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Court of Criminal Appeal 20 December 2002

R v Kostecoglou

[2002] NSWCCA 514

Also reported as 137 A Crim R 257
Drugs
CRIMINAL LAW: SENTENCE CROWN APPEAL ONGOING SUPPLY OF HEROIN AND COCAINE WHETHER SENTENCES INADEQUATE PARITY WITH CO OFFENDER

Citation: R v Kostecoglou [2002] NSWCCA 514
Court: New South Wales Court of Criminal Appeal
Date: 20 December 2002
Judge(s): Giles JA, James J, Hidden J

Background

The respondent pleaded guilty to four charges of ongoing supply of heroin and cocaine under s 25A of the Drug Misuse and Trafficking Act 1985, each carrying a maximum of 20 years imprisonment. He had worked as a street dealer for approximately two months in 2000 as part of the large-scale "Dice" drug syndicate operating in Sydney's inner western suburbs. At sentencing, the District Court imposed a total effective sentence of three years and two months imprisonment with a non-parole period of twelve months.

The respondent was 23 at the time of the offences and had no prior convictions. He had become involved in the syndicate following his mother's death from cancer and his resulting drug addiction, and had since made substantial rehabilitative progress, including rebuilding family relationships and securing employment. The sentencing judge found his subjective case compelling and took into account a firearms offence on a Form 1 (a procedural mechanism for taking additional charges into account without recording a separate conviction).

The Director of Public Prosecutions appealed, arguing the sentences were manifestly inadequate and that the sentencing judge had erred by directing all sentences be served concurrently despite the offending representing serious, ongoing criminality rather than a single episode.

  • Whether the sentences imposed were manifestly inadequate given the seriousness and duration of the respondent's involvement in the drug syndicate
  • Whether the sentencing judge erred by directing that all sentences be served concurrently, contrary to the principles in Pearce v The Queen (1998) 194 CLR 610
  • Whether the sentences maintained proper parity with those imposed on a co-offender, Sefiti Halifihi
  • Whether the Court should exercise its residual discretion to decline intervention even if inadequacy were established, given the Crown's conduct in the original sentencing proceedings

Decision

The Court of Criminal Appeal, in a judgment delivered by Hidden J (with Giles JA and James J agreeing), dismissed the appeal. The Court acknowledged that the sentences were markedly lenient, but found that the case was exceptional. The respondent's subjective circumstances were unusual, and the Crown prosecutor in this Court conceded that the subjective case below had been powerful.

On the parity question, the Court found the sentences bore an appropriate relationship to those passed on the co-offender Halifihi. The firearm offence on the Form 1 could have justified more severe treatment of the respondent compared to Halifihi, but the sentencing judge's decision not to do so was not characterised as error. Critically, the Crown had not appealed Halifihi's sentences, and had not argued in the District Court that those sentences were inadequate, leaving the respondent's sentences consistent with the parity principle.

The Court also addressed the Crown's conduct before the sentencing judge. In the District Court, the Crown prosecutor had not challenged several aspects of the sentence ultimately imposed and had argued the matter in a manner broadly consistent with the outcome. The Court found it impermissible for the Crown to adopt a materially different and more demanding position on appeal. Even had manifest inadequacy been established, the Court indicated it would have declined to intervene in the exercise of its residual discretion on this basis.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that markedly lenient sentences are not automatically manifestly inadequate where exceptional subjective circumstances exist and the sentences maintain appropriate parity with co-offenders.
  • The parity principle operates as a significant constraint on Crown appeals: where a co-offender's sentences have not been appealed, a respondent's comparable sentences may be protected by consistency, even if the overall sentencing level might otherwise be considered low.
  • A Crown appeal against sentence may be refused on residual discretion grounds where the Director of Public Prosecutions seeks to advance arguments on appeal materially inconsistent with the position the Crown took before the sentencing judge.
  • The existence of a Form 1 matter (here, a firearms offence) may justify greater severity but does not compel it; a sentencing judge's decision not to treat a Form 1 as a basis for additional differentiation from a co-offender is not necessarily erroneous.
  • Rehabilitative progress, including the rebuilding of family relationships and securing employment while on stringent bail conditions, can form a substantial part of a compelling subjective case that resists interference on Crown appeal.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25 and s 25A
- Firearms Act 1996 (NSW), s 7(1)

Cases
- Pearce v The Queen (1998) 194 CLR 610