Regina v Ilias Karipidis

Court of Criminal Appeal (NSW)|2003-06-25|Before: Ipp JA, Buddin J, Shaw J

CITATION : Regina v Ilias Karipidis [2003] NSWCCA 168 HEARING DATE(S) : 25/06/2003 JUDGMENT DATE : 25 June 2003

JUDGMENT OF : Ipp JA at 31; Buddin J at 1; Shaw J at 32 DECISION : Application for leave to appeal granted. Appeal allowed (in part). Quash the head sentence of 8 years imposed in the District Court and in lieu thereof applicant sentenced to 7 years and 10 months imprisonment to commence on 9 May 2002 and to expire on 8 March 2010. Non-parole period imposed in the District Court confirmed.

CATCHWORDS : Application for leave to appeal against sentence - plea of guilty to importation of trafficable quantity of cocaine - further material relied on - delay - no credit for time spent in custody in determination of head sentence. Crimes Act LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Customs Act 1901 R v Abbott (1985) 17 A Crim R 355 R v Aliperti [2000] NSWCCA 315 R v Blanco (1999) 106 A Crim R 303 CASES CITED : R v Fordham (1997) 98 A Crim R 359 R v Goodwin (1990) 51 A Crim R 328 R v Lanham [1970] 2 NSWR 217 R v Pyrda [2001] NSWCCA 230 R v Todd [1982] 2 NSWLR 517 PARTIES : Ilias Karipidis (Applicant) Regina (Respondent) FILE NUMBER(S) : CCA 60081/2003 COUNSEL : H Dhanji (Applicant) M Bracks (C'wlth Crown) SOLICITORS : William O'Brien (Applicant) Commonwealth Director of Public Prosecutions

LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/0323 FILE NUMBER(S) : LOWER COURT Holt ADCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60081/03

