to a finding of below the mid-range of objective seriousness - applicant received only minimal payment for his "services" - whether applicant had a legitimate grievance arising from disparity of sentences of co-accused - whether parity principle with respect to non-parole period infringed - finding of special circumstances made - proportion of non-parole period to head sentence in error - appeal allowed in part

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited:

Cicciarello v R [2009] NSWCCA
Lau v R [2010] NSWCCA 43
OM v R; MH v R; AA v R; AS v R [2009] NSWCCA 267 at [27]
R v McNaughton (2006) 66 NSWLR 566
R v Pavan [2009] NSWDC 82
R v Sinkovich [2011] NSWCCA 90
R v Sutton [2004] NSWCCA 225
R v Wahabzadah [2001] NSWCCA 253
R v Way (2004) 60 NSWLR 168
Tyler v R; R v Chalmers (2007) 173 A Crim R 458

Category:

Principal judgment

Parties:

Stephen SEVASTOPOULOS v REGINA

Representation:

Crown: D Staehli SC
Applicant: S Odgers SC
Crown: Commonwealth DPP
Applicant: S E O'Connor

File Number(s):

2006/15539

 Decision under appeal 

Date of Decision:

2008-03-20 00:00:00

Before:

Ainslie-Wallace DCJ

File Number(s):

2006/15539

Judgment

1. TOBIAS AJA: I agree with Hall J.

1. JOHNSON J: I agree with Hall J

1. HALL J: The applicant seeks leave to appeal against the sentence imposed upon him by her Honour Judge Ainslie-Wallace on 20 March 2008.

Particulars of the Offence

1. The applicant pleaded guilty in the District Court to the indictable offence of supply a large commercial quantity of a prohibited substance, namely cocaine, between 10 February 2005 and 14 March 2005, contrary to s.25(2) of the Drug Misuse and Trafficking Act 1985. That section provides:-

"25 Supply of prohibited drugs

...

(2) A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence . "

1. Column 5 of Schedule 1 of the Drug Misuse and Trafficking Act provides that a " large commercial quantity " in respect of the substance cocaine is one kilogram.

1. The maximum penalty for the offence prescribed by that Act is life imprisonment. The offence is also subject to a standard non-parole period of 15 years.

1. The amount cocaine the subject of the charge supplied by the offender was 2.25 kilograms.

Particulars of Sentence

1. The penalty for the contravention of s.25(2) is provided at s.33, which states:-

" 33 Penalties for offences involving commercial quantities or cultivation for a commercial purpose

(1) This section applies to the following offences:-

(a) an offence under section 23 (1A) or (2), 24 (2) or 25 (2) or (2A).

...

(3) Despite subsection (2), if the court is satisfied that the offence involved not less than the large commercial quantity of the prohibited plant or prohibited drug concerned, the penalty for the offence is:-

(a) except as provided by paragraph (b), a fine of 5,000 penalty units or imprisonment for life, or both..."

1. A standard non-parole period of 15 years is prescribed by the Crimes (Sentencing Procedure) Act 1999 for an offence in the middle of the range of objective seriousness.

1. The applicant was sentenced to a total term of imprisonment of 12 years and 6 months with a non-parole period of 9 years. The sentence commenced on 9 May 2005. The applicant is eligible for release on 8 May 2014, with the balance of term expiring on 8 November 2017.

Remarks on sentence

1. The sentencing judge noted that the charge of supply was founded on four individual supplies as described in the Statement of Facts.

1. On 10 February 2005, "Tom" was instructed by one Hatfield to meet the applicant to discuss potential sales of cocaine imported in October 2004.

1. On 17 February 2005, Tom met the offender and they again discussed the applicant's attempts to sell cocaine in October 2004. The applicant on that occasion told Tom to tell Hatfield that he preferred the "double-X" because the quality was better.

