R v. Nabhan ; R v Kostopoulos [2007] QCA 266

Judgment (62 paragraphs)

[1]

The applicant appeared on his own behalf in CA No 38 of 2007

[2]

The applicant appeared on his own behalf in CA No 101 of 2007

[3]

The applicant appeared on his own behalf in CA No 38 of 2007

[4]

Director of Public Prosecutions (Queensland) for the respondent

[5]

[1] WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Keane JA and I agree with all that is said therein. However, I would make some additional brief observations which, to my mind, support the sentences imposed.

[6]

[2] In seeking an extension of time to appeal against conviction (which was refused), and again on the hearing of his application for leave to appeal against sentence, Nabhan contended that it was wrong to have regard as a particular of his trafficking that he "had five kilograms of cocaine". However, it was never part of the prosecution case that he physically had in his possession five kilograms of cocaine. The statement of facts against Nabhan put before the sentencing judge disclosed the following. A supply chain was set up in anticipation that five kilograms of cocaine would be transported from Cooktown. The cocaine was to be initially obtained by Porter and it was then to pass to Mustafa, to Varitimos, to Klasan, to Betham, then to Nabhan and finally to Elzeyat. In a phone call on 22 September 2002 Nabhan ordered five kilograms of cocaine from Betham and that was repeated in another telephone conversation of 23 September 2002. During the call on 22 September 2002 Betham referred to the difficulties in transporting the cocaine from Cooktown and Nabhan offered to drive there and collect it. In another conversation with Betham, Nabhan said that if the quality was good he would order 10 kilograms. When those passages were referred to Nabhan in the course of his oral submissions in this Court his responses included the following:

[7]

"...the only thing I would possibly have done was probably spoke to someone saying something like that."

"Like I said, I was under the influence of drugs at the time and I might have said that but I know - I had no intention of doing that at all."

"It's like I said, [Betham] might have mentioned it to me and I might have said, 'yes', but at the time I was on drugs myself. I wouldn't know what I was even - I can't remember what I was telling him."

[8]

[3] In fact the man Porter was apprehended after he flew out of Cooktown in possession of seven kilograms of cocaine.

[9]

[4] The statement of facts put before the sentencing judge also disclosed that in other intercepted telephone calls involving Nabhan there was reference to obtaining cocaine.

[10]

[5] The facts clearly established that Nabhan was involved in negotiations for the obtaining of cocaine and that he took steps to facilitate that drug being obtained. The fact that he never physically had possession of five kilograms of cocaine is beside the point.

[11]

[6] In relation to Kostopoulos it is significant, in my view, that on 11 August 2002 investigators intercepted a man named Forrest at Sydney airport in possession of 9000 ecstasy tablets for delivery to Kostopoulos. Kostopoulos had purchased 5000 of the tablets at $18.50 per tablet and the remaining 4000 tablets were to be on credit. Despite the seizure by authorities Kostopoulos paid for the other 4000 tablets.

[12]

[7] Further, on 18 October 2002 investigators searched the hotel room in Brisbane of a man named Huang and seized 989.7 grams of crystal material containing 783.757 grams of pure methylamphetamine. That drug was destined for delivery to Kostopoulos. After becoming aware of that seizure there was an intercepted telephone conversation involving Kostopoulos, Nabhan and Huang in which it was agreed that another delivery would be made once things had cooled off.

[13]

[8] In other words despite being aware that the authorities were making some inroads into his trafficking operation Kostopoulos was prepared to continue with his trade. That trade only ceased with his arrest on 28 October 2002.

[14]

[9] For the reasons given by Keane JA, and the additional observations I have made herein, the orders should be as indicated by Keane JA.

[15]

[10] JERRARD JA: I agree with Williams JA and Keane JA, for the reasons each has given, that both applications should be dismissed.

[16]

[11] KEANE JA: On 21 March 2006, the applicant, Nabhan, was convicted on his own plea of trafficking in the dangerous drugs cocaine, methylamphetamine or speed, MDMA or ecstasy, and GHB. He was not sentenced for that offence until 30 January 2007. On that date, he also pleaded guilty to two counts of unlawful possession of 27.751 grams of the dangerous drug speed (9.628 grams pure) and three ecstasy tablets on 30 November 2005. He was sentenced to 13 years imprisonment for the offence of trafficking, and concurrent sentences of 12 months for the possession offences. A total of 315 days pre-sentence custody was declared to be time already served under these sentences. A declaration that the trafficking offence was a serious violent offence was an automatic consequence of the imposition of a sentence of imprisonment in excess of 10 years.

