R v Ghazaryan - [2016] SASCFC 140

Supreme Court of South Australia
(Court of Criminal Appeal)
R v GHAZARYAN
[2016] SASCFC 140
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Auxiliary Justice Chivell)
21 December 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence. Appellant sentenced to imprisonment for three years and six months (reduced from five years for his plea of guilty), with a non-parole period of two years and three months, for possession of a class H firearm (a semi-automatic pistol) without holding a licence authorising possession.
Whether imprisonment for five years before reduction manifestly excessive. Whether the sentence would cause exceptional hardship to appellant’s family. Whether the sentencing judge misinterpreted a psychological report tendered by the appellant. Whether appellant’s association with an outlaw motorcycle gang given undue weight.
Held per Chivell AJ (Kourakis CJ and Vanstone J agreeing), dismissing the appeal: Sentence not manifestly excessive.
Criminal Law (Sentencing) Act 1988 (SA) s 10, s 20AA, s 20AAB, s 20AAC; Firearms Act 1977 (SA) s 11, referred to.
House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357; R v Kreutzer (2013) 118 SASR 211; R v Daniele [2014] SASCFC 22; R v Adami (1989) 51 SASR 229; R v M, G [2016] SASCFC 116; Markovic v The Queen; Pantelic v The Queen (2010) 30 VR 589; R v Cekic [2016] SASCFC 26, discussed.
R v Jongewaard (2009) 266 LSJS 283; R v Curry [2016] SASCFC 16; R v Cullen [2015] SASCFC 44; R v Schloithe [2016] SASCFC 13; R v Quinn (2012) 114 SASR 354; Neill v Police [1999] SASC 270; R v Penno [2004] SASC 354; R v Gorcilov [2005] SASC 326; R v Schaefer & Schiworski [2006] SASC 348; R v D, RHC [2011] SASCFC 31; R v Nemer (2003) 87 SASR 168; R v Perre (1986) 41 SASR 105, considered.

R v GHAZARYAN
[2016] SASCFC 140
Court of Criminal Appeal: Kourakis CJ, Vanstone J and Chivell AJ

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Chivell AJ. The particular purpose of the appellant’s possession of a semi-automatic pistol with a loaded magazine was never satisfactorily explained. The appellant, who had demonstrated willingness to use a firearm in the commission of a serious crime, was travelling from New South Wales to South Australia with members of an outlaw motorcycle gang. It is notorious that many members of outlaw motorcycle gangs are prepared to commit crimes of violence. The Judge was plainly correct to sentence on the basis that the offence was a very serious example of its kind.
VANSTONE J: I would dismiss the appeal. I agree with the reasons Chivell AJ has written.
CHIVELL AJ: This is an appeal against sentence.
On 14 January 2016, Mr Ghazaryan was arrested for aggravated possession of a class H firearm (a semi-automatic pistol) without holding a licence authorising possession.[1] The maximum penalty for that offence was imprisonment for 10 years or a fine of $50,000.
[1] Firearms Act 1977, s 11(1) and s 11(7b).
Mr Ghazaryan had been a passenger in a vehicle which was travelling in convoy with another vehicle. He was one of four people in the two vehicles. The other three men were members of the Nomads outlaw motorcycle gang. They had travelled from Sydney. The vehicles were stopped by the police at the bottom of the South Eastern Freeway.
The vehicles were searched. There was a hidden compartment behind the air‑conditioning panel of the car in which Mr Ghazaryan was travelling. In the compartment was a CZ .32 calibre semi-automatic pistol. The pistol was loaded. There were five rounds in the magazine. The firing chamber was empty. There were another nine rounds in a white bag which was also in the compartment.
Mr Ghazaryan initially denied all knowledge of the weapon and the ammunition. His DNA ‘matched’ DNA on a swab which was taken from the pistol.
Mr Ghazaryan pleaded guilty at the committal hearing in the Magistrates Court on 12 February 2016.
On 19 August 2016, in the District Court, Mr Ghazaryan was sentenced to three years and six months imprisonment (reduced from five years for his plea of guilty) with a non-parole period of two years and three months. He submits that the sentence is manifestly excessive.
Counsel for Mr Ghazaryan, Mr Griffin QC, submitted that the following factors indicate that the sentence is manifestly excessive:
(1)the starting point of five years imprisonment was too high;
(2)hardship to Mr Ghazaryan because he is separated from his family, particularly his nine-year-old daughter, who live in Sydney;
(3)a suggested misinterpretation by the Judge of some matters in a report from a forensic psychologist, Mr A Fugler;
(4)the extent to which the Judge had regard to Mr Ghazaryan’s association with an ‘outlaw motorcycle gang’.
In order to successfully appeal against the exercise of a sentencing discretion, the appellant must demonstrate error of the type identified in House v The King.[2] This type of error was more recently confirmed by the High Court in Markarian v The Queen:[3]
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, 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”.
[Citation omitted]
[2] (1936) 55 CLR 499 at 504-5.
[3] (2005) 228 CLR 357 at [25]. See also R v Jongewaard (2009) 266 LSJS 283 at [40]; R v Curry [2016] SASCFC 16 at [25].
In R v Kreutzer,[4] Kourakis CJ said:
If the only error identified by the Full Court is manifest excess or inadequacy (an outcome error), it necessarily follows that it will also think that a different sentence should have been passed. In such a case there will generally be no reason for the Full Court to remit the matter to the court of first instance. If the only error is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, pursuant to s 353(4)(a)(i) of the CLCA, even if the sentence imposed at first instance was not, in itself, manifestly unreasonable. On the other hand, the Full Court may, after finding a process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal in accordance with s 353(4)(b) of the CLCA.
[Citations omitted]
[4] (2013) 118 SASR 211 at [10].
Firearms offences generally
In R v Daniele,[5] Gray J, with whom Kourakis CJ and Peek J agreed, observed:[6]
Possession of a firearm is a privilege and a serious responsibility. The overriding policy of the Firearms Act 1977 (SA) is to protect the public by controlling the possession and use of firearms. Parliamentary debates indicate that this legislation was enacted in response to the increasing use of firearms in serious offences and the proliferation of such weapons in the community. Relevant amendments were made to the Firearms Act in 2008. In the second reading speech the Minister said:
In South Australia, the majority of violent criminal behaviour with firearms does not involve legitimate firearms owners, nor legitimately owned, secured and registered firearms. Whilst there is some conjecture as to the quantity of illegal firearms circulating in the community, there is no doubt that there is a market for unrecorded and essentially untraceable firearms to be used for a criminal purpose. It is the nature of this enterprise that there exists difficulties in police being able to prevent this trade and the subsequent crime arising from it.
The need for general deterrence is particularly apparent in sentencing for offences of this kind. The community should not be complacent about the dangers of firearms and the damage that can be caused by them.
[Citations omitted]
[5] [2014] SASCFC 22 (see also R v Cullen [2015] SASCFC 44 and R v Schloithe [2016] SASCFC 13).
[6] At [25]-[26].
These observations are reflected in s 10(2)(e) of the Criminal Law (Sentencing) Act 1988:
10—Sentencing considerations
...
(2) In determining the sentence for an offence, a court must give proper effect to the following:
...
(e) in the case of an offence involving a firearm—the need to protect the safety of the community by ensuring that paramount consideration is given to the need for general and personal deterrence.
...
As a further indication of Parliament’s attitude to this type of offending, the possession of a class H firearm without an appropriate licence is a ‘serious firearms offence’[7] and a person who is convicted of such an offence is a ‘serious firearms offender’.[8] If, as here, imprisonment is included in the maximum penalty for the offence, imprisonment must be imposed, and may not be suspended unless the offender satisfies the court by evidence on oath that his or her circumstances are ‘so exceptional as to outweigh the need for general and personal deterrence to be the paramount consideration in the sentencing’.[9]
[7] Criminal Law (Sentencing) Act 1988, s 20AA.
[8] Ibid, s 20AAB(1).
[9] Ibid, s 20AAC(2).
No such evidence was given by Mr Ghazaryan, and so the Judge had no option other than imposing an immediate custodial sentence, to be determined by applying the principle that general and personal deterrence were the paramount considerations in fixing the sentence.
It follows that personal circumstances are to be given less weight in the sentencing process than would have been the case for a different offence.[10]
[10] See R v Quinn (2012) 114 SASR 354 at [30] per Gray J, applying the same legislative provision to offences involving sexual exploitation of children.
