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Court of Criminal Appeal 23 December 2005

Kardoulias and Andres v Regina

[2005] NSWCCA 456

Drugs
SENTENCING APPEAL AGAINST SEVERITY CROWN APPEALS AGAINST SENTENCES

Citation: Kardoulias and Andres v Regina [2005] NSWCCA 456
Court: NSW Court of Criminal Appeal
Date: 23 December 2005
Judge(s): Simpson J, Johnson J, Rothman J (Johnson J delivering the principal judgment; Simpson and Rothman JJ agreeing)

Background

Two men, a co-conspirator convicted after trial and another who pleaded guilty, were sentenced in the District Court for their roles in separate conspiracies to import prohibited drugs into Australia. The first conspirator (Kardoulias) was convicted of one count of conspiracy to import heroin. The second (Andres) pleaded guilty to two counts: conspiracy to import heroin and a separate conspiracy to import ecstasy. Both offences were charged under section 233B of the Customs Act 1901 (Cth), which carried a maximum of 25 years' imprisonment for heroin and life imprisonment for the ecstasy conspiracy.

The heroin importation involved approximately 1.395 kilograms of heroin (708.5 grams pure), valued conservatively at over $1.1 million on the street. Both men had been sentenced at first instance by Nield DCJ in the District Court, and co-conspirators had already been the subject of a prior Crown appeal that resulted in increased sentences.

Each man sought leave to appeal his sentence as manifestly excessive, and the Crown separately appealed each sentence as manifestly inadequate. The two sets of appeals were heard together.

  • Whether the sentencing judge made factual errors in either sentence that warranted appellate intervention
  • Whether the sentence imposed on Kardoulias was manifestly excessive (as he alleged) or manifestly inadequate (as the Crown alleged)
  • Whether the sentences imposed on Andres for both conspiracies were manifestly excessive (as he alleged) or manifestly inadequate (as the Crown alleged)
  • How to approach parity, accumulation, concurrence, and totality where an offender is sentenced for multiple drug conspiracies alongside co-offenders who had already been resentenced on appeal

Decision

The Court found no error in the factual findings made by the sentencing judge in either case. Both applicants' appeals against the severity of their sentences were dismissed, with the Court concluding that no error had been established and the sentences were not manifestly excessive.

On the Crown's appeal against Kardoulias' sentence of 13 years and six months (with an eight-year and six-month non-parole period), the Court found the sentence was not manifestly inadequate and dismissed the Crown appeal. Kardoulias had been convicted after trial, and his sentence sat at the higher end of the range given his role compared to co-offenders who had pleaded guilty.

On the Crown's appeal against Andres' sentences, the Court reached the opposite conclusion. The Court found the sentences imposed by Nield DCJ were manifestly inadequate once the sentences of co-conspirators (Mas Rivadavia and El-Akkaoui) had been increased on the earlier Crown appeal. The Court was required to resentence Andres, keeping in mind that his pleas of guilty, contrition, prior good character, and prospects of rehabilitation were mitigating factors, and also that sentences imposed on a Crown appeal should sit towards the lower end of the appropriate range.

The Court structured the new sentences for Andres so that they were cumulative for four years and concurrent for seven years, producing a total effective head sentence of 16 years and six months and a single non-parole period of 11 years, both commencing from the date he was taken into custody in April 2002.

Orders Made

Kardoulias:
- Leave to appeal against sentence granted, but appeal dismissed
- Crown appeal dismissed

Andres:
- Leave to appeal against sentence granted, but appeal dismissed
- Crown appeal allowed
- District Court sentence for the heroin conspiracy quashed; replaced with 11 years' imprisonment commencing 9 April 2002 and expiring 8 April 2013
- District Court sentence for the ecstasy conspiracy quashed; replaced with 12 years and six months' imprisonment commencing 9 April 2006 and expiring 8 October 2018
- Single non-parole period of 11 years fixed, commencing 9 April 2002 and expiring 8 April 2013
- Earliest parole eligibility date: 8 April 2013

Key Takeaways

  • No error was established in the factual findings underpinning either sentence, confirming that appellate courts will not intervene merely because different conclusions might have been open on the evidence.
  • In dismissing the Crown appeal against Kardoulias, the Court confirmed that a sentence of 13 years and six months for conspiracy to import heroin (following conviction after trial) was within the acceptable range, even where co-offenders who pleaded guilty had their sentences increased on appeal.
  • A Crown appeal succeeded against Andres because the resentencing of co-offenders at a higher level on an earlier appeal created a parity problem that rendered the original sentences manifestly inadequate.
  • Where sentencing for multiple drug conspiracies, the Court applied the principles of concurrence, accumulation, and totality, settling on a structure that was partly concurrent and partly cumulative rather than fully accumulating the individual sentences.
  • Under section 19AB(1) of the Crimes Act 1914 (Cth), a single effective non-parole period must be fixed when an offender is sentenced for multiple Commonwealth offences, and the Court applied that requirement when restructuring Andres' total sentence.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B, s 235(2)(d)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c), s 5D
- Crimes Act 1914 (Cth), s 19AB(1)

Cases:
- R v Kardoulias [2005] NSWCCA 150
- R v Mas Rivadavia and Ors (2004) 149 A Crim R 1; [2004] NSWCCA 284
- Pearce v The Queen (1998) 194 CLR 610
- House v The King (1936) 55 CLR 499
- The Queen v Olbrich [1999] 199 CLR 270
- Postiglione v The Queen [1995-1996] 189 CLR 295
- Lowe v The Queen (1984) 154 CLR 606
- R v Stanbouli (2003) 141 A Crim R 531
- R v Merritt (2004) 59 NSWLR 557
- R v Wong (1999) 48 NSWLR 340
- R v Studenikin (2004) 60 NSWLR 1
- R v Khouzame [2000] NSWCCA 505
- R v Kain [2004] NSWCCA 143
- R v Pham [2005] NSWCCA 94
- R v Kevenaar (2004) 148 A Crim R 155
- R v Dujeu (2004) 146 A Crim R 121
- R v Majors (1991) 27 NSWLR 264
- R v Salameh (1991) 55 A Crim R 384
- R v George (2004) 149 A Crim R 38
- R v Araya [2005] NSWCCA 283
- R v Schofield [2003] NSWCCA 3
- Jones v The Queen (1993) 67 ALJR 376
- R v Morgan (1993) 70 A Crim R 368
- R v F (2002) 132 A Crim R 308
- R v Bimahendali (1999) 109 A Crim R 355
- R v A [2004] NSWCCA 292