[17]

[12] Nabhan seeks leave to appeal against this sentence. Unfortunately, he is unrepresented and his position is somewhat complicated. Nabhan was committed for trial on the trafficking count on 10 December 2003, but the matter was not set down for trial until 21 March 2006. On 17 March 2006, he indicated that he would be pleading guilty and he did so on 21 March 2006, when the issue of sentence was adjourned and he was remanded in custody. He subsequently applied to withdraw his plea of guilty, and that application was refused. On 26 February 2007, Nabhan sought to appeal against his convictions and sentences for both the trafficking charges and the possession charges. Obviously, he was out of time in respect of his conviction for the trafficking matter. He applied for an extension of time within which to appeal against his conviction, and that was refused on 16 May 2007.

[18]

[13] Although Nabhan duly commenced an appeal against his convictions for possession, that appeal has not been pursued, and has no impact on the imprisonment which he must serve. It should be struck out. Mr Nabhan indicated to this Court that he did not wish to pursue that appeal. In the applicant's letter of 29 June 2007, which is the only communication to the Court from Nabhan which might be regarded as a statement of his argument, he complains about the severity of the sentence for the trafficking offence.

[19]

[14] On 21 March 2006, the applicant, Kostopoulos, was convicted on his own plea of trafficking in the dangerous drugs cocaine, speed, ecstasy and GHB. On 5 April 2007, he was sentenced to a term of imprisonment of 15 years to be served cumulatively with the 21 month balance of suspended terms of imprisonment which had been imposed on 18 August 2000. A declaration that the trafficking offence was a serious violent offence was also made. It is common ground that the effect of the sentence is that Kostopoulos must serve in actual custody a minimum of 80 per cent of the 15 year sentence and half of the 21 month period being the balance of the suspended sentence of 18 August 2000. A period of 381 days pre-sentence custody was declared to be time already served. The learned sentencing judge also ordered Kostopoulos to pay $811,460 to the State of Queensland by way of a pecuniary penalty order pursuant to the Criminal Proceeds Confiscation Act 2002 (Qld).

[20]

[15] Kostopoulos seeks leave to appeal against his sentence on the ground that the sentence was manifestly excessive in the circumstances.

[21]

[16] I shall discuss the arguments raised by Nabhan and Kostopoulos respectively after first summarising the circumstances of the trafficking in which each of them was involved.

[22]

[17] The applicants were charged together with trafficking between 1 May 2002 and 30 October 2002. The charges were brought as a result of an investigation by the authorities in which a large number of telephone intercepts revealed the nature and extent of the businesses in which the applicants were engaged. These businesses were obviously well-established when the intercepts commenced.

[23]

[18] Nabhan, who was 34 years old at the date of sentence, had a minor criminal history involving possession of drugs. Nabhan, though in a sense subordinate to Kostopoulos, was nevertheless described by the learned judge who sentenced him as a "major player". There was no challenge to this description of the level of Nabhan's trafficking, and so it is unnecessary for present purposes to detail the full extent of Nabhan's activities. It suffices to note that, during the course of Nabhan's activities which he carried on independently of his association with Kostopoulos, he arranged the purchase of, inter alia, five kilograms of cocaine and 14,000 ecstasy tablets.

[24]

[19] Kostopoulos, who was 41 years old at the date of sentence, had a criminal history the most relevant aspect of which was that, on 18 August 2000, he had been sentenced on two counts of possession of dangerous drugs. These offences occurred in March and May 1999. He was sentenced to concurrent sentences of two years and two and a half years to be served concurrently, with each sentence to be suspended after nine months for an operational period of two and a half years. These sentences were imposed on the basis that Kostopoulos was in possession of the drugs for a commercial purpose. While Kostopoulos was still subject to the balance of his suspended sentences, he established the trafficking enterprise which the learned sentencing judge described as a "sophisticated and well resourced" operation.

