R v Ambatsidis [2000] NSWCCA 125

New South Wales Court of Criminal Appeal

CITATION : R v Ambatsidis [2000] NSWCCA 125 FILE NUMBER(S) : CCA 605089/98 HEARING DATE(S) : 17 March 2000 JUDGMENT DATE : 14 April 2000

PARTIES : REGINA - Respondent John AMBATSIDIS - Applicant JUDGMENT OF : Simpson J at 1; Barr J at 16

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/11/0398 LOWER COURT JUDICIAL Freeman DCJ OFFICER :

COUNSEL : P G Berman - Crown Respondent D G Dalton - Applicant SOLICITORS : S E O'Connor - Crown Respondent Peter Ash & Associates - Applicant

LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 Sentencing Act 1989 CASES CITED: R v Rahme (1991) 53 A Crim R 8 R v Taouk (1992) 65 A Crim R 387 DECISION : Leave to appeal granted. Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60508/99

SIMPSON J BARR J

Friday 14 April 2000

REGINA v John AMBATSIDIS JUDGMENT

SIMPSON J : 1 This is an application for leave to appeal against sentences imposed on the applicant by Freeman DCJ on 28 August 1998 following the applicant's pleas of guilty to two charges of supplying not less than the commercial quantity applicable to a prohibited drug (heroin). Each charge was brought under s 25(2) of the of the Drug Misuse and Trafficking Act 1985 pursuant to which a maximum penalty of imprisonment for life is applicable to the offences. On the first charge Freeman DCJ sentenced the applicant to a total term of imprisonment for six years which, having found special circumstances pursuant to s 5(2) of the Sentencing Act 1989 existed justifying departure from the sentencing ratio contained therein, he divided into a minimum term of three years and nine months and an additional term of two years and three months. On the second charge he sentenced the applicant to a fixed term of imprisonment for two years to be served concurrently with the first. 2 The offence the subject of the first charge was committed between 1 October 1994 and 20 November 1994. It will be necessary below to discuss in some more detail the circumstances relevant to this offence. The Crown alleged that, between those dates, the applicant negotiated with and agreed to supply to an undercover police operative, Detective Biaggi, one kilogram of heroin. By reason of the extended definition of the ordinary meaning of "supply" enacted in s3 of the DMT Act, the agreement to supply is to be treated, and punished, as though the drug had in fact been supplied. It was common ground that the agreement made was never completed. The circumstances in which the applicant made the agreement give rise to the principal ground of the application. 3 The offence the subject of the second charge was committed on 7 October 1994. On that date the applicant supplied, by way of sample, .22 grams of the drug to Detective Biaggi. For this purpose he travelled from Melbourne, where he lived, to Sydney. 4 The applicant presented a subjective case that had some unusual aspects. He was born in Greece on 4 May 1964 and was thirty years of age at the time of the offences. With his family he migrated to Australia as a small child. 5 A criminal history, which appears to be incomplete, was put before his Honour. It showed that the applicant had committed offences in Queensland and Victoria. In 1994 in Queensland he was charged with wilful and unlawful damage to property and possession of a dangerous drug. In respect of each he was fined. His record in Victoria included offences of possession of cannabis and heroin and possession of firearms. For each of these he was sentenced to suspended terms of imprisonment. These were the only offences disclosed on the criminal histories put before his Honour. However the applicant's father gave evidence that, in 1991, in Victoria, he pleaded guilty to a charge of arson, an offence so ineptly committed that he was caught in the building which he set alight and as a result received severe burns to 60 percent of his body. He was hospitalised for three months and underwent rehabilitation for some weeks afterwards. He suffered permanent scarring and disfigurement. Presumably because of these unintended consequences of the offence he was released on a recognisance to be of good behaviour. 6 The applicant had held employment as a guard with the Victorian Railways but in 1994 he accepted a redundancy package. The proceeds of this were spent on heroin to which he had become addicted. His father had purchased a house for the appellant but the appellant used this to borrow money which again he spent on drugs. His Honour appears to have accepted that his addiction to heroin came about as a result of the pethidine treatment he was given following his burns. 