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: (1) His Honour erred in following the decision of R v Kevenaar & Ors [2004] NSWCCA 210, rather than the decision of R v Mas-Rivadavia [2004] NSWCCA 284 when determining the appropriate sentence. (2) The sentence imposed is manifestly excessive. 9 The first ground is focussed upon observations in the sentencing judge's remarks: "I've also had the benefit of reading the helpful case of R v Kevenaar & Ors [2004] NSWCCA 210. The decision is that of the Court of Criminal Appeal, the major judgment written by Hulme J. In that case, Hulme J sets out a number of cases which led the Court of Criminal Appeal to its decision in Kevenaar . The case assists me in my consideration, however, most of the cases mentioned in that judgment were cases dealt with prior to the abolition of s 16G of the Commonwealth Crimes Act ." 10 The repeal of the lastmentioned section and the possible consequence upon the then existing patterns of sentence levels has been the subject of attention in several cases in this Court. In addition to the authorities mentioned in the ground, reference can be made to R v Studenikin [2004] NSWCCA 164; R v A [2004] NSWCCA 292 and R v Bezan 2004 147 A Crim R 430. 11 In Kevenaar Hulme J had stated his opinion that the effect of the repeal of s 16G would have as a logical consequence, an increase in the sentencing level of approximately 50 percent. 12 The effect of the preponderance of authority (to which might also be added R v Dejeu [2004] NSWCCA 237) is that it would be inappropriate to approach the sentencing exercise upon a broad arithmetical approach applying that to some perceived pre-repeal pattern of sentencing. Whilst it is acknowledged that the repeal is likely to result in an increase over what might be discerned by reference to any earlier pattern, the proper approach remains for a sentencing judge to meet the requirements set out in s 16A(1) of the Crimes Act 1914. 13 The fundamental question raised by the ground is whether his Honour did approach the assessment of sentence in a manner which reflected the view advanced by Hulme J which has not found favour in subsequent decisions of this Court. 14 The passage extracted from the remarks on sentence does not demonstrate that his Honour made such an error. In the course of the judgment in Kevenaar Hulme J had collected and epitomized a considerable number of sentencing results following convictions for offences related to importation of narcotics. The express reference is to the setting out of "a number of cases" rather than referring to the approach by arithmetical enhancement which Hulme J had propounded. The sentencing judge had been expressly referred to Mas-Rivadavia in which Wood CJ at CL, with the assent of Adams J and Smart AJ had said: "So far as there is any difference between the view of Hulme J in Kevanaar on the one hand, and of Smart AJ in Dejeu and of Howie J in Studenikin , on the other hand, then I prefer the views expressed in Dejeu and Studenikin ." 15 I am unpersuaded that Solomon DCJ used Kevenaar other than as a convenient resource for reference to the collection of cases which had been performed for the purposes of that judgment. I would reject ground 1. 16 In support of ground 2 counsel for the applicant has drawn attention to the available statistics kept by the Judicial Commission. In a helpful written submission it was accepted that there is a difficulty with statistics as it is not known therefrom what were the factors and features in relation to the particular cases contained therein. It was also acknowledged that statistics for imposition since the repeal of s 16G presented only seven cases. 17 Nevertheless that small sample shows that, of all offenders, the highest total term received was seven years imprisonment, and that only in one case, two offenders received total terms of two years, two offenders received five years, and the other two offenders, four years six months and three years respectively. The specified non parole periods ranged between one year six months and four years. 18 Thus the sentence imposed upon the applicant is higher than any of those manifested by the statistics. 19 As already noted, the applicant frankly told police when first approached of his involvement in the offence. He pleaded guilty at the first available opportunity. His Honour did not specify what allowance he had made in that regard. His Honour did make favourable subjective findings concerning the applicant and indeed he described the subjective matters as "powerful". It is not necessary to recite again the factors which led to that conclusion. What was said should be adopted. 20 Whilst it cannot be disputed that the offence was serious, it is difficult to perceive that the applicant should receive a sentence higher than that of any person whose sentence is included in the statistics. It is also difficult to perceive what benefit was in fact received by the applicant for his very early plea of guilty. 21 Whilst it is often useful to be able to classify the role of a person within the hierarchy of a drug importation as a principal, a courier or a facilitator of some other sort, it is always necessary to focus upon the actual conduct giving rise to the criminal offence. The applicant's agreement to act as a "post box" places him in the relatively lower range of a drug importation hierarchy. In R v Togias 2001 127 A Crim R 23 Spigelman CJ had referred to what had then been gathered as a detailed schedule of sentences concerning ecstasy and other mid range narcotics and said: "Putting aside the occasional exceptional case of a very large shipment or substantial assistance to authorities, the schedule suggests a sentencing range for persons low in the hierarchy of five to nine years with a non parole period of three to six years. The lower end of the range was applicable to traffickable quantities, often quite small amounts." 22 It might be mentioned that Togias arrived from Bali carrying a commercial quantity of MDMA. Whilst the amount involved in the current importation (accumulating the four postages) was considerably greater than the minimum amount required to constitute a traffickable quantity, it seems to me that this was a case which should have attracted assessment somewhere towards the lower end of any range of appropriate penalty. I consider that ground 2 is made out. 23 I propose that the appropriate total term, taking into account and reflecting the matters required by s 16A of the Crimes Act 1914, should be assessed as six years. In setting a non parole period I would adopt the same proportion to head sentence as that adopted by the original sentencing judge. 24 I propose the following orders: (1) Application for leave to appeal against sentence granted. (2) Appeal allowed and sentence imposed in the District Court quashed. In lieu thereof the applicant be sentenced to imprisonment for six years commencing on 29 October 2003 and expiring on 28 October 2009 with a non parole period of three years and nine months commencing on 29 October 2003 and expiring on 28 July 2007, with an eligibility for parole on the lastmentioned date. 25 WOOD CJ at CL: I agree. 26 ROTHMAN J: I too agree. 27 WOOD CJ at CL: The order of the Court would be as Grove J has proposed. ********** 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.