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Court of Criminal Appeal 19 June 2006

CANTARAKIS v. REGINA

[2006] NSWCCA 184

Drugs
APPEAL AGAINST SEVERITY OF SENTENCE ACCUSED PAROLE PERIODS

Citation: Cantarakis v Regina [2006] NSWCCA 184
Court: New South Wales Court of Criminal Appeal
Date: 19 June 2006
Judges: McClellan CJ at CL, Hall J, Latham J

Background

The applicant pleaded guilty in the District Court to two counts of supplying cannabis, contrary to s.25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The charges arose from intercepted telephone communications that revealed the applicant had arranged, over a period of months in 2003, for cannabis to be sourced from a South Australian contact and distributed through co-offenders in Sydney. A third charge of possessing pseudoephedrine was resolved by a directed verdict of not guilty.

The applicant was sentenced on 3 June 2005 by Williams DCJ in the District Court. He subsequently sought leave to appeal against the severity of the sentences imposed, raising eight grounds of appeal.

  • Whether the sentencing judge erred in characterising the applicant as "the principal organiser" of the supply operation
  • Whether the applicant was entitled to depart from the agreed statement of facts that formed the basis of his guilty plea
  • Whether the sentencing judge erred in assessing the applicant's role as more serious than that of a co-accused sentenced earlier
  • Whether partial accumulation of the two sentences was justified, given the nature of the offending
  • Whether the sentencing judge erred in fixing the ratio between the non-parole and parole periods
  • Whether the sentencing judge failed to give practical effect to a 25% discount for an early guilty plea

Decision

The Court of Criminal Appeal upheld all aspects of the sentence. On the characterisation of the applicant as "principal organiser," the Court found no error. The agreed facts, accepted pursuant to s.191 of the Evidence Act 1995, demonstrated that the applicant had arranged the sourcing, logistics, and distribution of the cannabis supply, and those agreed facts bound the applicant on appeal. He could not seek to depart from them having used them as the factual basis for his guilty plea.

The Court rejected the argument that the applicant's role was improperly compared with that of co-accused Pogorilic. The agreed facts supported the sentencing judge's conclusion that the applicant occupied the more significant role in the operation.

On accumulation of sentences, the Court found that the two supply offences did not involve the same conduct occurring at the same time. Count 1 covered a series of supplies over several months, while Count 2 related specifically to the delivery of approximately 4.5 kilograms of cannabis on 11 September 2003. Partial accumulation was therefore appropriate on the evidence.

Regarding the guilty plea discount, the Court confirmed that a discount is a matter of judicial discretion and that no offender holds an entitlement to any particular percentage reduction. The sentencing judge did not quantify the discount in the remarks, but the Crown's mathematical reconstruction indicated discounts of approximately 25% and 17% were applied across the two counts. The Court found no error in the exercise of that discretion.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A guilty plea discount under the guideline in R v Thomson & Houlton (2000) 49 NSWLR 383 is discretionary: the Court of Criminal Appeal confirmed that no offender has an entitlement to any particular level of discount, and converting a guideline into a fixed rule constitutes a misapplication of the law.
  • Where a sentencing judge has not quantified a guilty plea discount, an appellate court may consider whether mathematical reconstruction of the sentence demonstrates that an appropriate discount was effectively applied.
  • Agreed facts tendered pursuant to s.191 of the Evidence Act 1995 as the foundation for a guilty plea cannot later be resiled from on appeal against sentence.
  • Partial accumulation of sentences is appropriate where two counts of supply reflect distinct conduct occurring at different times, even if they form part of a broader pattern of offending.
  • Notwithstanding a finding of special circumstances, a sentencing court is not obliged to reduce the non-parole period or to vary the statutory ratio between the non-parole and parole periods by any particular amount.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss.10(1), 25(1)
- Evidence Act 1995 (NSW), s.191
- Criminal Procedure Act 1986 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Hammoud [2000] NSWCCA 540
- R v GDR (1994) 35 NSWLR 376
- R v Simpson (2001) 53 NSWLR 704
- R v Fidow [2004] NSWCCA 172
- R v Cramp [2004] NSWCCA 264
- R v Hanslow [2004] NSWCCA 163