Kremisis v R [2016] NSWCCA 257

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kremisis v R [2016] NSWCCA 257 Hearing dates: 2 August 2016 Decision date: 18 November 2016 Before: Hoeben CJ at CL at [1] Button J at [2] N Adams J at [135] Decision: (1) Leave to appeal against sentence granted. (2) The appeal is allowed. (3) The sentences imposed by Judge Craigie SC on 22 August 2014 in the District Court are quashed. (4) The applicant is re-sentenced as follows: Count 1 – A non-parole period of 4 years and 6 months imprisonment, commencing on 30 June 2012 and concluding on 29 December 2016, with a balance of term of 3 years concluding on 29 December 2019. Count 3 – A non-parole period of 5 years imprisonment, commencing on 30 December 2012 and concluding on 29 December 2017, with a balance of term of 3 years and 3 months concluding on 29 March 2021. Count 2 – A non-parole period of 5 years and 8 months imprisonment, commencing on 30 June 2013 and concluding on 28 February 2019, with a balance of term of 4 years and 1 month concluding on 29 March 2023. (5) To express the sentences another way, the applicant is re-sentenced to a total head sentence of 10 years and 9 months with a total non-parole period of 6 years and 8 months. (6) The first date upon which the applicant will become eligible for possible release to parole would be 28 February 2019. Catchwords: CRIMINAL LAW – appeal against sentence – serious drug offences – whether applicant has justifiable sense of grievance based on sentence imposed on co-offender – whether sentencing judge erred by finding that evidence that was not the subject of cross-examination was "untested" – whether sentencing judge erred in finding that the drug use of the applicant was not to a detrimental degree – whether sentencing judge erred by finding the effect on family of the accused was not exceptional – whether sentence manifestly excessive Legislation Cited: Crimes Act 1900 (NSW), s 193B(2) Crimes (Sentencing Procedure) Act 1999 (NSW), s 21(5AA) Drug Misuse and Trafficking Act 1985 (NSW), ss 32, 33 Weapons Prohibition Act 1998 (NSW), s 7(1) Cases Cited: AGF v R [2016] NSWCCA 236 Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Nguyen v R [2016] NSWCCA 5 R v Clarke [2013] NSWCCA 260 R v Curtis (No 3) [2016] NSWSC 866 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Hinton (2002) 134 A Crim R 286; [2002] NSWCCA 405 R v Shi [2004] NSWCCA 135 R v Togias (2001) 127 A Crim R 23; [2001] NSWCCA 522 R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Category: Principal judgment Parties: Steven Kremisis (Applicant) Regina (Respondent) Representation: Counsel: M Thangaraj SC (Applicant) N Williams (Respondent) M Cowden (Respondent)