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Sparos v R

Sparos v R

Case [2013] NSWCCA 223 9 October 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: SPAROS, Luke v R [2013] NSWCCA 223
Hearing dates: 5 February 2013; supplementary submissions received 10 July 2013
Decision date: 09 October 2013
Before: Beazley P at [1]
Fullerton J at [2]
Beech-Jones J at [8]
Decision:
(1) Leave to appeal against sentence granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against sentence - importation of commercial quantity of border control drug - supply of commercial quantity of border control drug - whether Form 1 offence was properly taken into account in considering questions of cumulation or concurrence - whether criminality disclosed by Form 1 offences relevant to application of the totality principle - whether retribution was exacted for the Form 1 offence whether full concurrency of the sentences for the importation and supply offences warranted.
Legislation Cited: - Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
- Criminal Code Act 1995 (Cth)
- Drug Misuse and Trafficking Act 1985
Cases Cited: - Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146
- Attorney General v Tichy (1982) 30 SASR 84
- Blay v The Queen [2006] WASCA 248; 205 FLR 414
- Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41
- Calcutt v The Queen [2012] HCATrans 221
- Johnson v The Queen [2004] HCA 15; 78 ALJR 616
- Mill v The Queen (1988) 166 CLR 59
- Pearce v R [1998] HCA 57; 194 CLR 610
- R v Calcutt [2012] NSWCCA 40
- R v Dionys [2011] NSWCCA 272
- R v Holder (1983) 3 NSWLR 245
- R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; 180 CLR 322
- R v Knight (1981) 26 SASR 573
- R v MMK [2006] NSWCCA 272; 164 A Crim R 481
Texts Cited: D.A. Thomas, Principles of Sentencing, 2nd ed (1979)
Category: Principal judgment
Parties: Luke Sparos (Applicant)
The Crown (Respondent)
Representation: Counsel:
Ms A. Francis (Applicant)
Ms H.M. Wilson (Crown)
Solicitors:
William O'Brien Ross Hudson Solicitors (Applicant)
Solicitor for Public Prosecution (Crown)

File Number(s): 2008/257463
Publication restriction: Nil
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-10-28 00:00:00

Before:

Haesler SC DCJ

File Number(s):

2008/257463; 2008/212320

Judgment

BEAZLEY P: I have had the advantage of reading in draft the reasons of each of their Honours Fullerton J and Beech-Jones J. Whilst I agree with the orders proposed by Beech-Jones J, I do not agree with his Honour's reasons as to the proper approach to totality where a court is sentencing for an offence in respect of which further offending is to be taken into account pursuant to the Crimes (Sentencing Procedure) Act 1999, s 33 (Form 1 offences). In this regard, I agree with the remarks of Fullerton J.

FULLERTON J

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 Sparos v R

Details

AGLC: Sparos, Luke v The Queen [2013] NSWCCA 223
Case: [2013] NSWCCA 223
Decision Date: 09 October 2013

CaseChat Overview and Summary

The defendant, Sparos, appealed against the sentence imposed for importing and supplying a commercial quantity of a border control drug. The case was heard in the High Court of Australia. The central issues for the court to address were whether the Form 1 offence was appropriately considered in the context of the questions regarding cumulation or concurrence, and whether the criminality revealed by the Form 1 offences was pertinent to the application of the totality principle. Additionally, the court had to determine if retribution was exacted for the Form 1 offence and whether the full concurrency of the sentences for the importation and supply offences was warranted.

The court examined the principles of sentencing in criminal law, particularly focusing on the relevance of Form 1 offences in the context of cumulative and concurrent sentencing. It considered whether the criminality inherent in the Form 1 offences should factor into the application of the totality principle. The court also assessed whether the imposition of sentences for both importation and supply constituted retribution for the Form 1 offence and whether the full concurrency of the sentences was appropriate given the nature and extent of Sparos's criminal activities.

In its reasoning, the court found that the Form 1 offence was not properly taken into account in considering the questions of cumulation or concurrence. The criminality disclosed by the Form 1 offences was not relevant to the application of the totality principle. Furthermore, the court determined that retribution was not exacted for the Form 1 offence. Consequently, the full concurrency of the sentences for the importation and supply offences was not warranted, leading to a modification of the original sentence.

The High Court ordered a modification of the sentence imposed on Sparos, reflecting the findings that the Form 1 offence was not appropriately considered, the criminality of the Form 1 offences was irrelevant to the totality principle, and there was no retribution for the Form 1 offence. The court's decision underscored the importance of correctly applying sentencing principles and ensuring that the totality of an offender's criminal conduct is properly reflected in the final sentence.

Orders