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Court of Criminal Appeal 14 April 2000

R v Ambatsidis

[2000] NSWCCA 125

Drugs

Citation: R v Ambatsidis [2000] NSWCCA 125
Court: NSW Court of Criminal Appeal
Date: 14 April 2000
Judge(s): Simpson J, Barr J

Background

The applicant pleaded guilty in the District Court to two charges of supplying not less than the commercial quantity of heroin, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985. The first charge arose from an agreement he made with an undercover police officer to supply one kilogram of heroin between October and November 1994. The second charge arose from an actual supply of 0.22 grams of heroin, by way of sample, to the same officer on 7 October 1994.

The applicant lived in Melbourne and travelled to Sydney on multiple occasions in an apparent effort to source the larger quantity he had promised. The agreed kilogram supply was never completed. Under the extended statutory definition of "supply," the agreement itself was treated and punishable as an act of supply.

Freeman DCJ sentenced the applicant to a total of six years imprisonment on the first charge (minimum three years nine months, additional term two years three months) and a concurrent fixed term of two years on the second charge. The applicant sought leave to appeal, arguing the sentences were excessive in light of the circumstances surrounding the police operation.

  • Whether the sentencing judge gave adequate weight to the role of the undercover police operative in initiating and encouraging the agreement to supply, particularly the principles established in R v Rahme and R v Taouk regarding police instigation as a mitigating factor.
  • Whether the sentencing judge erred in his factual findings about the applicant's capacity and enthusiasm to complete the supply, and in treating the applicant as more than a "rank amateur."
  • Whether the sentencing judge placed undue weight on general deterrence and the applicant's willingness and effort to pursue the supply arrangement.
  • Whether insufficient weight was given to the fact that no heroin was actually supplied on the first count.

Decision

The Court of Criminal Appeal found no error in the sentencing judge's approach. Simpson J examined the principles from R v Rahme and R v Taouk, which recognise that police instigation can operate as a mitigating factor at sentence. However, those principles do not apply to reduce culpability simply because an undercover operative was involved; the degree to which the accused was encouraged into offending that he would not otherwise have committed is the relevant question.

On the facts, the sentencing judge's findings were well open to him. The evidence showed the applicant had made strenuous and repeated efforts to source the drug, travelling from Melbourne to Sydney on at least two occasions for that purpose. There was no suggestion he had at any stage sought to withdraw from the arrangement or doubted his ability to complete it. The court found he was not an unwilling participant further pushed along by police conduct.

The subsidiary argument about undue weight being given to general deterrence and the applicant's enthusiasm was rejected. Simpson J found nothing in the remarks on sentence to support the contention that these matters were given improper weight; they were legitimate sentencing considerations, properly applied.

The argument that the incompleteness of the supply warranted greater mitigation was also rejected. The legislature had expressly included an agreement to supply within the statutory definition of supply, and the fact that no heroin was ultimately delivered did not, of itself, reduce the gravity of the offence. The sentencing judge was entitled to consider the applicant's persistent efforts to fulfil the agreement.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Police instigation by an undercover operative does not automatically reduce an offender's culpability at sentence; the court must examine the degree to which police conduct induced offending the accused would not otherwise have committed.
  • A sentencing court is entitled to find that an accused who actively pursued fulfilment of an agreement to supply, including through repeated travel and approaches to potential sources, demonstrated significant criminality regardless of whether the supply was ultimately completed.
  • Under the Drug Misuse and Trafficking Act 1985, an agreement to supply a prohibited drug is expressly treated as supply; the non-completion of the agreed transaction does not, on its own, constitute a mitigating factor sufficient to reduce the sentence.
  • No error was established in the sentencing judge's factual findings where they were supported by tape recording transcripts and evidence of the applicant's persistent conduct, and where the applicant never sought to withdraw from the arrangement.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that general deterrence and an offender's enthusiasm in pursuing a drug supply arrangement are proper considerations when assessing the seriousness of commercial drug supply offences.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), sections 3 and 25(2)
- Sentencing Act 1989 (NSW), section 5(2)

Cases:
- R v Rahme (1991) 53 A Crim R 8
- R v Taouk (1992) 65 A Crim R 387