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[2026] NSWCCA 86
Court of Criminal Appeal (NSW)
2026-06-22
Cavanagh J at [1] Rigg J at [2] Roberts J at [33]
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Karpatsis v R [2026] NSWCCA 86
Hearing dates: 27 May 2026
Date of orders: 22 June 2026
Decision date: 22 June 2026
Before: Cavanagh J at [1]
Rigg J at [2]
Roberts J at [33]
Decision: Appeal dismissed, Drug Court orders confirmed
Catchwords: CRIME – Appeals – appeal against sentence imposed by Drug Court – appeal as of right pursuant to s 5AF(1) of the Criminal Appeal Act 1912 (NSW) – whether error in final sentencing judge commencing sentence on date different to that nominated by initial sentencing judge – all periods of time since arrest accounted for as required by Drug Court Act 1998 (NSW) and the Crimes (Sentencing Procedure) Act 1999 (NSW) – no requisite error of law or wrong principle – whether sentencing judges did not take account of s 58 of the Crimes (Sentencing Procedure) Act – s 58, if it applied to Drug Court judge exercising Local Court jurisdiction with respect to certain offences, did not constrain sentencing exercise as appellant not serving existing sentence of imprisonment
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Drug Court Act 1998 (NSW)
Original judgment source is linked above.
Cases Cited: Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145
Kelly v R [2024] NSWCCA 101
R v Quinlin [2021] NSWCCA 284; (2021) 293 A Crim R 253
YA v R [2026] NSWCCA 38
Category: Principal judgment
Parties: S Karpatsis (applicant) (self-represented)
Rex (respondent)
Representation: Counsel:
E L Curran (respondent)
Solicitors:
Solicitor for Public Prosecutions (NSW) (respondent)
File Number(s): 2025/00313235
Publication restriction: Nil
CAVANAGH J: I agree with Rigg J.
RIGG J: Spiros Karpatsis appeals pursuant to ss 5AF(1) and 5AA of the Criminal Appeal Act 1912 (NSW) against the sentence imposed upon him by her Honour Judge McIntyre (“the final sentencing judge”) on 5 August 2025 at the Sydney Drug Court. On 19 June 2024 he appeared before his Honour Judge Still (“the initial sentencing judge”) for sentencing in accordance with the Drug Court Act 1998 (NSW), at the Sydney Drug Court in relation to a total of nine offences which involved breaking and entering into premises and stealing from them, drug possession and a driving offence. The facts of the offending and the appellant’s personal circumstances need not be set out as they are not relevant to the grounds of appeal, except with respect to his time in custody and participation in the Drug Court program.
On 19 June 2024 the initial sentencing judge indicated a sentence of 4 years and 2 months imprisonment, and made an order, pursuant to s 7A(5)(b) of the Drug Court Act, suspending execution of the sentence to allow the appellant to complete the Drug Court program. The appellant received a discount of 25% for his early plea of guilty in respect of each of the offences. Between 19 June 2024 and 17 March 2025 the appellant received a number of sanctions (brief periods of imprisonment) for non-compliance with the Drug Court program. On 17 March 2025, in his absence, the appellant’s Drug Court program was terminated, pursuant to s 10(1)(b) of the Drug Court Act. He was arrested via Drug Court termination warrant on 8 June 2025. On 5 August 2025 the final sentencing judge revoked the suspension order and imposed an aggregate term of imprisonment of 3 years, 2 months, with a non-parole period of 1 year, 8 months. The sentence was ordered to commence on 5 November 2024. The appellant will be first eligible for release to parole on 4 July 2026. There were three additional offences before the final sentencing judge that were not before the initial sentencing judge, which resulted in convictions being recorded with no further penalty imposed. The final sentencing judge expressly accepted the initial sentencing judge’s discount for the early guilty pleas.
Section 5AF(1) of the Criminal Appeal Act confers upon a person sentenced by the Drug Court the same right of appeal to this Court as would be available under s 5AA to a person convicted by the Supreme Court in its summary jurisdiction. As stated in Kelly v R [2024] NSWCCA 101 at [8] (Bell CJ, Hamill and Yehia JJ) a substantial body of case law has held that an appeal under s 5AA is an appeal in the strict sense and therefore an appellant can only succeed by establishing that the trial judge committed an error of law or applied the wrong principle in their fact-finding exercise.
The appellant relies on the following grounds of appeal:
Ground 1: The Judge (McIntyre) did err in not commencing the sentence on Initial sentence (Judge Still) start date.
Ground 2: Furthermore, did not take into account section 58 on sequences 5 and 6.
Ground 1 was described further at the commencement of the appellant’s written submissions as an alleged error in commencing the sentence on 5 November 2024 when the initial sentence start date nominated by Judge Still was 26 August 2023. Ground 2 was described further in the written submissions as an error on the part of the initial sentencing judge which was then repeated by the final sentencing judge.
I am not of the view that ground 1 raises an error of law or wrong application of principle of the kind required by s 5AA of the Criminal Appeal Act. However it is suitable to explain why the ground lacks merit in substance, given that the appellant is self-represented and has taken time in his written and oral submissions to explain the nature of his concerns regarding the commencement date of his sentence.
