Regina v Tsiaousis [2005] NSWCCA 240

Regina v Tsiaousis [2005] NSWCCA 240

The sentencing judge had not been shown to have used Kevenaar other than as a convenient collection of comparable cases, so no error was established on that ground. However, the eight-year sentence was manifestly excessive because the applicant acted only as a post box, was in the relatively lower range of the importation hierarchy, made full admissions, pleaded guilty at the first available opportunity, had powerful subjective factors, received no payment, and the sentence exceeded the sentences shown in the available post-repeal statistics. A total term of six years with the same non-parole proportion was appropriate.

Jurisdiction
Australia
Judgment Date
04 July 2005
Procedural Posture
Application for Leave to Appeal Against Severity of Sentence / Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Application for leave to appeal granted; appeal allowed; applicant resentenced.
Legal Topics
['attempt to Import Narcotic' 'mdma' 'aiding and Abetting Importation' 'manifestly Excessive Sentence' 'repeal of S 16 G of the Commonwealth Crimes Act' 'assessment of Criminality']
['criminal Law and Procedure' 'sentencing'] ['attempt to Import Narcotic' 'mdma' 'aiding and Abetting Importation' 'manifestly Excessive Sentence' 'repeal of S 16 G of the Commonwealth Crimes Act' 'assessment of Criminality']

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Procedural Posture

Application for Leave to Appeal Against Severity of Sentence / Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred in following R v Kevenaar & Ors [2004] NSWCCA 210 rather than R v Mas-Rivadavia [2004] NSWCCA 284 when determining the appropriate sentence.' 'Whether the sentence imposed was manifestly excessive.']

Ratio Decidendi

The sentencing judge had not been shown to have used Kevenaar other than as a convenient collection of comparable cases, so no error was established on that ground. However, the eight-year sentence was manifestly excessive because the applicant acted only as a post box, was in the relatively lower range of the importation hierarchy, made full admissions, pleaded guilty at the first available opportunity, had powerful subjective factors, received no payment, and the sentence exceeded the sentences shown in the available post-repeal statistics. A total term of six years with the same non-parole proportion was appropriate.

Court Disposition

Application for leave to appeal granted; appeal allowed; applicant resentenced.

Orders

  • ['Application for leave to appeal against sentence granted.' '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...