The Judge was well aware of these principles. He said:[11]
Despite everything that has been said about you, the fact remains that you have committed an extremely serious firearm offence. Your crime has a very substantial maximum penalty which reflects Parliament's very real concerns over those who are willing to possess such lethal weapons. This has been reflected in a number of Supreme Court judgments in this State, including R v Cullen [2015] SASCFC 44; R v Violi [2015] SASCFC 2; R v Daniele [2014] SASCFC 22; R v O'Toole [2013] SASCFC 18; and R v Nozuhur [2013] SASCFC 81.
[11] Sentencing Remarks, p.3.
The starting point
As I have already mentioned, the maximum penalty for the offence is imprisonment for 10 years or a fine of $50,000.[12]
[12] Firearms Act 1977, s 11(7a)(b).
The offence was aggravated because the pistol was loaded. There were five rounds in the magazine, but the firing chamber was empty. Mr Griffin submitted that if the magazine had not been in the pistol but was nearby, the offence would not have been aggravated, and the maximum penalty would have been imprisonment for seven years or a $35,000 fine.[13] The implication of the submission was that the circumstance of aggravation did not significantly increase the seriousness of the offending in the circumstances of this case.[14]
[13] Ibid, s 11(7)(b).
[14] Written submissions, [10].
However, the submission is based on an incorrect premise. The Act provides:[15]
(7b) An offence against this section is an aggravated offence if it has been proved that—
(a) the firearm to which the offence relates was loaded or in the immediate vicinity of a loaded magazine that could be attached to and used in conjunction with the firearm; or
(b) the offender had the firearm concealed about the person.
Even if the loaded magazine was not in the firearm, as in Mr Griffin’s example, it would still have been an aggravated offence because it was in the immediate vicinity.
[15] Firearms Act 1977, s 11(7b)(a).
It is clear that the section is intended to create a more serious offence where ammunition suitable for use in the firearm is either in the firearm, or is in the immediate vicinity so that it might be quickly inserted in the firearm.
The same considerations apply to Mr Griffin’s submission that there was no round in the firing chamber. This was a semi-automatic weapon. The whole point of such a weapon is that it is designed to quickly transfer the round from the magazine to the firing chamber.
In my view, there was nothing in the circumstances which could lead to criticism of the Judge’s characterisation of this offence as a ‘serious offence of its kind’.[16]
[16] Sentencing Remarks, p.2.
At the time of sentencing, Mr Ghazaryan was 32 years old. He was born in Armenia and came to Australia with his parents when he was 17. He had a number of unskilled jobs after leaving school.
Mr Ghazaryan has a few convictions for relatively minor offences in his late teens and early twenties. His offending began to escalate in seriousness in his mid-20s. He was dealt with for assault in October 2009, and again in June 2011. Nothing is known of the details of these offences. He was discharged on a bond on both occasions.
On 15 May 2013, in the Parramatta District Court, Mr Ghazaryan was convicted of robbery while armed with a dangerous weapon. This offence was committed on 8 September 2011, only three months or so after he had been released on a bond in June of that year. He was sentenced by his Honour Judge Sides. He was imprisoned for four years, with a non-parole period of two years. A copy of the sentencing remarks was before the Judge in this matter. The following matters emerged from those remarks:
·Mr Ghazaryan’s co-offenders were Moudi Tajjour and Martin Shemaon, both members of the ‘Notorious outlaw motorcycle gang’. Mr Ghazaryan was an associate member of the gang at the time;
·Tajjour was selling his Audi car. The victim took $11,000 in cash to a meeting to discuss the purchase. The $11,000 was intended to be a deposit;
·the victim attended the meeting place with a companion. When they arrived, Mr Ghazaryan produced a black pistol from his pants, pointed it at the victim and demanded the money;
·the victim gave Mr Ghazaryan the $11,000 in an envelope;
·the two co-offenders were charged as accessories before the fact to the robbery. They were not present at the time of the robbery;
·the robbery was committed at a time when Mr Ghazaryan was still subject to the two bonds from 2009 and 2011.
The maximum penalty for the offence was imprisonment for 25 years. Mr Ghazaryan had not served a custodial sentence previously. He was regarded as the principal offender. Clearly, the robbery was treated as a serious crime.
