New South Wales Court of Criminal Appeal CITATION : Regina v Peter Sidirourgos [2004] NSWCCA 274 HEARING DATE(S) : 10/08/04 JUDGMENT DATE : 10 August 2004 JUDGMENT OF : James J at 1; Adams J at 28; Bell J at 29 DECISION : Leave to appeal granted - appeal against sentence dismissed LEGISLATION CITED : Crimes Act PARTIES : Regina v Peter Sidirourgos FILE NUMBER(S) : CCA 2004/1804 CCAP (60285/04) COUNSEL : A Francis- Applicant G Rowling - Crown SOLICITORS : A Bannister - Applicant S Kavanagh - Crown LOWER COURT District Court JURISDICTION : LOWER COURT 01/21/1192 FILE NUMBER(S) : LOWER COURT Blanch QC DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60285/04 JAMES J ADAMS J BELL J TUESDAY 10 AUGUST 2004 REGINA v PETER SIDIROURGOS JUDGMENT 1 JAMES J: Peter Sidirourgos has applied for leave to appeal against a sentence imposed on him in the District Court on 3 November 2003 by his Honour Justice Blanch the Chief Judge of the District Court. 2 His Honour sentenced the applicant for an offence under s 316 of the Crimes Act , that, two persons named Thompson and Benefield having committed the serious indictable offence of knowingly taking part in the manufacture of not less than a commercial quantity of a prohibited drug methylamphetamine, the applicant, knowing that Thompson and Benefield had committed that offence and knowing that he had information which might be of material assistance in securing the apprehension of Thompson and Benefield for that offence, failed, without reasonable excuse, to bring that information to the attention of a member of the police force. His Honour imposed a sentence of imprisonment for eight months with a non-parole period of four months, to commence on 15 September 2004 when the non-parole period of an earlier sentence would expire. The maximum sentence for an offence under s 316 of the Crimes Act is imprisonment for two years. 3 On 3 November 2003 the applicant had been indicted on an indictment containing two counts, the first count being a charge that he himself had knowingly taken part in the manufacture of not less than a commercial quantity of methylamphetamine and the second count being the charge for which, later that day, he was sentenced. The applicant pleaded not guilty to the first count in the indictment and guilty to the second count in the indictment. The Crown accepted the plea of guilty to the second count in full discharge of the indictment. 4 The following brief statement of the facts of the offence is derived from the statement of the facts of the offence in the sentencing judge's remarks on sentence, which was not the subject of any criticism on the hearing of this application. 5 Police suspected a man named Wilcox of being engaged in the manufacture of methylamphetamine and had him under surveillance. Police lawfully intercepted a telephone conversation between Wilcox and Thompson in which the manufacturing of methylamphetamine was discussed. At the time of the conversation the applicant was living and working with Thompson. On the morning of 4 December 2001 Thompson and the applicant travelled together to a house at Kings Langley where Benefield lived. This house was under electronic video and audio surveillance by the police. Thompson and Benefield were observed by police in the kitchen of the house with gloves on their hands, mixing and manipulating a substance. The applicant was also observed to be in the kitchen of the house at Kings Langley at the same time as Thompson and Benefield were but he did not take part in the activities of Thompson and Benefield. 6 Benefield left the house and travelled to Wilcox's residence at Elizabeth Bay, where Wilcox and Benefield took further steps in the project of manufacturing methylamphetamine. After leaving Benefield's house Thompson and the applicant went together to their place of work. 7 In his remarks on sentence Justice Blanch summarised the Crown case under s 316 of the Crimes Act as being that the applicant went to Benefield's house, saw what was going on inside Benefield's house and, knowing what was going on, did not report what was happening to the police. 8 The applicant would have understood the true nature of what he observed happening inside the house, because on 4 December 2001 he was on bail on an unrelated charge of knowingly taking part in the manufacture of not less than a commercial quantity of methylamphetamine, an offence which he had committed between June and August in the year 2000 and for which he had been arrested on 15 August 2000. 9 The only ground of appeal relied on in this application for leave to appeal against sentence is that the sentencing judge erred in failing to give sufficient weight to the effect of delay in the determination of the sentence he imposed. In order to deal with this ground of appeal, it is useful to set out a brief chronology. 10 As I have already stated, an unrelated offence of knowingly taking part in the manufacture of not less than a commercial quantity of methylamphetamine was committed by the applicant between June and August in the year 2000 and on 15 August 2000 the applicant was arrested. Following his arrest the applicant was in custody between 15 August 2000 and 8 May 2001, when he was released on bail. 11 On 5 December 2001 the applicant, who had been on bail since 8 May 2001, was arrested and charged with knowingly taking part in the manufacture of not less than a commercial quantity of methylamphetamine, being the same manufacture of methylamphetamine as Wilcox, Benefield and Thompson had been participating in. The applicant was in custody in maximum security from 5 December 2001 to the time he was sentenced by Justice Blanch on 3 November 2003. 12 In the meantime on 23 December 2002 the applicant was sentenced by another District Court judge Judge Nicholson for the offence of knowingly taking part in the manufacture of not less than a commercial quantity of methylamphetamine which he had committed in the year 2000. Judge Nicholson sentenced the applicant to a term of imprisonment of six years four months with a non-parole period of three years six months. Judge Nicholson made the sentence he imposed commence on 15 March 2001. Judge Nicholson arrived at this commencement date by backdating the commencement of the sentence to allow for the periods during which the applicant had been in custody between 15 August 2000 and 8 May 2001 and since 5 December 2001. 