R v Kostecoglou

IN THE COURT OF CRIMINAL APPEAL 60475/02

GILES JA JAMES J HIDDEN J

Friday, 20 December, 2002 REGINA v Tass KOSTECOGLOU JUDGMENT 1 GILES JA: I agree with Hidden J. 2 JAMES J: I agree with Hidden J. 3 HIDDEN J: This is an appeal by the Director of Public Prosecutions against sentences passed upon the respondent by Tupman DCJ after he pleaded guilty to two charges of ongoing supply of heroin and two charges of ongoing supply of cocaine. Each charge was brought under s 25A of the Drug Misuse and Trafficking Act 1985, carrying a maximum sentence of twenty years imprisonment. On the two charges of ongoing supply of heroin her Honour passed concurrent sentences of three years and two months imprisonment, to date from 3 September, 2002, with non-parole periods of twelve months. On the two charges of ongoing supply of cocaine, her Honour passed concurrent fixed terms of imprisonment for twelve months, also to date from 3 September, 2002. In passing sentence on the first of the heroin charges, her Honour took into account on a Form 1 an offence of possessing an unauthorised firearm (s 7(1) of the Firearms Act 1996). The overall effective sentence, then, was imprisonment for three years and two months with a non-parole period of twelve months.

Facts 4 The respondent was one of a number of people charged with offences arising out of the large scale distribution of heroin and cocaine by a group known as the "Dice" syndicate. That syndicate operated mainly in the inner western suburbs of Sydney from May 1999 to December 2000. From September to December 2000 its operations were the subject of extensive police surveillance and monitoring, involving the use of telephone intercepts, controlled operations in which drugs were purchased by undercover officers, and physical surveillance. 5 The principal of the syndicate was Walid Chami. A large number of people were engaged, in one capacity or another, in the distribution of heroin and cocaine purchased by Chami. Some, known as managers, were involved in the daily running of the business: packaging the drugs into balloons for sale, distributing them to street dealers, counting money received from sales, refreshing supplies to the street dealers and organising change-overs of the dealers' shifts. 6 The task of the street dealers was to conduct sales with drugs users, maintain contact with the managers, notify the managers when further supplies were required, and account to the managers for the proceeds of the sales and unsold drugs at the end of the shift. 7 The business operated from 8 am to 11 pm, seven days a week. There were two shifts a day for the street dealers, each dealer being paid $180 per shift. The changeover would occur in the mid afternoon. Dealers would attend a safe house before beginning a shift, where they would be supplied with balloons containing the drugs, a car and a mobile phone. 8 During the period of surveillance, undercover officers purchased varying weights of both heroin and cocaine at prices ranging from $20 to $70. During the same period the syndicate received several hundred phone calls per day from prospective purchasers, and daily sales of the drugs are estimated to have been to the value of several thousand dollars. 9 The respondent worked as a street dealer for about two months between October and December, 2000. The first two charges related to his supply of heroin during each of those months, and the third and fourth charges arose from his supply of cocaine during each of the same two months. He worked Mondays to Fridays, mainly in the morning shift, until his arrest on 20 December, 2000. For much of that time he worked with a co-offender, Sefiti Halifihi. On a number of occasions purchases were made by an undercover police officer, and on those occasions the respondent drove Halifihi to a pre-arranged location where Halifihi conducted the sale. 10 In addition, intercepted telephone calls demonstrate that the respondent was involved in other aspects of the distribution of drugs, calling other workers on mobile phones, organising for the hire of vehicles, allowing vehicles used by the syndicate to be registered in his name, and discussing the delivery of various quantities of drugs from time to time with Chami. From intercepted calls it also appeared that there were occasions when the respondent sold about $2,000 worth of drugs on a single day. 11 On the day of the respondent's arrest police executed a search warrant at his home. They located a pistol, together with ammunition and an instruction manual, which he had thrown over the fence into adjoining premises. One of the intercepted calls indicates that the respondent had this gun for protection, as some of the syndicate's street dealers had been attacked and a "turf war" was beginning to emerge with other operators. He declined to be interviewed. 12 The respondent remained in custody from his arrest on 20 December, 2000 until 10 July, 2001, a period of about seven months. He was then released on bail granted by the Supreme Court, some of the conditions of bail being that he live with his father in Canterbury, that he not leave that home other than in the company of his father between the hours of 8 pm and 6 am, and that he report daily to police. He observed those conditions until he was sentenced more than a year later.

Subjective Case 13 The respondent was twenty three years old at the time of the offences and is now twenty five. He has no prior convictions. He attained the higher school certificate at the age of seventeen and later acquired a TAFE diploma in management and leadership. He also has a fitness industry leadership certificate, and worked with his mother managing a health and fitness centre from March 1999 to April 2000. 14 His parents were divorced in 1990. Until relatively recently he had a poor relationship with his father, whom he saw as having deserted the family. He maintained a close relationship with his mother and his younger brother. He became his brother's carer when their mother was diagnosed with lung cancer in 1999. Her death on Christmas Day of that year affected him deeply. In addition, news that his father, who had remarried in 1999, had an infant son made him angry and jealous. 15 He had used marijuana daily from the age of eighteen, but he developed a major drug problem after the death of his mother. He took to ecstasy and heroin and became addicted to cocaine, and his drug use escalated until his arrest. He ceased working in the fitness industry and met others involved in the drug syndicate. Her Honour accepted that he became involved himself to feed his drug addiction, as well as to earn money for every day living. She observed that his criminal activity "represents a significant lapse and fall from grace in relation to a young man who otherwise showed great promise." 16 After his arrest he rebuilt his relationship with his father, and after his release on bail he, his father and his brother received regular psychological counselling. In a report prepared for the sentence proceedings the psychologist, Dr Wendy-Louise Walker, concluded that his prognosis was very good. He obtained fulltime employment with the MLC Insurance Company as a customer relations officer. He also used the time on bail to counsel his brother, who was at risk himself of developing delinquent associates, and it appears that his assistance was effective. 17 By the time he appeared for sentence the respondent was assured of the continuing support of his father and of his maternal aunt, who had arranged his employment with the MLC Insurance Company. Her Honour saw that support as an important factor in his rehabilitation.