The obvious policy of the legislation, the fact that this was an aggravated offence, and Mr Ghazaryan’s previous relatively recent conviction for an offence of violence involving a handgun, were all matters which called for a sentence in the upper range for offences of this type.
Hardship
It is clear that the Judge in this matter was aware of the effect of a custodial sentence on Mr Ghazaryan’s father, who is an invalid and in a nursing home, and on his then eight-year-old daughter. He said:[17]
Your father suffers from multiple sclerosis and has recently moved into a nursing home to be cared for, as you are not there to assist your mother in providing him with care. She is suffering from severe depression following your arrest and remand in prison over this offence.
You have recently become involved in a relationship with a woman who has maintained contact with you whilst you have been in prison in South Australia and who you hope to marry when you are released.
You have an eight-year-old daughter from a previous relationship who you miss now that you are in prison once again.
[17] Sentencing Remarks, p.3.
During his submissions on appeal about Mr Ghazaryan’s separation from his family, and particularly his daughter, Mr Griffin acknowledged that Mr Ghazaryan would be entitled to apply for a transfer to New South Wales pursuant to the Prisoners (Interstate Transfer) Act 1982 (SA). He has made no such application at this stage.
The topic of interstate transfer was the subject of an extended interchange between the Judge and defence counsel on 15 August 2016.[18] The exchange was directed more to the question of a transfer of parole, rather than transfer of sentence, but his Honour expressed some concern about Mr Ghazaryan’s situation as an interstate prisoner. It cannot be said that he was not aware of these issues.
[18] AB 109-112.
Mr Griffin submitted that a prisoner with a longer sentence might have a better chance of being successful than Mr Ghazaryan has. There may be other factors the authorities might consider relevant.
In R v Adami,[19] Bollen J, with whom King CJ agreed, wrote:
It has always been the law that the effect of a sentence of imprisonment on dependants is not normally to be taken into account in fixing the sentence. There is no doubt, of course, that the incarceration of almost anybody causes adverse effect, often financial, on dependants. Certainly it does for every married man, every father, who is sent to prison. If that were to be taken into account in the normal run of things there would be no complaints of overcrowding in our prisons. The Court may take effect on dependants into account to ameliorate a penalty in exceptional cases. For all these propositions I refer to R v Wirth (1975) 14 SASR 291, R v Moffa (No 2) (1977) 16 SASR 155 and R v Amuso (1987) 138 LSJS 53.
[19] (1989) 51 SASR 229 at 232-3.
It had been argued in that case that the enactment of s 10(n)[20] of the Criminal Law (Sentencing) Act 1988, required the sentencer to give greater consideration to the effect of a sentence on dependants of the defendant. The court held that the section did no more than declare ‘what has always been the law’.
[20] Now s 10(1)(n).
The principle enunciated in Adami has been applied in many cases since,[21] and remains the law.
[21] See Neill v Police [1999] SASC 270; R v Penno [2004] SASC 354 at [46]; R v Gorcilov [2005] SASC 326 at [28]-[29]; R v Schaefer & Schiworski [2006] SASC 348; R v D, RHC [2011] SASCFC 31 as well as cases referred to by the sentencing judge.
In R v M, G,[22] this Court restated the principle. Nicholson J said:
I will discuss the appellant’s personal circumstances and those of his immediate family shortly. However, a principal contention put on behalf of the appellant both to the Judge and on appeal is that if he were required to serve a term of imprisonment such would cause significant and undue hardship for his wife who is very ill and depends on the appellant as her daily carer. In R v Hunter, I had occasion to summarise the principles concerning the relevance of hardship on dependents when sentencing in the following terms.
Subsection 10(1)(n) of the Criminal Law (Sentencing) Act 1988 provides that in determining the sentence for an offence, one of the factors to which a court must have regard is the probable effect any sentence under consideration would have on dependents of the defendant. The authorities in this area are to the effect that hardship to the dependents of an accused person is not generally to be taken into account in an accused’s favour other than in extreme or exceptional circumstances. The probable effect on dependants has been said to be a limited aspect of the power to exercise mercy and the hardship must be of such a serious character as to call for a merciful approach to sentencing. It must be a matter that goes beyond the hardship which inevitably results from a bread winner being sent to prison; there must be something that demands the exercise of mercy.
