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7
Court of Criminal Appeal 18 November 2016

Kremisis v R

[2016] NSWCCA 257

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE SERIOUS DRUG OFFENCES OFFENDER EXAMINATION WAS “UNTESTED” WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Kremisis v R [2016] NSWCCA 257
Court: Court of Criminal Appeal, NSW
Date: 18 November 2016
Judge(s): Hoeben CJ at CL, Button J (principal judgment), N Adams J

Background

The applicant, a man of generally good prior character who had migrated to Australia from Greece as a child, pleaded guilty in the Local Court to three charges of supplying a commercial quantity of methylamphetamine under the Drug Misuse and Trafficking Act 1985 (NSW). The offending spanned approximately seven months across 2011 and 2012, involving multiple transactions totalling well over a kilogram of methylamphetamine supplied across New South Wales and the Australian Capital Territory. The operation was sophisticated, involving code names, multiple mobile phone services, and a storage facility, and the applicant had connections to a supplier associated with a notorious motorcycle club.

On 22 August 2014, Judge Craigie SC sentenced the applicant in the District Court to a total head sentence of 13 years and 6 months, with a total non-parole period of 8 years and 5 months. The applicant received a 25% discount for his early guilty pleas. Seven additional offences, including possessing a prohibited weapon, dealing with proceeds of crime, and five further supply charges, were taken into account on a Form 1 in connection with the second substantive count.

The applicant appealed to the Court of Criminal Appeal on four grounds, the most significant of which was that the sentence was manifestly excessive and that a disparity with the sentence subsequently imposed on a co-offender gave him a justifiable sense of grievance.

  • Whether the total sentence of 13 years and 6 months was manifestly excessive given the objective and subjective circumstances.
  • Whether the applicant had a justifiable sense of grievance arising from a lesser sentence imposed on a co-offender for shared offences.
  • Whether the sentencing judge erred by characterising unchallenged evidence from the applicant's wife and daughter as "untested."
  • Whether the sentencing judge erred by finding that the applicant's drug use had not affected him to a detrimental degree.
  • Whether the sentencing judge erred in law by holding that, because the impact on the applicant's family was not "exceptional," it could not be taken into account under the relevant statutory provision.

Decision

Manifest excess and co-offender disparity (Grounds 1 and 2)

The Court allowed the appeal primarily on the basis that the sentences were manifestly excessive when measured against the indicative starting points used by Acting Judge Marien SC when sentencing the co-offender for the offences the two men shared. Button J compared the starting points applied to the co-offender's shared offences with those implicitly applied by Judge Craigie to the applicant and found the difference was not explicable by any legitimate distinguishing factor. Taken together with the manifest excess ground, this disparity required the Court to intervene and re-sentence the applicant.

The "untested" evidence ground (Ground 3(i))

The Court accepted that the sentencing judge had erred in describing the evidence of the applicant's wife and daughter as "untested" simply because it had not been the subject of cross-examination. Evidence that is not challenged in cross-examination is not untested merely for that reason, and the characterisation was an error of fact.

Drug use as a mitigating factor (Ground 3(ii))

The Court found the sentencing judge's conclusion that the applicant's drug use had not affected him to a detrimental degree was not reasonably open on the evidence. There was material before the sentencing judge capable of supporting a finding that the applicant's own methamphetamine use had contributed to his offending, and failure to make that finding was an error.

Family impact (Ground 4)

Senior counsel for the applicant conceded that Ground 4 was foreclosed by binding authority in this Court, but pressed the point to preserve it for possible consideration by the High Court of Australia. The Court of Criminal Appeal did not disturb the existing authority on the question of whether family impact must be "exceptional" before it can be taken into account under the relevant statutory provision.

Orders Made

  • Leave to appeal against sentence granted.
  • The appeal allowed.
  • Sentences imposed by Judge Craigie SC on 22 August 2014 quashed.
  • Applicant re-sentenced as follows:
  • Count 1: Non-parole period of 4 years and 6 months commencing 30 June 2012, concluding 29 December 2016; balance of term of 3 years concluding 29 December 2019.
  • Count 3: Non-parole period of 5 years commencing 30 December 2012, concluding 29 December 2017; balance of term of 3 years and 3 months concluding 29 March 2021.
  • Count 2: Non-parole period of 5 years and 8 months commencing 30 June 2013, concluding 28 February 2019; balance of term of 4 years and 1 month concluding 29 March 2023.
  • Total head sentence: 10 years and 9 months; total non-parole period: 6 years and 8 months.
  • First eligible parole date: 28 February 2019.

Key Takeaways

  • A sentencing judge errs in characterising unchallenged evidence as "untested." Evidence that has not been cross-examined is not untested for that reason alone, and treating it as such is an error of fact capable of vitiating a sentence.
  • Unjustified sentencing disparity between co-offenders can itself constitute a ground for appellate intervention, particularly where the offences are shared and no adequate distinguishing features explain the difference in starting points.
  • The Court of Criminal Appeal confirmed that an offender's own drug use, where supported by evidence, may be a relevant mitigating factor going to the degree of culpability, and a failure to make that finding when the evidence supports it constitutes appellate error.
  • In re-sentencing, the Court reduced the total head sentence from 13 years and 6 months to 10 years and 9 months and the non-parole period from 8 years and 5 months to 6 years and 8 months, treating objective seriousness as at or slightly above the middle of the range.
  • Ground 4, concerning whether family impact must be "exceptional" before it attracts consideration under the Crimes (Sentencing Procedure) Act 1999 (NSW), was preserved for potential High Court consideration but was not disturbed at this level.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 32, 33
- Crimes Act 1900 (NSW), s 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21(5AA)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases
- AGF v R [2016] NSWCCA 236
- Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Nguyen v R [2016] NSWCCA 5
- R v Clarke [2013] NSWCCA 260
- R v Curtis (No 3) [2016] NSWSC 866
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Hinton (2002) 134 A Crim R 286; [2002] NSWCCA 405
- R v Shi [2004] NSWCCA 135
- R v Togias (2001) 127 A Crim R 23; [2001] NSWCCA 522
- R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54