1. The sentencing judge noted that the supply of cocaine rested on four individual acts of supply, namely, on 24 February 2005 when 249.8 grams were supplied to Joe and Mario, 25 February 2005 when 500 grams were to be supplied to Billy, but who declined to proceed to buy it, on 28 February 2005 with the supply of one kilogram of cocaine to Elmir and on 14 March 2005 when 496 grams were sold to Elmir. The total amount of cocaine to which the charge related was, as earlier stated, 2.25 kilograms.

1. The sentencing judge observed (ROS 6):-

"It is plain from the conversations and observations of the offender that his role was to arrange sales of large amounts of cocaine. In relation to this offence, his principal supplier was Hatfield through the agency of Tom. In the course of their conversations, the offender pressed Tom to ensure that Hatfield released cocaine of suitable quality, referred to complaints from purchasers about the standard of the cocaine supplied and negotiated prices based on the quality of the cocaine. He received a commission on the sales he introduced."

1. In relation to the role of the applicant, the sentencing judge stated (ROS 7):-

"... The conversations support a finding that far from being low level, the offender was engaged in broking significant quantities of cocaine. On a number of occasions he indicated to Tom that he could move large amounts of cocaine provided that it was the same quality as the double-X. That he was apparently paid a small amount of money by way of brokerage fee does not alter that finding."

1. Later in the remarks, the sentencing judge observed (ROS 7-8):-

"... The conversations make it clear that the supplies which make up the offence were not an isolated lapse. I find that the offender was well entrenched in the criminal enterprise to supply cocaine. That finding and that of the offender's role are findings that I make beyond reasonable doubt on the facts available to me."

1. The sentencing judge observed that the offender, then aged 53 years, had previous convictions for drug offences. In 1976 he had been convicted of selling a prohibited drug (Indian hemp) for which he was sentenced to a term of imprisonment. He was again convicted of selling drugs in December 1996 and was sentenced, after appeal, to a fixed term of imprisonment of approximately six months. In the years 1976, 2004 and 2005 he was convicted of possessing a drug.

1. The sentencing judge observed (ROS 8):-

"The offender has thus been convicted of crimes of a similar nature to that for which he is to be sentenced. This heightens the need for a sentence which will speak strongly to specific deterrence. His convictions mean that he will not be afforded the leniency usually expected to be given to a person of no or insignificant criminal history. His criminal history demonstrates an attitude of continuing disobedience to the law."

1. The applicant did not give evidence at the sentencing hearing and, accordingly, the source of background information on the offender came from a pre-sentence report and other documents tendered at the hearing as well as from his ex-partner who gave evidence.

1. The sentencing judge noted that the applicant had told the author of the pre-sentence report that he had become involved in the sale of cocaine to supply his drug habit and that his role was one of bringing buyer and seller together for a "modest fee" .

1. The report of John Jacmon, clinical psychologist, was tendered in evidence. The report records expressions of remorse by the offender. Mr Jacmon, based upon the history given to him, said the offender had suffered from depression and anxiety and that he probably suffered from those conditions at the time of the offence, and that these probably arose from his drug use. He also believed the offender had a substance abuse disorder. He considered these two factors would operate to impair his cognitive function and his judgment.

1. In assessing the objective seriousness of the offence, her Honour considered, along with the amount and purity of the drug, the applicant's claimed addiction to cocaine (at pp.15-19), although she did not consider that the applicant was afflicted by the addiction to the point where his actions were impulsive and impaired. She noted, at p.18, that " the offender's conduct was planned and calculated ".

1. In accepting the submission of the Crown on this point, it was noted that (ROS 23):-

"... the offender had a far greater role and involvement in the movement of cocaine than any of those to whom I have referred and his offending was neither isolated nor could it be referred to as an error of judgment . "

1. In terms of subjective factors, the remarks on sentence reveal that her Honour took into account the efforts the applicant had made whilst in custody his undertaking drug and alcohol and counselling courses (ROS 12-13).

1. Her Honour considered that the applicant should receive a discount for the plea of guilty of 15%. It was noted that although substantial utilitarian benefit was obtained through the plea, in particular, obviating the need to cross-examine an informer who was pivotal to the Crown's case, it nonetheless remained the fact that the applicant had not entered the plea until quite late in the day, namely, subsequent to the committal proceedings and an unsuccessful Supreme Court challenge in respect of controlled operation certificates. The applicant entered the plea of guilty on 2 July 2007 on the reading of the indictment.