[25]

[20] Kostopoulos used a number of people to work for him as a warehouse keeper, salesperson and courier. Kostopoulos controlled and financed a trafficking operation at what the learned sentencing judge described as "the highest level of drug trafficking". There is no challenge to the accuracy of this description, and so one need not set out the full details of his offending. By way of example of the level of his offending, on one occasion, one of Kostopoulous' couriers was intercepted bringing 9,000 ecstasy tablets into Queensland. He sold over 19,000 ecstasy tablets during the period between 26 July 2002 and 29 October 2002. He sold at least two kilograms of speed during the same period, and would have dealt with a third had it not been seized by police in October 2002. This one kilogram was very pure with a street value of many millions of dollars. Conservatively estimated, his completed sales amount to $811,000.

[26]

[21] Nabhan was Kostopoulos' principal supplier of drugs although Kostopoulos used other sources as well. Nabhan was able to source drugs from contacts in Sydney using funds provided by Kostopoulos who then sold the drugs in Queensland, usually at the wholesale level. Nabhan obtained for Kostopoulos at least 12,800 ecstasy tablets and, on several occasions, speed in one kilogram lots. Nabhan received a share of the proceeds, but a greater part of the proceeds was taken by Kostopoulos. Nabhan also received drugs for his own use from Kostopoulos. Nabhan also dealt in drugs which did not involve Kostopoulos.

[27]

[22] The relationship between Nabhan and Kostopoulos was not harmonious: Kostopoulos threatened to kill Nabhan on several occasions.

[28]

[23] Kostopoulos also used threats of physical violence to recover his business debts. During a search on 12 March 1999, he was found in possession of a hand gun, a flick knife and five suits of body armour. Kostopoulos used some people as "guinea pigs" upon whom drugs could be tested.

[29]

[24] Kostopoulos was motivated by profit. Nabhan was a drug user, but there was an element of profit motive on his part; and, as a result of his activities, Nabhan was able to enjoy the trappings of considerable wealth.

[30]

[25] As has been seen, Nabhan was ultimately sentenced for the offence of trafficking more than 10 months after his original plea of guilty. The learned sentencing judge remarked that the history of Nabhan's attempts to withdraw his plea served to "diminish the benefit that might otherwise have flowed to you had there been a timely plea of guilty...". Counsel for the prosecution submitted that the appropriate range of sentence was 12 to 14 years imprisonment. Counsel for Nabhan argued that a sentence of 11 to 12 years was appropriate. The learned sentencing judge was informed that Nabhan suffers from schizophrenia and anxiety.

[31]

[26] Kostopoulos was under a suspended sentence for drug offences when the trafficking offence was committed. The learned judge who sentenced Kostopoulos specifically referred to the circumstance that the telephone intercepts showed that Kostopoulos had a lively awareness that he was operating under the shadow of the suspended sentence. His Honour was unable to regard Kostopoulos' plea of guilty as a timely one because the plea in 2006 came on the eve of trial. His Honour was, however, prepared to recognise that the plea of guilty "very substantially counts in your favour today".

[32]

[27] In Kostopoulos' case, the prosecution argued for a sentence in the order of 14 to 16 years imprisonment, cumulative upon the balance of the suspended term. Defence counsel submitted that the appropriate range for the trafficking was 12 to 14 years to be served cumulatively upon the balance of the suspended sentence. Counsel for Kostopoulos drew the attention of the learned sentencing judge to the circumstance that, in the three years and five months when Kostopoulos was on bail before he pleaded guilty and was remanded for sentence, it was said that Kostopoulos had not re-offended during this period, and that this reflected well on his prospects of rehabilitation.

[33]

[28] The learned sentencing judge ordered Kostopoulos to serve the balance of the suspended sentences, but took them into account as reducing what would otherwise have been imposed for the trafficking offence.

[34]

[29] Nabhan argues against the severity of his sentence for the trafficking offence on the basis that insufficient weight was accorded to his plea of guilty, his cooperation with police and his compliance with his bail undertaking.

