R v Ghazaryan

Case [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

  1. 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.

  2. VANSTONE J:  I would dismiss the appeal.  I agree with the reasons Chivell AJ has written.

  3. CHIVELL AJ:           This is an appeal against sentence.

  4. On 14 January 2016,…

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AGLC
R v Ghazaryan [2016] SASCFC 140
Case
[2016] SASCFC 140
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Ghazaryan against his sentence. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Vanstone J, and Chivell AJ. The dispute arose from Mr Ghazaryan's conviction for an offence involving the possession of a firearm without an appropriate licence, which was aggravated by the fact that the pistol was loaded.

The central legal issue before the court was whether the sentence imposed on Mr Ghazaryan was manifestly excessive. This required the court to consider the sentencing principles applicable to serious firearms offences, particularly the paramount importance of general and personal deterrence, as mandated by section 10(2)(e) of the Criminal Law (Sentencing) Act 1988. The court also had to assess whether the sentencing judge had correctly applied these principles, taking into account the aggravated nature of the offence and Mr Ghazaryan's status as a serious firearms offender with a prior conviction for a violent offence involving a handgun.

The court reasoned that the legislative framework, including provisions defining serious firearms offences and offenders, clearly indicated Parliament's strong stance against such conduct. Section 10(2)(e) of the Criminal Law (Sentencing) Act 1988 requires that, for offences involving firearms, paramount consideration be given to general and personal deterrence. Furthermore, where imprisonment is a possible penalty, it must be imposed and cannot be suspended unless exceptional circumstances, outweighing the need for deterrence, are proven by evidence on oath. As no such evidence was presented by Mr Ghazaryan, the sentencing judge was obliged to impose an immediate custodial sentence, with personal circumstances necessarily carrying less weight than in other types of offences. The court found that the sentencing judge had correctly applied these principles, noting the aggravated nature of the offence, Mr Ghazaryan's prior conviction, and the judge's finding that the loaded pistol was possessed for an illegal purpose. These factors placed the offending in the high range of seriousness.

The Full Court concluded that the sentencing judge's findings were appropriate, moderate, and fair, and that the factors raised on appeal did not demonstrate that the sentence was manifestly excessive. Accordingly, the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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].