IPP JA BUDDIN J SHAW J

WEDNESDAY 25 JUNE 2003 REGINA v ILIAS KARIPIDIS Judgment 1 BUDDIN J: On 19 February 2002 the applicant pleaded guilty on indictment to an offence, in contravention of s 233B(1)(d) of the Customs Act 1901, which alleged that he was, between about 25 June and 7 July 1999, knowingly concerned in the importation of a trafficable quantity of cocaine. He was sentenced on 12 July 2002 to a term of imprisonment for a period of eight years with a non-parole period of four years and ten months. The sentence was ordered to commence on 9 May 2002 from which date the applicant had been in continuous custody. He had however been in custody from the date of his arrest on 6 July 1999 until 26 August 1999 on which date he was released on bail. The maximum penalty for the offence is 25 years' imprisonment and/or a fine of $500,000. 2 A statement of agreed facts was admitted into evidence before the sentencing judge. It provides a useful summary of the case which was presented against the applicant and it is therefore convenient to set it out in full: KARAPIDIS (sic) was involved with 3 others in Australia, David MUNOZ, and Harry KOZONIS and Donna SOUED, in a joint enterprise to import cocaine from Montevideo, Uruguay in the months of May and June of 1999. An AFP investigation, which included the lawful monitoring and recording of mobile telephone communications made from and received by KARAPIDIS' and MUNOZ's mobile phones revealed numerous communications between the four (amongst others) since 26 June 1999 and up to 6 July 1999, in particular on 2 days, 5 and 6 July 1999. On 26 and 27 June 1999 KARAPIDIS was in contact with people identified as "HANNO " and "JULES" in Uruguay (the overseas suppliers) by telephone regarding things being sent to Australia and signed for and whether KARAPIDIS had sent or organised sending money to Uruguay. On 27 June 1999 KARAPIDIS transferred via Travelex $5000 to Alejandro Quinteros, Montevideo, Uruguay. On 29 June 1999 KARAPIDIS transferred via Travelex $1,900 to Alejandro Quinteros, Montevideo, Uruguay. Between 30 June and 1 July 1999 two packages were delivered to Fedex offices in Montevideo, Uruguay for delivery to 2 addresses in Australia; the first to the "Fairfield Financenter" 37 Crown Street, Yennora and the second to "Central Freight Systems Pty Ltd" to 19 Crown Street, Yennora The packages arrived in Fedex offices in Australia between 3 July and 6 July 1999. On 3 July KARAPIDIS transferred via Travelex $1,500 to Alejandro Quinteros, Montevideo, Uruguay. On 5 July 1999, at 2.46 pm MUNOZ took delivery of the first Fedex package addressed to 37 Barbara Street Fairfield from a Fedex delivery driver. After speaking to KARAPIDIS MUNOZ made his way to deliver the Fedex package to KARAPIDIS. Further lawfully obtained information from the interception of the telephone service used by KARAPIDIS established KARAPIDIS then made arrangements to meet a person by the name of GAZI to sell him the cocaine. Minutes later KARAPIDIS called KOZONIS and informed him that MUNOZ had got the package and he was going to meet him. KARAPIDIS and KOZONIS made plans to meet at GAZI's place. KARAPIDIS and MUNOZ met at the Bexley North Hotel at 3.59 pm where police believe MUNOZ handed the first Fedex package containing the cocaine to KARAPIDIS. Less than half an hour later at 4.27 pm KARAPIDIS called MUNOZ and told him that the package only contained a "quarter", "250". MUNOZ said that they should expect the other one (the second Fedex parcel) to contain 250 too. On 6 July 1999 lawfully obtained information from the interception of the telephone services used by KARAPIDIS and MUNOZ recorded conversations between KARAPIDIS and SOUED on 6 July 1999 regarding the pick up and delivery of the second Fedex parcel. MUNOZ left his mobile telephone with his de-facto wife SOUED who passed onto KARAPIDIS and MUNOZ messages in relation to the second Fedex package from JULES (the overseas supplier), MUNOZ and KARAPIDIS. At 1.54 pm MUNOZ took delivery of the second Fedex package addressed to 19 Crown Street Yennora from the same Fedex delivery driver. MUNOZ called KARAPIDIS, who was with KOZONIS, and informed him that he had the package. In a series of lawfully intercepted telephone calls SOUED, MUNOZ and KARAPIDIS speak about the second package and how MUNOZ will meet KARAPIDIS at Sydenham. KARAPIDIS is recorded making arrangements to meet KOZONIS as well. At 3.20 pm AFP surveillance officers observed KARAPIDIS and KOZONIS arriving at the General Gordon Hotel, Sydenham. Officers also saw MUNOZ arrive at the hotel with the second Fedex package. All three made their way into the hotel. Once in the gaming area of hotel at 3.31 pm AFP officers moved to arrest KARAPIDIS and KOZONIS. MUNOZ was arrested on the footpath outside the hotel. The second Fedex parcel was located by an AFP officer near a poker machine alongside where KARAPIDIS was seated. The Fedex parcel was examined and found to contain a quantity of white powder. MUNOZ, KARAPIDIS and KOZONIS were conveyed to the offices of the AFP. SOUED was arrested later that evening. At AFP headquarters KARAPIDIS participated in a record of interview with police after being formerly [sic] cautioned. The allegation was put to him that he was knowingly concerned in the importation of cocaine into Australia. He denied the allegation and took legal advice not to answer any further questions. He was then formally charged. The second Fedex package was seized by officers, opened, and was found to (sic) a quantity of white powder. Subsequent expert analysis revealed that it contained 240.1 grams of impure cocaine which, with a purity of 72.9% contained 175 grams of pure cocaine. Expert evidence from NSW police in relation to the seized cocaine establishes that the cocaine was of very good quality and could be cut at least once making 350 grams. This could then be sold in single grams at $200 each with a street level purity of 35% giving the product a street value of $70,000. Expert evidence from the NSW police having regard to the intercepted telephone calls between GAZI and KARAPIDIS suggests that KARAPIDIS was going to sell half a kilogram (the two Fedex parcels taken together) to GAZI for $80,000 - $90,000 and that this price is within the known price range for half a kilogram of cocaine. 3 The sentencing judge found that the applicant's culpability was greater than that of Mr Munoz who was sentenced at the same time (although it may be noted that Mr Munoz also stood for sentence in respect of other offences as well). His Honour said: I particularly note that Karapidis (sic) discussed the arrival of packages with Hanno (the overseas supplier) and sent money to Uruguay and had a meeting with Kozonis about selling the narcotics to Gazi. On the other hand, the Crown submitted that Munoz was more than a mere courier. I accept that submission that he also knew the name of the overseas supplier. It seems to me that Munoz was more than a courier, but was lower in the hierarchy of this drug importing enterprise than Karapidis. 4 The applicant was born on 25 October 1977. He was thus 21 at the time of the offence and 24 at the time of sentence. Notwithstanding his comparative youth, the applicant had acquired a not insignificant criminal record by the time he came to be sentenced. It began in 1991 when he was placed on a bond for stealing. He was before the Children's Court in 1992 and 1993 for further stealing offences. In 1993 a control order entailing a minimum term of 9 months was imposed upon him for numerous offences of stealing and receiving. In the same year he was also dealt with by way of a control order for an offence of dangerous driving. In 1994 he was again subjected to a control order for 18 months in respect of nine counts of armed robbery. In 1996 he received a three month fixed term of imprisonment for driving whilst disqualified. In 1998 he was placed upon a recognizance for 3 years in respect of an offence of receiving. He was thus on conditional liberty at the time of the present offence. In 1998 he appeared in the Local Court in respect of an offence of common assault for which he was fined and then again in respect of driving matters for which he was also fined. He was also fined in 1999 for a further offence of common assault and was placed on a two year good behaviour bond for driving whilst cancelled. 5 The trial judge took into account those matters upon which the applicant was entitled to rely in order to ameliorate the otherwise appropriate sentence. In that respect, his Honour took into account the applicant's plea of guilty and accepted that it "had some utilitarian value" notwithstanding that it was only entered after a jury was empanelled to try his case. 6 There was in evidence before his Honour, a psychiatric report from Dr Glenys Dore. His Honour clearly relied upon it because he extracted from it, in his Remarks on Sentence, the following summary of the psychiatrist's conclusions: Mr Karapidis (sic) is a 24 year old man with a long history of criminal activity. He was a well-behaved child until his parents separated when he was 12 and he became involved with a delinquent group in the Housing Commission premises where he lived. His family life had been fraught with difficulties, with a violent alcoholic father and the loss of two of his sisters. One sister was kidnapped (presumed dead) and the other committed suicide after developing Manic Depressive Illness (Bipolar Disorder). Mr Karapidis' involvement in criminal activity continued despite a successful period of time in a boys' home, with increasingly serious offences over time. … His expensive addiction to heroin appears to be the main factor behind his current charges of cocaine trafficking. These are very serious offences, and he appreciates that he must pay the penalty for his illegal activities. At the same time, he appears to have made significant efforts to get his life back on track since his arrest, including obtaining regular employment and receiving treatment for his heroin addiction. 7 In the light of that material, his Honour accepted that although the applicant had had an addiction to heroin at the time of the offence he had nonetheless since then made "serious efforts to rehabilitate himself" and that "he has made significant efforts to get his life back on track since his arrest, including maintaining regular employment and receiving treatment for his heroin addiction". His Honour also referred to the observation in the pre-sentence report that he was "making a real effort at changing his antisocial attitudes and lifestyle".

