Efstathiadis v R

PARTIES: Ilia Leo Efstathiadis (Applicant) The Crown

COUNSEL: G Nicholson QC (Applicant) L Babb SC/M Rabsch (Crown)

SOLICITORS: William Whitby Lawyers (Applicant) Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/7681

McCLELLAN CJ at CL HOWIE J FULLERTON J

WEDNESDAY, 28 OCTOBER 2009 EFSTATHIADIS, Ilia Leo v R Judgment 1 McCLELLAN CJ at CL: The applicant pleaded guilty to one count of supply a large commercial quantity of methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act. The amount of the drug involved was 1.9 kilograms. A large commercial quantity is 1 kilogram. The maximum penalty for the offence is life imprisonment (s 33(3)(a) of the Drug Misuse and Trafficking Act). The applicant was sentenced to a non-parole period of 10 years imprisonment with an additional term of 4 years. The offence carries a standard non-parole period of 15 years. 2 Although the applicant entered a plea of guilty it was not entered at the first available opportunity. Before entering a plea to the charge on which he was convicted he had offered to plead to a different charge. It was only after the matter had been set down for trial that he entered his plea to the present charge. The sentencing judge provided a reduction in sentence for the utilitarian value of the plea of 10%. 3 The sentencing judge found special circumstances based on "the offender serving a significant sentence (and) his prospects of rehabilitation and reintegration into the community (being) best served by an extended period of supervision." The standard non-parole period which his Honour imposed is 71% of the total term. 4 The relevant facts were agreed and incorporated into a written document. They are as follows: "On 26 August 2006 police received information Efstathiadis was to attend Crystal Car Wash in Rose Bay to meet a male known as 'Hellal Ramadan' who police believed to be a major drug supplier. The police conducted surveillance at the meeting from 2.20 pm and saw that a third male, whom I shall refer to as 'D' was also at the meeting. Prior to the meeting there had been a number of phone calls between Efstathiadis and D organising to meet in Sydney. As D got closer to the car wash Efstathiadis gave him directions on how to get there over the phone At about 2.50 pm Ramadan left the location driving a gold coloured Mercedes Kompressor. A short time later D left the location driving a white Mazda 323 registration number YKK 465 followed by Efstathiadis driving his vehicle, a black WRX registration number 5TRAPT. Efstathiadis and D were then followed to the Westfield shopping complex carpark at Bondi Junction where they arrived at 3.25 pm. At about 4.42 pm D and Efstathiadis returned to the white Mazda registration YKK 465 with Efstathiadis carrying shopping bags which he placed in the vehicle. D walked to the 5TRAPT and got into the driver's seat. About two minutes later Efstathiadis walked to the vehicle 5TRAPT and got into the front passenger seat. A short time later Efstathiadis walked back to the Mazda YKK 465. At this time police have lawfully intercepted two further calls between Ramadan and Efstathiadis where they have arranged to meet at another location in the carpark. At around the time of the phone calls Ramadan can be seen on CCTV footage walking into Fitness First at Westfield and making a phone call. At the time he is carrying a Rusty brand backpack. CCTV footage captured Efstathiadis and Ramadan meeting in the parking payment office before walking out of the office and being picked up by the Subaru 5TRAPT that was being driven by D. At this time Ramadan was still I possession of the Rusty brand backpack. The vehicle then became mobile in the carpark and CCTV footage shows a person believed to be Efstathiadis placing an object into the passenger's side airbag compartment. The vehicle completed a lap of the carpark before dropping of Efstathiadis and Ramadan. Ramadan returned to his vehicle no longer carrying the backpack. A short time later Efstathiadis drove Mazda YKK 465 out of the carpark followed by D in Subaru 5TRAPT. A Rusty brand backpack was later located in the Mazda YKK 465. About 6 pm the Subaru WRX 5 TRAPT was the subject of a vehicle stop on Princes Highway at Waterfall. At this time the Mazda YKK 465 being driven by the offender was travelling immediately in front with both vehicles appearing to be travelling together. The driver of 5TRAPT, D, was spoken to and LEPRA safeguards applied. The police drug dog attended the location and assisted in the search of the vehicle. Police drug dog Emma indicated in the area under the dash in the vicinity of the glove box and also at the driver's door. The vehicle was seized and transported to Wollongong Police Station where a further search was conducted. At Wollongong Police Station a search of the vehicle was conducted and it was recorded on video tape. In the passenger side airbag compartment police located a plastic bag wrapped in a black T-shirt. The plastic bag contained a crystal substance which, on analysis, was determined to be methylamphetamine weighing 1,980 grams. Also located in the vehicle were person papers and a driver's licence in the name of Ilia Efstathiadis, the owner of the vehicle. At 6.30 pm white Mazda 323 registration number YKK 465 was stopped near the intersection of Campbell and Flinders Street, Wollongong. The driver, Efstathiadis was spoken to and placed under arrest for drug supply." 5 The applicant supplied 1,980 grams of methylamphetamine which is nearly twice the minimum amount constituting a large commercial quantity. The purity of the drug was 59.5%. As the sentencing judge found the amount of drug and its purity indicate that a vast quantity of the drug could be supplied to "many, many street users" as a result of this transaction.

