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Court of Criminal Appeal 25 June 2003

Regina v Ilias Karipidis

[2003] NSWCCA 168

Drugs
FURTHER MATERIAL RELIED ON DELAY

Citation: Regina v Ilias Karipidis [2003] NSWCCA 168
Court: NSW Court of Criminal Appeal
Date: 25 June 2003
Judge(s): Ipp JA, Buddin J, Shaw J

Background

The applicant pleaded guilty in the District Court to being knowingly concerned in the importation of a trafficable quantity of cocaine into Australia, contrary to the Customs Act 1901. The offending occurred in June and July 1999 and involved a coordinated enterprise to import cocaine from Uruguay via international courier packages. The applicant played a senior role in the enterprise, communicating with overseas suppliers, transferring money to Uruguay, and arranging onward sale of the cocaine.

The applicant was arrested on 6 July 1999 and held in custody until 26 August 1999, when he was released on bail. He was subsequently sentenced on 12 July 2002, with his sentence commencing on 9 May 2002. The District Court imposed a head sentence of eight years with a non-parole period of four years and ten months.

The applicant sought leave to appeal against sentence on three grounds, arguing that the sentencing judge failed to give adequate weight to certain mitigating factors, that there had been an unacceptable delay in proceedings, and that the pre-sentence custody in 1999 had not been properly reflected in the head sentence.

  • Whether the sentencing judge gave insufficient weight to further mitigating material, including the applicant's cooperation, rehabilitation, and personal circumstances
  • Whether the delay between the offence and sentencing warranted a greater reduction in sentence
  • Whether the sentencing judge erred by crediting the applicant's pre-sentence custody only against the non-parole period, without making a corresponding adjustment to the head sentence

Decision

The Court dismissed the first two grounds of appeal. On the question of further mitigating material, the Court found that the sentencing judge had adequately considered the relevant factors and that no error had been established. The Court also rejected the delay ground, noting that the history of the proceedings explained the timing and that counsel at sentence had not emphasised delay as a significant factor.

On the third ground, the Court found clear error. The sentencing judge had acknowledged the applicant's period of pre-sentence custody in 1999 by reducing the non-parole period by two months, but had made no equivalent adjustment to the head sentence. Sections 24 and 47 of the Crimes (Sentencing Procedure) Act 1999, applicable to federal offenders via the Crimes Act (Cth), require a court to account for time spent in custody in relation to the offence. That obligation applies to the full sentence, not just the non-parole period.

Applying the principle confirmed in R v Pyrda [2001] NSWCCA 230, credit for pre-sentence custody must be given effect either by backdating the sentence or by deducting the period served from the sentence imposed. The Court accepted, and the Crown did not contest, that the head sentence required adjustment. The head sentence was reduced from eight years to seven years and ten months, reflecting the two months of pre-sentence custody. The non-parole period was left undisturbed.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part
  • Head sentence of eight years quashed; substituted with seven years and ten months imprisonment, commencing 9 May 2002 and expiring 8 March 2010
  • Non-parole period imposed in the District Court confirmed

Key Takeaways

  • Under ss 24 and 47 of the Crimes (Sentencing Procedure) Act 1999 (applicable to federal offenders via the Crimes Act (Cth)), a sentencing court must account for pre-sentence custody in both the head sentence and the non-parole period, not merely one of them.
  • Crediting pre-sentence custody only against the non-parole period, while leaving the head sentence unadjusted, constitutes a sentencing error.
  • The Court of Criminal Appeal confirmed the approach in R v Pyrda: where there has been a period of pre-sentence custody, the preferred mechanism is to backdate the sentence or deduct the period served, giving full effect to the statutory obligation.
  • In dismissing the delay and mitigating-material grounds, the Court found no error in the sentencing judge's weighing of the applicant's personal circumstances, cooperation, and the timing of the proceedings.
  • A senior participant in a drug importation enterprise who directed communications with overseas suppliers, transferred funds, and coordinated onward sale attracted significantly greater culpability than lower-level participants in the same enterprise.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(d)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 47
- Crimes Act (Cth), s 16E
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Pyrda [2001] NSWCCA 230
- R v Abbott (1985) 17 A Crim R 355
- R v Aliperti [2000] NSWCCA 315
- R v Blanco (1999) 106 A Crim R 303
- R v Fordham (1997) 98 A Crim R 359
- R v Goodwin (1990) 51 A Crim R 328
- R v Lanham [1970] 2 NSWR 217
- R v Todd [1982] 2 NSWLR 517