LOZANOVSKI v R

Court of Criminal Appeal (NSW)|2009-02-12|Before: James J, Adams J, Clellan CJ

JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Adams J at 3

DECISION: 1. Leave to appeal granted. 2. Head sentence is reduced to three years' imprisonment. A non-parole period of one year and nine months to commence on 29 August 2007 and expire on 28 May 2009 is imposed.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1997 s 44 Drug Misuse and Trafficking Act 1985 s 25

PARTIES: Jason LOZANOVSKI Regina

COUNSEL: C Smith (Applicant) J Dwyer (Respondent)

SOLICITORS: S E O'Connor (Applicant) S Kavanagh (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2008/00001204003

McCLELLAN CJ at CL JAMES J ADAMS J

1 McCLELLAN CJ at CL: I agree with Adams J. 2 JAMES J: I agree with Adams J. 3 ADAMS J:

The applicant was sentenced in the District Court on 1 May 2008 to a term of imprisonment of three years and nine months with a non-parole period of two years and three months upon the charge that between 27 July and 16 August 2007 at Glendale he did on three or more separate occasions during a period of thirty consecutive days supply methylamphetamine for reward, an offence under s 25A(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for this offence is imprisonment for twenty years. The Court on the same date also sentenced his co-offender, Theo Kapsiskis to one charge of supplying an amount of methylamphetamine of not less than the commercial quantity between 27 July and 28 August 2007, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The commercial quantity of methylamphetamine as prescribed in Schedule 1 to the Act is 250 grams or more. This offence carries a maximum of twenty years' imprisonment but also a standard non-parole period of ten years' imprisonment. The co-offender was sentenced to a term of imprisonment of three years and six months with a non-parole period of one year and six months. 4 The applicant seeks leave to appeal against his sentence upon the ground that there is such a substantial disparity in all the circumstances between his sentence and that imposed on the co-offender as to require a reduction of his sentence in the interests of justice.

The facts 5 The facts in relation to each offender were set out in separate documents agreed by each of them tendered in the proceedings. This material was summarised in the sentencing judge's reasons and the following account is taken from his Honour's judgment. 6 In mid-July 2007 police commenced a controlled operation in respect of the applicant and others concerning their involvement in drug dealing. The investigation involved telephone intercepts, surveillance and purchases of drugs by a police undercover officer. On 27 July 2007, the officer arranged with the applicant to purchase two hundred amphetamine-based tablets from him for $3,550. Shortly before the meeting, the applicant contacted the co-offender who supplied him with the tablets, which were supplied by the applicant to the officer later that day. On 9 August 2007 the officer again contacted the applicant and arranged to purchase two hundred amphetamine-based tablets for the sum of $3,400. The applicant arranged to meet the co-offender, acquired the tablets from him and passed them on to the officer in due course. On 14 August 2007, the officer contacted the applicant and arranged the purchase of five hundred amphetamine-based tablets to be delivered in two days. Again the applicant arranged with the co-offender to supply the tablets, which were delivered by the co-offender to the applicant. Together, they drove to the agreed meeting place with the officer where the tablets were supplied in return for $8,500. The total quantity of tablets supplied overall on these three days to the undercover officer was 126.8 grams of methylamphetamine with a purity of 5.5 percent. 7 On 27 August 2007 a telephone discussion was intercepted between the co-offender and an unidentified male from Sydney in which was discussed the availability and supply of tablets of amphetamine. The co-offender placed an order for one thousand tablets and arranged to meet the other man in Sydney on the following day. Further telephone calls were intercepted in which the two men discussed arrangements for the impending purchase and, later on that day, the co-offender and a friend travelled to Sydney by motor vehicle for the purpose of taking delivery. The co-offender was under surveillance and the movement of his vehicle was observed. On leaving Sydney the co-offender was stopped by police. He denied any involvement in the possession and supply of drugs. A search of the car revealed a bag belonging to him on the back seat that contained a number of clear resealable bags and a notebook with names and amounts of money noted in it. On the shoulder of the road near the car was found a sandwich-sized resealable bag ripped down one side and containing a large number of tablets. Of those tablets, two hundred and three, weighing in all 97.2 grams, were found to contain methylamphetamine of 1 percent purity. 8 In the co-offender's case the sentencing judge accepted that the police investigation established that he was actively involved in the supply of prohibited drugs to other unidentified purchasers on a regular basis during the period 22 July to 28 August 2007. When the co-offender was interviewed following his arrest he admitted to the supply of prohibited drugs on at least eleven other occasions than those specifically particularised in the charge against him. Those other transactions involved supplying between one and fifty amphetamine or ecstasy tablets at a time. Accordingly, his Honour sentenced him upon the basis that the charge to which he pleaded was representative of a wider course of conduct encompassing the supply of prohibited drugs over a period of about one month. 9 So far as the applicant is concerned, it appears that he voluntarily attended at Charlestown police station on 29 August 2007. He was then arrested and taken into custody but declined to participate in an interview. It was not alleged against him, nor did he agree, that he had been involved in transactions other than those for which he was charged.

