Karpatsis v R

Judgment 1Latham J: I agree with Barr AJ 2Button J: I agree with Barr AJ. 3BARR AJ: The applicant, Spiros Karpatsis, seeks leave to appeal against sentences imposed in the District Court. The applicant, who had for years been devoted to the use of illicit substances, committed a number of thefts in May and June 2010. He did so to raise money to buy drugs. He was on parole at the time, having being released on 18 May 2010 after serving the greater part of a six year sentence for robbery armed with an offensive weapon. The several offences may be summarised as follows. 4Count 1: Between 19 and 20 June 2010 the applicant took and drove a conveyance without the owner's consent. The maximum penalty was imprisonment for five years. 5Count 2: On 19 June 2010 the applicant broke and entered Chemmart Pharmacy, Kingsgrove and stole drugs worth $362 and caused damage to the premises that cost $600 to repair. The maximum penalty for that offence was 14 years' imprisonment. 6Count 3: On 20 June 2010 the applicant broke and entered Woolworths at Marrickville and stole cigarettes worth $11,872. The maximum penalty was 14 years' imprisonment 7Count 4: On 19 June 2010 the applicant broke and entered Michael Hill, Jeweller, at Roselands, and stole jewellery worth $42,753. The maximum penalty was 14 years' imprisonment. 8First Form 1: On 18 May 2010 the applicant took and drove a conveyance without the owner's consent. 9Second Form 1: On 17 June 2010 the applicant broke and entered Chemmart Pharmacy and stole $1,670 in cash and drugs worth $336 and caused damage to premises worth $650. 10Third Form 1: (1) On 20 June 2010 the applicant broke and entered Flower Power Nursery at Mt Annan and stole a cash register. (2) On the same day he intentionally destroyed property by ramming the roller door at premises in Rockdale. (3) On 20 May 2010 he stole property worth $13,617 from Myer, Roselands. 11The applicant was arrested on 20 June 2010. On 1 July 2010 his existing parole was revoked. He pleaded guilty in the Local Court and was committed for sentence to the District Court. He came for sentence before North DCJ, who imposed the following sentences- On the first count, and taking into account the offence in the first Form 1, imprisonment for a fixed term of one year commencing on 20 December 2010 and expiring on 19 December 2011; On the second count, and taking into account the offence in the second Form 1, imprisonment for a fixed term of one year and 6months commencing on 20 December 2010 and expiring on 19 June 2012; On the third count, imprisonment for a fixed term of two years commencing on 20 June 2011 and expiring on 19 June 2013; and On the fourth count, and taking into account the three offences on the third Form 1, a non-parole period of two years commencing on 20 December 2011 and expiring on 19 December 2013 and a balance of term of two years expiring on 19 December 2015. 12In addition his Honour dealt with a certificate under s 166 Criminal Procedure Act 1986 pursuant to which the applicant acknowledged driving while disqualified on 20 June 2010. His Honour imposed a fixed term of three months, wholly concurrent with the sentence on the first count. 13The effect of all these sentences was a total effective head sentence of five years with a non-parole period of three years. 14The applicant was 37 years old at the time of sentence. He had a long record of offences of the kinds ordinarily resorted to by those who have to raise money to buy illicit substances. His Honour was told that the applicant had spent only about six months of the previous 10 years out of custody. The applicant gave evidence. So did his mother. His Honour was impressed with their evidence. The report of Rima Nasr, forensic psychologist, was tendered. The psychologist considered that the applicant had become institutionalised. 15His Honour noted that the applicant had pleaded guilty at the earliest opportunity and found that he was remorseful. He considered that at his mature age the applicant had come to realise that he had to get off drugs. His Honour accepted that the applicant would try to do so. In imposing sentence his Honour declared himself satisfied that the applicant was eligible to be referred to the Drug Court for the making of a compulsory drug treatment order. His Honour referred the applicant to that Court accordingly. 16The applicant represented himself before this Court. He filed written submissions and addressed the Court orally. I shall summarise in my own words the grounds argued. 17In the first and third grounds of appeal the applicant complained that although his Honour said that the applicant would benefit from an extended period of parole, he imposed fixed terms for the first, second and third counts. The implication was that his Honour erred in not providing for parole on those counts. 18In order to recognise the totality of the applicant's criminality and not impose a crushing sentence, his Honour adopted the usual method of imposing sentences which were partially concurrent. One effect of this was that any parole period specified on any of the first three counts would have been concurrent with the non-parole period of a succeeding sentence and of no practical value to the applicant. The total effective sentence imposed has a parole period which is 40 percent of the head sentence, making it plain that his Honour gave effect to his stated intention to give the applicant the benefit of an extended non-parole period. 