Stojkov v R [2007] NSWCCA 205

New South Wales Court of Criminal Appeal

CITATION: Stojkov v R [2007] NSWCCA 205

HEARING DATE(S): 09/07/07

JUDGMENT DATE: 2 August 2007

JUDGMENT OF: Tobias JA at 1; Latham J at 2; Mathews AJ at 3

DECISION: Leave to appeal granted. Appeal dismissed

CATCHWORDS: Sentence appeal - supplying not less than large commercial quantity of heroin - sentence imposed identical to that previously imposed on co-offender - co-offender later re-sentenced to lower term - no marked disparity

CASES CITED: Postiglione v the Queen (1997) 189 CLR 295

PARTIES: Mile Stojkov v R

FILE NUMBER(S): CCA 2007/1283

COUNSEL: Unrepresented (Appl) W Dawe QC (Crown)

SOLICITORS: Unrepresented (Appl) Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/21/3335

LOWER COURT JUDICIAL OFFICER: Shadbolt DCJ

LOWER COURT DATE OF DECISION: 11/03/04

IN THE COURT OF CRIMINAL APPEAL 2007/1283

TOBIAS JA LATHAM J MATHEWS AJ

THURSDAY 2 AUGUST 2007 Mile Stojkov v R Judgment 1 TOBIAS JA: I agree with Mathews AJ. 2 LATHAM J: I agree with Mathews AJ. 3 MATHEWS AJ: The applicant Mile Stojkov seeks leave to appeal against the severity of a sentence imposed by Shadbolt DCJ on 11 March 2004 in relation to a charge of supplying a prohibited drug (heroin) of not less than the large commercial quantity for that drug. His Honour backdated the sentence to take account of time already served in custody. He sentenced the applicant to imprisonment for seven years with a non-parole period of five years and three months, both commencing on 6 October 2002. 4 The matter has a lengthy history. The offence was committed on 8 May 2000. It involved the supply of 1.789 kgs of heroin which, being 63% pure, comprised 1.08 kgs of pure heroin. A few days earlier, two co-offenders, Ilievski and Stransky, had arranged to supply a police informant and an undercover police operative with five blocks of heroin, each weighing 12 ½ ounces, for a total of $280,000. For that purpose, on the afternoon of 8 May 2000 Ilievski and Stransky flew from Melbourne to Sydney and drove to the Bass Hill area where they checked into a local motel. The police informant and undercover police officer, carrying $280,000, had booked into room 508 at Rydges Hotel at Bass Hill. Later that same afternoon a car, driven by the co-offender Halmi, with the applicant as passenger, also drove to the Bass Hill area and parked in the Bass Hill Plaza car park. It was the Crown case, which the jury must have accepted, that the heroin was in the car with them when they arrived. 5 Various telephone conversations took place during the afternoon between Ilievski's mobile phone and a phone which was later found in the possession of the applicant. Ilievski went to the car park area and was seen talking to the applicant. Some time later Ilievski returned to the car park area and went to room 508 of Rydges Hotel carrying a black bag containing the heroin. He collected the $280,000 in cash but before he could leave the hotel he was arrested by police. Halmi and the applicant were also arrested, as was Ilievski's companion, Stransky. The five blocks of heroin were found in room 508. They were later shown to have the fingerprints of both the applicant and Halmi on the outside as well as the inside wrapping. 6 On 11 June 2000, after the fingerprint findings had been confirmed, the applicant was charged with supplying not less then the large commercial quantity for heroin. 7 The applicant asserted his innocence, and in due course the matter came to trial. However before that happened, the co-offenders Stransky and Ilievski were sentenced for their participation in this transaction. On 18 May 2001 Stransky, who had pleaded guilty to supplying not less than the commercial quantity of heroin, was sentenced by Sides DCJ to an effective total sentence of four years and six months with a non-parole period of three years. On 29 August 2001 Ilievski, who had pleaded guilty to supplying a large commercial quantity of heroin, was sentenced by Judge Sides to an effective total sentence of seven years and six months with a non-parole period of four years. 8 On 12 June 2003, after a trial presided over by Holt ADCJ, the applicant was convicted of supplying heroin in an amount not less than the large commercial quantity for that drug. For various reasons his sentencing was delayed until March of the following year. But by that time Judge Holt had left the District Court bench and the matter came to be dealt with by Judge Shadbolt. In the meantime, on 7 August 2003, the co-offender Halmi was convicted, following trial, the same offence as that for which the applicant was convicted. On 14 November 2003 he was sentenced by Judge Holt to an effective total sentence of seven years imprisonment with a non-parole period of five years and three months. As it transpired, his conviction was later quashed on appeal. However when the applicant came to be sentenced by Judge Shadbolt on 11 March 2004, Halmi's conviction and sentence still stood. 9 In the sentencing proceedings before Judge Shadbolt, the issue of parity, based on the sentences which had at that stage been imposed on the applicant's co-offenders, played a prominent role. So too did the issue of where the applicant stood within the hierarchy of offenders. It was submitted on his behalf that Halmi was the principal supplier and the applicant was his subordinate. Judge Shadbolt was unable to accept this proposition. He determined that there were no circumstances which would enable him to distinguish between Halmi and the applicant in relation to the offence. Nor were the subjective features in the applicant's case sufficiently compelling to persuade Judge Shadbolt to treat him more leniently than Halmi. They both had a relatively minor criminal history which did not include any convictions for drug related matters. The applicant had a history of alcohol abuse which, it was submitted to his Honour, constituted special circumstances which could break the statutory nexus between the total sentence and the non-parole period. His Honour however found that no special circumstances existed. As indicated, he sentenced the applicant to an effective total term of seven years with a non-parole period of five years and three months, being identical to the sentence which Judge Holt had imposed on the co-offender Halmi. 