1. It had been submitted to her Honour that clemency ought be given on the grounds of the applicant's ill health at the time of sentence. However, the evidence of such ill health was, in the sentencing judge's assessment, insufficient to impose undue privations upon the applicant.

1. A finding of "special circumstances" was made due to the applicant's age and drug addiction (ROS 23).

1. In relation to the submissions made with respect to the other members of the syndicate who were later charged with similar offences, her Honour stated (ROS 23):-

"I find that there are significant differences between the offender and the others who have been sentenced particularly in relation to criminal history, character and subjective circumstances.

I do not regard the objective criminality of the offender to be on par with other offenders nor do I consider him necessarily to be on par with Elmir [the co-offender], whose role while significant, was not as extensive as this offender . "

1. The sentencing judge took into account the fact that the offender had a previous criminal record, which included offences for the supply of prohibited substances. That fact, in conjunction with the matters referred to above, did not, in her Honour's opinion, warrant leniency in sentencing. The sentencing judge considered that the sentence ought bring to account the need for deterrence (ROS 8).

Facts

1. The statement of facts details the somewhat lengthy police investigation into the activities of the applicant, and the syndicate in which he operated.

1. It is not necessary for the purposes of the present appeal to detail here the entire factual history of the operations. The applicant's written submissions accepted that the charge to which the applicant entered a guilty plea consists of four separate transactions, namely, that the applicant:-

"(i) on 24.2.2005 facilitated a supply by a police informer ('Tom') of 250 grams [of] cocaine to two men ('Joe' and 'Mario') for $40,000 and the applicant received $1,000 for brokering the sale;

(ii) on 25.2.2005 facilitated an offer to supply by 'Tom' [an amount] of 500 grams of cocaine to 'Billy' (the sale did not proceed);

(iii) on 28.2.2005 facilitated a supply by 'Tom' of 1 kilogram of cocaine to Elmir for $160,000 and the applicant received $3,000 for brokering the sale;

(iv) on 14.3.2005 facilitated a supply by Jabbour of 500 grams of cocaine to Elmir."

1. In respect of transactions (i)-(iii) above, evidence was obtained by way of listening devices on the informer "Tom" . The transaction, (iv) above, involved dramatic circumstances. After leaving the premises of Jabbour, the applicant and Elmir presumably saw an unmarked police vehicle directly behind them, which activated a blue rotating light and siren. Rather than stop, Elmir, the driver of the vehicle, accelerated away from the scene. The police lost sight of that vehicle.

1. Intercepted telephone conversations between the applicant, Elmir and Jabbour revealed that the applicant had disposed of the parcel of cocaine at a location just off Bexley Road. Jabbour attended the location, but could not find the parcel. Later, the police who attended the scene found a parcel of cocaine which contained 496 grams of the drug at 85% purity.

1. It was established that in many of the transactions the applicant acted as an intermediary, or a "go-between" in the sense that his role was to find potential buyers for the cocaine and facilitate their sale. He often picked up the drug from one location, and attended at the sale of the drug. In that sense, he was involved at both ends of the transactions.

1. On sentence, a detailed statement of facts dated 18 October 2007 was tendered on behalf of the Crown which, inter alia, set out the details of the controlled operation conducted by the NSW Crime Commission which was investigating the activities of a Sydney based syndicate in respect of the importation, possession and supply of cocaine, and associated money laundering activity.

1. The investigation was initiated by information received in December 2004 from a registered source referred to as "Tom" . The information related to the distribution of imported cocaine by Hatfield. Tom had told investigators that, between July 2004 and December 2004, he had supplied 200 kilograms of cocaine at Hatfield's direction and to customers of Hatfield.

1. "Tom" told investigators that he had met the applicant through Hatfield in August 2004.

1. "Tom" met the applicant on 10 February, 17 to 19 February, 21 to 22 February and on 25 February 2005 and a number of recorded telephone conversations occurred in that period. Copies of transcripts of intercepted telephone conversations on specified dates were attached and marked "F" to the Statement of Facts.