Ground 1 The applicant seeks to rely on fresh evidence 8 The applicant seeks to rely upon two reports of a clinical psychologist, Ms Rita Cobanov which are dated 6 March 2001 and 23 July 2001 respectively. The reports refer to the fact that the applicant was a victim of a shooting on 12 November 1997. After having referred to the applicant's symptoms, Ms Cobanov observes that "the symptoms described by [the applicant] suggest that he is experiencing Post Traumatic Stress Disorder and depression". (emphasis added) In her later report she said that his "symptoms suggest that he is continuing to experience Post Traumatic Stress Disorder, however is less depressed than previously. At this time counselling has been ceased at Mr Karipidis' request." (emphasis added) 9 From this it is sought to draw the inference that the applicant was suffering from a mental disorder at the time of the commission of the offence. There was, it may be observed, evidence before the sentencing judge concerning this incident. It was contained, inter alia, in the report of Dr Dore who noted that: [The applicant] was shot in the right leg in 1996. He and some friends were the victims of an unprovoked attack by a group of Lebanese men at a service station in Punchbowl. [The applicant] was stabbed at, and shot at eight times, one of the bullets hitting his right leg. His injury was relatively minor and did not require any significant surgical intervention. However, he experienced a range of symptoms consistent with a Major Depressive Illness for around 18 months after the incident as well as some early symptoms of Post Traumatic Stress Disorder. While he felt suicidal at times he did not make any suicide attempts. 10 Dr Dore went on to say that the applicant was "not currently suffering from any significant psychiatric symptoms". His Honour accepted that evidence. His Honour said that "I have no evidence the major depressive episode he suffered after he was shot in the leg in 1996 continued beyond eighteen months after that incident or that it was present at the time of the incident". It was not suggested that that finding was not open to the sentencing judge. Furthermore, although the reports of Ms Cobanov were not before the sentencing judge, there was explicit reference to the contents of them in the pre-sentence report which was in evidence before his Honour. 11 The applicant submits that the reports of Ms Cobanov demonstrate that "the applicant's mental state continued until well beyond the commission of the offence". 12 The applicant concedes that the material "is not 'fresh' in the sense of being unknown (although in existence) at the date of sentence, but rather was known but not drawn to the attention of the Court". He places reliance however upon the decision of this Court in R v Abbott (1985) 17 A Crim R 355 in support of the proposition that the failure to obtain and present the material at sentence represented a "serious inadequacy in the way the case was presented on the appellant's behalf in the court below". It is accordingly submitted that a miscarriage of justice has been occasioned by reason of the material not having been placed before the Court. 13 The Court does not ordinarily receive fresh or additional or new evidence on sentence appeals and proper grounds must be established before its discretion to do so will be exercised. See R v Lanham [1970] 2 NSWR 217. That said, there are some limited circumstances in which such material may be received. 14 In R v Goodwin (1990) 51 A Crim R 328, Hunt J, with whom Grove J agreed, said that what must be established by the applicant before such material can be received is: (1) that the additional material sought to be put before this Court is of such significance that the sentencing judge may have regarded it as having a real bearing upon his decision; (2) that, although its existence may have been known to the applicant, its significance was not realised by him at the time; and (3) that its existence was not made known to the applicant's legal advisers at the time of those sentencing proceedings. (at 330) 15 In R v Fordham (1997) 98 A Crim R 359 this Court said that "generally before fresh or new evidence will be received by this Court, it must be shown that the sentencing of the appellant in the absence of that evidence resulted in a miscarriage of justice." (At 377)