[35]

[30] As to the plea of guilty, it is apparent from the history of the matter that the value to the administration of justice of Nabhan's plea of guilty was substantially diminished by Nabhan's changes of heart. There can be no doubt that the learned sentencing judge was correct to say that the plea could "in no sense ... be described as a timely plea".

[36]

[31] In any event, it is apparent that Nabhan did receive a significant benefit from his plea of guilty. Reference to recent decisions of this Court shows that, for a trafficker in dangerous drugs on this scale, a sentence of 16 years imprisonment, even taking into account the plea of guilty, was within the appropriate range.[1]

[37]

[32] As to the applicant's cooperation with the authorities, it must be noted that, when initially interviewed by police in October 2002, he denied his involvement in trafficking and did not admit any involvement on his part when he was interviewed again on 30 November 2005.

[38]

[33] The less said about Nabhan's conduct while on bail the better for him. He committed the possession offences referred to above while on bail. Furthermore, he was found in possession of drugs on 1 October 2004, for which he was sentenced on 24 November 2004.

[39]

[34] Nabhan also complains that he should not have been treated as a prisoner who has committed a serious violent offence. This complaint is misconceived. The serious violent offence declaration was made automatically upon the imposition of a sentence of imprisonment in excess of 10 years by virtue of s 161A(a) of the Penalties and Sentences Act 1992 (Qld). As I have said, the sentence of 13 years which was imposed was well within the proper range, and, indeed, Nabhan's counsel at sentence had argued for a sentence of 11 years which would have carried an automatic serious violent offence declaration.

[40]

[35] On behalf of Kostopoulos, it is argued that the range of sentence notionally adopted was too high and that his Honour failed to give adequate recognition to the plea of guilty, to the principle of totality, and to considerations of parity with Nabhan. It is said that the learned sentencing judge failed adequately to "consider comparative sentences [sic]". Kostopoulos also argues that his Honour "failed to place any emphasis on the Applicant's rehabilitation prospects". In the upshot, it is submitted on behalf of Kostopoulos that this Court should impose a term of imprisonment of 11 to 12 years.

[41]

[36] In an attempt to argue that the learned judge who sentenced Kostopoulos set the range of sentence too high or failed to give sufficient weight to Kostopoulos' plea of guilty, counsel for Kostopoulos referred to R v Cannon,[2] R v Omer-Noori[3] and R v Slivo.[4] These were all cases of drug trafficking where, on an application for leave to appeal by the offender, this Court upheld less severe sentences than that imposed in this case as sentences which were not excessive. Accordingly, these decisions do not serve to demonstrate that the sentence imposed in this case, even allowing for the plea of guilty, was outside a proper range for the offending for which Kostopoulos was to be sentenced.

[42]

[37] Reference to the decisions of this Court in R v George,[5] R v Truong & Nguyen,[6] R v Tran[7] and R v Mustafa[8] shows that, even with Kostopoulos' plea of guilty, a sentence of the order of 16 years was within the proper range for trafficking on the grand scale in which Kostopoulos engaged. Especially is this so when one bears in mind the seriously aggravating circumstance that Kostopoulos conducted his criminal enterprise while at liberty under the terms of his suspended sentence. It was said on Kostopoulos' behalf that trafficking by the offenders referred to in these decisions was for longer than that with which Kostopoulos was charged. But the period of trafficking in R v Tran was only two months. And, even in a case such as R v Truong & Nguyen, the relevant period of trafficking was 11 months, but the value of drugs involved in the trade was much less than that turned over by Kostopoulos.

[43]

[38] It should also be said that there are real points of distinction between the facts of the present case and the facts of the cases upon which Kostopoulos seeks to rely. In R v Cannon, for example, the offender's trafficking had been in speed which, for the major part of the period of his activity, was a Sch 2 drug. Speed became a Sch 1 drug in September 2001, that is to say, for the whole of the period charged against Kostopoulos. Further, that offender's criminal history was much less serious than Kostopoulos. In R v Omer-Noori, the scale of the offender's trafficking - the offender was one of Kostopoulos' suppliers - was not on the scale of Kostopoulos' who was the centre of a network of distribution. The offender had no previous convictions. In relation to R v Slivo, the offender's trafficking was not of the same scale as Kostopoulos; and he had only a minor criminal history. On the other hand, in R v Truong & Nguyen, a notional starting point of 20 years before taking into account the plea of guilty and other matters of mitigation was not considered excessive.