1. The applicant was arrested on 9 May 2005.

Grounds of Appeal

1. The Grounds of Appeal to this Court, set out in the Notice dated 8 December 2010, were as follows:-

"(a) The sentencing judge erred in concluding that the objective seriousness of the offence was in the middle of the range.

(b) The sentencing judge erred in the proportion between the non-parole period and the overall sentence.

(c) The applicant has a legitimate grievance arising from disparity of sentence."

1. In the Applicant's Reply submissions, it was stated that the second of these grounds (paragraph (b) above) was no longer pressed.

Ground 1: That the sentencing judge erred in concluding that the objective seriousness of the offence was in the middle of the range

1. The applicant contended that the offence ought not be considered in the middle of the range of objective seriousness for three primary reasons:-

(1) That the amount actually involved, being 2.25 kilograms, was towards the lower end of the range of large commercial quantities.

(2) That the applicant's role was as a broker, and he had no managerial function.

(3) That the applicant received a relatively small amount of remuneration, being $4,000 for all four transactions, or $1,000 on each occasion.

1. It was contended for the applicant that the sentencing judge had failed to take into account that each transaction involved an amount of cocaine at, or less than, the amount giving rise to a large commercial quantity, notwithstanding that the total amount exceeded that threshold. Indeed, in respect of the total amount, it only marginally exceeded the threshold in the sense that it was towards the lower end of the range of a large commercial quantity.

1. The applicant further contended that his role as a broker could not justify a finding of being middle of the range of objective seriousness, particularly when taken in light of the fact that his monetary reward was "minimal" . In Tyler v R; R v Chalmers (2007) 173 A Crim R 458 at 471 per Simpson J, her Honour noted that:-

"Those low in the hierarchy, such as couriers, are usually to be sentenced less harshly, because, although they are of fundamental importance in the execution of the object of the conspiracy - in a drug importation conspiracy, without couriers, no drug could or would be imported - they have no managerial or decision making function; and, experience shows, usually derive the least monetary reward."

1. The applicant also submitted that his motivation, which was to feed his own addiction is not to be counted as an aggravating factor: R v Way (2004) 60 NSWLR 168 at [86].

1. The Crown, in reply, submitted that little turned on the submissions for the applicant as to the quantities of the cocaine. Reliance was placed upon a recent decision of this Court in R v Sinkovich [2011] NSWCCA 90 at [58] as to the fact that the quantity of drug is not determinative of objective criminality. Hoeben J observed:-

"Another problem with the submission is that the differentiating feature between an offence of supplying a large commercial quantity and supplying a commercial quantity, is the quantity of the drug involved. The individual circumstances of the latter offence may nevertheless cause it to be characterised as a more serious offence by comparison. The quantity of drug involved is not necessarily determinative of the level of criminality. The observation of the plurality in Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357 at [33] forcefully makes this point:-

'33 A serious fallacy in his Honour's reasoning is that it assumes that any case involving more than 250 grams of heroin is likely to be a worse case than any case involving only 250 grams or less. That cannot be so in the virtually absolute terms in which his Honour puts it. Little imagination is required to envisage a case involving a relatively small quantity of heroin, as being of very great seriousness, for example, supply to create an addiction in an infant. ...'"

1. The Crown noted that there is no upper limit to a large commercial quantity and on that basis it is idle to compare what is or is not large for a large commercial quantity. Similarly, it was submitted that the remuneration the application received, whilst small in percentage, was nevertheless large in terms of the task undertaken, namely, brokering the sale of the drug.

1. With respect to the applicant's reliance on Tyler (supra), the Crown suggested that her Honour's reasons are not to be taken as applicable to the plethora of cases of drug importation and distribution that reach the courts, but rather are to be considered in the context of the facts of the individual case.

