Regina v Tsiaousis [2005] NSWCCA 240

New South Wales Court of Criminal Appeal

CITATION: Regina v Tsiaousis [2005] NSWCCA 240

HEARING DATE(S): 4 July 2005

JUDGMENT DATE: 4 July 2005

JUDGMENT OF: Wood CJ at CL at 25; Grove J at 1; Rothman J at 26

DECISION: APPEAL ALLOWED; APPLICANT RESENTENCED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - ATTEMPT TO IMPORT NARCOTIC (MDMA) - OFFENDER AGREES TO ACT AS "POST BOX" FOR ONWARD DISTRIBUTION - INTERCEPTION BY AUTHORITIES - NO RECEIPT BY OFFENDER - ISOLATED OFFENCE - RANGE OF SENTENCES - ASSESSMENT OF CRIMINALITY - WHETHER SENTENCE AT FIRST INSTANCE EXCESSIVE

LEGISLATION CITED: Crimes Act 1914

R v A [2004] NSWCCA 292 R v Bezan 2004 147 A Crim R 430 R v Dejeu [2004] NSWCCA 237 CASES CITED: R v Kevenaar & Ors [2004] NSWCCA 210 R v Mas-Rivadavia [2004] NSWCCA 284 R v Studenikin [2004] NSWCCA 164 R v Togias 2001 127 A Crim R 23

PARTIES: Regina v Steven Tsiaousis

FILE NUMBER(S): CCA 2005/710

G. Farmer (Crown) COUNSEL: W. Terracini SC (Applicant)

Commonwealth DPP (Crown) SOLICITORS: Constantine Pavlis & Co (Applicant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0771

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/710

WOOD CJ at CL GROVE J ROTHMAN J

Monday 4 July 2005 REGINA v STEVEN TSIAOUSIS Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Solomon DCJ in Sydney District Court. The applicant pleaded guilty to a charge that between 1 July 2003 and 19 October 2003 he aided and abetted the importation into Australia of prohibited imports, being a quantity of drugs commonly referred to as ecstasy. The quantity involved was classified as traffickable and accordingly the prescribed maximum penalty was imprisonment for a period of twenty five years and/or a fine. 2 His Honour sentenced the applicant to imprisonment for eight years with a non parole period of five years. 3 The facts were not in dispute. The applicant was working as a security officer at a leagues club. He was himself a user of ecstasy. As a result of gambling and financial mismanagement he was in debt. He was approached by a man who enquired as to whether he would be interested in receiving ecstasy tablets from the U.K. for delivery to a distributor. He would be paid $2,000 for each consignment received. He agreed. 4 Between 5 August and 19 October 2003 four packages containing ecstasy concealed in hair products arrived by mail from England addressed to the applicant's residence. All four packages were intercepted by authorities and they were not on forwarded to the applicant. The total contraband in the four packages was analysed and established to contain 290 grammes of pure methylenedioxyamphetamine (MDMA). 5 On 28 October 2003 Federal Police executed a search warrant at the applicant's premises. A package which emanated from the U.K. which was similar to those which had been intercepted was found. Forensic examination established that there was no trace in it of narcotic and it was concluded that this package had been sent to the applicant as a "dummy run". 6 The applicant was arrested and interviewed by police. He made full admissions about his agreement to act as a "post box" for importation in the fashion which I have described. He had never met Cameron Stewart Webster nominated in the charge as the actual importer. He has had no contract with or from the man who approached him and with whom he agreed to participate in the importation. He never received any part of the payment. 7 The applicant is a single man born on 29 August 1970. His prior record was insignificant, consisting of an offence against the driving licence laws in 1990 and an offence of stealing in 1991 dealt with by a fine in the Local Court. For all practical purposes he could be treated as a person of prior good character. 8 On behalf of the applicant two specific grounds are advanced: