Markarian v The Queen

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HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

ANTHONY VASKEN MARKARIAN  APPELLANT

AND

THE QUEEN  RESPONDENT

Markarian v The Queen [2005] HCA 25

18 May 2005
S600/2003

ORDER

1.Appeal allowed.

2.Set aside the sentence and orders of the Court of Criminal Appeal of the Supreme Court of New South Wales.

3.Remit the matter to the Court of Criminal Appeal of the Supreme Court of New South Wales to dispose of the appeal in accordance with the reasons for judgment of this Court.

On appeal from the Supreme Court of New South Wales

Representation:

A C Haesler and R W Burgess for the appellant (instructed by Legal Aid Commission of New South Wales)

R D Cogswell SC with G E Smith and J A Quilter for the respondent (instructed by Solicitor for Public Prosecutions (New South Wales))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

  1. GLEESON CJ, GUMMOW, HAYNE AND CALLINAN JJ.   The question in this case is whether the Court of Criminal Appeal of New South Wales failed to apply or misapplied orthodox sentencing principles in upholding an appeal against sentence by the Crown.

    Facts

  2. At his arraignment on 3 May 2002, the appellant pleaded guilty to a charge that between 18 April and 10 October 2000 he did knowingly take part in the supply of a prohibited drug, namely heroin, in an amount not less than the commercial quantity for that drug – 415 grams pursuant to s 33(2) of the Drug Misuse and Trafficking Act 1985 (NSW) ("the Act") ("the principal offence"). He asked that in sentencing him for the principal offence four other matters ("the further offences") be taken into account by the sentencing judge. The way in which the further offences should be dealt with is governed by a special statutory regime to which some detailed reference is necessary and will be made later.

  3. On 15 April 2002, before the arraignment, s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") had commenced[1]. Section 21A, headed "General sentencing principles", was not referred to by the sentencing judge or by the Court of Criminal Appeal. This may have been on the assumption of counsel that insofar as it applied to the present case it did not alter the general law principles which otherwise applied. No contrary submission, requiring further attention to s 21A, was made in this Court and, accordingly, its terms need not be considered.

    [1]Inserted by the Crimes (Sentencing Procedure) Amendment (General Sentencing Principles) Act 2002 (NSW), Sched 1, Item [1]. Repealed and substituted, with effect from 1 February 2003 by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW), Sched 1, Item [2].

  4. The most serious of the further offences were the supply of in excess of 5 grams of heroin between 25 September and 1 October 2001, and of 232.5 grams of cannabis leaf, another prohibited drug, on…

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Details
Case
[2005] HCA 25
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the appellant, Markarian, against a decision of the Court of Criminal Appeal of New South Wales. The dispute concerned the sentencing of the appellant for a drug offence, specifically knowingly taking part in the supply of heroin in a commercial quantity. The appellant had pleaded guilty to this principal offence and requested that four further offences be taken into account by the sentencing judge.

The central legal issues before the High Court were whether the Court of Criminal Appeal had erred in its approach to sentencing. This involved determining whether the Court of Criminal Appeal had adopted an impermissible "staged approach" to sentencing, as opposed to an "instinctive synthesis," and whether this approach was relevant to the adequacy of the sentence imposed. The Court also considered the relevance of the maximum available sentence, the quantity of the drug involved, and whether the Court of Criminal Appeal was correct in finding the original sentence manifestly inadequate, thereby miscarrying its re-sentencing discretion. Furthermore, the Court examined whether the addition of a discrete sentence for further offences breached the totality principle and whether the failure to consider an obligatory sentencing statute constituted a miscarriage of discretion.

The High Court clarified that the expression "staged sentencing process" is not inherently indicative of error, as it can simply refer to a sequential reasoning process or the quantification of allowances for factors such as a guilty plea or assistance to authorities. The Court emphasised that the ultimate inquiry on appeal is whether specific error has been shown, such as the consideration of irrelevant matters, failure to consider relevant matters, or a mistake of fact, or whether the resulting sentence is unreasonable or plainly unjust. The Court stressed that sentencing judges must take into account all relevant considerations and only relevant considerations, and that while flexibility is permitted, it must be consonant with consistency and the applicable statutory regime. The Court noted that while s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) was not referred to by the lower courts, its terms did not need to be considered in this instance.

The High Court allowed the appeal, set aside the sentence and orders of the Court of Criminal Appeal of New South Wales, and remitted the matter to that court to dispose of the appeal in accordance with the High Court's reasons.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the sentence and orders of the Court of Criminal Appeal of the Supreme Court of New South Wales.

3. Remit the matter to the Court of Criminal Appeal of the Supreme Court of New South Wales to dispose of the appeal in accordance with the reasons for judgment of this Court.

