AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 28 February 2003

R v Siljanovski and Kostadinovic

[2003] NSWCCA 38

Drugs
CRIMINAL LAW: SENTENCE DRUG SUPPLY OFFENCES TWO CO OFFENDERS

Citation: R v Siljanovski and Kostadinovic [2003] NSWCCA 38
Court: NSW Court of Criminal Appeal
Date: 28 February 2003
Judge(s): Hidden J, Adams J

Background

Two co-offenders were sentenced in the District Court for heroin supply offences arising from the same criminal enterprise. The operation was uncovered through a coordinated police investigation using undercover operatives, listening devices, and telephone intercepts. Both men pleaded guilty to their respective charges.

The first applicant, the more senior figure in the operation, pleaded guilty to ongoing supply of heroin and two counts of supplying heroin, with two further supply offences taken into account. He received an effective sentence of seven and a half years with a non-parole period of four years. The second applicant, who acted as a distributor for the first, pleaded guilty to four counts of knowingly taking part in the supply of heroin, with additional offences taken into account. He received an effective sentence of three years with a non-parole period of one year and ten months.

Both men sought leave to appeal against their sentences, and the applications were heard together given the overlapping nature of their criminality.

  • Whether the sentence imposed on the first applicant was manifestly excessive on its own terms
  • Whether the disparity between the two sentences was so great as to give the first applicant a justifiable sense of grievance, warranting appellate intervention

Decision

The Court considered the relative roles of the two applicants in detail. The first applicant was plainly the senior figure: he controlled negotiations, physically handed over the drug on multiple occasions, received payment, and instructed the undercover officer on how to cut the heroin for maximum profit. The second applicant acted as his distributor, admitting in a police interview that he had supplied heroin for the first applicant daily over three months and remitted approximately $2,000 per day to him.

Despite those differences, the Court found the gap between the two sentences disproportionate. The first applicant faced an effective sentence two and a half times greater than that imposed on the second. While the first applicant warranted more severe treatment, the Court was satisfied he would have a justifiable sense of grievance given that the second applicant's role was active and significant, the second applicant had more offences on his Form 1, and the second applicant had a prior criminal record.

Hidden J found it unnecessary to determine whether the first applicant's sentence was manifestly excessive in isolation, because the disparity ground was sufficient to allow the appeal. Rather than restructuring all three sentences, the Court reduced only the sentence on the primary charge of ongoing supply, achieving practical justice with a more proportionate outcome overall.

Adams J agreed with Hidden J's reasons and proposed orders in their entirety.

Orders Made

  • Leave to appeal granted to the first applicant (Siljanovski)
  • Appeal allowed
  • Sentence on the charge of ongoing supply of heroin quashed
  • On the ongoing supply charge, taking into account the Form 1 matters: imprisonment for six years, to date from 26 September 2001, with a non-parole period of three years
  • Sentences on the two remaining charges affirmed

Key Takeaways

  • A co-offender who is more culpable will warrant a heavier sentence, but the differential between co-offenders' sentences must still bear a proportionate relationship to the actual differences in their criminality.
  • Where one offender would have a justifiable sense of grievance when comparing their sentence to that of a co-offender, appellate intervention on disparity grounds is available even without a separate finding of manifest excess.
  • Relevant factors in assessing comparative culpability include degree of control over the operation, the nature and number of charges, prior criminal history, and the active or passive nature of each participant's role.
  • Practical justice does not always require restructuring every sentence: the Court of Criminal Appeal confirmed that reducing the primary sentence alone can be sufficient to correct an undue disparity.
  • The second applicant's active distribution role, larger Form 1, and prior record all informed the Court's assessment that the sentencing gap could not be fully justified by the differences between the two men.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1)

Cases:
- R v Hoon and Pouoa [2000] NSWCCA 137
- R v Huang and Lin [2001] NSWCCA 76
- R v Radford [2002] NSWCCA 122