R v Kirikian - [2002] NSWCCA 422

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Kirikian [2002] NSWCCA 422

FILE NUMBER(S):
60129/02

HEARING DATE(S): 9 October 2002

JUDGMENT DATE: 15/10/2002

PARTIES:
Regina
Zare Antin Kirikian

JUDGMENT OF: Sperling J Buddin J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/1051

LOWER COURT JUDICIAL OFFICER: Patten DCJ

COUNSEL:
Mr P Ingram for the Crown
Ms B Green (Solicitor) for the Applicant

SOLICITORS:
Mr SE O'Connor for the Director of Public Prosecutions
Hermann & Green Solicitors for the Applicants

CATCHWORDS:
Criminal Law
application for leave to appeal against sentence
no question of principle

LEGISLATION CITED:
Criminal Appeal Act 1912, s6
Drugs Misuse and Trafficking Act 1985, s25

DECISION:
Leave to appeal granted
Appeal dismissed.

JUDGMENT:

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IN THE COURT OF
CRIMINAL APPEAL

60129/02
Sperling J
Buddin J
Tuesday, 15 October 2002

R v Kirikian

Judgment

Sperling J: The applicant Zare Antin Kirikian was charged with two offences, being, in each instance, knowingly taking part in the supply of a commercial quantity of a prohibited drug, heroin, contrary to s25(2) of the Drugs Misuse and Trafficking Act 1985. The maximum penalty for the offence is 20 years’ imprisonment and/or a fine of $385,000.