Subjective matters 6 The applicant was 27 years of age at the time of the offence. The sentencing judge found that the applicant had participated in a supply network with his "eyes wide open". He had been previously convicted in December 2000 for the on-going supply of a prohibited drug contrary to s 25A(1) of the Drug Misuse and Trafficking Act when two further matters were taken into account on the Form 1. For that offence he was sentenced to a total term of imprisonment of 2 years and 6 months with a non-parole period of 1 year and 4 months. As a consequence the sentencing judge found that the applicant's prior record did not entitle him to any leniency. 7 The applicant had a happy childhood and completed Year 12 at school. Since leaving school he has completed courses in accounting, business and computer studies. The sentencing judge was satisfied that the applicant has made positive efforts towards his rehabilitation and there are good prospects that he will be rehabilitated upon his release from prison. 8 The sentencing judge received reports from a probation officer and a psychologist. Those reports did not disclose evidence of regret by the applicant for his part in attempting to supply the large quantity of drugs.

Grounds of appeal 9 There are three grounds of appeal advanced by the applicant being:

1. The sentence is excessive in the circumstances of the case; 2. The sentence imposed is outside the proper exercise of sentencing discretion available to a sentencing judge; 3. The sentence offends the principle of proportionality. 10 It is appropriate to deal with these grounds together. The applicant's submissions were framed generally and raise four matters which require discussion. 11 The applicant did not advance a submission that the discount of 10% for the plea of guilty was an error. However, the written submissions set out in detail the history of the plea and it was submitted that by reason of the plea a lesser sentence could have been imposed. I am not persuaded that this submission can be sustained. 12 This Court has said on many occasions that the appropriate discount for a plea of guilty is a matter within the sentencing judge's discretion. There is no one correct answer. In the present case the plea was only offered after the matter had been listed on several occasions and a date had been set for trial. Accordingly, the applicant was only entitled to a discount at the lower end of the available range. As the sentencing judge emphasised, the applicant could have been under no illusion that he had committed the offence with which he was charged. If, as appears, probable, he was engaged in a negotiation from which he sought to gain an advantage on sentence his expectation was not realised. However, having taken that course he is not entitled to complain about the extent of the discount which the sentencing judge provided. 13 The offence was committed with the assistance of a co-offender D who was sentenced by the judge who sentenced the applicant. D was charged pursuant to s 27 of the Act with aiding and abetting the supply of a large commercial quantity of methylamphetamine. That offence also attracts a maximum penalty of life imprisonment. D was interviewed by the police and made statements contrary to the applicant's interests. He was ultimately sentenced on the basis that his conduct fell towards the lower end of the scale of objective seriousness. A sentence of 2 years, which was suspended, was imposed. 14 Although it would seem that his Honour was not reminded of the decision of this Court which indicates that the standard non-parole period was applicable to the aiding and abetting offence, the applicant submitted to the Court that the fact that the co-offender received a non-custodial sentence made plain the excessive severity of the sentence which he had himself received. In his remarks the sentencing judge did not deal at any length with the position of D when sentencing the applicant although he indicated that it was the applicant who "orchestrated the involvement of co-offender D to drive the Subaru to the Illawarra area, thus separating himself from the drugs while he drove D's car." 15 I am satisfied that there was a "real difference" in the position of the applicant and D, particularly in relation to the offence with which each was charged. When sentencing D the judge found that the applicant and D had different roles in the offending. His Honour found that D's role was unplanned. No arrangement had been made with him to drive the applicant's vehicle prior to the applicant requesting this in the car park at Bondi Junction knowing that D admired his car and would not pass up the opportunity to drive it. D did not realise that he was being asked to transport drugs until he saw the parcel being placed in the airbag compartment and even then he was not aware of the type or quantity. D did not participate in any actual supply and there was no arrangement for him to receive any payment or reward for driving the applicant's car. 16 D had a favourable subjective case. Apart from a conviction for malicious damage in 2003 for which he was fined $500 he was a person of good character, a highly respected member of his local community who frequently gave of his time to help others. He was dedicated to his family and his work, was the primary carer of both his parents. He expressed remorse and had discontinued his recreational drug use. His Honour emphasised his assistance to the authorities which he assessed to be "at the upper end of the scale" which in combination with his early plea attracted a global discount of about 60%. 