1. In this case, the Crown contended, no linear hierarchy exists. Indeed, the organisation, as it were, was one of "flat" control. There was no " manager " that would fulfil the criterion to which Simpson J referred in Tyler (supra). Furthermore, the Crown relied upon a number of factors that it contended pointed to the applicant having the ability to exercise some form of control over the brokerage and indeed having an assertive role to play in the organisation of the deals.

1. In her remarks, her Honour noted that the applicant was not a "low level cog" (ROS 6-8) and, as noted above, she accepted that he had a greater role to play than some of the other accused involved in the syndicate (ROS 23).

1. Finally, the Crown noted that her Honour took into account the applicant's previous convictions in determining sentence, which justified a finding that leniency ought not be given.

1. Mr S Odgers SC on behalf the applicant submitted in his written reply that even if it is correct to say that there were no managers of the syndicate in the sense referred to in Tyler (supra), one can " observe that the applicant had no managerial role when comparing him with a hypothetical abstract offence in the middle of the range of objective seriousness " (Applicant's Reply at [2]). Mr Odgers pointed to the fact that there was an " absence of any managerial function ... financial contribution, the fact that he was to receive a payment rather than a share of the profits and the applicant's addiction to drugs ". It was submitted that in light of the evidence on such matters, her Honour's findings that the offence fell into the middle of the range was unreasonable and erroneous.

1. The applicant also contended in reply that her Honour should have found that he was entirely motivated to engage in the criminal activity in order to obtain drugs to feed his own addiction, and referred, in this respect, to a number of factors in support, such as:-

(1) The applicant being a significant user of cocaine over many years.

(2) The applicant having been gainfully employed before becoming addicted to cocaine.

(3) The applicant's ex partner's observation of him being under the influence of drugs.

(4) The fact that the applicant and his partner had been evicted from a number of residences and had their car repossessed, indicated that they had very limited funds.

(5) The applicant's motivation to avoid future drug use on release, bearing in mind his efforts to address his drug addiction and the observation of those who know him

(6) The finding of special circumstances because of the applicant's age and the fact and duration of his drug addiction.

1. Mr Odgers observed that the applicant's previous criminal convictions had no place in the assessment of the objective seriousness of the offending conduct: Way (supra) at [92]; R v McNaughton (2006) 66 NSWLR 566 at [24]. It was also submitted that the Crown's reliance on the fact of multiple transactions as being relevant to the assessment of objective seriousness was an error as it would constitute impermissible double counting: Cicciarello v R [2009] NSWCCA 272 at [19].

Consideration

1. The amount of a prohibited substance is, of course, a relevant fact in the consideration of the objective seriousness of the offence.

1. However, other factors, of course, must also be identified and taken into account in determining the objective seriousness of the offence: Sinkovich (supra). The amount of the drug, the subject of the charge (2.25 kilograms), is clearly a very significant matter.

1. The total amount of it was more than twice the amount necessary to warrant a charge of supply a large commercial quantity. As there is no upper limit, or further bracket of supply, I do not consider it correct to say that the amount, along with other factors, could not support a finding of mid-range seriousness. In particular, the Court was not provided with any examples that would suggest that 2.25 kilograms is not what could be considered a mid-range amount of cocaine.

1. I will deal with the managerial and remuneration factors simultaneously. The transcripts demonstrate that the applicant acted as a broker or salesman of the drugs in the sense that he would actively seek out clients and bring them to the table. He was not a courier. He was not a "mule" . I accept, as the Crown submitted, that he was a part of a flat hierarchy insofar as there was no indication that the applicant received orders or was directed by anyone. He was an agent who took his cut, albeit a small one, at the end of the deal.

1. The trial judge rejected the submission that the applicant was at a low level, and there is nothing that would suggest that her Honour was in error in doing so.

1. As to the applicant's motivation, it is true that being part of such an enterprise is not an aggravating factor - but that does mean that it is an ameliorating factor either. The factors raised on appeal that were said to render the offence towards the lower end of objective seriousness are, in my opinion, adequately accounted for by her Honour in her remarks on sentence and do not persuade me otherwise.

1. This is not a case where, at least on the evidence, the applicant used the proceeds to pay business expenses or necessities. Indeed, even if that had been the case, I do not see how that would result in a finding less than what her Honour considered.

