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Sevastopoulos v R

Sevastopoulos v R

Case [2011] NSWCCA 201 6 September 2011

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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

TOBIAS AJA: I agree with Hall J.

JOHNSON J: I agree with Hall J

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

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 . "

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

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 Sevastopoulos v R

Details

AGLC: SEVASTOPOULOS v REGINA [2011] NSWCCA 201
Case: [2011] NSWCCA 201
Decision Date: 06 September 2011

CaseChat Overview and Summary

The appeal before the court involved the sentencing of the applicant, who was found guilty of supplying a large commercial quantity of prohibited drugs. The applicant contested the severity of his sentence, arguing that his role as a "broker" without any managerial function should have resulted in a finding of below mid-range objective seriousness. Additionally, the applicant claimed he had a legitimate grievance due to the disparity in sentences received by his co-accused and that the parity principle with respect to the non-parole period was infringed. The appeal was heard in the High Court of Australia.

The legal issues before the court included whether the applicant's role as a broker, with no managerial responsibilities, warranted a finding of below mid-range objective seriousness. Furthermore, the court needed to determine if the applicant's minimal payment for his services constituted a legitimate grievance regarding the disparity in sentences between him and his co-accused. Lastly, the court had to assess whether the parity principle concerning the non-parole period was breached and if the proportion of the non-parole period to the head sentence was in error.

The court found that the applicant's role as a broker did not necessarily entitle him to a finding of below mid-range objective seriousness. However, the court acknowledged that the disparity in sentences between the applicant and his co-accused constituted a legitimate grievance. The court also determined that the proportion of the non-parole period to the head sentence was incorrect. As a result, the appeal was allowed in part, and the sentences were subject to modification.

The final orders of the court included a reduction in the non-parole period to reflect the correct proportion to the head sentence. The court did not alter the applicant's role in the sentencing process but recognised the legitimate grievance concerning the disparity in sentences. The outcome of the appeal led to a modification of the original sentence, ensuring that the non-parole period was proportionate to the head sentence.

Orders