17 The respondent submitted that the sentencing judge was correct to pay little regard to the circumstances of D when sentencing the applicant. In my judgment this submission should be accepted. The role D played in the offence and his subjective circumstances are not comparable to the applicant. 18 The applicant complained that in setting a non-parole period of 10 years his Honour placed the offence "at the very highest order of severity of sentences imposed". The non-parole period which his Honour imposed was five years below that set for this offence by the Parliament. His Honour found that the applicant's criminality was "only very slightly below" the mid range of seriousness for an offence of this nature. The applicant did not submit that this finding was an error. His Honour used the standard non-parole period as a guide post as he was required to do (see R v Way (2004) NSWCCA 131; 60 NSWLR 168 at [122]). 19 The applicant's submissions are not entirely clear. The written submissions are not entirely clear and it may be that there is confusion between the non-parole period and the total term. A submission was made that the starting point for the overall sentence which, having regard to the discount for the plea, must have been 15 years and 6 months, is greater than the standard non-parole period of 15 years. His Honour actually set a non-parole period of 10 years which is 66% of the standard period. Having regard to his Honour's finding as to the objective seriousness of the offence, the time of the guilty plea and the lack of positive matters in the applicant's subjective circumstances, the non-parole period which his Honour imposed was within the available range. 20 The applicant submitted that the sentence was excessive and does not "reflect the principle of proportionality and revealed a miscarriage of sentencing discretion." In support of this submission the applicant referred to the Judicial Commission statistics for the period February 2003 to June 2008 which include a total of 15 offences contrary to s 25(2) of the Act where the drug involved was methylamphetamine. The applicant referred to six of these cases to support an argument that the sentence imposed on the applicant was beyond the available range. However, four of the decisions to which the applicant refers were not cases to which the standard non-parole period applied, being offences committed prior to 1 February 2003. As this Court pointed out in Way it was to be expected that when courts commenced sentencing with regard to the non-parole period provided by the amendment to the Act sentences would increase. 21 This Court has often remarked on the care with which statistics must be utilised when sentencing. The need for caution is greater when the statistical pool includes sentences imposed before the sentencing regime was changed. 22 The two cases which the applicant identified where a sentence has been imposed after the legislative amendment were Hamieh (2007) NSWCCA 277 and Ly (2008) NSWCCA 262. In Hamieh this Court considered an appeal in relation to sentence and by reason of the applicant's strong subjective circumstances, lack of maturity, clinical depression and prospects of rehabilitation together with issues of parity with a co-offender and reduced the sentence. Although the offence was committed after the amendment which provided standard non-parole periods, no reference was made in the decision to the standard period. This Court imposed a total term of 7 years and 11 months with a non-parole period of 5 years and 2 months. The decision does not provide assistance in the present case. 23 In Ly the appellant was sentenced to a total term of 12 years imprisonment with a non-parole period of 8 years. The discount for the plea of guilty was 25% and accordingly, the starting point for the sentence was greater than the starting point in the present case. The amount of drugs involved was 1.10 kilograms and Ly was a user/supplier. The sentencing judge found that Ly's offending was "only very slightly below the mid range. 24 When consideration is given to Ly's circumstances and the penalty which he received the sentence imposed on the present applicant does not reveal any error. 25 In my judgment leave to appeal should be granted but the appeal dismissed. 26 HOWIE J: I agree with McClellan CJ at CL. 27 FULLERTON J: I agree with McClellan CJ at CL. **********

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