1. I would reject this ground of appeal.

Ground 2: That the sentencing judge erred in the proportion between the non-parole period and the overall sentence.

1. This ground, as indicated above, was not pressed.

Ground 3: That the applicant has a legitimate grievance arising from disparity of sentence

1. The applicant submits that the trial judge erred in failing to give effect to the principle of parity in sentencing the applicant in comparison with the sentencing of Pavan and Elmir, which gives rise, in the appellants submission, to a justifiable sense of grievance. Reference was made in submissions to OM v R; MH v R; AA v R; AS v R [2009] NSWCCA 267 at [27] and Lau v R [2010] NSWCCA 43 for the proposition that, all things being equal, a finding of special circumstances in relation to one offender and not another may give rise to a justifiable sense of grievance.

1. The submission in this regard, of course, relates to the amount of time reflected in the non-parole period. The parity principle can apply where a finding is such that, all things being equal, the non-parole periods of some co-offenders are substantially different to that of another offender.

1. The Crown contended that it could not be reasonably said that all things are equal between Pavan, Elmir and the applicant.

1. It was accepted by the Crown that her Honour failed to differentiate the needs of the applicant and Elmir. However, reliance was placed on the finding of a greater criminal culpability in respect of the applicant's offending. In Lau (supra) at 15, McClellan CJ at CL stated:-

"Because a finding of special circumstances reflects the personal characteristics of an offender, which will commonly differ between two co-offenders, disparity is unlikely to be found in relation to a finding of special circumstances in relation to one co-offender and not another. However, Howie J accepted, as I do that there may be cases where all relevant facts and circumstances being equal, a finding of special circumstances in the case of one offender and not in the other may give rise to a justifiable sense of grievance. "

1. The applicant noted that in R v Pavan [2009] NSWDC 82, which involved the supply of three kilograms of cocaine in the course of three events, in which a similar role was played by Pavan, a finding of special circumstances was made and a lower non-parole period than that of the applicant was determined.

1. The Crown relied upon the reasons of Berman DCJ in Pavan (supra) as to the finding of special circumstances as the basis for its submission that a comparison cannot be made.

1. I would reject the applicant's ground of appeal in respect of parity. I note the decision of Howie J in R v Wahabzadah [2001] NSWCCA 253 at [15] that a breach of the parity principle will not have occurred " simply because different non-parole periods are specified for different co-offenders because of different findings as to the existence, or extent, of special circumstances ". See also Lau (supra) at [15].

1. With respect to Elmir, I note that there are a number of similarities between him and the applicant. Both were part of the same organisation and both were found to have been engaged in long-term acts of offending of this type (Elmir ROS 20). I note that her Honour determined that Elmir was " lower than that of... the facilitator " (Elmir ROS 20). The sentencing judge noted (ROS 23):-

"I do not regard the objective criminality of the offender to be on par with other offenders nor do I consider him necessarily to be on par with Elmir, whose role while significant, was not as extensive as the offender" .

1. Her Honour was entitled to make that finding and there is nothing before me that would suggest such a finding was in error. Moreover, a substantially lesser amount of cocaine (1.5 kilograms) occurred in relation to the charge against Elmir.

1. Her Honour did not specifically address in her remarks the sentence imposed on Pavan. A number of factors should be noted concerning the sentence imposed on Pavan. Pavan supplied a greater amount of the substance than the applicant: Pavan (supra) at [18]. Additionally, the sentence imposed resulted in Pavan's first time in custody. A longer time served on parole can be said to have been appropriate in that case. The applicant, on the other hand, had been convicted of both supply and possession offences dating back to 1976.

1. It was also the case that the sentencing judge appeared to consider the remorse of Pavan genuine, particularly with respect to the effect that it had on his family: Pavan (supra) at [12]. That can be contrasted with her Honour's opinion of the remorse of the applicant, which she described as remorse " for the position in which he now finds himself " and " his remorse and distress is for himself " (ROS 14).