In imposing the initial sentence, the initial sentencing judge did not, and was not required to, set a commencement date. The provisions of ss 44-48 of the Crimes (Sentencing Procedure) Act 1999 (NSW) do not apply to that sentencing exercise: Drug Court Act*,* s 7A(4). His Honour referred to the appellant’s period of pre-sentence custody of 258 days as calculated by the Crown. This included time spent on remand for the offences his Honour was dealing with which included a period of a little over three months of revoked parole for unrelated dishonesty offences. It was no part of the function of the initial sentencing judge to determine whether credit should be given for the period of time spent serving revoked parole (while also bail refused for the offences before his Honour) as he was not determining a sentence commencement date. His Honour referred to the appellant having spent 258 days in custody in the context of recognition of him commencing the program after a long period in custody and encouragement of avoidance of more time in custody by productive participation in the Drug Court program.
By contrast the final sentencing judge was required by virtue of s 12(2) of the Drug Court Act to take the following into account in reconsidering the initial sentence:
(a) the nature of the drug offender’s participation in his or her program; (b) any sanctions that have been imposed on the drug offender during the program; and (c) any time for which the drug offender has been held in custody in connection with an offence to which his or her program relates, including time during which the person has undergone imprisonment
(i) under the sentence, or (ii) under the condition of the program arising under section 8A.
This case does not require consideration of the interaction of this section with the requirements of ss 24(a) and 47(3) of the Crimes (Sentencing Procedure) Act to take into account time spent in custody in relation to the offences before the Court. The final sentencing judge took into account time spent bail refused for the offences before her Honour, prior to the initial sentence, in the sense outlined below.
Regarding the requirement to take into account certain periods of time in the community subject to the Drug Court program because of s 12(2) of the Drug Court Act*,* such periods between 19 June 2024 and arrest on 8 June 2025 were reflected in the length of sentences imposed (regarding which no issue is taken). Separately, the periods that were taken into account as relevant to the commencement date were set out in a table tendered by the Crown before the final sentencing judge. These were not the subject of dispute except in relation to whether credit should be given for the period of just over three months in 2023 also serving revoked parole.
The periods for which Crown contended and the final sentencing judge accepted that the appellant should be given credit, relevant to the commencement date of the sentence, are as follows:
164 days in custody only because bail refused for the offences before the initial sentencing judge, up to the determination of the initial sentencing judge on 19 June 2024. This was calculated from arrest on 25 August 2023 to release on bail on 15 February 2024, and from arrest on 27 March 2024 until determination of the initial sentencing judge on 19 June 2024, except for the time serving the balance of revoked parole for unrelated offending between 20 September and 23 December 2023;
46 days in custody as sanctions for non-compliance with the Drug Court program under s 8A of the Drug Court Act. These were from 24 October to 11 November 2024 and 8 January to 5 February 2025;
5 days to account for half of the time spent in residential rehabilitation pursuant to the Drug Court program from 5 February to 14 February 2025, treated as quasi-custody requiring recognition; and
58 days in custody from the appellant’s arrest on 8 June 2025 pursuant to the Drug Court termination warrant, to the date of the sentence proceedings on 5 August 2025.
These four periods totalled 273 days and were accepted to require a commencement date of 5 November 2024. Although the Crown “Custodial Calculations” document referring to 273 days was tendered, the transcript of the sentence proceedings before the final sentencing judge refers to the prosecution advocate referring in oral submissions to 271 days. Nothing turns on this two day difference, if that oral submission is correctly transcribed. The same commencement date was advanced, and it was this that was accepted by the final sentencing judge.
The sanctions taken into account in calculating the commencement date for sentence arose by virtue of s 8A of the Drug Court Act, which provides in part that it is a condition of a drug offender’s program that the Drug Court may, with the consent of the drug offender, commit the drug offender to a correctional centre for up to 21 days at a time if, in the opinion of the Drug Court, such action is necessary to facilitate detoxification of the drug offender, assessment of the drug offender’s participation in the program, or the development of a suitable treatment plan.
The only issue taken with the proposed commencement date on the appellant’s behalf before the final sentencing judge (he being then legally represented) was the submission that he should be credited for all the time spent in custody while refused bail before the determination of the initial sentencing judge, including the period between 20 September and 23 December 2023 when he was also serving the balance of revoked parole for unrelated offending. This was submitted to support credit for 367 days in custody, and an alternative commencement date of 26 August 2024.
In considering the appropriate commencement date of the sentence, the final sentencing judge was of the view that it was not appropriate to backdate the sentence to August 2024 as the applicant should not have “the benefit of his revocation of parole subsumed into a backdated sentence in this Court.” Her Honour accepted that the sentence should be backdated to 5 November 2024, as submitted by the Crown based on the circumstances of the case.
The appellant’s first ground as framed concerns the difference between the first of the four periods referred to at [12] above of 164 days in custody prior to the initial sentencing judge’s determination, compared with a range of different dates and periods. There was a focus in the appellant’s submissions on the figure of 258 days referred to by the initial sentencing judge. The ground itself relates, according to the appellant’s written submissions, to the date of 26 August 2023.
