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8
Court of Criminal Appeal 2 April 2001

R v Kalpaxis

[2001] NSWCCA 119

Also reported as (2001) 122 A Crim R 320
Drugs
CRIMINAL LAW OFFERING TO SUPPLY COCAINE DRUG MISUSE AND TRAFFICKING ACT 1985 NO ACTUAL SUPPLY NO INTENT TO SUPPLY NO ABILITY TO SUPPLY

Citation: R v Kalpaxis [2001] NSWCCA 119
Court: NSW Court of Criminal Appeal
Date: 2 April 2001
Judges: Stein JA; Wood CJ at CL; Studdert J

Background

The respondent pleaded guilty in the District Court to offering to supply a large commercial quantity of cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The charge carried a maximum penalty of life imprisonment and a fine of up to $550,000. The facts, agreed between the parties, showed that the respondent made a series of representations to an acquaintance about arranging the importation and supply of 100 to 150 kilograms of cocaine by boat from Greece.

The District Court found that the entire scheme was a ruse. The respondent's actual purpose was to obtain money so he could remain in Greece while his father was dying of cancer. He had no genuine intention to supply cocaine, no ability to do so, and no actual drugs were ever supplied. The $10,070 he received from his acquaintance (which was in fact NCA funds) was repaid in full before sentencing.

The sentencing judge described the case as "extraordinary" and sentenced the respondent to two years' imprisonment, suspended on condition he enter a good behaviour bond for the same period. The respondent had already spent approximately five months and ten days in pre-sentence custody. The Crown appealed, contending the sentence was manifestly inadequate.

  • Whether the sentencing judge erred in principle by characterising the offence as more akin to obtaining money by false pretences, rather than a genuine drug supply offence.
  • Whether a suspended sentence was available and appropriate for an offence of offering to supply a large commercial quantity of cocaine, in circumstances where there was no actual supply, no genuine intention to supply, and no ability to supply.
  • Whether the sentence imposed was so inadequate as to warrant intervention by the Court of Criminal Appeal.

Decision

The Court of Criminal Appeal dismissed the Crown's appeal. Stein JA, with Wood CJ at CL and Studdert J agreeing, held that the sentencing judge's key findings were all open on the agreed facts: there was no actual supply, no genuine intention to supply, and no ability to supply. The sentencing judge was entitled to treat the case as exceptional and extraordinary.

The Court accepted that the offence technically fell within the broad definition of "supply" in s 3 of the Act, following the earlier authority of Regina v Dendic and Mazzeo (1987). However, the Court drew a clear distinction between that case and the present one, noting that the subjective and objective circumstances were materially different. The respondent's conduct fell at the least serious end of the spectrum covered by the provision.

Additional subjective factors reinforced the sentencing outcome. Medical evidence established that the respondent was suffering from severe depression accompanied by psychosis at the time of the offending, representing a substantial departure from reality. Combined with his age, his limited criminal history, and the full repayment of funds received, the sentencing judge had ample basis for the sentence imposed.

Stein JA also flagged a structural concern: offences of this unusual character, where there is no genuine intention or ability to supply, may be unsuitable for prosecution under provisions carrying a maximum of life imprisonment. His Honour noted that such prosecutions risked distorting sentencing statistics in ways that could mislead future courts, and suggested Parliament might consider a separate legislative provision with a more proportionate maximum penalty.

Orders Made

  • The Crown appeal was dismissed.

Key Takeaways

  • An offence of "offering to supply" under the Drug Misuse and Trafficking Act 1985 can be established even where there was no actual supply, no intention to supply, and no ability to supply, because of the breadth of the statutory definition of "supply" in s 3.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a finding of no genuine intention or ability to supply is highly relevant to where the offence sits on the seriousness spectrum, potentially placing it at the least serious end despite the maximum penalty being life imprisonment.
  • A suspended sentence remained available to the sentencing judge in circumstances characterised as genuinely exceptional and extraordinary, and no error of principle was established merely because a non-custodial outcome was reached for a serious drug offence category.
  • No error arises from a sentencing judge describing the true character of an offence as analogous to obtaining money by false pretences, provided that characterisation reflects the agreed facts and informs proportionate sentencing rather than constituting a misclassification of the charge.
  • Stein JA (with Wood CJ at CL expressing agreement) raised a concern that prosecuting such cases under supply provisions with a life imprisonment maximum may skew judicial statistics, suggesting a legislative gap in how offences of this unusual character are addressed.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25

Cases:
- Regina v Dendic and Mazzeo (1987) 34 A Crim R 40