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 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.
As to the firearms, it was put to the sentencing Judge that the applicant had an ongoing interest in firearms, and that the sawn-off shotgun had been obtained by a friend. It was put to the sentencing Judge that the friend had obtained the firearms in New South Wales and had given them to the applicant.
The applicant’s antecedents
At the time that the applicant was arrested, he had one day of parole to serve in respect of a sentence of four years and three months imprisonment, which had been imposed upon the applicant on 25 September 2001, after he had pleaded guilty to possessing 4.7 kilograms of cannabis for sale, and possessing an unregistered firearm without a licence, and a silencer. That offence occurred in December 2000 when the applicant was apprehended by police, together with another person, in a motor vehicle at Berri in the course of transporting cannabis from Adelaide to Sydney where it was to be sold.
On that occasion, it was accepted that the offence was committed against the background of the applicant having on other occasions purchased cannabis for re-sale and, therefore, in the course of continuing commercial dealing in the drug.
It was submitted that the offending, the subject of this application, should be distinguished from the earlier offending because it was not conceded that it was against the background of commercial trading.
The sentence
The sentencing Judge had regard to the applicant’s personal circumstances, and that he was required to live in South Australia without the support of family or friends after he was released from custody on parole in 2003. The applicant associated with people whom he had met in prison, and others who were involved in drugs, which led to this offending.
The sentencing Judge had referred to the earlier offending in 2001 and said:
You were, on that matter, sentenced as a principal in a commercial drug trading enterprise where profit was expected. The similarity and circumstances of these current matters cannot be overlooked. For that earlier offending, you remained in prison until August 2003 and this current offending occurred just over two years after your release. Here, it must be said, your offending has been of a similar kind: it has involved similar and commercial quantities of cannabis; it can be inferred that the package found by the police at your premises was intended to be posted interstate at some stage; scales and other paraphernalia relating to cultivation and sale were found at your premises; and you intended to send the cannabis to Sydney, receive payment of $500 per pound and use those payments, it was put, to repair your vehicle, so there was a clear commercial motivation.
Although in your guilty pleas you admitted the commission of the firearms offences, the reasons put as to why you possessed those weapons were fanciful, and I reject them. You claimed you had them because you had a general interest in firearms and used, at one time, to participate in recreational shooting with friends. That is at a time when you were younger, but you did not have a licence to hold those firearms, nor are they the types of firearms used for recreational shooting, in any case. They were secreted in your house in circumstances which make it abundantly clear that they were associated with your trading activities. Your possession of them only strengthens the argument that they were part of a course of conduct associated with drug dealing.
For all those reasons, I am satisfied that your offending here has occurred against a background of commercial trading in cannabis.[1]
[1] R v Vahe Hacopian, Sentencing Remarks, 14 June 2006, at 2-3.
The sentencing Judge concluded that the offending was most serious. He said:
… It involves substantial quantities of cannabis and it was committed against a commercial background of drug dealing.[2]
[2] R v Vahe Hacopian¸ Sentencing Remarks, 14 June 2006, at 6.
Application for leave to appeal against sentence
On 31 July 2006, a Judge of this Court refused leave to appeal. The applicant now seeks leave from this Court.
The applicant relies upon two grounds. The first ground is that the sentencing Judge erred in characterising the offending as occurring against a background of commercial trading in cannabis, and that it was committed against a commercial background of drug dealing. Secondly, he complains that the sentence was manifestly excessive.
This Court has previously stated that possession of drugs for commercial purposes is a serious offence, and that in sentencing persons for dealing in drugs, general deterrence is a primary consideration: see R v Thompson,[3] R v Sladic.[4]
[3] (1975) 11 SASR 217.
[4] (2005) 92 SASR 36, 43.
Counsel submitted that there was insufficient evidence upon which the sentencing Judge could have reached the conclusion that the offending was committed against a commercial background of drug dealing. He complained that the sentencing Judge incorrectly had regard to the previous offending in 2001 to support his conclusion. Counsel submitted that, on the previous occasion, the applicant had admitted that the offence was a representative offence of a course of conduct whereas, on this occasion, there was no such admission. He contended that it was impermissible for the sentencing Judge to have used the circumstances of previous offending as supporting his conclusions that this offending was committed against a background of drug dealing.
Counsel referred to R v Manglesdorf,[5] in which the Court, in fixing a sentence for a respondent who had pleaded guilty to the possession of cannabis for the purpose of sale, did so in circumstances in which the Court concluded that the offender in that case was about to embark upon a substantial criminal enterprise of dealing in cannabis in which there were clear commercial overtones.
[5] (1995) 66 SASR 60.
Counsel submitted that, in this case, the offending should be treated as two discrete offences. Counsel complained that the sentencing Judge characterised the offending as similar to the offending on the previous occasion. He submitted that, on the prior occasion, the applicant had admitted that the offending was an instance of his involvement in an ongoing commercial enterprise.
Counsel contended that if the offending was treated as two discrete offences, albeit with a commercial purpose, then the overall sentence passed was manifestly excessive.
Offending wrongly characterised
I cannot agree that the sentencing Judge was incorrect in concluding that the offending was committed against a background of drug dealing and commercial trading in the cannabis trade. The circumstances surrounding the offences support such a conclusion. Not only was the packaging of the cannabis sufficient to conclude that this was a commercial enterprise, but the fact that there were two occasions some months apart when packages were located that had been in the possession of the applicant, wrapped for transportation interstate, suggests, without further evidence, that this was an ongoing commercial activity. However, in addition, there was cannabis found in the kitchen in separate plastics bags, which suggests that at least some of it was for sale. The possession of the firearms supports the conclusion that the two offences were not just isolated instances of possession of cannabis, but that there was an ongoing commercial enterprise which required the possession of firearms in order to protect cash or drugs that may have been at the premises from time to time. It is naïve to conclude that the possession of a sawn-off shotgun and a pistol was other than for the purpose of protection of the applicant, who was part of an ongoing enterprise of selling drugs. There was abundant evidence, without having regard to the previous offending, to support the conclusions arrived at by the sentencing Judge. It is unnecessary to determine whether the sentencing Judge fell into error in having regard to the circumstances of the previous offending in December 2000.
In my view, it would defy both logic and commonsense to treat these offences as two independent, unconnected offences, not being part of an ongoing commercial enterprise.
It is not arguable that the learned sentencing Judge erred in characterising the applicant’s offending as he did.
Was the sentence manifestly excessive?
As to the ground that the sentence in all the circumstances was manifestly excessive, that ground is not arguable. These offences were serious offences. The applicant had been convicted of similar offences and was on parole for those offences at the time that these offences were committed.
A starting point of six years imprisonment is not manifestly excessive. The reduction of the sentence, having regard to the applicant’s pleas of guilty, was appropriate. The non-parole period was well within the acceptable period in the circumstances.
I would refuse leave to appeal.
DAVID J: I agree with the reasons given by Sulan J and the orders he proposes.