10 It was not until early the following year, 2004, that Halmi's conviction was quashed on appeal and a new trial ordered. A second trial resulted in a hung jury. On his third trial Halmi was convicted of the same offence. Because of these various delays it was not until 9 February 2007 that Halmi finally came to be sentenced, this time before Donovan DCJ. A central issue in those sentencing proceedings was whether there were grounds to vary the sentence previously imposed by Judge Holt. Judge Donovan found that there were. In particular, the lengthy time which had transpired since the offence enabled him to make a finding, which Judge Holt had been unable to make, that, given the offender's behaviour in the meantime, it was unlikely that he would re-offend, and that he had good prospects of rehabilitation. More significantly, Judge Donovan was persuaded, on the evidence before him, that Halmi had played a lesser role in the drug transaction than had the present applicant. His Honour relied, amongst other things, upon the fact that the telephone calls immediately before the drug transaction were between Ilievski and the applicant. 11 Taking these matters into account, Judge Donovan sentenced Halmi to imprisonment for three years and six months from 9 February 2007 with a non-parole period of two years and six months. Having regard to the time spent in custody before that date, this constituted a reduction in the total sentence previously imposed on Halmi by one year and three months, and a reduction in the previous non-parole period by approximately seven months. 12 On 8 May 2007, three months after Judge Donovan's sentencing of Halmi, and coincidentlally seven years to the day after the offence, the applicant lodged his application for leave to appeal against the severity of the sentence imposed by Judge Shadbolt in March 2004. 13 Two grounds of appeal were raised. The first related to what was said to be the disparity between the applicant's sentence and the sentence imposed on the co-offender Halmi. The second was that his Honour failed to consider special circumstances and mitigating factors. The emphasis in the submissions before us was on the first ground. There was good reason for this, as I shall discuss later, as there is, in my view, no substance in the second ground. 14 In relation to the parity issue, it is apparent from the applicant's written submissions that his principal complaints relate not to the reasoning process of Judge Shadbolt, but to that of Judge Donovan when he sentenced the co-offender Halmi. In particular, issue is taken with Judge Donovan's finding that the physical acts carried out by Halmi were less than the physical acts of the present applicant. One of the matters Judge Donovan considered to be significant in this respect was that the telephone conversations preceding the handover of the heroin apparently took place between Ilievski and the applicant Stojkov. The applicant's submissions point out that although the applicant was later found to be in possession of the mobile phone which had been used to communicate with Ilievski, there was no evidence that it was the applicant himself who had engaged in those conversations. 15 I do not propose to go in detail through these submissions. Ultimately it was urged that we should treat the applicant's criminality as equal to that of Halmi, and reduce his sentence so as to bring it in line with that which was imposed by Judge Donovan. The applicant further submitted that there had been such a marked disparity between the sentences imposed on the applicant and Halmi as to give rise in the applicant to a justifiable sense of grievance. Reliance was placed on the following passage in the judgment of Kirby J in Postiglione v the Queen (1997) 189 CLR 295 at 337: "So long as the sentencing judge has taken into account the relevant considerations of law and fact, the appellate court will not ordinarily intervene merely because some arguable discrepancy appears between the sentencing of otherwise apparently connected or like offenders". 16 The applicant submits that the difference between the two sentences is more than an "arguable discrepancy" as it will lead to the applicant spending significantly more time in custody than Halmi. 17 The applicant's submissions in this respect are prefaced upon the assumption that all was otherwise equal between himself and Halmi, both in their levels of criminality and in their subjective features. This is essentially what Judge Shadbolt found, contrary to the submissions then made by the applicant, who at that stage was urging that Halmi played a significantly more prominent role than he did. However there was material before Judge Donovan from which he was entitled to reach the conclusion which he did, namely that it was Halmi who played the subordinate role, not the applicant. His Honour was entitled to infer that it was the applicant, not Halmi, who was speaking to Ilievski on the mobile phone which was found in the applicant's possession shortly afterwards. Halmi also had a mobile phone on him, which had apparently not been used for communication between the various co-offenders that afternoon. Moreover the lengthy time between the offence and Halmi's sentencing, for which Halmi was in no way responsible, enabled Judge Donovan to make significantly more favourable findings relating to his subjective features, particularly his prospects of rehabilitation, than could have been made earlier. 18 In my view, these features were sufficient to differentiate Halmi's case on sentence from that of the applicant. Any apparent disparity between the two sentences had a solid foundation in the material which was before Judge Donovan. 19 The sentence which was imposed by Judge Shadbolt was well within the available range, given the circumstances of this offence. I do not understand the applicant to be suggesting otherwise. His only other ground of appeal is that "his Honour failed to consider special circumstances and mitigating factors". This ground was not pursued in the applicant's written submissions. As the Crown submissions point out, this is a matter which should have been raised within the time set for an appeal against the severity of sentence. In any event his Honour did consider the various subjective factors raised by the applicant in mitigation of sentence, particularly relating to the applicant's alcohol problems. However his Honour determined that these did not constitute special circumstances which would enable him to break the statutory nexus between the head sentence and the non-parole period. That was a finding which was well open to his Honour in the circumstances. 20 I would grant the applicant leave to appeal against his sentence and dismiss the appeal. **********