1. As such, I am not of the opinion that the principle of parity is infringed by the lengthier non-parole period imposed upon the applicant than those applicable to the co-offenders.

1. Although the description of the ground of appeal was confined to the issue of disparity of sentence, both in written and oral submissions on behalf of the applicant, complaint was made that, notwithstanding the finding of special circumstances, the consequential variation in their non-parole to parole period was very minor and did not reflect the basis upon which the finding of special circumstances had been made.

1. That finding was based upon two matters. The first was the offender's age (he is presently aged 56 years) and the second was the fact and duration of the applicant's addiction (ROS 23).

1. There is no doubt on the evidence that the applicant had a long history of drug addiction which was extremely serious. He had been admitted several times as a result of overdosing, at Royal North Shore Hospital in 2000, St Vincent's Hospital and Prince of Wales Hospital in 2001. A Hospital Admission Summary Sheet in relation to the applicant's admission on 31 October 1993 referred to an earlier cocaine overdose requiring acute care.

1. In the evidence before the sentencing judge was a report from Ms Christine Bridekirk, Alcohol and Other Drugs Worker, Metropolitan Special Programmes Centre dated 28 February 2008. The letter evidences the fact that the applicant had referred himself to the AOD Services in MSPC Area 1 on 1 November 2006 and that he had since had regular contact with those services and had completed a Relapse Prevention Programme on a one-to-one basis. The letter stated that the applicant had shown a great interest in an assessing programme to treat his long-standing cocaine addiction and his desire to attend an intensive pre-release therapeutic programme.

1. The ratio of the non-parole to the parole period (respectively 9 years and 12.5 years), was a ratio of 72%. It was contended, as indicated above, that a special circumstances finding having been made, the ratio was erroneous.

1. The basis for the finding of special circumstances was a combination of the applicant's age and his cocaine addiction. Accordingly, the rehabilitation of the applicant was an objective to be achieved through the sentence that was to be imposed. The contention for the applicant was that ratio of the non-parole period to the parole period would not assist in any material way in achieving that objective.

1. It was submitted for the applicant:-

"13. In the present case, there was a powerful case for a significant variation of the ratio between non-parole period and parole period in order to improve the prospects of the applicant remaining drug free and, as a result, avoiding further criminality."

1. Mr Odgers observed in his written submissions at [13] that the additional term was only extended by a period of 19.5 weeks, although a finding of special circumstances was made on the basis of the applicant's age and the fact and duration of his drug addiction. Reference was made to other cases in which a slight reduction in the non-parole period despite a finding of special circumstances was held not to achieve the purpose of the special circumstances finding. Amongst the cases referred to was R v Sutton [2004] NSWCCA 225, in which the ratio of 70% (producing a reduction of the non-parole period of 3 months) was found to be inadequate and was changed on appeal to 61.5%.

1. I have concluded that a non-parole period of 8.5 years which would result in a parole period of 4 years would strike the correct balance, having regard to the reasons behind the finding of special circumstances in this case. In other words, a non-parole period of 8.5 years with an appropriately supervised parole period of 4 years would, in my opinion, achieve the correct balance in maximising the prospects of the applicant's rehabilitation, taking into account his long-standing drug addiction.

1. I consider, in all the circumstances, that error has been established in the failure to give meaning and effect to the finding of special circumstances having regard to the somewhat unique facts of this case. I observe that I do not consider that a reduction of the non-parole period by a period of 6 months (and the resultant increase in the parole period) to be an inconsequential adjustment to the sentence. A period of 6 months directed towards the rehabilitation of an offender with the applicant's history is, at least, potentially a significant period towards achieving that objective.

Orders

1. I propose the following orders:-

(1) Leave to appeal be granted.

(2) The appeal, in part, be upheld.

(3) That the applicant be re-sentenced to a non-parole period of 8 years and 6 months commencing on 9 May 2005 and expiring on 8 November 2013 with an additional term of 4 years commencing on 9 November 2013 and expiring on 8 November 2017.

(4) Accordingly, the earliest date upon which the applicant will be eligible for release on parole will be 9 November 2013.

Decision last updated: 08 September 2011