The question of parity 10 The sentencing judge, in dealing with the drug dealing generally, summed up the objective facts as denoting "a degree of sophistication, efficiency and an established business". His Honour accepted, however, that both offenders had only been involved in what he described as the "mid-level supply of drugs" for a limited time, although that supply was obviously well established. At the time of its detection, his Honour found, it was ongoing and serious and it was only stopped by the arrests. The Crown prosecutor submitted that the co-offender was a dealer and wholesaler for profit whilst the applicant was supporting his addiction and that he was "in effect, higher up the food chain in the supply and distribution of the drugs and was prepared to do it as a wholesaler to wholesalers as well as a retailer". Counsel on the applicant's behalf made a similar submission, contending that, the applicant's objective criminality was less than that of the co-offender. Dealing with the suggested differentiation, the sentencing judge said - "Whilst I accept the fact that the offence committed by Kapsiskis could, on one view of it, be regarded as more serious than that committed by Lozanovski, because of the fact that he was perhaps slightly higher up in the chain and his charge is representative and because it attracts a substantial non-parole period, in my view, the degree of criminality is not vastly different and it must be borne in mind that the maximum penalties for each of the offences are identical. I do not think that they should be treated differently on sentence [except for subjective matters]." 11 Not surprisingly, Mr Smith of counsel for the applicant submits in this Court that the evidence disclosed a significant difference in relative criminality between the co-offender on the one hand and the applicant on the other and that the sentencing judge erred in treating the offenders identically except for subjective features. I deal with this contention in due course.

Subjective features 12 Both offenders were twenty-three years of age at the time of their offences and neither had prior offences. For sufficient reasons his Honour concluded that probably neither offender would re-offend although he did not think that their prospects for rehabilitation could be described as good. He was not satisfied that either offender had demonstrated remorse although there was some evidence in each case that this might be so. His Honour suspected that the remorse that had been evidenced was more to do with having been caught and the consequent shame brought upon their families rather than any true insight into the seriousness of their conduct. He noted that both offenders pleaded guilty at the first available opportunity and allowed each of them a 25 percent utilitarian discount. 13 There was other evidence tendered in the hearing relevant to the respective subjective cases but it is necessary only to refer to two details that might be regarded as significantly differentiating factors. The first is, as I have already mentioned, The co-offender was not a drug addict but involved himself in drug dealing because of financial difficulties, whilst the applicant had a serious drug habit which he was attempting to support. This, in some cases, will be significant since an offender might well be motivated to overcome his or her addiction because of the destructive influence that drugs have upon health, welfare and relationships, as well as in most cases requiring the commission of crime to maintain the habit; so that, if the addiction is dealt with, he or she may well be able to build a worthwhile future which will not involve the commission of crimes. Accordingly, if addiction was the major factor in committing the offence, dealing with the addiction successfully can give rise to optimism about the prospects of rehabilitation. Where the offence, on the other hand, is committed because of straightened financial circumstances the prospects for rehabilitation might be regarded as less strong. At the same time, overcoming drug addiction is not easy and relapses into drug use are very common indeed. In my view, his Honour was entitled not to distinguish between the offenders upon this difference in their cases. 14 Of much greater significance is the circumstance that the co-offender's health was, as his Honour said, "clearly precarious". A report was tendered on his behalf from Dr Parkin, the co-offender' general practitioner, who described him as having "an extremely complicated past medical history". He suffered from disabilities relating to his heart and ears (not set out in his Honour's reasons and otherwise not detailed) and, more significantly, diabetes. The sentencing judge set out the following passage from Dr Parkin's report - "Over the past few years he has required frequent admissions to hospital for life threatening ketoacidosis due to his unstable blood sugar levels. He requires multiple daily injections of insulin as well as having to measure his blood sugar levels several times per day. His diet has to be carefully controlled and adjusted to his energy output. This has had a major impact on his quality of life. He has been unable to maintain regular work and has also found it difficult to socialise with his peers."

