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Court of Criminal Appeal 4 July 2005

Regina v Tsiaousis

[2005] NSWCCA 240

Drugs
CRIMINAL LAW AND PROCEDURE SENTENCE ATTEMPT TO IMPORT NARCOTIC (MDMA) INTERCEPTION BY AUTHORITIES NO RECEIPT BY OFFENDER ISOLATED OFFENCE

Citation: Regina v Tsiaousis [2005] NSWCCA 240
Court: Court of Criminal Appeal, New South Wales
Date: 4 July 2005
Judge(s): Grove J, Wood CJ at CL, Rothman J

Background

The applicant, a security officer with gambling debts, agreed to receive packages of ecstasy tablets sent from the United Kingdom to his home address, for onward delivery to a distributor. He was to be paid $2,000 per consignment. Between August and October 2003, four packages concealed in hair products arrived by mail, containing a total of 290 grams of pure MDMA. All four were intercepted by authorities before the applicant received them.

When Federal Police executed a search warrant at his premises, they also found an empty "dummy run" package sent from the UK. The applicant made full admissions to police upon arrest and pleaded guilty at the first available opportunity. He had no meaningful criminal history and was assessed by the sentencing judge as having powerful subjective circumstances in his favour.

The District Court sentenced him to eight years' imprisonment with a non-parole period of five years. He sought leave to appeal on the grounds that the sentencing approach was legally flawed and that the sentence was manifestly excessive.

  • Whether the sentencing judge incorrectly relied on the 50% arithmetic enhancement approach proposed in R v Kevenaar following the repeal of s 16G of the Crimes Act 1914, rather than the preferred approach set out in subsequent Court of Criminal Appeal authority.
  • Whether the total sentence of eight years with a five-year non-parole period was manifestly excessive having regard to the applicant's role, the available sentencing statistics, and his subjective circumstances.

Decision

On the first ground, the Court of Criminal Appeal found no error in the sentencing judge's use of Kevenaar. The remarks on sentence showed that Solomon DCJ referred to Kevenaar only as a convenient collection of prior cases, not as an endorsement of the arithmetic 50% uplift approach that Hulme J had proposed in that decision. The Court confirmed that the preponderance of authority required sentencing judges to apply the statutory factors in s 16A(1) of the Crimes Act 1914 directly, rather than mechanically adjusting a pre-repeal sentencing pattern. The first ground was rejected.

On manifest excess, the Court accepted the second ground. Judicial Commission statistics for the post-repeal period, though based on only seven cases, showed the highest total term imposed on any offender was seven years. The applicant's sentence of eight years exceeded every case in that sample.

The Court also noted that the sentencing judge had described the applicant's subjective matters as "powerful" but had not made explicit what discount was applied for the very early guilty plea. The applicant's role as a "post box" placed him towards the lower end of the drug importation hierarchy. Applying the range identified in R v Togias, the Court considered this case called for a penalty towards the lower end of the applicable range.

The Court reduced the total term to six years, maintaining the same proportion between head sentence and non-parole period as the original sentencing judge had applied, producing a non-parole period of three years and nine months.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed; sentence imposed in the District Court quashed.
  • In lieu thereof, the applicant sentenced to six years' imprisonment commencing 29 October 2003 and expiring 28 October 2009, with a non-parole period of three years and nine months commencing 29 October 2003 and expiring 28 July 2007, with eligibility for parole on that date.

Key Takeaways

  • The Court of Criminal Appeal confirmed that, following the repeal of s 16G of the Crimes Act 1914, sentencing courts must apply the statutory criteria in s 16A(1) directly, not by arithmetically inflating a discernible pre-repeal sentencing pattern.
  • A sentencing judge's reference to R v Kevenaar does not in itself disclose legal error, provided the judge used it only as a case collection and not as authority for the 50% arithmetic uplift approach.
  • Judicial Commission sentencing statistics, even where the sample is small, can be relevant comparative material in assessing whether a sentence is manifestly excessive relative to sentences imposed on other offenders for comparable conduct.
  • Classifying an offender's role within the drug importation hierarchy (principal, courier, or facilitator) remains relevant to assessing criminality, and a "post box" role attracted placement towards the lower end of the sentencing range.
  • Where a sentencing judge describes an offender's subjective circumstances as "powerful" but does not articulate the discount applied for an early guilty plea, the Court of Criminal Appeal may treat that as a factor supporting a finding of manifest excess.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16A(1), 16G (repealed)

Cases
- R v Kevenaar & Ors [2004] NSWCCA 210
- R v Mas-Rivadavia [2004] NSWCCA 284
- R v Studenikin [2004] NSWCCA 164
- R v Dejeu [2004] NSWCCA 237
- R v A [2004] NSWCCA 292
- R v Bezan (2004) 147 A Crim R 430
- R v Togias (2001) 127 A Crim R 23