13 In support of the ground of appeal it was submitted on behalf of the applicant that the charge under s 316 of the Crimes Act to which the applicant had pleaded guilty, at the earliest opportunity as the sentencing judge found, was not the charge on which the applicant had been arrested and committed for trial and was a charge which had first been brought against the applicant, only just before the applicant entered his plea of guilty. If the charge had been brought earlier so that the applicant could have pleaded guilty to it earlier, then the applicant could have been sentenced earlier, possibly by the imposition of a non-custodial penalty. If the charge had been dealt with by Judge Nicholson at the same time as his Honour sentenced the applicant for the 2000 offence, then it was very likely that the penalty imposed on the applicant would have been less severe than the penalty ultimately imposed by Justice Blanch. 14 Furthermore, it was submitted that, if the applicant had been dealt with for the offence under s 316 at the same time as he was sentenced by Judge Nicholson for the 2000 offence, the applicant would not have been a prisoner on remand after he was sentenced by Judge Nicholson and he would have been eligible to have been classified within the Correctional system and he would not have had to spend a period of about eleven months between 23 December 2002 and 3 November 2003 in maximum security without access to programmes and courses within the Correctional system. 15 It was further submitted on behalf of the applicant that, having regard to the sentence imposed by Justice Blanch after taking into account the applicant's plea of guilty at the earliest opportunity, the applicant's contrition, the delay in the applicant being dealt with for the offence being a delay which was not attributable to the applicant and what was submitted to be the only moderate objective seriousness of the offence, the starting point which Justice Blanch must have adopted before allowing any discounts was too high for an offence for which the maximum penalty that can be imposed is imprisonment for two years. 16 It was further submitted that the delay in sentencing the applicant, which was not attributable to any fault on the part of the applicant, should, of itself, have merited some additional leniency. 17 It was accepted by counsel for the applicant that the sentencing judge had taken into account the separation of the prosecutions of the applicant for his conduct between June and August 2000 and his conduct in December 2001 and the delay which had occurred in the sentencing of the applicant. 18 In his remarks on sentence Justice Blanch said: "There are a number of problems the offender has had arising out of the separation of these charges and them coming up over a long period of time. A significant problem he has had is the fact that because he still has been facing this charge until today, his classification in the prison system has not been able to be completed and that has meant he has spent his time in maximum security. It has meant he has not had access to the same courses and recreation facilities as are ordinarily available in prison and that, of course, makes being in gaol a lot more difficult than it otherwise would be." 19 Later in his remarks on sentence the sentencing judge expressly took into account that the sentence he would be imposing, if it was made cumulative on the non-parole period of the sentence imposed by Judge Nicholson, would take effect only after the applicant had been in prison for three and a half years under the sentence imposed by Judge Nicholson. 20 During the hearing of this application we were referred to parts of the transcript of the proceedings on sentence on 3 November 2003. At page 4 of the transcript of the proceedings on sentence the sentencing judge indicated to counsel that: "The sort of thing you might expect (that is to say the sort of penalty the sentencing judge tentatively had in mind) is something like twelve months from the date the non-parole period (that is to say the non-parole period of the sentence imposed by Judge Nicholson) presently expires with a further non-parole period of, as I said, no more than six months, possibly three months." 21 Counsel for the applicant in proceedings on sentence replied to his Honour's indication:- "Well, something in that order, something in the order of three to six..." 22 Before his Honour formally passed sentence his Honour informed counsel that the sentence he had in mind was the sentence that he ultimately imposed. His Honour added:- "It seems to me that it (that is the sentence) has to be cumulative, something has to be added to the existing sentence because it was an offence that was committed whilst he was on bail for manufacturing amphetamine." 23 Counsel for the applicant in the proceedings on sentence, who would appear from my reading of the transcript to have represented his client competently, said: "I hear what your Honour says. There is nothing further I can put to your Honour that I think would be of any assistance." 24 Any concessions made by counsel for the applicant in the proceedings on sentence do not, of course, bind this court, but it is of some significance that no further submissions were put after the sentencing judge had informed counsel of the sentence which he had in mind imposing. 25 Because his Honour clearly took into account the matters expressly referred to in his remarks on sentence, the ground of appeal taken by the applicant, was, necessarily, that the sentencing judge had failed to give sufficient weight to these matters, not that the sentencing judge had failed altogether to take them into account. 26 The sentencing judge having taken these matters into account, it is not an easy task for counsel for the applicant to establish to the satisfaction of this court that the degree of weight the sentencing judge decided to give to the matters was beyond the limits of a proper exercise of his Honour's wide sentencing discretion and, in my opinion, notwithstanding the able submissions which have been put on behalf of the applicant, the applicant has not succeeded in establishing that his Honour's exercise of his sentencing discretion miscarried. 27 In my opinion leave to appeal should be granted but I would dismiss the appeal. 28 ADAMS J: I agree but I wish to make this observation. For my part at least, the judgment in this case should not be taken as suggesting that the applicant could not have been given a non-custodial sentence. The judgment of this court is simply to the effect that, in imposing the sentence he did, the learned Chief Judge was not in error. 29 BELL J: I agree with the orders proposed by the presiding judge for the reasons that his Honour gives. 30 JAMES J: The order of the court will be as proposed by me. ********** Last Modified: 08/20/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.