Nastoski v R

Nastoski v R - [2010] NSWCCA 187 - NSWCCA 2010 case summary — Zoe

[60]

As I have indicated, it has been argued on behalf of the offender that his judgment at the time was impaired. There is evidence before me, which I will refer to shortly, that would suggest that the offender has a lengthy history of cannabis use that is likely to be the manifestation of underlying emotional issues. Those factors may have had some bearing on his decision to become involved in the conspiracy here. However his acts could not be said to be impulsive. The offender was knowingly involved over some months and knowingly provided valuable assistance to those involved in the actual processes. His involvement was an important part in the success of the operation. 19 His Honour assessed the objective gravity in relation to Mr Nastoski. In doing so, his Honour noted the evidence given by Mr Alve in relation to Mr Nastoski and his role. In short, Mr Alve said that he (Alve) was Mr Nastoksi's only connection to the syndicate. 20 His Honour noted this: The primary submission is that the role of Nastoski is significantly less than that of the offender Alve and consequently the sentence to be imposed on the offender should be varied substantially from that imposed on the offender Alve. 21 His Honour then noted at some length the submissions made on behalf of Mr Nastoski and dealt with the Crown's submissions as to his role in the enterprise. His Honour having noted that Mr Nastoski did not give evidence at the sentence hearing, said this: Much of the role of the offender can be discerned with some precision from the intercepted calls. The offender was engaged in frequent contact with those who were involved in the organisation of the laboratory and the production of amphetamine there. The nature of these conversations indicates that the offender was anxious to know about the progress of the production. The calls suggest a significant level of involvement of the offender. The calls support a conclusion that he was contributing to discussion concerning production methods. Over time, that contribution increased such that the offender, at the time of the discussion concerning the rotary evaporator, had sufficient knowledge about production and was contributing towards refinement of the production process to ensure significant yields. The conversation is an indicator of the offender's position in the hierarchy at the time the laboratory was in the process of production of the amphetamine. There is no real evidence that the offender's judgment was impaired.

[67]

The differentiation in the roles in my view must be reflected to some extent in the sentence to be imposed. 22 His Honour then dealt with what can be regarded as the subjective factors in s 16A Crimes Act 1914 (Cth) in relation to Mr Holland. In doing so he considered a discount of 10% should be allowed in relation to his plea of guilty. His Honour noted that Mr Holland did not have a significant prior record and there had been significant periods where he had led a relatively stable life. His Honour thought with continuing treatment Mr Holland had good prospects of rehabilitation. 23 His Honour dealt with the subjective factors in relation to Mr Nastoski. He first gave a discount of 15% in relation to his plea. In relation to his antecedents he noted a number of convictions going back to 1992. including cultivation, possession and supply of prohibited drugs. Nevertheless, this his Honour noted that the penalties imposed would suggest that the matters were not of a high order. His Honour noted that with appropriate counselling during his imprisonment the likelihood of his re-offending upon his release would be significantly reduced. 24 His Honour then summarised what was said about Mr Alve at his sentence by Judge Geraghty. In relation to the extent of Mr Alve's involvement Judge Geraghty said this: Alve was involved in the planning of the manufacture and production of the drugs, in the manufacturing of the drugs itself, and at least partially in the marketing of the drugs, acting independently at one stage of Nastoski... Alve was principally involved in the construction and the equipping of the laboratory, and in supervising the mixing process. He was centrally involved in the business and clearly had a proprietary interest in the proceeds! of trade in an ongoing business. It is unknown whether he had money invested, but he certainly had an interest in the business and it was a going to be a pecuniary interest... It was submitted to me on behalf of Alve that ...he was not at the top of the hierarchy. He was not considered as a senior management person, or an entrepreneur, but someone who was receiving instructions. It was submitted that he often reported to others as to the progress of the enterprise, keeping others up to date, even acting on their beck and call. However, on my reading of the evidence, these submissions are not supported. Alve was at the heart of the operation. He was one of the principals in it, with a day to day responsibility for planning and production, and some role albeit limited, in marketing. 25 Judge Geraghty gave a discount of 20% for Mr Alve's early plea. He noted also that Mr Alve had a criminal record comprising firearms offences, threatening to kill and assault with a weapon. 26 Judge Zahra then made these remarks concerning parity of sentencing: Care must be taken in sentencing the offenders here to ensure that the sentences imposed do not result in the offenders having a justifiable sense of grievance concerning the sentence to be imposed.

