R v Karagezian; R v Kupelian

[2019] NSWDC 208

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Karagezian; R v Kupelian [2019] NSWDC 208
Hearing dates:	17 May 2019
Date of orders:	07 June 2019
Decision date:	07 June 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	KARAGEZIAN Sentenced to a term of imprisonment of 4 years with a non-parole period of 30 months (2 years and 6 months) commencing on 6 March 2019 and expiring on 5 September 2021, with a balance of term of 1 year and 6 months commencing on 6 September 2021 and expiring on 5 March 2023.  KUPELIAN Sentenced to a term of imprisonment of 4 years and 6 months with a non-parole period of 38 months (3 years and 2 months) commencing on 19 October 2016 and expiring on 18 December 2019, with a balance of term of 1 year and 4 months commencing on 19 December 2019 and expiring on 18 April 2021.
Catchwords:	CRIME — Drug offences — Supply prohibited drug — Commercial quantity SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Co-offenders — Joint sentence proceedings
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999. Drugs Misuse and Trafficking Act
Cases Cited:	Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 Parente v R [2017] NSWCCA 244 R v Dodd (1991) 57 A Crim R 349 R v Wilhelm [2010] NSWSC 378
Category:	Sentence
Parties:	Regina (Crown) Armen Karagezian (Co-offender) Anthony Kupelian (Co-offender)
Representation:	Counsel: Mr Poulos (Crown)  Mr A Djemal (Offender Karagezian) Mr G Stanton (Offender Kupelian)   Solicitors: Solicitor for Director of Prosecutions (Crown) Zahr Partners (Karagezian) Aquila Lawyers (Kupelian)
File Number(s):	2016/00312645; 2016/00312642

Judgment

INTRODUCTION

1. Armen Karagezian and Anthony Kupelian appear for sentence. They have pleaded guilty to one count of attempt to possess for the purpose of supply a commercial quantity of cocaine contrary to s25(2) of the Drugs Misuse and Trafficking Act. They were engaged in a common enterprise. The statutory maximum penalty is 20 years with a Standard Non-Parole period of 10 years.

2. The maximum penalty and the Statutory Non Parole period are important guideposts in the assessment of sentence. A judge should steer by the maximum penalty and the Statutory Non Parole period but not aim for them.

3. The offender Kupelian has asked me to take into account two matters on a Form1, namely possess a prohibited drug (cannabis leaf) and possess a prohibited drug (testosterone).

4. Karagezian was arrested on 19 October 2016 and was released on bail on 20 January 2017. He has remained on bail up to the time of sentencing. He has spent 3 months and 1 day in pre-sentence detention.

5. Kupelian was arrested on 19 October 2016 and has remained in custody since that date.

THE PLEA OF GUILTY

6. The guilty plea and the timing of the plea are to be taken into account on sentence pursuant to s21A(3)(k) and s22 of the Crimes (Sentencing Procedure) Act 1999.

7. The guilty plea was indicated and entered at an early stage in the Local Court. The crown in its submissions conceded that the pleas were entered at the earliest reasonable opportunity and accordingly the full 25% discount is applicable.

8. The respective sentences that I will announce in these reasons for judgment will have been discount by 25%.

AGREED FACTS

9. There is an agreed facts document at tab 1 of exhibit 1 (the crown sentence summary Karagezian) and tab 1 of exhibit 2 (the crown sentence summary Kupelian). The documents are identical. The facts are lengthy and occupy 44 paragraphs. I intend to summarise the agreed facts.

10. On Sunday 16 October, 2016 a DHL consignment arrived in Australia from Los Angeles, USA. The consignment was to be delivered to Leader Auto Spares located at 4/52 Buffalo Road, Gladesville on Monday 17 October, 2016.

11. The consignment was seized by Department of Immigration and Border Protection officers on 17 October 2016. A welded metal box inside the air conditioning unit was identified. Located in the metal box was 2.955 kilograms of cocaine. The cocaine was removed from the assignment and replaced with a metal weight of similar mass.

12. The estimated wholesale value of the 2.955 kilograms of cocaine was between $546,670 and $709,200.

13. There is no evidence that either accused was aware that the weight of the prohibited drug was equal to or in excess of the large commercial quantity of that drug.

Monday 17 October 2016

14. Police observed both offenders in the vicinity of Leader Auto Spares, Gladesville. Karagezian was seated in a motor vehicle parked in a loading zone near 56 Buffalo Road. Kupelian was observed standing at the front fence of 54 Buffalo Road looking up and down the street. His vehicle was parked in the driveway of 52 Buffalo Road.

15. Kupelain entered his vehicle and drove 200 hundred metres west of 52 Buffalo Road. Karagezian did the same. They were observed seated in Karagezian’s vehicle. They then drove their respective vehicles and parked in the loading zone outside 56 Buffalo Road.