16 The reports from Ms Cobanov are each in a very short compass. They are entitled "Victim of Crime Report: Request for Further Counselling" and "Victim of Crime Report: Completion of Counselling" respectively. It is quite apparent that they were prepared for purposes entirely unrelated to the present matter to which there is no reference whatsoever in either report. More significantly, there is no opinion expressed in them to suggest that there was any link between the applicant's mental condition and the commission of the present offence. That consideration, together with the opinion expressed by Dr Dore that he was "not currently suffering from any significant psychiatric symptoms" and the fact that the pre-sentence report referred to this material, no doubt explains why counsel then appearing for the applicant (who did not appear in this Court) saw no reason to tender these reports. That sort of decision is peculiarly one for counsel's judgment. The applicant has in my view, conspicuously failed to demonstrate "a serious inadequacy", much less "flagrant incompetence" in the manner in which the applicant's case was presented before the sentencing judge. 17 Furthermore having had regard to the contents of the reports of Ms Cobanov and bearing in mind the material that was before the sentencing judge, I am not of the view that the applicant has established that the absence of the material has resulted in a miscarriage of justice. Nor has the applicant satisfied the various requirements set out in Goodwin. 18 In any event the cardinal requirement in the sentencing of Federal offenders is to be found in s 16A(1) of the Crimes Act which obliges a sentencing judge to impose a sentence that is of a severity appropriate in all the circumstances of the offence. Even if this material had been before the sentencing judge, then it is still necessary to pay proper regard to the dictates of s 16A(1). This was an offence in which the applicant performed a very significant role. As his Honour found, his involvement was much more extensive than that of a mere courier. He was involved in a joint criminal enterprise to import cocaine into Australia and had put in place arrangements, having received the two packages containing the cocaine, to distribute it for financial gain. He of course knew and was in direct contact with the overseas suppliers who were responsible for sending the cocaine to Australia. He was not assisted by either his criminal record or the fact that he was on conditional liberty at the time of the commission of this offence. It is apparent from the sentence which his Honour imposed that considerable leniency was extended to the applicant on account of the favourable subjective factors which he was able to call in aid. 19 Furthermore, even making due allowance for the further material should it be admitted, I would not form the opinion that some other sentence was warranted in law and should have been passed: Criminal Appeal Act 1912 s 6(3). 20 In all the circumstances I am of the view that the Court should not receive the additional material. Accordingly Ground 1 fails.