[Citations omitted]
[22] [2016] SASCFC 116 at [39]-[40] per Nicholson J.

The court in M, G also referred, as a separate issue, to the effect of hardship to dependants on the offender, quoting Markovic v The Queen; Pantelic v The Queen:[23]
Hardship of a sufficient nature can operate in two ways to mitigate what might otherwise be a just and proportionate sentence. First, the effect of the hardship on the dependent or the dependents concerned, where the circumstances are extreme or exceptional, is a relevant consideration. Second, the effect on the offender can also be a relevant consideration. However, in this latter respect the observations of the Court of Appeal in Victoria in Markovic v The Queen; Pantelic v The Queen are pertinent:
The effect on the offender of hardship caused to family members by his/her imprisonment is a quite separate matter. An offender’s anguish at being unable to care for a family member can properly be taken into account as a mitigating factor — for example, if the court is satisfied that this will make the experience of imprisonment more burdensome or that it materially affects the assessment of the need for specific deterrence or of the offender’s prospects of rehabilitation. These are conventional issues of mitigation, and they are not subject to the “exceptional circumstances” limitation.
[23] (2010) 30 VR 589 at [20].
The circumstances would need to be quite exceptional before an interstate offender could expect a lower sentence than might otherwise be appropriate by virtue of that fact alone. After all, the fact that an offender has engaged in the degree of preparation and planning involved in travelling interstate to commit a serious crime might well be regarded as an aggravating feature of the offending.
Another factor which is against the submission that Mr Ghazaryan should receive greater consideration than was afforded by the Judge on the basis of separation from his family, is that the submission has been made before.
In the New South Wales District Court in 2013, Judge Sides stated:[24]
After the Offender’s arrest, his mother gave up her work to care for the Offender’s father and the Offender’s daughter. She gets limited assistance from the Offender’s sister, her granddaughter’s mother and a nurse arranged via the hospital. The mother has found it very difficult to cope both physically and emotionally with these tasks. His daughter has been distressed by the Offender’s absence. Whilst these matters form part of the subjective case the Court took into account, they are not so exceptional that it justifies leniency on the discrete basis of hardship to third parties …
[24] Sentencing Remarks of Judge Sides, Parramatta District Court, 15/5/13, p.5.
It seems to me that Mr Ghazaryan should not expect further consideration of the effects of separation from his family, having chosen to reoffend in such a serious way and having already experienced the effects that his possible imprisonment might have.
Psychologist’s Report
As I have already mentioned, Mr Ghazaryan was convicted of offences of assault in 2009 and 2011.
In his remarks in the present case, the Judge said:[25]
I have had the benefit of considering a psychological report prepared by Mr Fugler. Your personal circumstances are extensively detailed in the report. However, I must be cautious in accepting everything contained in the report, given that it has been proved some of the things you told Mr Fugler about your past offending and the offending before the court, were either untrue or demonstrate an inability to acknowledge the seriousness of your criminal conduct and to accept full responsibility for it. These factors influence your prospects of rehabilitation.
[25] Sentencing Remarks, p.2.
In his report, Mr Fugler observed:[26]
He has not been involved in physical altercations with others, with the possible exception of the offence for which he was imprisoned in New South Wales, for the last five years.
[26] Report of Allen Fugler dated 22/6/16, p.8.
Mr Griffin drew attention to the written submission of prosecuting counsel:[27]
At page 8, paragraph 3, Mr Fugler states that the defendant has not been involved in physical altercations with others with the possible exception of the 2013 robbery offence. This is plainly inaccurate given the defendant was sentenced for assault in 2009 and 2011.
[Citation omitted]
The comment by prosecuting counsel was not disputed by defence counsel before the Judge. Mr Griffin submitted that this submission led the Judge into error.
[27] Prosecution Written Submissions on Penalty, [6a].