16. There were numerous other sightings of the offenders in the area and sitting together in a motor vehicle.

17. There were two customer service calls to DHL by an unidentified male inquiring about the consignment. The caller was advised that the consignment had not passed through customs and would be delivered the following day.

Tuesday 18 October 2016

18. The offenders were observed seated in a motor vehicle on Buffalo Road. They were observed to drive their respective vehicles away from Buffalo Road.

19. At about 12.15pm, the consignment was delivered by an undercover police officer. The manager accepted the package but did not know anything about it or its contents believing that it had been delivered by mistake. Karagezian was observed to exit his vehicle and walk down the driveway of 52 Buffalo Road which leads to Leader Auto Spare. He was observed speaking to the manager.

20. About 5.30pm all employees left the premises. Police observed the consignment to be unopened and locked in the office area of the business.

Wednesday 19 October 2016

21. Karagezian reversed a Hyundai i-load into the driveway of 52 Buffalo Road. He collected the parcel and told the manager that it had been delivered by mistake. He drove and parked behind a vehicle which had Kupelian in the front passenger seat. They exchanged vehicles and drove to Fig Tree Lane and parked. They exited their vehicles walked down the street and then returned to their respective vehicles.

22. They exited their vehicles and walked up and down the street together. Karagezian was using his mobile phone. They then travelled to Artarmon leaving the vehicle with the package. Kupelian returned and removed the package and placed it into his vehicle and drove to a car park in North Ryde. Later on Karagezian met up with him and was seen to look at the package. They left in their respective vehicles and drove in convoy to 54 Pittwater Road, Gladesville where Kupelian resided in a granny flat at the rear of this address.

23. Kupelian placed a tarpaulin over the package which remained in the rear tray of the vehicle. They left and at a later point returned to the address. Kupelian and Karagezian removed the package and carried it into the granny flat.

24. At 5.33pm police observed a motor vehicle enter the driveway of 54 Pittwater Road, Gladesville. The driver was observed towards the rear granny flat and out of sight.

25. At 5.50pm police forced entry into the granny flat.

26. At 5.54pm police intercepted a call between Karagezian and Hovannes Misislian. Misislian indicated that the police had just come to Anthony’s house. Misislian asked Karagezian, “shall I go down”, Karagezian replied, “No, don’t go near him, pass by my house”.

Search warrant - 54 Pittwater Road, Gladesville

27. Police located the package placed in a pile of rubbish in the driveway. The air conditioner had been removed from the cardboard box and there were signs it had been tampered with.

28. Police located a radio frequency detector at the premises stored in a grey carry-case. The device is marketed as a counter surveillance device to detect and locate signals from cellular and mobile devices. Fingerprints of Karagezian were located on the grey carry-case.

29. Kupelian declined to answer any question in relation to the offence, but admitted the prohibited drugs found during the search warrant were his.

Form 1

30. Police located 15 grams of cannabis in a kitchen cabinet and 6 vials of testosterone in a drawer in his bedroom.

Search warrant - 23 Ivanhoe Place, Macquarie Park

31. Karagezian at the request of police, returned to his address and was arrested. He declined to participate in an interview.

OBJECTIVE SERIOUSNESS

Quantity

32. The commercial quantity of cocaine is 250 grams. The crown accepts that “there is no evidence that either accused was aware that the weight of the prohibited drug was equal to or in excess of the large commercial quantity of that drug”. By the plea I can be satisfied that both offenders were aware that the weight of the prohibited drug exceeded 250 grams, but I cannot say beyond reasonable doubt anything more than that.

33. It was submitted on behalf of the offenders that the known weight of the drug as opposed to the actual weight of the drug (2.955 Kilograms) is at the low end of the scale for commercial quantity. I accept that proposition. It follows that the offenders had no idea as to the purity of the drug.

Motivation

34. The offender Karagezian was motivated to assist a friend even though he knew his conduct was illegal. The offender Kupelian admitted to Patrick Sheehan, psychologist (report 8 December 2018 at [22], exhibit DKU1) that he was offered “a few grand” to take possession and delivery of the goods in question

Role Played

35. They were collectors and maintained custody for a short period of time of a package that they knew contained cocaine.

36. There is no evidence that the offenders were involved in organizing the air conditioning unit containing the cocaine to be imported or delivered to “Leader Auto Spares” at Gladesville.

37. There is no evidence that the offenders had any connections to the listed consignor of the air conditioning unit, nor is there evidence the either offender was the person that made the calls to DHL on 17 October enquiring about the consignment.

38. There is no connection to the offenders with the email address of [email protected] given by one of the callers.

39. It is submitted by counsel for Karagezian that the lack of knowledge by the offenders of the actual weight of the prohibited drug demonstrates that the offenders did not own the drugs, did not finance the drugs or organise the purchase or importation of the drugs. I accept that submission.