7 In a pre-sentence report the applicant was described as an immature and dependent man, vulnerable to the negative influences of others. He has a supportive family who are anxious to assist in his rehabilitation. Accordingly his Honour found that his prospects in this regard were good. 8 The grounds on which the application was argued principally centred on the circumstances in which the applicant made the agreement to supply the drug to Detective Biaggi. His Honour made these findings of fact and observations: "Thereafter a number of discussions took place between the undercover officer and the prisoner, and the following day they met and the prisoner supplied a sample of heroin which he indicated was of a quality he was able to provide in much larger volume. That actual supply of .22 grams underpins count 2 on the indictment. In the course of those discussions on 6 and 7 October, however, the prisoner indicated that he was able to supply a much greater amount of prohibited drug, indeed quantities up to three or four kilograms were discussed. The undercover officer asked that he be provided ultimately with one small one or one large one, by which I understand him to mean either a pound or a kilo, and thereafter a number of telephone conversations took place concerning that supply which the prisoner had undertaken to effect. It is his agreement to supply that quantity which attracts count one, being a supply involving not less than the commercial quantity. The prisoner was again in Sydney on 3 and 4 November. It appears that he may have been in Sydney as well on 12 November but he was certainly there on 19 and 20 November. In other words, he had travelled from Melbourne on each of those occasions and stayed at least overnight on each occasion, and sometimes longer, in apparent pursuit of his undertaking to supply this quantity of drug. Mr Gelbert suggests that I should find that the prisoner was in fact a rank amateur; that at no stage did he have the capacity to in fact supply anything approaching this quantity; that he had in any event been talked up to agreeing to arrange such a supply by the undercover officer, and that consequently his criminality is of a much reduced order. I do not find myself persuaded by that argument. It seems to me that the prisoner was certainly making strenuous efforts to bring about the supply which he had promised. According to his comments to the undercover officer, and this is supported by a number of intercepts, he was shopping around, approaching different potential suppliers to him, with a view to making good his contract. By dint perhaps of his own use and consequent involvement in the drug culture, there is no doubt the prisoner would have had contacts of some order in the drug scene. The prisoner is not possessed of such a completely clean record that he would be dismissed as totally unsuitable or unreliable by those involved in the drug culture. He certainly has no prior convictions for offences of this nature, but he was an arsonist, admittedly an unsuccessful one, and he has on his record offences involving the possession of firearms. It might be thought that he would attract some confidence in the criminal milieu in which he was going shopping, and shopping as I say with some degree of enthusiasm. I find that the prisoner was in fact involved in a very considerable degree in attempting to bring about the fact of supply, and that he demonstrates considerable criminality in those actions. As for the precise details of his physical involvement, I simply rely on the statement of facts which do not appear to me to be contested, other than as to their significance." 9 These findings, it was argued, gave inadequate weight to the evidence, and to the extent to which the applicant was courted and encouraged by Detective Biaggi. Reliance was placed upon the decisions of this Court in R v Rahme (1991) 53 A Crim R 8 and R v Taouk (1992) 65 A Crim R 387. In the earlier of these cases Kirby P held that the sentencing judge was entitled to regard the fact of the police acting as agents provocateurs as a mitigating circumstance on sentence. In the second, Badgery-Parker J, with whom Clarke JA and Abadee J agreed, held that, when sentencing in circumstances where the offence is said to have been committed at the instance of police officers: "The question is not whether the accused can show that but for the involvement, encouragement or incitement by police he would not have committed the crime, but rather, whether there is a real possibility that but for the assistance, encouragement or incitement offered by police officers he would not have done so, and whether in all the circumstances of the case the involvement of the police in the commission of the crime was such as diminished his culpability ." (emphasis added) 10 The application of those principles demands a proper assessment of the extent (if any) to which Detective Biaggi incited or encouraged the applicant to commit the offence and whether there remains any real possibility that but for that assistance, encouragement or incitement there is a real possibility that he would not have done so. In this regard it is to be remembered that the offence was complete when the applicant made the agreement with Detective Biaggi. The subsequent contacts between the two, and the applicant's combined efforts to meet his obligations under the agreement, did not go to the commission of the offence so much as to illustrate his commitment to the actual supply. 11 His Honour does not appear to have been referred to Taouk, or invited to ask the specific question there posed. However, the lengthy passage from the remarks on sentence which I have extracted above indicates that, in essence, that was the approach he took. That emerges particularly from the passage which reads: "Mr Gelbert suggests that I should find that the prisoner was in fact a rank amateur; that at no stage did he have the capacity to in fact supply anything approaching this quantity; that he had in any event been talked up to agreeing to arrange such supply by the undercover officer, and that consequently his criminality is of a much reduced order. I do not find myself persuaded by that argument ." (emphasis added)