Background

Background to the litigation

GLEESON The question in this case is whether the Court of Criminal Appeal of New South Wales failed to apply or misapplied orthodox sentencing principles in upholding an appeal against sentence by the Crown.Facts At his arraignment on 3 May 2002, the appellant pleaded guilty to a charge that between 18 April and 10 October 2000 he did knowingly take part in the supply of a prohibited drug, namely heroin, in an amount not less than the commercial quantity for that drug – 415 grams pursuant to s 33(2) of the Drug Misuse and Trafficking Act 1985 (NSW) ("the Act") ("the principal offence"). He asked that in sentencing him for the principal offence four other matters ("the further offences") be taken into account by the sentencing judge. The way in which the further offences should be dealt with is governed by a special statutory regime to which some detailed reference is necessary and will be made later. On 15 April 2002, before the arraignment, s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") had commenced[1]. Section 21A, headed "General sentencing principles", was not referred to by the sentencing judge or by the Court of Criminal Appeal. This may have been on the assumption of counsel that insofar as it applied to the present case it did not alter the general law principles which otherwise applied. No contrary submission, requiring further attention to s 21A, was made in this Court and, accordingly, its terms need not be considered.[1]Inserted by the Crimes (Sentencing Procedure) Amendment (General Sentencing Principles) Act 2002 (NSW), Sched 1, Item [1]. Repealed and substituted, with effect from 1 February 2003 by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW), Sched 1, Item [2]. The most serious of the further offences were the supply of in excess of 5 grams of heroin between 25 September and 1 October 2001, and of 232.5 grams of cannabis leaf, another prohibited drug, on 29 September 2000. On 18 July 2002 Hosking DCJ sentenced the appellant to a term of imprisonment of 2 years and 6 months from 18 July 2002 with a non-parole period of 15 months. His Honour was of the opinion that the appellant's plea of guilty had utilitarian value. He accordingly discounted the sentence by 25%. The appellant was therefore eligible for release on parole on 17 October 2003. His head sentence was to expire on 17 January 2005. In August 2002 however the respondent appealed. The facts constituting the principal offence consisted of the appellant's acting over a period of 5 months as a driver for Vincent Caccamo, a dealer in heroin. The appellant, who was himself a heroin addict, was paid in heroin for his services. The material before the sentencing court emphasized the different degree of criminality of the appellant from Caccamo's. Caccamo had previously been sentenced to 8 years imprisonment with a non-parole period of 5 years for a number of offences of supply in the course of an illicit business of handling and selling drugs. The relative brevity in all of the circumstances of his sentence is explained by the significant value that the judge who sentenced him attached to his cooperation with the police. Another of Caccamo's drivers, Chung, was sentenced to periodic detention of 3 years with a 2 years period of non-parole. Chung did not have a criminal record. He had fewer other matters to be taken into account, and he had driven less frequently for Caccamo than had the appellant.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ, GUMMOW, HAYNE AND CALLINAN JJ HUGH J
Hulme J, the appellant argued, then engaged in an impermissible arithmetical process after rejecting what has been called an approach by way of instinctive synthesis. His Honour proceeded by referring to a maximum penalty of 15 years, reducing that period by a third because the appellant's role was of a lesser kind than that of Caccamo, making a further reduction of 25% on account of the utilitarian value of the plea and contrition, increasing the sentence by 18 months to 2 years because of the further offences, and taking into account various other factors pointing in different directions, the prospects of rehabilitation, deterrence, the security of the community, and the double jeopardy arising by reason of a Crown appeal. The decision It is not useful to begin by asking a general question like was a "staged sentencing process" followed. That is not useful because the expression "staged sentencing process" may mean no more than that the reasoning adopted by the sentencer can be seen to have proceeded sequentially. Or it may mean only that some specific numerical or proportional allowance has been made by the sentencer in arriving at an ultimate sentence on some account such as assistance to authorities or a plea of guilty. Neither the conclusion that a sentencer has reasoned sequentially, nor the observation that a sentencer has quantified the allowance made, for example, on account of the offender's plea of guilty, or the offender's assistance to authorities, of itself, reveals error. Indeed provisions like s 21E of the Crimes Act 1914 (Cth) may require the sentencer, in some circumstances, to identify the amount by which a sentence has been reduced on some account. As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King[23], itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".[23](1936) 55 CLR 499 at 504-505. Any consideration of alleged error of principle must now begin in any applicable legislation governing sentencing either generally or in the particular case. In sentencing for a federal offence, it must begin by considering Pt 1B of the Crimes Act. In the present case, it must begin with the provisions of the Sentencing Act. Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence[24]. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies[25].[24]Pearce v The Queen (1998) 194 CLR 610 at 624 [46].[25]Johnson v The Queen (2004) 78 ALJR 616 at 618 [5] per Gleeson CJ, 624 [26] per Gummow, Callinan and Heydon JJ; 205 ALR 346 at 348, 356.

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GUMMOW, HAYNE AND CALLINAN JJ, HUGH J

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