In Mr Fugler’s report, the following passage also appears:[28]
When questioned about the circumstances of the offending in 2011, Mr Ghazaryan told me a friend intended to sell an Audi motor vehicle and that an individual put down the sum of $10,000 as a deposit. According to him, the person involved could not come up with sufficient cash to cover the residual payment, and when he asked for his money back from the seller of the car he was informed that would not be possible. Mr Ghazaryan told me he had been present when the purchaser arrived and that the situation became heated. He said he had his hand under his sweater during the interaction and that the purchaser later informed police he had a firearm. Mr Ghazaryan denied that was the case and said he intended to take the matter to trial. He was in custody on remand for 22 months when an agreement was reached that he would plead to the alternative charge of robbery while armed with a dangerous weapon. He said he was advised to do so by his legal practitioner on the understanding his sentence would be backdated. That proved to be the case and he was released from custody two months later.
[28] Report, p.4.
Mr Griffin submitted that although Mr Ghazaryan admitted, through his plea of guilty, that he used, in fact brandished, a weapon in the commission of the armed robbery, it does not follow that his later statement to a psychologist that he did not have a weapon was necessarily untrue. I do not accept that. In my view, it is clear that Mr Ghazaryan was attempting to minimise the seriousness of his criminal conduct to Mr Fugler. There was ample evidence of his use of a weapon provided by the victim and his companion.
Mr Ghazaryan’s statement to Mr Fugler about the 2013 offending amply justifies the Judge’s comment that what Mr Ghazaryan told Mr Fugler about his past offending had been proved to be untrue.
There is no reason to think that the Judge was misled by prosecuting counsel’s error about the 2009 and 2011 offending. It is much more likely that his Honour was referring to Mr Ghazaryan’s denial that he had a weapon in 2013, when he made the comment about his past offending.
One further matter is that Mr Ghazaryan told Mr Fugler in relation to the present offending that he had obtained the pistol for self-defence because of his fear of retribution from people to whom he owed gambling debts. He had asked Mr Amirie, the driver of the car in which he was travelling when they were stopped by the police, to return the pistol to the person who lent it to him. He thought that had been done. He did not know it was still in the car when it was stopped by the police.[29]
[29] Report, p.3.
That statement was clearly untrue, and inconsistent with Mr Ghazaryan’s plea of guilty to the charge of possession.
This is an aspect of Mr Ghazaryan’s offending before the court which also justifies the comment of the Judge that Mr Ghazaryan’s answers to Mr Fugler were untrue and indicated an inability to acknowledge the seriousness of his criminal conduct and to accept full responsibility for it.
Association with an outlaw motorcycle gang
In the New South Wales District Court in 2013, Judge Sides said:
At the time of the offence the Offender was an associate member of the Notorious motorcycle gang. During submissions the Offender’s counsel contended that the Offender became involved in the offence out of fear of his co-offenders. [30]
…
The Court is satisfied beyond a reasonable doubt that the motive for his involvement was a desire to progress beyond being an associate member of the Notorious.[31]
…
The Offender claims to have severed links with his co-offenders and the Notorious. He has support in the community and is committed to helping his father. In the Court’s view his prospects of rehabilitation and not re-offending are reasonable to good.[32]
[30] Sentencing Remarks of Judge Sides, Parramatta District Court, 15/5/13, p.7.
[31] Ibid, p.9.
[32] Ibid.
Whether or not Mr Ghazaryan severed his ties, whatever they were, with the Notorious motorcycle gang, the evidence in this case establishes that he had re-established an association with what is now known as the Nomads outlaw motorcycle gang.
It was an agreed fact before the Judge that the driver of the vehicle in which Mr Ghazaryan was travelling was Omid Amirie. The driver of the other vehicle in the convoy was Tarek Mansour, and the passenger was Sleiman (Simon) Tajjour.[33]
[33] Statement of Agreed Facts, No. 3.
There was no dispute before the Judge that Messrs Amirie, Mansour and Tajjour were all members of the Nomads. They were previously members of the Notorious. Mr Griffin acknowledged[34] that these men were old friends of Mr Ghazaryan, particularly Mr Tajjour. Mr Tajjour’s brother, Moudie Tajjour, was Mr Ghazaryan’s co‑offender in the 2013 armed robbery. One of the stated reasons for Simon Tajjour coming to Adelaide was to see Moudie, who was in gaol here.
[34] Written Submissions, [26].
Mr Griffin submitted that it was friendship, not gang association, which put Mr Ghazaryan in the situation he was in. In my view, that is a distinction without significance.
