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Court of Criminal Appeal 2 August 2007

Stojkov v R

[2007] NSWCCA 205

Drugs
SENTENCE APPEAL OFFENDER OFFENDER LATER RE SENTENCED TO LOWER TERM NO MARKED DISPARITY

Citation: Stojkov v R [2007] NSWCCA 205
Court: NSW Court of Criminal Appeal
Date: 2 August 2007
Judge(s): Tobias JA, Latham J, Mathews AJ

Background

The appellant was convicted after trial in the District Court of supplying heroin in an amount not less than the large commercial quantity (1.789 kg, approximately 63% pure). He was one of several co-offenders involved in a planned transaction in May 2000 in which heroin was to be sold to a police informant and undercover operative for $280,000. The appellant and a co-offender named Halmi drove the heroin to the Bass Hill area, and the appellant's fingerprints were found on both the inner and outer wrapping of the drug packages.

In March 2004, Judge Shadbolt of the District Court sentenced the appellant to seven years imprisonment with a non-parole period of five years and three months. That sentence was identical to the one recently imposed on co-offender Halmi by another judge. However, Halmi's conviction was subsequently quashed on appeal. After two further trials, Halmi was ultimately re-sentenced in February 2007, this time to a substantially lower term of three years and six months.

Three months after Halmi's re-sentencing, the appellant sought leave to appeal against the severity of his own sentence, arguing that the reduced sentence imposed on Halmi created an unjust disparity.

  • Whether the reduction in the co-offender Halmi's sentence upon re-sentencing created a parity problem that rendered the appellant's sentence unjustly disparate.
  • Whether the sentencing judge failed to give adequate consideration to special circumstances (particularly the appellant's alcohol abuse) and other mitigating factors.

Decision

The Court of Criminal Appeal rejected both grounds of appeal and dismissed the application. On the parity ground, the Court found that the apparent disparity between the two sentences had a solid foundation in the different circumstances before the respective sentencing judges.

The judge who re-sentenced Halmi in 2007 was entitled to find, on evidence available to him, that Halmi had in fact played a lesser role than the appellant. In particular, telephone records showed that it was the appellant, not Halmi, who had communicated with the principal co-offender Ilievski before the transaction. Additionally, the significant passage of time since the offence allowed the later sentencing judge to make favourable findings about Halmi's rehabilitation and prospects of re-offending, findings that could not have been made at the time of the appellant's sentencing.

On the second ground, the Court noted that the sentencing judge had expressly considered the appellant's alcohol problems and other subjective factors, but found they did not constitute special circumstances sufficient to break the statutory relationship between the head sentence and the non-parole period. That finding was well open on the facts. The Court also observed that this ground should properly have been raised within the ordinary time limit for a severity appeal.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A reduction in a co-offender's sentence upon re-sentencing does not automatically establish a parity problem with an earlier sentence imposed on another participant in the same offence.
  • Where the later sentencing court had access to different evidence, including evidence about relative roles and post-offence rehabilitation, any apparent disparity can be explained on a principled basis.
  • The parity principle, as reflected in Postiglione v The Queen, requires a comparison of like with like. Where the sentencing contexts differ in material respects, an identical original sentence and a later reduced sentence need not be inconsistent.
  • A sentencing judge's refusal to find special circumstances in relation to an offender's alcohol history is unlikely to be disturbed on appeal where the judge has expressly turned their mind to the issue and reached a conclusion open on the evidence.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the sentence imposed by Judge Shadbolt fell within the available range for a large commercial quantity heroin supply offence, a point the appellant himself did not seriously contest.

Legislation and Cases Referenced

Cases:
- Postiglione v The Queen (1997) 189 CLR 295 (the leading High Court authority on the parity principle in sentencing)

Legislation:
No specific legislation was cited in the provided text, though the offence involved supply of a prohibited drug of not less than the large commercial quantity under New South Wales drug legislation.