REGINA v NASTOSKI [2002] NSWCCA 528

New South Wales Court of Criminal Appeal

CITATION : REGINA v NASTOSKI [2002] NSWCCA 528 FILE NUMBER(S) : CCA 60479/02 HEARING DATE(S) : 20 December 2002 JUDGMENT DATE : 20 December 2002

Regina

PARTIES : v

Alex Nastoski JUDGMENT OF : Adams J at 1; Smart AJ at 9

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0689 LOWER COURT JUDICIAL Latham DCJ OFFICER :

COUNSEL : L M B Lamprati (Crown) A P Lucas (Applicant) SOLICITORS : S E O'Connor (Crown) The Law Practice (Applicant)

LEGISLATION CITED : Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999 CASES CITED: The Queen v Lowe (1984) 154 CLR 606 DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60479/02

ADAMS J SMART AJ

FRIDAY 20 DECEMBER 2002 REGINA v ALEX NASTOSKI Judgment 1 ADAMS J: The appeal is dismissed and the Court is of the unanimous decision that the appeal does not raise any question of general principle. Pursuant to s21A of the Criminal Appeal Act 1912, the Court's reasons, in short form, are as follows. 2 The applicant entered a plea of guilty to one count of supply methylamphetamine between 21 July 1999 and 11 August 1999. He was sentenced in the District Court on 19 June 2002 to a term of 18 months imprisonment with a non-parole period of 10 months. 3 The application for leave to appeal is brought essentially upon the basis that, absent the consideration to which I will turn in a moment, there was a significant difference in the punishment visited on this applicant as distinct from that visited on his co-offender giving rise to a legitimate feeling of legitimate sense of grievance (The Queen v Lowe (1984) 154 CLR 606.) 4 It is unnecessary, for present purposes, to identify the matters which reflect the relative culpability of the applicant and his co-offender any further than the summary usefully set out in the applicant's written submissions. 5 The co-offender, Dubaja, assisted a man named Droubi in his drug supply business. The applicant was one of Druobi's sources in a later supply of a variety of drugs. He supplied 100 tablets and agreed to take back 37 because of their poor quality. There were considerations favourable to Dabaja which did not apply to this applicant. Dabaja entered his plea at an early stage whilst the applicant entered his plea the day the trial was listed to start. Dabaja was found to be fully contrite by the learned sentencing judge, but she considered that the applicant had not shown real contrition. Dabaja's criminal record contained no convictions for drug-related offences, whilst the applicant had a prior offence of supplying heroin in respect of which he was punished with periodic detention. On the other hand, the applicant came to be sentenced for only one offence, whilst Dabaja was sentenced for three, reflecting his greater involvement in Droubi's drug supply business. 6 It is conceded by the applicant that the argument for disparity must fail if Dabaja's sentence was significantly affected by reason of the matter to which s23 of the Crimes (Sentencing Procedure) Act adverts. The judge who sentenced Dabaja referred to that matter. 7 In order to deal with this difficulty, the applicant procured, by appropriate order, the production of the material which was the confidential material that was tendered on the sentencing of Dabaja and which was taken into account by the learned sentencing judge. Neither the applicant nor respondent is aware of the content of these envelopes. The applicant sought to have the Court examine the material for the purposes of assessing its significance in the context of the controversy agitated by the application. 8 The Court has now considered that material. It is our view that when that material is taken into account, no question of legitimate grievance arises and the sentences are appropriately measured in relation to each other. 9 SMART AJ: I agree. **********