Citation: R v Lyberopoulos [2002] NSWCCA 280
Court: New South Wales Court of Criminal Appeal
Date: 24 July 2002
Judge(s): Mason P, Hulme J, Simpson J
Background
The appellant was convicted by a District Court jury of supplying a prohibited drug, namely 4.93 kilograms of cannabis leaf. The supply charge was a deemed supply, meaning the Crown's case rested on the appellant's possession of the cannabis rather than on a direct act of supply.
The cannabis was discovered by a police officer in two sports bags in the boot of a rented motor vehicle stopped near Yass. The appellant had rented the vehicle, though one of his two travelling companions was driving at the time of the stop. All three occupants were arrested. Charges against the two companions were later dropped in exchange for their agreement to give evidence against the appellant.
The appellant gave evidence denying ownership of or knowledge about the drug-containing bags, attributing the trip to one of his companions and denying that he had provided a key to unlock one of the bags as the arresting officer alleged. The jury returned a guilty verdict, and the appellant was sentenced to two years' imprisonment with a non-parole period of twelve months.
Legal Issues
- Whether the conviction was sound in light of the evidence presented, including the credibility of co-offender witnesses and the appellant's own account
- Whether the sentencing judge erred in the sentence imposed, including whether it was manifestly excessive for the quantity involved
- Whether the court should take into account, in assessing the sentence, a period of approximately five months the appellant had served under a separate conviction that had since been quashed
Decision
On the conviction appeal: The Court of Criminal Appeal found no basis to disturb the conviction. The jury had heard competing accounts from the appellant and the two co-travellers, whose charges had been dropped in exchange for their testimony. Constable White's evidence included details of the appellant identifying one bag as belonging to his companion, acknowledging there was more cannabis in the vehicle, and fetching keys to unlock a padlocked bag. The credibility findings were matters for the jury.
On sentence: The Court considered whether the sentence of two years with a twelve-month non-parole period was manifestly excessive. The quantity involved, 4.93 kilograms, fell within the indictable quantity range (below the commercial quantity threshold of 25 kilograms for cannabis). Hulme J noted there were some subjective features in the appellant's favour but none were strong, there was no evidence of remorse, and the offence was plainly a commercial venture.
The Court applied established appellate authority emphasising that substantial general deterrence is a primary sentencing consideration for drug traffickers, and that custodial sentences are the norm for commercial-scale supply. No error was identified in the sentence imposed by Morgan DCJ.
On the quashed conviction: The Court acknowledged that, had it been re-sentencing the appellant, it could have taken into account the approximately five months served under the separately quashed conviction. However, because no error had been established in the sentence under appeal, there was no occasion for the Court to interfere and effectively re-sentence the appellant.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- A deemed supply charge requires proof of possession of a prohibited drug; direct evidence of an act of supply is not necessary.
- Where competing accounts from co-offenders and the accused are placed before a jury, credibility assessments are the province of the jury and will not readily be disturbed on appeal.
- Established Court of Criminal Appeal authority confirms that custodial sentences with a strong general deterrence component are the norm for commercial drug trafficking, and only exceptional circumstances justify a non-custodial order.
- No error was established in the sentence, and the Court's inability to identify such an error precluded any adjustment even to account for time served under a separate, subsequently quashed conviction.
- In dismissing both appeals, the Court confirmed that the sentencing court's findings on the commercial nature of the offence and the absence of genuine remorse were legitimate considerations supporting the sentence imposed.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59
Cases:
- R v Clark (unreported, NSWCCA, 15 March 1990)
- Schaal (unreported, NSWSC, 8 September 1989) (Wood CJ at CL)
- R v Swann (unreported, NSWCCA, 17 July 1992) (Gleeson CJ)