Ground 2 The learned trial judge erred in failing to take into account the effect of delay between the arrest and the sentencing of the applicant 21 The applicant as I have said was arrested on 6 July 1999. He was not sentenced until 3 years later, on 12 July 2002 22 The applicant submits that because the sentencing judge did not make specific reference to the question of "delay" that it can be inferred that it was not taken into account. The Court has been provided with a chronology which sets out the history of this case. It shows that the matter proceeded at a fairly leisurely pace in the Local Court. Indeed the applicant, who was on bail at the time, was granted several adjournments in the Local Court. A trial date was eventually set for July 2001. That date and a subsequent date in October 2001 were each vacated, over the Crown's objection, because the applicant and a co-accused wanted further time in which to obtain sufficient funds to enable them to be privately represented. It was not until February 2002, when the trial was listed for a third time, that the applicant entered a plea of guilty. 23 The relevant principles to be applied are not in doubt. In R v Todd [1982] 2 NSWLR 517, Street CJ said: Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner. (at 519-20) 24 It is not suggested, nor could it be, that the sentencing judge did not take into account the applicant's efforts aimed at rehabilitation. Moreover the applicant's progress towards rehabilitation was a powerful factor in his favour upon sentence and he was only able to advance it because he had had a sufficient period of time whilst on bail, within which to demonstrate it. In other words, the so-called "delay" in sentencing was, in a significant sense, to the applicant's advantage. Nor would I, in the circumstances of this case, regard the offences as being so "stale", or the 'delay" of such a duration, that would require a significant measure of leniency to be extended to the applicant even if, as he asserts, the sentencing judge did not advert to all the considerations that are referred to in Todd. 25 The applicant draws attention to the decisions of this Court in R v Aliperti [2000] NSWCCA 315 and R v Blanco (1999) 106 A Crim R 303. However in Aliperti the delay between charging and sentencing was 7 years and much of the delay was not attributable to the actions of that offender. In Blanco, there was an unexplained period of 5 years between the commission of the offence and the charging of the applicant. This is not to suggest that the relevant principles are only to be applied if the delay is not in any sense attributable to the actions of the individual accused. Nor by the same token is such a consideration irrelevant to the way in which the principles are to be applied in a particular case. 26 Nevertheless given the history of the matter, it is entirely understandable that counsel who appeared on the applicant's behalf at sentence (and who had appeared continuously for him up until that point) saw no reason to place upon this aspect of the matter the emphasis that is now suggested was required. 27 In coming to the view that this ground has not been made out, I have once again given consideration to the operation of s 6(3) of the Criminal Appeal Act 1912.

Ground 3 The learned sentencing judge erred in failing to take into account the applicant's pre-sentence custody in relation to the head sentence 28 It is apparent that his Honour gave the applicant credit for the time which he had spent in custody in 1999 by reducing the non-parole period by a period of two months. His Honour did not however make a similar adjustment in respect of the head sentence. Section 24 of the Crimes (Sentencing Procedure) Act 1999 requires a court to take into account "any time which the offender has been in custody in relation to the offence". Section 47 deals with the commencement of sentences. These provisions are applicable to the sentencing of federal offenders by reason of s 16E of the Crimes Act (C'th). In R v Pyrda [2001] NSWCCA 230, Howie J said: These provisions require that the court takes into account the period served by the offender for the offence for which he is to be sentenced. That requirement can only be given effect if allowance is made for time served either by back-dating the sentence or by deducting the period from the sentence to be imposed. The preference, where there has been a continuous period of custody up until the date of sentence, is for the sentence to be backdated. (at para 11) 29 I accept the applicant's submission that there is no justifiable basis for concluding that the applicant's entitlement to credit for the period spent in pre-trial custody should apply only in relation to the non-parole period. Accordingly I accept, as does the Crown, that error has been established. 30 I propose the following orders:

3 Quash the head sentence of 8 years imposed in the District Court and in lieu thereof sentence the applicant to 7 years and 10 months imprisonment to commence on 9 May 2002 and to expire on 8 March 2010.

4 Confirm the non-parole period imposed in the District Court. 31 IPP JA: I agree. 32 SHAW J: I also agree. 33 IPP JA: The orders of the Court will be as proposed by Buddin J. **********

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