40. A search of the offender’s houses did not reveal any items or indicia of drug sales or distribution such as ledgers, scales, bags or cash.

41. When one has regard to the totality of the evidence, the offenders roles in the supply offence are well below the middle of the range and towards the lower end of criminality within the spectrum of offending for like offences.

ARMAN KARAGEZIAN

SUBJECTIVE CIRCUMSTANCES

42. The offender was born on 24 May 1986 and is currently 32 years of age. He is married and his wife recently gave birth to their first child. She is reliant upon him, both financially and emotionally.

43. His mother died from cancer on 10 February 2019. This has had an enormous impact upon him.

44. He operates a café business and kebab business and has done so since 2015. He is attempting to sell the businesses, but to date a buyer has not been found. I have read the affidavit of Hayat Karagezian sworn 15 May 2019 which confirms the unsuccessful attempts on the part of the offender to sell the businesses, which no doubt is causing him great stress as he attempts to put his affairs in order before serving a sentence of imprisonment.

45. He has been on strict bail conditions for approximately 2 years, which included daily reporting and a curfew.

46. He reported to Dr Paul Pusey, psychologist (report dated 10 December 2018), that he became involved in the offence because he “was there with a friend…he asked me to go pick up something with him. I picked it up and put the box in the car. I had a good idea that we were doing something illegal, however when I was arrested, I was shocked that my involvement in this had resulted in my arrest”. This self reporting must be treated with some circumspection in light of the fingerprints on the grey carry case.

47. On 28 February 2014 he was dealt with for drive with low range PCA. That does not disentitle him to leniency.

48. He has a significant history of problem gambling behaviour starting in 2012-2013 which he has been able to effectively manage in the last 18 months with the help of his Pastor.

49. Dr Pusey diagnosed that the offender was suffering from prominent mood and anxiety pathology at the time of his offending since his father’s death in 2011. He has an adjustment disorder with mixed anxiety and depressed mood.

50. Through his business (pizzas) he has been actively involved with local community donations to the Royal North Shore Hospital, The Salvation Foster House and Mowbray Public school to name a few. He has lead a decent and honourable life, working and supporting his family with community engagement up to the time of his offending.

REMORSE

51. The offender has expressed remorse to a number of people. He told his sister that he “is very sorry for his poor choice in judgment…he was apologetic for having put us and our entire family thorough this heartache and was most embarrassed by his action and the impact it had on his family, his relationships, his clean reputation and the community at large”.

PROSPECTS OF REHABILITATION

52. The offender has no relevant prior convictions. He has a supportive wife and sister. His offending was uncharacteristic. He has been an active businessman in the restaurant industry. He reported to Dr Pusey (report dated 9 May 2019) that:

“following the events related to his offending behaviour, that he had significantly altered his thinking regarding his behaviour within his social relationships in addition to the basis under which these were formed. He acknowledged that he now socializes with individuals who share his values and belief systems and who’s circumstances are similar to his own in terms of family structure”.

53. He has excellent prospects of rehabilitation.

STATISTICS

54. JIRS statistics demonstrate that post Muldrock v R, 18 cases have been dealt with for supply with no priors and a plea of guilty. The most occurring aggregate sentence was 6 years (33%) and the most occurring non-parole period was 42 months (33%). Due to the small number of offenders dealt with the statistics are of little assistance in the sentencing exercise.

CONSIDERATION

55. The major sentencing consideration is general deterrence. A consistent message of deterrence is necessary in drug supply cases given that such offences are carried out with some level of covert activity. The protection of the community is also significant in light of the social impact of drug use.

56. The offender Karagezian has a strong subjective case: death of his mother, recent birth of his child, ill health of his wife and his own unresolved issues and the prospective sale of his business to provide for his wife and child when he goes into custody.

57. However, it is important that the subjective circumstances of an offender not overshadow the objective gravity of the crime for which sentence is to be passed: R v Dodd (1991) 57 A Crim R 349 at 354.

EXTRA-CURIAL PUNISHMENT

58. Mr Djemal who appeared for the offender Karagezian submitted that if the offender received an immediate term of imprisonment, he has no choice but to sell his business and use the proceeds to support his family while in custody. It is submitted that this is extra-curial punishment. The submission is misconceived. Extra-curial punishment is punishment that is inflicted upon an offender otherwise than by a court of law: R v Wilhelm [2010] NSWSC 378 per Howie J at [21].

59. The need to sell the businesses, if that occurs, comes about due to the offending. It does not come about as punishment inflicted by someone other than a court. If you embark on a criminal enterprise there are consequences. The consequences in this case do not amount to exceptional hardship.