[44]

[39] In relation to the discount allowed for Kostopoulos' plea of guilty, it is said that the learned sentencing judge did not appreciate that the period of trafficking had only been agreed shortly prior to trial. But it is clear that his Honour was aware that substantial negotiations had preceded the plea of guilty and that the plea had substantial utilitarian value.

[45]

[40] The learned judge who sentenced Nabhan assumed a range of "perhaps up to 16 years" as the notional starting point for sentencing Nabhan. On that basis, it would seem that Nabhan's late plea of guilty earned him a discount of three years. If the notional starting point for sentencing Kostopoulos was assumed to be 18 years, Kostopoulos' plea of guilty would seem to have earned at least the same discount. In any event, a difference in the discount allowed to Kostopoulos is readily justifiable: first by reason of the centrality of Kostopoulos' role in a large network of distribution of dangerous drugs, and the aggravating circumstances relating to his use of threats of violence to get his way, some of them made against Nabhan, as well as the fact that Kostopoulos was under a suspended sentence; secondly, by Kostopoulos' worse criminal history; and, thirdly, by the legitimate breadth of the sentencing discretion especially bearing in mind Nabhan's psychiatric condition. Any sense of grievance which Kostopoulos may feel by reason of the disparity in sentences is not justified.

[46]

[41] Finally on this point, it is, I think, important to deprecate any attempt to demonstrate error on the part of a sentencing judge by approaching the comparison of one case with another as if that process was capable of yielding a mathematically precise result.[9]

[47]

[42] In relation to the principle of totality, the learned sentencing judge expressly moderated the sentence which he imposed to take into account consideration of the totality of the term which Kostopoulos would be obliged to serve. It may be said that his Honour exercised moderation in his moderation of the sentence by reference to considerations of totality. But this was a case where the balance of the suspended terms of imprisonment which Kostopoulos will be required to serve relate to quite distinct drug offences of a commercial nature. There was certainly no reason for the learned sentencing judge not to order that Kostopoulos should serve the balance of the suspended terms. Kostopoulos was well aware of the risk he was running in continuing his criminal trade. He was evidently content to accept that risk because of the large financial rewards he was able to reap.

[48]

[43] While the consideration of deterrence may be of little relevance in relation to some offences and some offenders, it is clearly an important consideration in relation to those who conduct criminal enterprises solely for commercial gain. This is not a case of a crime of passion or of a crime committed on the spur of the moment. In the case of large scale commercial drug traffickers, such as Kostopoulos, the sanctions of the criminal law will only have the desired effect of suppressing commercially motivated crime if it is made clear to the entrepreneurs that the risks of the enterprise do not justify the rewards.

[49]

[44] As to Kostopoulos' prospects of rehabilitation, the learned sentencing judge was not only entitled, but was clearly correct, to regard those prospects as having little claim upon the sentencing discretion notwithstanding the period of time which elapsed while he was on bail without re-offending on his part. That he did not re-offend is as consistent with calculated circumspection on the part of a man facing the obvious prospect of a lengthy prison sentence. Kostopoulos is a mature man with a bad record whose conduct had shown him to be dedicated to the pursuit of money by means of serious criminal activity.

[50]

[45] For the sake of completeness, I note that it was stated on Kostopoulos' behalf that the sentence imposed was higher than that suggested by the Crown Prosecutor. That statement was incorrect. It is clear that the Crown's position at sentence was that a sentence in the range of 14 to 16 years imprisonment to be served cumulatively on the balance of the suspended sentences was appropriate after taking into account the plea of guilty, other mitigating factors and the principle of totality. The sentence imposed by his Honour was not above the range for which the Crown argued.

[51]

[46] The appeal against conviction in respect of the possession counts should be struck out.

[52]

[47] The application for leave to appeal against sentence should be refused.

[53]

[48] The application for leave to appeal against sentence should be refused.

[54]

[1] R v George [2001] QCA 135; R v Tran [2006] QCA 174; R v Mustafa [2006] QCA 231.

[55]

[2] [2007] QCA 205.

[56]

[3] [2006] QCA 311.