R v Hacopian - [2006] SASC 273

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HACOPIAN
[2006] SASC 273
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Sulan and The Honourable Justice David)
1 September 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Application for leave to appeal against sentence - applicant pleaded guilty to taking part in the sale of cannabis, possession of cannabis for sale, two counts of possessing a firearm without a licence and two counts of possessing an unregistered firearm - sentenced to four years, seven months, three weeks and one day of imprisonment with a non-parole period of three years - but for the guilty pleas applicant would have received six years imprisonment - whether the sentencing Judge erred in characterising the offending as occurring against a background of commercial trading in cannabis and drug dealing - whether the sentence was manifestly excessive - application for leave to appeal refused.
R v Manglesdorf (1995) 66 SASR 60; R v Thompson (1975) 11 SASR 217; R v Sladic (2005) 92 SASR 36, considered.

R v HACOPIAN
[2006] SASC 273
Court of Criminal Appeal: Duggan, Sulan and David JJ

DUGGAN J: I would refuse leave to appeal against sentence. I agree with the reasons of Sulan J.
SULAN J: The applicant seeks leave to appeal against sentence. The applicant had pleaded guilty to taking part in the sale of cannabis on 18 October 2005. He also pleaded guilty to possession of cannabis for sale, two counts of possessing a firearm without a licence, and two counts of possessing an unregistered firearm, all committed on 10 November 2005.
The sentencing Judge passed one sentence of four years, seven months, three weeks and one day of imprisonment, and imposed a non- parole period of three years. At the time of sentence, the applicant had an unserved period of parole of one day to serve, which accounted for the imprisonment of a day over and above the sentence of four years, seven months and three weeks. The Judge indicated that, had it not been for the plea of guilty, he would have imposed a sentence of six years imprisonment.
Background to the offences
The events surrounding the offences were that on 18 October 2005, the applicant attended at the Greenwith post office and deposited a package which contained cannabis, to be posted to a Sydney address. When police seized the package, they found it contained four plastic tubes, each containing two plastic bags of cannabis, weighing either 461 or 462 grams. The overall weight was 3.69 kilograms. It is clear that the cannabis had been wrapped ready for sale in approximately one pound lots. One pound lots of cannabis head are valued at between $2200 and $3500.
Subsequent to the seizure, the applicant attended at the post office to inquire about the parcel, as it had not been received in Sydney. He…

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 Hacopian

Details

AGLC: R v Hacopian [2006] SASC 273
Case: [2006] SASC 273
Decision Date: 1 September 2006

CaseChat Overview and Summary

The case of R v Hacopian involves an appeal against sentence where the applicant, Hacopian, pleaded guilty to multiple charges, including taking part in the sale of cannabis, possession of cannabis for sale, and possession of firearms without a licence. The applicant was sentenced to four years, seven months, three weeks, and one day of imprisonment with a non-parole period of three years. The primary legal issue before the court was whether the sentencing Judge erred in characterising the offending as occurring against a background of commercial trading in cannabis and drug dealing. Additionally, the court needed to determine whether the sentence was manifestly excessive.

The court considered the arguments presented by Hacopian's counsel, who submitted that the cannabis found was not part of an ongoing commercial operation but rather two discrete offences, and that Hacopian was motivated by the need to pay for car repairs. The court examined the evidence, which included the seizure of a significant quantity of cannabis and firearms, and the circumstances surrounding Hacopian's involvement in drug dealing and illegal firearm possession. The court found that the sentencing Judge was correct in characterising the offending as commercial and that the sentence imposed was not manifestly excessive.

Based on the evidence and the submissions, the court refused the application for leave to appeal against the sentence. The reasoning centred on the seriousness of the offences, the quantity of drugs involved, and the presence of firearms, which justified the sentence imposed. The court concluded that the sentence was proportionate to the gravity of the offences and the need to deter similar criminal activities.

Orders

Orders of the court

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Background

Background to the litigation

The sentencing Judge passed one sentence of four years, seven months, three weeks and one day of imprisonment, and imposed a non- parole period of three years. At the time of sentence, the applicant had an unserved period of parole of one day to serve, which accounted for the imprisonment of a day over and above the sentence of four years, seven months and three weeks. The Judge indicated that, had it not been for the plea of guilty, he would have imposed a sentence of six years imprisonment. Background to the offences The events surrounding the offences were that on 18 October 2005, the applicant attended at the Greenwith post office and deposited a package which contained cannabis, to be posted to a Sydney address. When police seized the package, they found it contained four plastic tubes, each containing two plastic bags of cannabis, weighing either 461 or 462 grams. The overall weight was 3.69 kilograms. It is clear that the cannabis had been wrapped ready for sale in approximately one pound lots. One pound lots of cannabis head are valued at between $2200 and $3500. Subsequent to the seizure, the applicant attended at the post office to inquire about the parcel, as it had not been received in Sydney. He lodged a complaint about the lost parcel. On 10 November 2005, police attended at the applicant’s home. In the lounge room they found packages containing four cylinders each with two plastic bags of cannabis weighing about 490 grams. The packages were wrapped in a similar way to those that had been seized earlier at the post office. The police also seized a small block of cannabis resin. In the kitchen they found five plastic bags, each containing cannabis. Two contained 470 grams, the others contained 330 grams, 84 grams and 27 grams respectively. Police also seized a sawn-off shotgun and a .22 handgun, which was located in the dining room and main bedroom. There was a quantity of ammunition for the firearms found in the kitchen. The applicant chose not to answer questions about the cannabis. When asked about the firearms, he said that they had been purchased on the black market. He did not know the history of them, and refused to answer any further questions about the identity of the person from whom he purchased them. Submissions prior to sentencing In his submissions on sentence, counsel for the applicant informed the sentencing Judge that the cannabis found at the applicant’s premises was to be forwarded by the same process. It was put to the sentencing Judge that this was not a case where there were instances of possession of the cannabis against a background of ongoing commercial involvement. Counsel submitted that there was no evidence before the court of any activity in relation to cannabis and any commercial involvement in cannabis, apart from the attendance at the Greenwith post office and the material found at the applicant’s unit which was packaged and intended to be sent. It was submitted that there were two discrete offences, and he should be sentenced on that basis. It was put to the sentencing Judge that the applicant had engaged in this conduct to obtain a small amount of money in order to pay to have his motorcar repaired, it having been damaged in an accident when driven by his girlfriend.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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