AVAILABILITY OF A SENTENCE OTHER THAN FULL-TIME CUSTODY

60. I accept that the Clark “principle” that drug trafficking in any substantial degree should lead to a custodial sentence unless there are exceptional circumstances is incompatible with the judicial sentencing discretion and it should no longer be applied: Parente v R [2017] NSWCCA 244 at [101], [108]-[110].

61. However, I have formed the view that the need for general deterrence is a major sentencing factor in this case and that the only appropriate sentence is one of immediate imprisonment.

SPECIAL CIRCUMSTANCES

62. I find special circumstances for the following reasons:

1. This is the first time the offender has received an immediate term of imprisonment.

2. His family circumstances (wife and young child) and the prospective loss of his businesses.

3. He has spent time in custody (3 months and 1 day).

4. The crown properly conceded that special circumstances had been enlivened.

PARITY

63. There should be different sentences passed upon each offender. This was conceded by Mr Stanton who appeared for Kupelian due to his prior history and the Form 1 matters. The Form 1 matters are dwarfed by the criminal history of the offender Kupelian. He appeared on two occasions before the Children’s court on anti-social charges involving violence. More importantly he was dealt with by the District Court on 17 May 2010 and sentenced to a term of imprisonment of 6 years and 5 months with a non-parole period of 3 years for causing grievous bodily harm.

ANTHONY KUPELIAN

SUBJECTIVE CIRCUMSTANCES

64. The offender is 33 years old having being born on 15 June 1985. He reported to Mr Sheehan, a childhood of notable deprivation and hardship. His parents separated when he was a toddler and he initially stayed in the care of his mother. He said that his mother was a heroin addict and was preoccupied with her addiction.

65. Family and Community Services became involved and the offender was made a ward of the state at the age of 6 years. Shortly afterwards his father took over his care. The offender had a hostile relationship with his father’s partner, who he alleged would beat him badly on a regular basis.

66. He left home and lived on the street from the age of 14. He became involved in crime.

67. He reported poor adjustment at school. He was suspended for fighting on several occasions. He commenced high school at Marist Brothers North Sydney but was expelled in Year 9. He was then expelled from Chatswood High School. He then attended Mosman High School where he was successful in completing his year 10 certificate with a passing grade.

68. He has had an inconsistent employment history with the main barrier of employment being his drug use and unstable lifestyle. He has expressed an interest in working in the construction industry which he has worked in previously.

69. He commenced smoking cannabis from 9 years and quickly developed a daily habit that he has maintained throughout his life. From 14 years of age he has used MDMA, cocaine and methylamphtamine. He has been diagnosed as having a Polysubstance Use Disorder (moderate, in sustained remission in a controlled environment). He has also been diagnosed with Antisocial Personality Disorder.

70. He has used non-prescribed anabolic steroids since 2012. He has used those substances until his arrest for the current matters.

71. He said that at the time of the offences he was in a self-destructive frame of mind, struggling to cope with the death of his sister, and abusing substances heavily. He said that antisocial associates offered him “a few grand” to take possession and delivery of the goods in question. He assumed that the enterprise was illegal but did not specifically understand that the package contained nearly three kilograms of cocaine.

64. He has been employed as a sweeper in the prison system. During his time at Lithgow prison he has been a regular church goer (Exhibit DKU2-Reverend Mark Muss, 13 December 2018). I have also taken into account a letter written by the offender to the court (Exhibit DKU3). He expresses remorse for his conduct and engaging Mr Karagezian in the enterprise.

PROSPECTS OF REHABILITATION

73. I am guarded in my assessment of his prospects of rehabilitation due to his substance abuse and previous offending. But there are prospects of rehabilitation which would be assisted by a longer parole period.

SPECIAL CIRCUMSTANCES

74. I find special circumstances due to social deprivation and ongoing substance abuse requiring supervision and re-integration into the community.

ORDERS

KARAGEZIAN

75. You are convicted.

76. You are sentenced to a term of imprisonment of 4 years with a non-parole period of 30 months (2 years and 6 months) commencing on 6 March 2019 and expiring on 5 September 2021, with a balance of term of 1 year and 6 months commencing on 6 September 2021 and expiring on 5 March 2023. The earliest date the offender will be eligible to be released on parole is 5 September 2022.

KUPELIAN

77. You are convicted.

78. You are sentenced to a term of imprisonment 4 years and 6 months with a non-parole period of 38 months (3 years and 2 months) commencing on 19 October 2016 and expiring on 18 December 2019, with a balance of term of 1 year and 4 months commencing on 19 December 2019 and expiring on 18 April 2021. The earliest date the offender will be eligible to be released on parole is 18 December 2019.

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Amendments

11 June 2019 - Correct representation

Decision last updated: 11 June 2019