The offences were committed respectively on 15 October and 18 November 2000.
The applicant pleaded guilty to the charges at the Local Court.
The applicant was sentenced by Patten DCJ to a term of imprisonment of six years for the first offence with a non-parole period of three years. The sentence was dated from 14 December 2000, being the date of the applicant’s arrest and the date from which the applicant had been in custody in relation to the present matters.
The same sentence was imposed for the second offence, to be served concurrently with the first sentence.
The applicant seeks leave to appeal in relation to those sentences.
The facts of the case are not in dispute. They are recorded in detail in the remarks on sentence. There were two distinct transactions for the sale of heroin. These involved the prisoner and five co-offenders. The applicant’s role was that of a broker. He obtained access to the drugs for the purchasers, and he played an active role in negotiating the transactions and arranging for payment and delivery. The co-offender Sukkar was on the purchasing side of one of the transactions. The co-offender Nguyen was on the supply side in relation to both transactions.
Each of the transactions was for the sale of two blocks of heroin. The applicant was to receive a commission of $2,000 per block in relation to the first transaction. The amount of his remuneration in relation to the second transaction is not known with any certainty.
In relation to the first transaction, payment had been made and the heroin had been delivered when the police intervened. The drugs were seized. That led to the second transaction. In relation to that transaction, a down payment had been made and the heroin was about to be delivered when the police again intervened.
In total, the four blocks of heroin had a nett weight of 1.4 kilograms, with a street value estimated at $1.4m.
The sentencing judge found that the applicant was actively and extensively involved in the supply of the drug on each of the two occasions. That evidence was amply justified by the detailed facts relating to the transactions. The applicant’s role involved him in interstate travel, numerous telephone and personal contacts, and extensive negotiations which included initiative and deception on his part.
Concerning subjective considerations relating to the applicant, the sentencing judge noted that the applicant was born on 1 May 1956. He was, accordingly, 44 years of age at the time of the offences. His criminal antecedents included, among relatively minor offences, a conviction for supplying a prohibited drug, cannabis leaf, for which he received a sentence of imprisonment for four years with a minimum term of two years.
A pre-sentence report and a psychiatric report were in evidence. These revealed that the applicant had a troubled childhood with an abusive and violent father, that he commenced to use alcohol to excess when he was as young as ten years of age and subsequently became a user of illegal substances in significant quantities. At the time of his arrest, he was a daily user of cocaine and was also consuming a very large quantity of alcohol. Currently, he had features suggestive of a significant clinical depression as well as some enduring post-traumatic symptoms. He was on anti-depressant medication.
According to the psychiatrist, Dr Samuels, the applicant seemed very motivated to use his period in gaol to turn his life around, to be substance free and to be a role model for his family.
The pre-sentence report recorded a display of remorse and contrition by the applicant. It was recorded that the applicant truly regretted his behaviour and was very emotional when talking about that, stating that he was now trying to make up for his mistakes and pay his debt to society.
The sentencing judge said that he did not regard the applicant’s previous drug and alcohol abuse as providing any mitigating circumstances, particularly in the light of the prior drug offence for which the applicant had served a prison sentence. He recorded that the applicant was entitled to the benefit of his early plea of guilty.
The sentencing judge found that the plea of guilty and other evidence, including his own sworn testimony and the evidence of the prison chaplain suggested that he was truly remorseful and determined to re-order his life, having returned for support to the religious beliefs of his youth. The applicant had assisted the authorities, undertaking to give evidence against his co-offenders. The extent of assistance warranted a discount of one third of the head sentence otherwise appropriate, taking into account the probability, as the sentencing judge found, that the applicant would have to serve his sentence in protection and that there was a possibility of danger to himself and his family in the long term.
The applicant was entitled to a 25 per cent discount or thereabouts for the utilitarian value of having pleaded guilty to the offences charged at the earliest opportunity. The applicant had given himself up voluntarily, had made full admissions immediately and had provided assistance to the authorities. Having recorded that the applicant was entitled to “the benefit of his early plea of guilty”, his Honour went on to say that, but for assistance to the authorities, he would have regarded the applicant's high degree of criminality “as calling for a head sentence of the order of nine years imprisonment”. It is apparent, therefore, his Honour took something in the order of 12 years’ imprisonment as his starting point in the sentencing process. That was for the totality of the two offences, in view of the fact that the sentencing judge then proceeded to make the two sentences identical and concurrent.
Special circumstances were found to justify an alteration in the provisional statutory formula for fixing the non-parole period. Those specified were the applicant’s genuine intention to overcome his drug and alcohol dependency and the fact that the applicant was likely to be required to serve his sentence in protection.
The sentencing judge did not specify what sentence – presumably a lesser sentence – he would have imposed in relation to each offence if committed in isolation.
The following grounds of appeal were filed with the application for leave to appeal.
The applicant seeks a reduction in the minimum term on the basis that the reduction in the minimum term representing 50% of the total sentence did not reflect sufficient reduction for the following factors:-
1.Contrition evidenced by giving a signed statement to the prosecution and agreeing to give evidence at the trial of co-offenders and the matters raised in the Affidavit of Assistance and his plea of guilty.
2.The fact that because of his assistance he has been in protective custody since August 2000 and is likely to need to remain in protective custody for the balance of his term with all its attendant disadvantages.