Dr Parkin added that, in 2006, he diagnosed the co-offender as suffering from co-morbid depression, which is apparently a common finding in adolescents who develop diabetes. He said that the co-offender had lost his ability to enjoy life and had no motivation for the future although, over the months (I think since his arrest) he had appeared to respond to medication, psychotherapy and education about depression which, nevertheless, was an ongoing concern. The sentencing judge set out Dr Parkin's conclusion - "The repeated, prolonged hospital admissions caused him to miss a lot of school. His hearing loss and slow development resulted in learning difficulties which had never been addressed. Despite all these stressors, Theo has always maintained a stoical determination to keep his chin up and not complain. I have always found him a quiet, pleasant and extremely brave young man who has cared a lot about his family, especially his mother … I am aware that there is no excuse for this situation in which he now finds himself, however I do believe Theo has had to face a great deal of trauma in his life." 15 Although there were some hardships in the applicant's life and he felt in particular the unexpected loss of his maternal grandmother from cancer, he did not suffer anything like the difficulties suffered by the co-offender. 16 The co-offender's ill health also affected his prison situation. He told the officer who prepared his pre-sentence report, that whilst in prison, his blood sugar levels had been fluctuating and had been at times very high. He said that he was not being given his insulin at the right times and was often neglected. As a result, his food often went cold because he could not eat it until after his insulin injection. He had been seeing a doctor only once a week. The sentencing judge said that he accepted that the co-offender had serious health issues and that some of what he had said about his treatment in prison "does bear a ring of truth". 17 His Honour said that it was primarily because of the co-offender's ill health that he intended to fix a lesser sentence and non-parole period than might otherwise have been appropriate. His Honour added that, although this "might seem to raise issues of parity, in my view, in reality it does not simply because of the fact that the time that the co-offender spends in custody will be far more onerous for him because of his illness and disability than the time spent by [the applicant]". (This passage, of course, shows that his Honour did, indeed, regard the relative objective criminality of the offenders as the same.) 18 His Honour found that special circumstances applied in both cases and justified a variation of the statutory ratio in s 44 of the Crimes (Sentencing Procedure) Act 1997.

