Citation: R v Kostopoulos; R v Smith; R v Treffiletti [2014] NSWDC 360
Court: District Court of New South Wales
Date: 23 May 2014
Judge: Judge S Norrish QC
Background
Three offenders were sentenced for offences involving two consignments of amphetamine that arrived in Australia from France in September 2012, with a combined pure weight of approximately 2.36 kilograms. The first offender pleaded guilty to attempting to possess a commercial quantity of an unlawfully imported border controlled drug in connection with both consignments. The second offender pleaded guilty to attempting to possess the second consignment only. The third offender pleaded guilty to aiding and abetting the attempt to possess both consignments.
Each offender had entered an early plea of guilty, first at the Local Court and again in the District Court. The maximum penalty for each offence was life imprisonment and a fine of $825,000. Complicating the sentencing were individual circumstances: the first offender had committed the offence while on bail for an unrelated matter, and the second offender had committed his offence while on parole.
Legal Issues
- What discount, if any, should apply to each sentence for early pleas of guilty in a Commonwealth drug matter?
- How should the commencement date of each sentence be fixed, given that two offenders had been in custody serving time referable to other matters (one on parole, one under a Local Court sentence)?
- What were the appropriate head sentences and non-parole periods, having regard to each offender's role, the quantity of drug involved, and the relevant sentencing principles?
Decision
Judge Norrish QC accepted that a 25% discount for early pleas of guilty was appropriate for all three offenders, following the approach endorsed by McClellan CJ at CL in Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] 79 NSWLR 1. While the guideline judgment of Thomson and Houlton technically governs only State offences, the Court adopted its reasoning as consistent with Commonwealth sentencing practice in drug importation matters.
On the question of sentence commencement, the second offender's sentence could not date from the date of arrest because he was serving a parole period at the time of the offence, with parole revoked in October 2012. Drawing on R v Callaghan (2006) 160 A Crim R 145, the Court determined that the sentence should commence partway through the period served on the parole balance, taking care not to "double dip" by treating the parole breach as both an aggravating factor and a basis for full accumulation. For the first offender, the Court fixed a commencement date that gave credit for three months of custody referable to the earlier Local Court sentence, rather than imposing a fully cumulative sentence. The third offender received credit for two days in pre-sentence custody.
During the delivery of sentence, a calculation error in the first offender's head sentence was identified by counsel. His Honour acknowledged the error, corrected the head sentence to five years and seven months, and adjusted the non-parole period downward by one month to two years and eleven months to maintain a proportionate relationship between the head sentence and the non-parole period.
Orders Made
• Head sentence for Mr Kostopoulos fixed at five years and seven months, expiring on 11 July 2018
• Non-parole period for Mr Kostopoulos fixed at two years and eleven months, expiring on 11 November 2015
• Mr Treffiletti permitted to leave the dock and proceed to level 4 to enter into the recognisance
Key Takeaways
- A 25% discount for an early plea of guilty applies in Commonwealth drug importation matters, consistent with the approach confirmed in De La Rosa, even though the Thomson and Houlton guideline strictly applies only to State offences.
- Where an offender commits a serious offence while on parole, the sentencing court must balance the aggravating nature of that fact against the risk of "double counting" it both as an aggravating feature and as a reason for full accumulation of the new sentence upon the parole balance.
- The District Court fixed sentence commencement dates individually for each offender, reflecting custody served on other matters and avoiding purely cumulative outcomes where partial concurrency was warranted.
- Committing an offence while on bail is a relevant adverse consideration in sentencing, though it does not automatically require full accumulation on any previously imposed sentence.
- A calculation error identified by counsel during the sentencing proceedings led the Court to correct both the head sentence and the non-parole period, illustrating the importance of counsel checking arithmetic in open court at the time of sentencing.
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth)
Cases
- Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] 79 NSWLR 1
- R v Thomson and Houlton [2000] NSWCCA 309
- R v Callaghan (2006) 160 A Crim R 145
- GAS v R [2004] HCA 22
- R v Olbrich [1999] HCA 5
- R v Henry (1999) 46 NSWLR 346
- Chow v R [2007] NSWCCA 225
- Jimmy v R [2010] NSWCCA 6
- R v Lee [2007] NSWCCA 234
- R v Engert (1995) 84 A Crim R 67