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Court of Criminal Appeal 20 December 2002

Regina v Karabatsos

[2002] NSWCCA 526

Drugs
SENTENCING LACK OF PARITY REQUIRING RE SENTENCING NO QUESTION OF PRINCIPLE.

Citation: Regina v Karabatsos [2002] NSWCCA 526
Court: New South Wales Court of Criminal Appeal
Date: 20 December 2002
Judge(s): Smart AJ; Adams J

Background

The applicant was a principal in a methylamphetamine manufacturing operation in Belfield, New South Wales, between February and June 2000. Police identified him through telephone intercepts and physical surveillance as part of a broader investigation into a large-scale amphetamine business organised by a co-offender. On arrest, the applicant was found with a drug ledger and a detailed recipe for a Sudafed extraction process, and a search of his premises uncovered chemicals, equipment, and pseudoephedrine capable of producing at least 117 grams of pure methylamphetamine.

The applicant pleaded guilty in the District Court and was sentenced by Gibson DCJ to five years' imprisonment with a non-parole period of three years and nine months. The sentencing judge applied a 17 percent discount for the utilitarian value of the guilty plea.

The applicant sought leave to appeal, arguing the sentence was excessive. The principal ground, which subsumed the others, was that a lack of parity with the sentence imposed on his co-offender, Tesic, gave rise to a justifiable sense of grievance.

  • Whether the sentence of five years with a non-parole period of three years and nine months was manifestly excessive.
  • Whether the sentencing judge erred in the discount applied for the guilty plea (said to be too low at 17 percent rather than approximately 25 percent).
  • Whether the sentencing judge erred in failing to find special circumstances justifying a longer parole period relative to the head sentence.
  • Whether the disparity between the applicant's sentence and the sentence received by his co-offender, Tesic, created an unjustifiable lack of parity requiring re-sentencing.

Decision

Tesic, the organiser of the broader manufacturing operation, had been sentenced to six years' imprisonment with a non-parole period of three years on the principal count, which included the applicant's offence as a Form 1 matter (a procedural device by which additional offences are taken into account at sentencing without attracting separate penalties). Tesic also received a partly cumulative sentence of three years and nine months on a separate drug supply count, with a non-parole period of one year. Critically, Tesic received a 25 percent guilty plea discount and a finding of special circumstances.

Smart AJ found that even accounting for the principles of totality and the Form 1 procedure, Tesic's effective punishment for his participation in the very same manufacturing offence as the applicant fell far short of the sentence the applicant received. The applicant was the one serving five years for that conduct, while Tesic, the organiser, was not being punished for it in any meaningful comparative sense. This produced an outcome the Court regarded as unfair and capable of generating a justifiable sense of grievance in the applicant.

Applying the principle in Postiglione v The Queen, the Court held that considerations of due proportion compelled re-sentencing. Smart AJ noted expressly that he would not have proposed such significant reductions but for the parity issue. The dominant basis for the finding of special circumstances was the parity consideration itself.

The Court also noted a minor clerical error in the original sentence, in which the sentencing judge had allowed only three months for pre-sentence custody when the applicant had served three months and one week. The fresh sentence corrected for this.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed; original sentence quashed.
  • In lieu thereof, the applicant was sentenced to imprisonment for three years commencing 19 July 2001, with a non-parole period of two years commencing that day and ending 18 July 2003, on which date the applicant was to be released on parole.

Key Takeaways

  • A lack of parity between co-offenders' sentences can constitute a free-standing basis for appellate intervention and re-sentencing, even where the disparity arises indirectly through the Form 1 procedure applied to a more serious co-offender.
  • The Court of Criminal Appeal confirmed that parity considerations can themselves give rise to a finding of special circumstances, justifying a longer parole period relative to the head sentence.
  • Where a co-offender who was the organiser of the broader criminal enterprise received a lesser effective punishment for the shared offence, the sentencing outcome for the less culpable party may be disproportionate in a way that produces a justifiable sense of grievance.
  • Smart AJ was explicit that the reductions in sentence would not have been warranted on the applicant's individual circumstances alone, indicating the Court's reluctance to disturb the original sentencing exercise absent the parity issue.
  • Postiglione v The Queen (1997) 98 A Crim R 134 was the governing authority applied by the Court in concluding that due proportion required re-sentencing.

Legislation and Cases Referenced

Cases:
- Postiglione v The Queen (1997) 98 A Crim R 134

Legislation:
No specific legislation was cited in the text of the judgment.