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5
Court of Criminal Appeal 4 July 2005

R v GEORGIOU

[2005] NSWCCA 237

DrugsFirearms & weapons

Citation: R v Georgiou [2005] NSWCCA 237
Court: NSW Court of Criminal Appeal
Date: 4 July 2005
Judge(s): Santow JA; Hulme J; Hidden J

Background

The appellant was convicted by a jury in the District Court of supplying methylamphetamine and cocaine on two separate dates in May 1996, along with possessing several prohibited weapons and a prohibited article. He had been under 24-hour police surveillance before his arrest, and the trial evidence included tape recordings and transcripts of conversations captured during that period.

The appellant was sentenced to eight years' imprisonment with a non-parole period of six years on each of the three drug supply counts, with concurrent fixed terms of one year for the weapons and prohibited article offences. All sentences commenced on 3 February 1998.

He appealed both conviction and sentence. On conviction, he challenged the admission of transcripts alongside the tape recordings. On sentence, he argued the sentences were manifestly excessive compared to comparable offences and that they were inconsistent with sentences received by co-offenders.

  • Whether the trial judge erred by admitting transcripts of recorded conversations when the tape recordings themselves were also before the jury, having regard to the Evidence Act 1995 (NSW)
  • Whether the sentences imposed were manifestly excessive by comparison with sentences imposed in similar drug supply cases
  • Whether the sentences failed to achieve proper parity with sentences received by co-offenders sentenced in South Australia
  • Whether the sentencing judge erred by treating the three drug supply offences identically without distinguishing between their individual levels of criminality, contrary to the principle in Pearce v The Queen (1998) 194 CLR 610

Decision

Conviction ground: The Court dismissed the conviction appeal. Under ss 29(4), 48 and 51 of the Evidence Act, transcripts of tape recordings are admissible as a legitimate means of proving the contents of those recordings, and s 51 abolishes the common law restrictions that previously governed this area. The Court found there was sufficient evidence that the transcripts reproduced the contents of the tapes, and their admission alongside the recordings did not constitute legal error. An argument based on the word "or" in s 48(1), suggesting the original and secondary evidence were mutually exclusive alternatives, was not accepted.

Sentence ground: The Court granted leave to appeal against sentence and identified a specific error. The sentencing judge had treated all three drug supply offences identically, imposing the same eight-year term on each. The Court held this was an error of the kind described in Pearce: a sentencing court must individually assess and distinguish between separate offences rather than applying a uniform global sentence across all counts. The three drug supply counts involved different drugs and different quantities, and they warranted separate consideration.

Quantum and global assessment: Despite the Pearce error, a majority of the Court took the view that the global outcome of eight years with a six-year non-parole period was not manifestly excessive as a measure of the appellant's overall criminality. Hidden J, in particular, reasoned that where the global sentence is appropriate, recasting sentences for individual counts ordinarily serves no purpose, and the Court should not intervene under s 6(3) of the Criminal Appeal Act unless the overall sentence is more severe than warranted. The sentences on counts 3 and 4 were nonetheless quashed and replaced with shorter individual terms to correct the Pearce error.

Statistics and parity: All three judges agreed that the Judicial Commission statistics relied upon by the appellant did not establish a pattern of undue leniency, and that the limitations on using such statistics (identified in earlier authorities) were significant. Santow JA and Hidden J were cautious about drawing strong inferences from bare figures without full argument. The parity argument with the South Australian co-offenders was also rejected, given that those individuals were sentenced in a different jurisdiction for different offences.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeals against sentences on counts 1, 5, 6, 7 and 8 dismissed
  • Sentences on counts 3 and 4 quashed
  • Count 3: imprisonment for 5 years including a non-parole period of 3 years and 9 months, commencing 3 February 1998
  • Count 4: imprisonment for 4 years including a non-parole period of 3 years, commencing 3 February 1998

Key Takeaways

  • Under ss 29(4), 48 and 51 of the Evidence Act 1995 (NSW), transcripts of tape-recorded conversations are admissible to prove the contents of those recordings, and the common law restrictions on such secondary evidence have been abolished by s 51.
  • A sentencing court commits a Pearce error when it imposes identical sentences across multiple offences without individually assessing and distinguishing between the criminality represented by each count.
  • In dismissing the broader sentence appeal, the Court of Criminal Appeal confirmed that where a global sentence is appropriate as a measure of overall criminality, the court will ordinarily decline to intervene under s 6(3) of the Criminal Appeal Act even where a technical sentencing error has been identified.
  • Judicial Commission sentencing statistics do not, by themselves, establish undue leniency; their use is subject to well-established limitations and requires full argument before firm conclusions can be drawn.
  • A parity argument will generally not succeed where the co-offenders were sentenced in a different jurisdiction for different offences, even where their criminal conduct was related to that of the appellant.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 29(4), 48, 51
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Butera v Director of Public Prosecutions (Vic) (1987-1988) 164 CLR 180
- Pearce v The Queen (1998) 194 CLR 610
- Bloomfield (cited in relation to limitations on use of sentencing statistics)
- AEM (cited in relation to limitations on use of sentencing statistics)