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Court of Criminal Appeal 16 October 2003

Regina v Koklas [2003] NSWCCA 302 revised - 11

[2003] NSWCCA 302

Drugs
CRIMINAL LAW & PROCEDURE PROTECTIVE CUSTODY APPROPRIATE DISCOUNT FOR PLEA PARITY RELEVANT PRINCIPLES

Citation: Regina v Koklas [2003] NSWCCA 302
Court: NSW Court of Criminal Appeal
Date: 16 October 2003
Judge(s): Whealy J (leading judgment), Studdert J, Barr J

Background

The applicant was arrested in March 2002 following undercover police operations conducted in October and November 2001. He had worked as a street-level drug runner operating out of a unit in Alexandria, distributing heroin and cocaine to customers by car in the Petersham area. The overall operation was described by the sentencing judge as large-scale.

The applicant pleaded guilty in the District Court to two charges: supplying a prohibited drug on an ongoing basis (heroin, over a defined period in October 2001), and a discrete supply of 0.39 grams of cocaine on 30 November 2001. He also had a goods in custody matter taken into account on a Form 1.

Acting Judge Shillington QC sentenced the applicant to four years imprisonment with a two-year non-parole period on the first charge, and a concurrent fixed term of two years on the second charge, both commencing from the date of arrest. The applicant sought leave to appeal against the severity of those sentences.

  • Whether the sentencing judge gave adequate credit for the applicant's early guilty plea
  • Whether the sentencing judge gave adequate weight to the hardship of serving a sentence in protective custody
  • Whether the sentences were manifestly excessive
  • Whether impermissible or unjustifiable disparity arose when comparing the applicant's sentence with that of a co-offender who received more favourable treatment

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error in the sentences imposed below.

On the plea discount, the Court noted that the Crown had expressly conceded at the sentencing hearing that the applicant was entitled to the benefit of his early plea. The sentencing judge's remarks were examined to determine whether that concession had been properly reflected. The Court found the sentencing judge had taken the plea into account in a manner consistent with the applicable principles.

On protective custody, the Court accepted that serving a sentence in protective custody can represent a form of additional hardship that may be relevant to sentence. However, on the facts presented, this consideration did not displace the otherwise appropriate sentence.

On the parity argument, the Court applied the principles from Lowe v The Queen and Postiglione v The Queen, confirming that mere disparity between sentences imposed on a co-offender does not of itself justify appellate intervention. Disparity only warrants intervention where it cannot be explained by relevant differences in criminality, subjective circumstances, or the application of proper sentencing principles. Here, the co-offender (Albani) faced different charges under a different subsection of the Crimes Act, was sentenced on six counts of supply rather than the ongoing supply offence, and had provided considerable assistance to police including an undertaking to give evidence. The Court found these differences sufficiently explained the outcome and that no justifiable grievance arose on the part of the applicant.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Sentence disparity between co-offenders does not automatically enliven appellate discretion; intervention is warranted only where the disparity cannot be explained by genuine differences in criminality, subjective circumstances, or the correct application of sentencing principles (following Lowe v The Queen and Postiglione v The Queen).
  • Where co-offenders face charges under different provisions and one has provided substantial cooperation with authorities, those factors provide a principled basis for different sentencing outcomes.
  • Hardship arising from protective custody is a recognised sentencing consideration, but its weight depends on the particular circumstances of the case.
  • An early guilty plea conceded by the Crown to be genuine must be reflected in the sentence; the Court of Criminal Appeal will scrutinise whether the sentencing judge gave effect to that concession.
  • In dismissing the appeal, the Court reinforced that a sentence otherwise appropriate in all the circumstances will not be disturbed merely because a co-offender appears to have fared better.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 25(1) and 25A(1)

Cases
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1996) 189 CLR 295
- R v Thompson [2000] 49 NSWLR 383
- R v S Y & Anor [2003] NSWCCA 291
- R v S [2000] NSWCCA 13
- R v P G [2001] NSWCCA 231
- R v Wahabzadah [2001] NSWCCA 253
- R v Simpson [2001] 53 NSWLR 704
- R v Hoon & Anor [2000] NSWCCA 137
- R v Scott [2003] NSWCCA 28
- R v Totten [2003] NSWCCA 207