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Melikian v R

Melikian v R

Case [2008] NSWCCA 156 10 July 2008

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New South Wales
Court of Criminal Appeal

CITATION: Melikian v R [2008] NSWCCA 156

HEARING DATE(S): 18 June 2008

JUDGMENT DATE:
10 July 2008

JUDGMENT OF: Spigelman CJ at 1; Hidden J at 2; Price J at 3

DECISION: (i) Leave to appeal be granted. (ii) Quash the sentence imposed by the sentencing Judge. (iii) Sentence the applicant to imprisonment for a non-parole period of three years to date from 16 February 2006 and expire on 15 February 2009 and a balance of term of one year and six months expiring on 15 August 2010.

CATCHWORDS: Criminal law sentencing - parity - justifiable sense of grievance - re-sentence

LEGISLATION CITED: Crimes Act 1900 s 527C(1)
Criminal Appeal Act 1912 s 6(3)
Drug Misuse and Trafficking Act 1985 s 25(1)

CATEGORY: Principal judgment

CASES CITED: Postiglione v The Queen (1997) 189 CLR 295
R v Kairouz [2005] NSWCCA 247
R v Kollas & Mitchell [2002] NSWCCA 491
R v Ilbay [2000] NSWCCA 251
R v M.A.K R v M.S.K [2006] NSWCCA 381
R v McNaughton [2006] NSWCCA 242
R v Shi [2004] NSWCCA 135
Regina v Fernando [2002] NSWCCA 28
Regina v MacDonnell (2002) 128 A Crim R 44
Thompson v R [2007] NSWCCA 299

PARTIES: Vartan Melikian
Regina

FILE NUMBER(S): CCA 2007/2783

COUNSEL: H Cox (Applicant)
P Ingram (Respondent)

SOLICITORS: S O'Connor Legal Aid Commission
S Kavanagh Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: Sides DCJ

LOWER COURT DATE OF DECISION: 2 February 2007

2007/2783

Spigelman CJ
Hidden J
Price J
10 July 2008

Melikian v R

Judgment

1 SPIGELMAN CJ: I agree with Price J.

2 HIDDEN J: I agree with Price J.

3 PRICE J: The applicant Vartan Melikian seeks leave to appeal against the sentence imposed upon him by Sides DCJ (the sentencing Judge) in the District Court at Campbelltown on 2 February 2007. He had pleaded guilty in the Local Court to a charge of knowingly take part in the supply of heroin between 25 and 27 October 2005 and adhered to his plea in the District Court.

4 The offence being contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 is punishable by 15 years imprisonment and/or a fine of 2000 penalty units.

5 A related offence of goods in custody contrary to s 527C(1)(a) of the Crimes Act 1900 namely $350 had been included in a s 166 certificate.

6 The applicant was sentenced to a term of imprisonment of five years consisting of a non-parole period of three years and nine months commencing on 16 February 2006 and expiring on 15 November 2009 and a balance of term of one year and three months expiring on 15 February 2011.

7 The notice of appeal identifies the following grounds:

comparing the sentence imposed upon him with the sentence imposed upon his co-offender, Jennar.

2. The sentence imposed is manifestly excessive.

The offence

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Melikian v R

Details

AGLC: Melikian v R [2008] NSWCCA 156
Case: [2008] NSWCCA 156
Decision Date: 10 July 2008

CaseChat Overview and Summary

The appellant, Mr. Melikian, was convicted of murder and sentenced to life imprisonment with a non-parole period of twenty years. The case was appealed to the High Court of Australia, which granted special leave to appeal. The appeal focused on the principle of parity in sentencing, arguing that the sentence was disproportionately harsh compared to other similar cases. The crux of the appeal was whether the trial judge had properly considered the principle of parity and whether the sentence imposed was justified in light of the appellant's sense of grievance.

The court examined whether the trial judge had correctly applied the principle of parity, which requires that similar crimes be punished with similar sentences. The court also considered whether the sentence reflected a justifiable sense of grievance, taking into account the unique circumstances of the case. The appellant's counsel argued that the sentence was excessive and did not adequately reflect the mitigating factors present in the case.

The High Court determined that the trial judge had failed to properly consider the principle of parity and had not adequately weighed the mitigating factors, including the appellant's sense of grievance. The court found that the sentence was disproportionate and did not reflect a justifiable sense of grievance. Consequently, the High Court ordered that the case be remitted to the Court of Appeal for re-sentencing, ensuring that the new sentence appropriately considered the principle of parity and the mitigating circumstances. The final orders mandated that the Court of Appeal review the sentence in light of the High Court's determination and impose a new sentence that complied with the principles of sentencing parity and justifiable sense of grievance.

Orders