19These grounds of appeal have not been made good. 20In the second ground of appeal the applicant claims to have a sense of grievance by comparing his sentences with those imposed on a co-offender, Trinka Lee Kent. Ms Kent was involved in the offence concerned in the second count, the theft at Chemmart Pharmacy on 19 June 2010. She was sentenced at Central Local Court on 6 April 2011 to imprisonment for nine months with a non-parole period of six months. There appears no reason to distinguish her role from the applicants. 21Ms Kent was also involved in the theft from Michael Hill, Jeweller, the subject of the fourth count. On 19 July 2010 she was sentenced at the Local Court, Burwood to imprisonment for one month. However, the property particularised in the charge was confined to a gold bracelet worth $499, a small fraction of the property the applicant stole. 22There are difficulties in comparing the applicant's criminality and sentence with Ms Kent's. First, while Ms Kent was only four years younger than the applicant she had a far less serious criminal record. She appeared over the years to have been a user of illicit substances and had a record of offences of theft and dishonesty that often seem to go with such use. However, her custodial record was not bad. While she had been sentenced to a number of periods of custody they had not been long and had sometimes been suspended. Occasionally they had been converted into home detention. On that basis alone she had a far better claim than the appellant to leniency. 23I have already drawn attention to the less serious nature of the charge brought against Ms Kent for the theft at the jeweller's shop. 24The process of comparison becomes more problematical when the Court considers that the applicant was sentenced in the District Court and Ms Kent in the Local Court. One effect of the difference was that the maximum sentence applying, for example, to the breaking, entering and stealing offences was 14 years' imprisonment, whereas for Ms Kent it was two years because of the restrictions placed on magistrates sentencing defendants for certain indictable offences: s 267(2) Criminal Procedure Act 1986. 25The applicant submitted that his offences were all small and that he should have been dealt with in the Local Court. I have summarised the facts and it seems to me that the applicant's and Ms Kent's were very different cases, justifying their differential treatment by the Prosecution authorities. 26In addition to these matters the applicant was sentenced for a large number of offences and, as was necessary, North DCJ structured an overall sentence for all offences to reflect what was considered to be the totality of his criminality. Ms Kent, on the other hand, was sentenced at the same time for different offences, and fewer of them. This Court does not have the Remarks on Sentence of the Magistrates, but presumably Ms Kent's totality of criminality was assessed as well. 27Finally, the applicant's criminality for the current offences appears to have been considerably greater than Ms Kent's. 28In my opinion the applicant has not made out a case for disparity and has no justifiable sense of grievance by comparing his sentences with those imposed on Ms Kent. 29In the fourth ground of appeal the applicant complained that the sentences appealed from did not commence until 20 December 2010, even though he was arrested on 20 June 2010. Although his parole for a prior sentence was revoked on 1 July 2010 that was only because he committed the subject offences. His sentences should therefore have commenced on 20 June 2010 and he should be allowed a further six months accordingly. 30I do not accept that submission. It would not be correct to say, as the applicant implies, that he was in custody between his arrest and the commencement of the sentences under appeal only because of these offences. He had previously been sentenced to a long head sentence and it was that sentence that he was serving after the revocation of his parole. In fact the records tendered on sentence show that the balance of the earlier sentence did not expire until 26 February 2012, 14 months after the sentences under appeal commenced. The concurrency of the balance of parole of the existing sentence and the terms of the sentences appealed from was to the applicant's benefit. 31There is no substance in this ground of appeal. 32The applicant added a complaint that although his Honour referred him to the Drug Court he was declared ineligible to enter that Court's program, so he has been unable to obtain the assistance he desires to move towards rehabilitation. 33It is unfortunate that the applicant has suffered the disappointment he speaks of, but it is beyond the power of this Court to assist him. This Court can interfere and impose a different sentence only if the applicant demonstrates that the sentencing judge fell into error. In my opinion the case falls well short of exposing error. His Honour dealt carefully and leniently with the applicant and the sentences appear to fall within the range of his Honour's proper sentencing discretion. 34I would grant leave to appeal but would dismiss the appeal.