The sentence 18 Her Honour had dealt with several other offenders involved in the syndicate before she sentenced the respondent. One of those was Sefiti Halifihi. He had pleaded guilty to a charge of supplying a commercial quantity of heroin and a charge of supplying a commercial quantity of cocaine. Both charges were brought under s 25 of the Drug Misuse and Trafficking Act and also carry a maximum sentence of twenty years imprisonment. Each charge related to a two month period between October and December 2000, the same period embraced by the four charges to which the respondent pleaded guilty. On the charge of supplying heroin, her Honour sentenced Halifihi to imprisonment for three years and nine months with a non-parole period of two years. On the charge of supplying cocaine she sentenced him to a concurrent fixed term of imprisonment for two years. 19 It is important to examine how her Honour arrived at the sentences passed upon Halifihi, because it bears upon the outcome of the present appeal. She considered that, but for the plea of guilty, the charge of supplying heroin merited a sentence of five years. She reduced that by twenty five percent because of the plea, resulting in the sentence of three years and nine months. Finding special circumstances, her Honour fixed the non-parole period of two years. She considered that the charge of supplying cocaine called for a sentence of four years but for the plea of guilty. Again, she saw the plea of guilty as calling for a reduction of twenty five percent, leading to a sentence of three years. The fixed term of two years which she imposed represented what she considered would have been the appropriate non-parole period in respect of that sentence. She directed that the sentences be served concurrently because she saw them as embracing one period of criminality. 20 When her Honour came to sentence the respondent, she saw his criminality as "almost identical" with that of Halifihi. That had been the position of the Crown prosecutor in the sentence proceedings, who did not appear in this Court, even though the respondent faced the additional charge of possessing an unauthorised firearm on the Form 1. Her Honour considered that the subjective circumstances of the two offenders were "very similar." Accordingly, her starting point for sentence on the two charges of ongoing supply of heroin was imprisonment for five years. This she reduced by twenty five percent in recognition of the pleas of guilty, leading to a term of three years and nine months. To this point her approach was the same as that which she had taken with Halifihi. However, her Honour reduced that sentence by seven months because of the respondent's discrete period of pre-sentence custody, and by a further three months because of the lengthy period during which he had been subject to stringent bail conditions. This led to the head sentence of three years and two months passed in respect of each of those charges. 21 Her Honour undertook a similar exercise with the non-parole period. Her starting point was two years, the same as Halifihi. She reduced that by seven months for the pre-sentence custody and three months for the period on bail, but she allowed a further two months because of the respondent's "demonstrated rehabilitation in the community" and the fact that he would have to face a return to prison after a period at liberty. Hence the non-parole period of twelve months in respect of each of the heroin charges. 22 As to the two charges of ongoing supply of cocaine, her Honour's starting point was a fixed term of imprisonment for two years, the sentence which had been imposed upon Halifihi for the charge of supplying cocaine. She reduced that term in the same way that she had reduced the non-parole period in respect of the other charges, so as to arrive at a fixed term of twelve months. As in Halifihi's case, she found special circumstances and directed that all sentences be served concurrently on the basis that the charges represented one continuing episode of criminality.

The appeal 23 In this Court the Crown prosecutor took no issue with her Honour's allowance for the respondent's pre-sentence custody and the reduction of sentence in recognition of his stringent bail conditions. Nor did he challenge the finding of special circumstances. He submitted that her Honour failed to assess the sentence appropriate for each charge in accordance with Pearce v The Queen (1998) 194 CLR 610, and that she erred in directing that all sentences be served concurrently because the charges, far from embracing a single episode of criminality, represented "significant ongoing criminality of a serious nature." He also submitted that, in any event, the effective sentence is inadequate to reflect the totality of the respondent's criminality. 24 Her Honour expressed her recognition of the seriousness of the offences, observing of the respondent that "he was involved in the ongoing supply of these two drugs during both time periods", and that "his involvement was frequent and significant as a street level dealer", and that "he played an integral part in the continued operation of this syndicate." Nevertheless, the sentences, structured as they are, are markedly lenient. The question is whether they are manifestly inadequate. 25 I am not persuaded that they are. This was an exceptional case. The circumstances in which the respondent came to be involved with the syndicate were unusual, and he was able to make out what the Crown prosecutor in this Court acknowledged was a powerful subjective case. More importantly, the sentences bear an appropriate relationship to those passed upon Halifihi, even allowing for the Form 1 matter. That additional charge would have justified her Honour in dealing with the respondent more severely than Halifihi, but she could not be said to have fallen into error by not doing so. In this Court, the Crown prosecutor submitted that the sentences passed upon Halifihi are manifestly inadequate, but that was not the stance of the Crown prosecutor in the District Court and the Director of Public Prosecutions has not appealed against those sentences. Accordingly, the sentences passed upon the respondent are in accordance with principles of parity. 26 I should add that, even if the sentences were considered to be manifestly inadequate, I would decline to intervene in the exercise of this Court's residual discretion. They are consistent with the manner in which the matter was argued by the Crown prosecutor before the sentencing judge, and the Crown should not be permitted to adopt a different stance in this Court. 27 I would dismiss the appeal.

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