As noted above at [8], the initial sentencing judge mentioned the figure of 258 days to acknowledge that the appellant had been in custody for a long time, to express hope that he had used that time to reflect on his future, and to encourage his positive participation in the program so as to avoid return to custody. His Honour was not required to, and did not, finely analyse the issue of how the period of approximately three months serving the balance of revoked parole should be treated, as his Honour was not required to set a commencement date for the sentence.
As to the substance of the complaint that the appellant was not given credit by the final sentencing judge for the period of just over three months in custody between September and December 2023 when he was bail refused for the offences for sentence and also serving the balance of revoked parole for unrelated offending, this was a discretionary matter for her Honour’s consideration in accordance with the principles set out in Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145. There has been nothing put forward to suggest the wrong application of principle.
Insofar as the appellant refers to a start date nominated by the initial sentencing judge of 26 August 2023, there was no such date nominated. Regarding the fact of the appellant being initially arrested around that date, the periods between then and the determination of the final sentencing judge fell into various categories, each warranting different consideration, rather than a commencement date from then.
Firstly, some of the time was spent in custody only because the appellant was bail refused in connection with the offences before her Honour, and these periods were all completely accounted for in the commencement date.
Secondly, some of the time was spent so bail refused and also serving revoked parole for unrelated offending, and as explained above the manner of dealing with this period called for an exercise of discretion and no issue of principle has been raised.
Thirdly, some of the time (15 February to 28 March 2024) was spent in the community on bail prior to the determination of the initial sentencing judge. This period was not included in the period of 258 days referred to by the initial sentencing judge, was not submitted on the appellant’s behalf before the final sentencing judge to warrant any recognition and did not require recognition by the final sentencing judge. Although the appellant submitted in this Court that he was subject to a bail condition of home detention and so should have received at least 50% credit for this time, there is no such requirement: R v Quinlin [2021] NSWCCA 284; (2021) 293 A Crim R 253; YA v R [2026] NSWCCA 38.
Fourthly, some of the time was spent in custody pursuant to sanctions under s 8A of the Drug Court Act and these periods were expressly included in the calculated commencement date.
Fifthly, some of the time was in the community participating functionally in phase one of the Drug Court program and this was expressly taken into account by the final sentencing judge in determining the sentence length.
Sixthly, some of the time was in residential rehabilitation pursuant to the Drug Court program, and just over half of this was taken into account as quasi-custody for the purposes of determining the sentence commencement date.
For these reasons, all time since the appellant’s arrest in August 2023 has been accounted for as required by both the Drug Court Act and the Crimes (Sentencing Procedure) Act. This ground must be dismissed.
The initial sentencing judge determined to deal with two offences before him (nominated as sequences 5 and 6) summarily rather than on indictment. This placed a jurisdictional limit on the available sentences for these offences that was favourable to the appellant. The sentences recorded for these two offences by the initial sentencing judge were 7 months and 12 months imprisonment. The determination of the final sentencing judge endorsed and repeated the summary disposition of these two offences, and the sentences indicated for these two offences by the final sentencing judge were 4 months and 6 months imprisonment.
Section 58 of the Crimes (Sentencing Procedure) Act headed “Limitation on consecutive sentences imposed by Local Court” restricts the Local Court from imposing a new sentence of imprisonment to be served consecutively to any degree, with an existing sentence of imprisonment if the date on which the new sentence would end is more than 5 years after the date on which the existing sentence (or, if more than one, the first of them) began. Section 58(4) defines “existing sentence” as an “unexpired sentence and includes any expired sentence or unbroken sequence of expired sentences with which the unexpired sentence is being served consecutively (or partly concurrently and partly consecutively).”
The appellant was not subject to an existing sentence at the time he was sentenced by either the initial or final sentencing judge (and the sentence of the initial sentencing judge did not provide for a date on which that sentence would end). On 13 July 2022 he was convicted and sentenced in relation to the unrelated dishonesty offences earlier referred to as resulting in the revocation of parole. He was ordered to serve an aggregate term of imprisonment of 2 years and 4 months, with a non-parole period of 1 year and 3 months. That sentence was ordered to commence on 8 August 2021 and expire on 7 December 2023 (although the ultimate expiry date for the revoked parole was 23 December 2023, presumably due to delay before the revocation was implemented). Therefore when sentenced by the initial sentencing judge on 19 June 2024, and the final sentencing judge on 5 August 2025, the applicant was not serving an existing sentence. As such s 58 of the Crimes (Sentencing Procedure) Act did not constrain either sentencing exercise even if it had application to a Drug Court judge exercising Local Court jurisdiction with respect to two offences.
When this Court exercises power under s 5AA of the Criminal Appeal Act and does not vacate the order of the Supreme Court, it may confirm the determination made by the Supreme Court in its summary jurisdiction.
For the above reasons, I propose the following orders:
The appeal is dismissed.
The orders of the Drug Court are confirmed.
ROBERTS J: I agree with Rigg J.
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Drug Court location.
Karpatsis
R