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R v Boulghourgian

R v Boulghourgian

Case [2001] NSWCCA 460 19 November 2001

Appeal

Admissibility of Evidence

Criminal Liability

Sentencing

Criminal Law

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Reported Decision:
125 A Crim R 540

New South Wales

Court of Criminal Appeal

CITATION: REGINA v. BOULGHOURGIAN (aka SIMONS) [2001] NSWCCA 460

FILE NUMBER(S): CCA No. 60211 of 2001

HEARING DATE(S): Monday 19 November 2001

JUDGMENT DATE:
19 November 2001

PARTIES :

REGINA v. BOULGHOURGIAN, Jack
(aka SIMONS, Jake)

JUDGMENT OF: Spigelman CJ at 1/43; Sully J at 44; Greg James J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/11/0452; 00/11/0486

LOWER COURT JUDICIAL
OFFICER : Luland, DCJ.

COUNSEL : Crown: M. Allnutt
App: W.C. Terracini, SC./G.A. Newton

SOLICITORS: Crown: S.E. O'Connor
App: W.H. Parsons & Associate

CATCHWORDS: Criminal law - appeal against conviction and sentence - adequacy of directions as to "knowingly concerned" - directions suitable to issues at trial - verdicts not unreasonable nor unsupported by evidence - on sentence - trial judge followed sentening parameters prescribed in Wong & Leung (999) 108 A. Crim. R. 531 - that decision overruled in that respect by the High Court, but sentence inappropriate notwithstanding.

LEGISLATION CITED: Customs Act 1901
Crimes Act 1914 (Cth)

CASES CITED:
Gipp (1998) 155 ALR 15
Jones (1997) 191 CLR 439
M (1994) 181 CLR 487
Morris (1987) 163 CLR 454
Wong & Leung (1999) 108 A. Crim. R. 531
Wong & Leung [2001] HCA 64
House (1936) 55 CLR 499
Astill (No. 2) (1992) 64 A. Crim. R. 289
Neal (1982) 149 CLR 305

DECISION: Leave to appeal against sentence granted; appeal dismissed.

No. 60211 of 2001

SPIGELMAN, CJ.
SULLY, J.
GREG JAMES, J.

MONDAY 19 NOVEMBER 2001

REGINA v. JACK BOULGHOURGIAN (aka JAKE SIMONS)

JUDGMENT

1 SPIGELMAN, CJ: I invite Justice Greg James to deliver the first judgment.

2 GREG JAMES J: The appellant appeals against conviction and seeks leave to appeal against the severity of his sentence.

3 The appellant was convicted of one count of being knowingly concerned with Elias Helou in the importation of not less than a trafficable quantity of cocaine, an offence under s.233B(1)(d) of the Customs Act 1901, punishable pursuant to s.235 of that Act by a maximum penalty of 25 years imprisonment. The appellant had pleaded not guilty and had been found guilty by the verdict of a jury after a three day trial. The trial was initially also of Helou as well as the appellant, but when problems occurred with Mr. Helou's representation, the prosecution proceeded against the appellant alone.

4 The quantity of cocaine involved was some 114.5 grams. A trafficable quantity is two grams.

5 On 1 June 2001, the learned District Court judge sentenced the appellant to six years imprisonment with a non-parole period of four years, that sentence to commence on the day on which the appellant was taken into custody following the jury's verdict. Prior to that verdict, the appellant had been on bail.

6 The appellant had an earlier criminal record. The trial judge found on sentencing that he had been convicted for supply and possession in 1996, although his Honour noted that…

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 R v Boulghourgian

Details

AGLC: R v Boulghourgian [2001] NSWCCA 460
Case: [2001] NSWCCA 460
Decision Date: 19 November 2001

CaseChat Overview and Summary

The defendant, Mr Boulghourgian, appealed against his conviction and sentence for charges related to his involvement in a drug trafficking operation. The case was heard by the court of appeal in Australia. The central issue in this appeal was whether the trial judge's directions to the jury regarding the concept of being "knowingly concerned" in the offence were adequate. The defendant argued that the directions were insufficient, but the court found that the directions were suitable to the issues that were being tried. The court further held that the jury's verdicts were neither unreasonable nor unsupported by the evidence.

The court of appeal considered the legal principles governing the concept of being "knowingly concerned" in an offence and examined the adequacy of the trial judge's directions to the jury. It found that the trial judge had provided suitable directions, taking into account the specific circumstances of the case. The court also reviewed the evidence presented at trial and determined that the jury's verdicts were based on the evidence and were not unreasonable. Regarding the sentence, the court noted that the trial judge had followed the sentencing parameters prescribed in a previous case, but that the High Court had since overruled that decision. However, the court found that the sentence imposed was still inappropriate given the circumstances of the case.

In conclusion, the court of appeal dismissed the defendant's appeal against his conviction and sentence. The court found that the trial judge's directions to the jury were adequate and that the jury's verdicts were supported by the evidence. The court also noted that while the High Court had overruled a previous decision on sentencing, the sentence imposed in this case was still inappropriate. The appeal was therefore dismissed, and the defendant's conviction and sentence were upheld.

Orders