[74]

Proper consideration given to respective roles 28 Whilst it is true that at the point in his Remarks on Sentence where his Honour came to sentence Mr Holland and the Applicant he did not there weigh up their respective roles, that does not lead to the conclusion that his Honour either failed to carry out that weighing up role nor that his Honour's reasoning process is not able to be understood. 29 His Honour referred to what the High Court said R v Olbrich (1999) 199 CLR 270 at [19] and what this Court said in Tyler v Regina; Regina v Chalmers [2007] NSWCCA 247 at [83] in relation to the approach to be taken to co-conspirators. His Honour went into considerable detail about the role of each of the offenders. He set out in detail the subjective factors in respect of each of the offenders. Those included the different criminal records and the different prospects for rehabilitation. 30 It is not difficult to understand why it was, given the matters referred to by the sentencing Judge in relation to each of the offenders, that he sentenced the Applicant to a slightly longer period in prison than Mr Holland. As his Honour found, there were similarities between them, but there were also differences. The similarities included the finding that neither was to play a role in the distribution of the drugs, both had abused illicit drugs, and both pleaded guilty although at a relatively late stage. With regard to the pleas, it is noteworthy that the Applicant was provided with a discount of 15% for his plea compared to 10% for Mr Holland. 31 The differences, however, were more significant. First, although both offenders had a significant role in the conspiracy, the Applicant's involvement increased and became "more apparent and critical over time". The applicant had the necessary knowledge as to the manufacturing process, which Mr Holland did not. There were frequent phone calls involving the Applicant and other members of the conspiracy, whereas there was an absence of such contact on Mr Holland's part. The subject matter of the calls involving the Applicant suggested a "significant level of involvement" of the Applicant, and this involvement included the contribution of his knowledge about the production process. In particular, a conversation concerning the rotary evaporator was an indication of the Applicant's "position in the hierarchy" at the time of production. 32 Secondly, the Applicant's ability to source the chemicals was "an essential and critical component of the success of the enterprise". One of the submissions made on behalf of the Applicant was that his contribution was of legally obtained chemicals and that that meant that he was replaceable within the syndicate of conspirators, something which was said to be more difficult had he been sourcing illegal chemicals. In my opinion, that is not a distinction that needed to have weighed heavily with the sentencing Judge. 33 Thirdly, there was no evidence that the Applicant's judgment was impaired whereas Mr Holland's lengthy cannabis abuse was likely to have impaired his judgment and provided an explanation for his involvement in the conspiracy. Associated with this is that the Applicant did not give evidence at the sentencing proceedings whereas Mr Holland did. The absence of the Applicant from the witness box reduced the weight the sentencing Judge felt that he could give to the report from the Applicant's psychologist. 34 Fourthly, Mr Holland had no prior drug convictions whereas the Applicant had drug convictions, albeit not of a high order, dating back to 1992. It is apparent that his Honour regarded Mr Holland to be further along the path to recovery from his substance abuse than the Applicant was, and spoke of Mr Holland's rehabilitation in more positive terms. 35 The basis of the appeal is really a complaint concerning parity. Bearing in mind the differences between Mr Holland and the Applicant, and that the difference in sentence is relatively small, it cannot be said that such a difference is such as to give rise to a justifiable sense of grievance in the Applicant. No error has been shown in relation to the sentencing Judge's approach to the relative roles of the various conspirators, nor in relation to the sentence imposed on the Applicant. 36 The orders I propose are these:

At a glance

Court

Decision date

Before

Source

Judgment (76 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (5)