As to whether Mr Ghazaryan was a member of the Nomads or not, the Judge concluded:[35]
Contrary to your submissions to Judge Sides, you do not appear to have severed your ties with members or associates of bikie gangs, as the evidence produced by the police reveals, although I cannot be satisfied on the evidence that you have rejoined the bikie gang as a member or even as a nominee.
In my view, your continued association and support of members of outlaw motorcycle gangs reflects adversely upon your prospects of rehabilitation.
In the absence of any evidence from you, which could have been tested for its veracity, I reject your assertion that you were simply travelling to Adelaide for a holiday or that you possessed the pistol solely for protection. I am satisfied that you travelled to Adelaide for activities associated with the gang members you were travelling with or, at the very least, to provide support to them whilst they conducted their activities in South Australia.
The conversations recorded on the vehicle's dash cam unit reveal that you were willing to assist in arranging a prison meeting between your friend and two prisoners, possibly in order for your friend to recruit associates for his gang.
Whatever might have been your reason for being in possession of the pistol in New South Wales, I am satisfied that you did not need it for protection in South Australia and that was not the reason you kept it in the car on the journey here.
I am satisfied beyond a reasonable doubt that you were in possession of the loaded pistol for an unlawful or illegal purpose, although exactly what that was is unknown to the court. Issues of general and, in particular, your own personal deterrence, are, therefore, important sentencing considerations.
[35] Sentencing Remarks, p.5.
The conclusion that Mr Ghazaryan had possession of the pistol for an unlawful or illegal purpose was not challenged on appeal.[36]
[36] T 17.
In R v Cekic, Vanstone J, with whom Kelly J and David AJ agreed, observed:[37]
Identification with, and loyalty to, a violent criminal organisation is highly relevant to the fixing of an appropriate sentence, because it affects considerations of culpability, general and specific deterrence, punishment and rehabilitation. Indeed, the Judge in sentencing remarked:
Of course it is important to deter offences of serious violence by whomsoever they are committed. However in sentencing for offences of serious violence committed by offenders who are associated with outlaw gangs the element of general deterrence assumes greater relative importance because it is necessary to counter the violent culture of those gangs.
With respect, I agree with the Judge’s statement. Cekic’s membership of, and identification with, the Finks motorcycle gang speaks to his character, and more specifically to the likelihood of his reoffending and the prospects of his rehabilitation.
[37] [2016] SASCFC 26 at [30].
The Judge made it clear during submissions that he did not accept Mr Ghazaryan’s assertions that he was in Adelaide on a ‘holiday’, and that he had the pistol for self-defence. He also made it clear that he did not accept that Mr Ghazaryan did not know why Simon Tajjour instructed him to see the prisoner. In fact, his Honour said he did not accept ‘a single thing’ that Mr Ghazaryan had told Mr Fugler about the circumstances of the offence.[38] He invited Mr Ghazaryan’s then counsel to call evidence about those matters.
[38] AB 101.
On 15 August 2016, Mr Ghazaryan’s counsel announced to the court:[39]
Your Honour, after the last occasion I took instructions from my client. He declines to give evidence in respect to this matter and obviously certain things will flow from that and he’s fully aware of that.
[39] AB 105.
In light of that, the Judge was entitled to form a view of the facts which was based upon the available evidence and his judgment of the inherent plausibility or otherwise of counsel’s earlier submissions.[40] The view which his Honour took, as elucidated in the passage quoted at [59] above, was appropriate, moderate and fair to Mr Ghazaryan.
[40] See R v Nemer (2003) 87 SASR 168 at [105]-[107] per Vanstone J and R v Perre (1986) 41 SASR 105, at 105-6 per King CJ.
Conclusion
The policy of the legislation, the facts that this was an aggravated offence and that Mr Ghazaryan is a serious firearms offender, the fact that Mr Ghazaryan had a relatively recent conviction for an offence of violence involving a handgun, and the Judge’s finding that Mr Ghazaryan was in possession of a loaded pistol for an illegal purpose, put his offending in the high range of seriousness. The finding that there were significant factors which told against Mr Ghazaryan’s prospects for rehabilitation was justified on the evidence.
None of the factors raised on appeal demonstrate that the sentence was manifestly excessive.
I would dismiss the appeal.