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Ohanian v R

Ohanian v R

Case [2017] NSWCCA 268 21 November 2017

Sentencing

Mens Rea & Intention

Unconscionable Conduct

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Ohanian v R [2017] NSWCCA 268
Hearing dates: 8 November 2017
Date of orders: 21 November 2017
Decision date: 21 November 2017
Before: Gleeson JA at [1]
Rothman J at [2]
Hamill J at [3]
Decision:
(1)   Leave to appeal granted.
(2)   Appeal upheld.
(3)   Sentence imposed on 24 March 2017 quashed.
(4)   In lieu thereof, the applicant is sentenced to a non-parole period of two years commencing 10 January 2016 and expiring 9 January 2018 with a balance of term of one year and nine months commencing 10 January 2018 and expiring on 9 October 2019.
(5)   The applicant will be eligible for release on parole at the conclusion of the non-parole period.

Catchwords: CRIMINAL LAW – sentencing – dysfunctional childhood – early exposure to illegal drug use – whether impact “diminishes” – sentencing judge found ample opportunity to reform – approach contrary to High Court authority – whether different sentence warranted – applicant re-sentenced.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Perdija v R [2012] NSWCCA 244
R v Bugmy [2012] NSWCCA 223
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
Taysavang v R; Lee v R [2017] NSWCCA 146
Category: Principal judgment
Parties: Robert Ohanian (Applicant)
Crown (Respondent)
Representation:
Counsel:
Mr G James (Applicant)
Ms Baker (Respondent)
Solicitors:
One Group Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/203078
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

24 March 2017

Before:

Craigie SC DCJ

File Number(s):

2015/203078

Judgment

GLEESON JA: I agree with Hamill J.
ROTHMAN J: I agree with Hamill J.
HAMILL J: Robert Ohanian seeks leave to appeal against a sentence imposed on him by his Honour Judge Craigie SC in the District Court on 24 March 2017. In relation to one count of supplying a prohibited drug (94.1 grams of “MDA”), the applicant was sentenced to imprisonment for four years and five months comprised of a non-parole period of two years and ten months and a balance of term of one year and seven months. The applicant received a reduction in the sentence of 25% for his early plea of guilty. [1] In sentencing the applicant the sentencing Judge took into account three matters on a Form 1. [2]
1. R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111; Crimes (Sentencing Procedure) Act 1999 (NSW), s 22.
2. Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32-33.
Mr Ohanian was caught in the course of a police operation arising from a registered source (RS) approaching the police with information. On 14 May 2015 RS attended the…

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 Ohanian v R

Details

AGLC: Ohanian v The Queen [2017] NSWCCA 268
Case: [2017] NSWCCA 268
Decision Date: 21 November 2017

CaseChat Overview and Summary

The case of Ohanian v R involved the applicant, who was seeking a review of his sentence on appeal. The applicant was convicted of various drug-related offences and was sentenced to a period of imprisonment. The High Court of Australia was tasked with reviewing the sentencing decision made by the lower court. The central issue before the court was whether the sentencing judge had adequately considered the mitigating factors of the applicant’s dysfunctional childhood, early exposure to illegal drug use, and the impact these factors had on his capacity for reform. The court was required to determine if the sentencing judge's approach was in line with the principles established by the High Court in previous cases.

The court found that the sentencing judge had not sufficiently taken into account the profound impact of the applicant's early life experiences on his criminal conduct. The High Court held that the judge's conclusion that the applicant had ample opportunity to reform was inconsistent with the evidence presented regarding his difficult upbringing and persistent drug use. The court emphasised that such factors, while not excusing criminal behaviour, could significantly influence an individual's capacity for rehabilitation and should be considered when determining an appropriate sentence. Given this, the court concluded that the sentencing judge's approach did not align with established legal principles, warranting a reconsideration of the sentence.

Consequently, the High Court ordered a re-sentencing of the applicant, directing the lower court to properly weigh the mitigating factors in its decision-making process. The court stressed the importance of adhering to the principles set out in prior cases, ensuring that a comprehensive assessment of the applicant's background and circumstances was made. This approach aimed to provide a sentence that was both just and reflective of the individual's unique life experiences. The final orders of the court mandated that the lower court re-evaluate the sentence, taking into account the specific mitigating factors detailed in the applicant's case.

Orders