The submissions in this Court 19 It was submitted by Mr Smith that the sentencing judge erred in finding, in effect, that the respective objective criminality as between the applicant and the co-offender was the same, though his Honour used the phrase "was not vastly different" and in concluding that they should not be treated differently on sentence except so far as the ill health of the co-offender was concerned. Mr Smith pointed to the following features that distinguished the two offenders. Firstly, the applicant was sentenced for offences that occurred between 27 July and 16 August 2007 whilst the co-offender was sentenced for offending during the period of 27 July to 28 August 2007. Although the additional period is not long, yet it involved a substantial purchase of drugs obviously intended for on-sale and was concrete evidence of the wider range of criminal drug dealing being undertaken by the co-offender at the time in which he was involved with the particular offences charged against the applicant. Secondly, the pair were charged with different offences; in particular, although the maximum penalty is the same for each, a standard non-parole period of ten years applied to the co-offender's offence. The sentencing judge accepted the Crown prosecutor's submission that his offence could not be categorised as "anywhere close to the mid level of objective seriousness" and further differentiation followed because of what his Honour described as "special circumstances" (I think, in the context, his serious ill health). 20 Mr Smith's submission is, as I understand it, that the co-offender' offence was inherently more serious since a case in the middle of the range of objective seriousness (assuming a plea of guilty) must involve a non-parole period of ten years as a signpost or marker while such a signpost or marker was not present in the applicant's case and the midpoint of objective seriousness for his offence would attract a non-parole period of significantly less (whatever it might be), even though it would not be appropriate to approach sentencing with any particular figure in mind. In my view, taken broadly, this submission is correct but the fact that it can only be stated in such generalised language shows that in particular cases there is a wide area for judicial discretion. In general, where the particulars of two offences are in substance the same though the offences are different and one carries a substantial standard non-parole period, the sentence for that offence must be affected to some degree by the standard non-parole period whilst the sentence for the other offence will not and that this may well tend to the imposition of a longer sentence in the former case, depending on any differentiating circumstances. Thirdly, Mr Smith pointed to the larger quantity of drugs in fact supplied by the co-offender. Although the amount of drugs supplied is far from the only factor to be considered when assessing objective seriousness, yet it is in most cases the most significant factor, since it measures at once the scale of the dealing itself, which it at the very centre of the offence but also the risk to society that dealing in such a quantity entails. It will be seen that the applicant was convicted of supplying something like two-thirds of the quantity involved in the co-offender's charge. Other things being equal, it must follow that the objective seriousness of the co-offender's offence was substantially (if not "vastly") greater than that of the applicant. Fourthly, the applicant was sentenced for the particularised supplies whilst the co-offender was sentenced on the basis that the charge was representative of supplying drugs over a period of approximately one month and involved a significantly greater number of occasions and, of course, quantities. As the sentencing judge observed, he could not be sentenced for uncharged offences but these circumstances highlighted the markedly greater role in drug dealing played by the co-offender as distinct from the applicant. The evidence as to the greater scale of the co-offender's drug dealing demonstrated that his position of being "higher up in the supply chain" was much greater than an insubstantial distinction between him and the co-offender who, in substance, acted as little more than the co-offender's runner. This distinction is, in my respectful view, a real one and reinforces that previously made. 21 The Crown prosecutor's submission concerning the amount of drugs is, to my mind, baffling. He observed that the commercial quantity of methylamphetamine is 250 grams and, pointing to the 231 grams in the applicant's offence said that this "at least in terms of amount, would put the applicant at the top of the range of offences involving an indictable quantity of this drug". This point, though perhaps interesting, simply says that 231 grams is less than 250 grams in a context where the 231 grams supplied by the applicant should be compared with the 328 grams actually supplied by the co-offender. The prosecutor went on to submit that "the amount of drug involved was reflected in the different charges preferred, and should not be 'double-counted' as a reason for assigning objective criminality". However, it is not double counting to take account of the fact that the offence with which the applicant was charged involved supplying a significant lower quantity of drugs than that for which the co-offender was charged. As to their different roles, the prosecutor pointed out that every person who participated in the distribution chain "is essential to the illegal trade in drugs". This is self-evident but it has always been held that, as an offender moves up the chain from street supply, so his or her criminality is greater, for obvious reasons. Here, the greater role of the co-offender was demonstrated by the scale and quantity of the drugs in which he dealt. 22 In the end, the prosecutor pointed to the significantly different subjective circumstances of the offender as justifying the greatly more lenient sentence imposed upon the co-offender.

Conclusion 23 In my respectful view, the different objective seriousness of the criminality involved in the charges against the offenders, though no doubt not "vast" was substantial and significant. (The mere fact, I should mention, that the maximum sentences for each charge is the same, cannot justify the conclusion that, in any particular case, the criminality involved in their commission is the same or similar.) In my respectful view, the sentencing judge erred in concluding that the only significant differentiating factor between the offenders was the co-offender's health. 24 This does mean that the appeal must succeed. The serious, indeed on occasions life-threatening, ill health from which the co-offender suffered from his teenage years, was quite exceptional and of particular relevance in terms of the greater effect that imprisonment will have upon him than that it will have upon the applicant. Although there was no direct evidence on the point and, indeed, the sentencing judge did not so find (except by implication) it is reasonable also to infer that the co-offender's bad health, in particular, his co-morbid depression, may have had some effect upon his judgment in understanding the full significance of undertaking his drug dealing enterprise. Even so, it seems to me that the sentence of three years and six months with a non-parole period of one year and six months was not only exceedingly lenient but, compared with the sentence imposed on the applicant, so disparate as to justifiably give rise to a sense of grievance and require that sentence to be adjusted in the interests of justice. 25 I would propose, therefore, that leave to appeal be granted and that the applicant's head sentence be reduced to three years' imprisonment. The sentencing judge adjusted the statutory ratio to give a greater period on parole than would otherwise be the case for reasons that, in my respectful view, were correct. Accordingly, I would impose a non-parole period of one year and nine months to commence on 29 August 2007 and expire on 28 May 2009. This sentence is significantly more lenient than the applicant deserves and would not have been imposed but for the sentence imposed on his co-offender. **********

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