R v Kalpaxis [2001] NSWCCA 119

Reported Decision : 122 A Crim R 320

New South Wales Court of Criminal Appeal

CITATION : R v Kalpaxis [2001] NSWCCA 119 FILE NUMBER(S) : CCA 60057/01 HEARING DATE(S) : 2 April 2001 JUDGMENT DATE : 2 April 2001

PARTIES : R v Angelo Kalpaxis JUDGMENT OF : Stein JA at 1; Wood CJ at CL at 26; Studdert J at 27

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0893 LOWER COURT JUDICIAL Woods DCJ OFFICER :

COUNSEL : R Cogswell SC/B Baker (Crown) S J Odgers SC (Respondent) SOLICITORS : S E O'Connor (Crown) Macquarie Lawyers (Respondent) CATCHWORDS : CRIMINAL LAW - offering to supply cocaine - Drug Misuse and Trafficking Act 1985 - no actual supply - no intent to supply - no ability to supply - CRIMINAL LAW - sentencing - discretion of trial judge - suspended sentence - exceptional and extraordinary case - ND LEGISLATION CITED : Criminal Appeal Act 1912, s 5D Drug Misuse and Trafficking Act 1985, s 3, s 25 CASES CITED: Regina v Dendic and Mazzeo (1987) 34 ACrim R 40 DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60057/01

STEIN JA WOOD CJ at CL STUDDERT J

Monday, 2 April 2001

R v Angelo KALPAXIS JUDGMENT 1 STEIN JA: This is a Crown appeal pursuant to s 5D of the Criminal Appeal Act 1912 against a sentence imposed by his Honour, Judge Woods QC in the District Court on 1 December 2000. 2 The respondent, Angelo Kalpaxis, pleaded guilty to a supply (or more accurately the offering to supply) of a large commercial quantity of cocaine contrary to s 25 (2) of the Drug Misuse and Trafficking Act 1985. The offence is liable to a maximum penalty of life imprisonment and/or a fine of $550,000. 3 The respondent was sentenced to imprisonment for a term of two years and the execution of the sentence was suspended for the term of the sentence on condition that he enter into a good behaviour bond for the term of the sentence. The respondent had spent five months and 10 days in custody prior to sentence and referrable to the offence. His Honour took this into account in sentencing the respondent. 4 The facts placed before the Court were agreed and, insofar as material to the appeal, are as follows: In 1995 the respondent met a person called Raymond and in May 1997 Raymond received a call from the respondent who was then in Greece. They had apparently kept contact before the respondent and his family went to Greece where the respondent's father was dying of cancer. In that conversation the respondent said 'I have some good news for us. Can you handle the marketing of one hundred keys?' This constitutes the offence of supply the subject of the offence. Raymond understood the respondent to be referring to cocaine and he also understood the term 'keys' as commonly used to refer to kilograms of illegal drugs. 5 Raymond then contacted the police and was later introduced to National Crime Authority (NCA) investigators and became a registered informant. Raymond maintained contact with the respondent whilst he was overseas and, on the 4 June 1997 in another telephone conversation, the respondent said that there was 150 coming in in October in sealed packages and percentage 98. 6 There was another telephone conversation on the 7 July 1997 between the respondent and Raymond about the supply of the cocaine in October. The respondent returned to Australia from Greece and met Raymond at Prospect on the 10 July 1997. During that time another conversation took place wherein the respondent said that he had control of the '150', that a boat would be used to import the drugs to Australia and that: When the stuff's here there's no problems selling it, that's the least of our worries, it is just a matter if you've got someone safe why would you show your face to ten different people? 7 During that conversation the respondent indicated to Raymond that he would need $10,000 to get back to Greece to organise the supply. A little later on the 16 July the respondent and Raymond met again at Prospect and in that conversation Raymond gave to the respondent air tickets to Greece and $7,950. The money and ticket had been provided by the NCA. 8 During the conversation the respondent showed Raymond a photograph of the boat named Iliki which he indicated would be purchased in Greece to transport the cocaine to Australia. Three days later Raymond drove the respondent to the airport to catch the plane to Greece and further organise the cocaine. This conversation was recorded and contains other detail.