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 1985Cases 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 458Category: 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…
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- AGLC
- SEVASTOPOULOS v REGINA [2011] NSWCCA 201
- Case
- [2011] NSWCCA 201
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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