Tsimingos v R [2021] NSWCCA 107

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Tsimingos v R [2021] NSWCCA 107 Hearing dates: 30 April 2021 Date of orders: 28 May 2021 Decision date: 28 May 2021 Before: Hoeben CJ at CL at [1] Bellew J at [2] N Adams J at [66] Decision: (1) The time for filing the notice of application for leave to appeal is extended until 17 February 2021. (2) Leave to appeal is granted. (3) The appeal is allowed. (4) The sentence imposed in the District Court is quashed. (5) In lieu thereof the applicant is sentenced to 8 years and 3 months imprisonment commencing on 20 February 2017 and expiring on 19 May 2025. (6) Specify a non-parole period of 6 years and 2 months imprisonment commencing on 20 February 2017 and expiring on 19 April 2023. Catchwords: CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant pleaded guilty to one count of manufacturing a large commercial quantity of a prohibited drug as part of a joint criminal enterprise – Whether the applicant's sentence was manifestly excessive – Serious offending – Substantial maximum penalty – Significant role played by the offender – Necessity for any sentence to reflect principles of general deterrence – Sentence not manifestly excessive CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant pleaded guilty to one count of manufacturing a large commercial quantity of a prohibited drug as part of a joint criminal enterprise – Parity principle – Whether the applicant had a justifiable sense of grievance in light of the sentence imposed upon co-offender – Where the applicant was found by the sentencing judge to have been slightly less involved than his co-offender – Where the applicant suffered significant injuries as a consequence of an explosion during the course of the offending – Where those injuries constituted extra-curial punishment – Where those injuries would render the applicant's period in custody more onerous – Other differentiating factors between the applicant's subjective case and that of his co-offender – Applicant found to be remorseful and to have good prospects of rehabilitation – No such findings made in the case of the co-offender – Leave to appeal granted – Appeal allowed – Applicant re-sentenced Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Alameddine v R [2006] NSWCCA 317 Christodoulou v R [2008] NSWCCA 102 Gill v R [2010] NSWCCA 236 Goodbun v R [2020] NSWCCA 77 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Li v R [2021] NSWCCA 75 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 Power v The Queen; Selenski v The Queen; Lyons v The Queen (1974) 131 CLR 623; [1974] HCA 26 R v Amati [2019] NSWCCA 193 R v Lewis [2018] NSWDC 522 R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 Silvano v R [2008] NSWCCA 118; (2008) A Crim R 593 Tatana v R [2006] NSWCCA 398 Category: Principal judgment Parties: Bill Tsimingos – Applicant Regina – Respondent Representation: Counsel: K Averre – Applicant S Traynor – Respondent