3.His efforts at rehabilitation evidenced by his attendance at Drug and Alcohol Rehabilitation and the evidence of Father Walsh as to his current commitment to his religious faith and his commitment to work on his emotional problems (as evidenced in the tendered psychiatric report and the tendered Probation and Parole Report and the oral evidence of his sister at the hearing, such efforts being made more substantial by a personal dependence on drugs and alcohol after a childhood of significant physical and emotional abuse).
4. Parity of Sentencing:-
It is submitted that insufficient weight was given to the sentences of co-offenders SUKKAR and NGUYEN who without rendering assistance to the Crown received lesser minimum terms.
It may be noted that these grounds of appeal were limited to the fixing of a non-parole period at 50 per cent of the sentence. I will refer to these grounds compendiously as ground 4.
At the hearing of the appeal, three new grounds of appeal were added. I will refer to them as grounds 1, 2 and 3.
1.His Honour failed to impose separate discrete sentences for each offence as required by Pearce v The Queen (1998) 194 CLR 610.
2.The trial judge failed to quantify the discount allowed for early pleas of guilty, and (by implication) failed to make sufficient allowance in that regard.
3.The starting point for the sentence of nine years imprisonment was excessive, including reference to the sentences imposed on the applicant's co- offenders Sukkar and Nguyen.
Pursuant to s6(3) of the Criminal Appeal Act 1912, this Court must dismiss an appeal against sentence if it is not satisfied that a different sentence is warranted and should have been passed: Astill (No.2) 1992 64 A Crim R 289; Cocking [1999] NSWCCA 331; Simpson (2001) 53 NSWLR 704. In the last of those cases Spigelman CJ, with whom the other four members of the court agreed, said (at 720-1):
Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: “If it is of the opinion that error has occurred in the sentencing process”. That is not the statutory formulation. By s6(3) this Court must form a positive opinion that “some other sentence … is warranted in law and should have been passed”. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to “quash the sentence and pass such other sentence in substitution therefor” is not satisfied.
Having regard to the objective criminality involved in the two offences and the subjective considerations to which I have referred, were I sentencing the applicant on the materials before his Honour, I would not impose sentences which amounted to an effective total sentence of less than six years with an effective non-parole period of less than three years.
My reasoning would be as follows. A starting point, sufficient to reflect the criminality involved in both offences, would be not less than the 12 years impliedly determined by the sentencing judge as the appropriate starting point. I would allow 25 per cent for the utilitarian value of the pleas of guilty. I would adopt the sentencing judge's reduction of a further one third for assistance to the authorities, that not having been challenged on appeal. I would adopt the sentencing judge's finding concerning special circumstances. I would not impose a non-parole period of less than 50 per cent of the sentence. An aggregate discount of more than 50 per cent for the pleas of guilty and for assistance to the authorities would produce a result which failed to reflect the degree of criminality involved in the objective features of the two offences. The result is an effective sentence for the two offences of not less than six years with an effective non-parole period of not less than three years.
I am fortified in this view by the outcome of the Crown appeal relating to the applicant’s co-accused Mr Nguyen: Nguyen [2002] NSWCCA 183. Mr Nguyen was charged with one offence of supplying not less than the commercial quantity of a prohibited drug. That related to the transaction of 15 October 2000 which gave rise to the first charge against the present applicant. The offence with which Mr Nguyen was charged in that regard carries the same maximum penalty as the offence of knowingly taking part in supply, being the offence with which the present applicant was charged.
In the case of Mr Nguyen, the sentencing judge took into account, on Form 1, the same offence with which the present applicant was charged, arising out of the transaction of 18 November 2000. As was said by the Court of Criminal Appeal in Nguyen, at [56], where an offence is to be taken into account on Form 1, the sentencing judge is required to impose a sentence that appropriately reflects the totality of the criminality of the offender. That is subject only to the maximum penalty for the offence charged.
In the result, Mr Nguyen stood for sentence in relation to offences materially identical with those for which the present applicant has been sentenced.
As to the relative degree of involvement on the part of the two men in relation to the two transactions, Mr Nguyen claimed that he was merely a front man for the true supplier of the heroin, and that he was to receive a quantity of heroin in payment, which was for his personal use as an addict. The sentencing judge said, in Mr Nguyen’s case, that he could not be satisfied that Mr Nguyen was the major player or even the source supplier, although he was a principal in the first degree and a major player. In re-sentencing, the Court of Criminal Appeal adopted that finding. Accordingly, the relative involvement of the present applicant and Mr Nguyen is to be taken as being of a very similar order.
There was a difference in the subjective considerations which arose in the present case compared with those arising in the case of Mr Nguyen. The present applicant made a clean breast of his involvement from the start, giving himself up to the police and co-operating fully with the authorities. By contrast, Mr Nguyen attempted, at first, to minimise his involvement dishonestly. On the other hand, Mr Nguyen had no relevant prior criminal history whereas the present applicant has a criminal history which involves conviction and imprisonment for the supply of a prohibited drug. In balance, the subjective aspect of the sentencing process was not markedly different as between the two cases.
In Nguyen, the Court of Criminal Appeal set aside a sentence of five and a half years with a non-parole period of two and a half years, and substituted a sentence of eight years with a non-parole period of five years.
What is presently relevant is that the court started, in the case of Mr Nguyen, with a head sentence of 11 years. That was a Crown appeal. Conservatively, this implied an appropriate starting point of something in the order of 12 years. Reducing such a head sentence by one third for assistance to the police in the present case and by a further 25 per cent for the early pleas, one arrives at materially the same result as that which in fact occurred in the present case.
This outcome is also consistent with the result in Petrea. He was one of the present applicant’s co-offenders. Latham DCJ found that Mr Petrea’s criminality was equal, in her view, to that of the present applicant, that of Mr Nguyen and that of another co-accused, “in the sense that they each conducted themselves as principals in the distribution of wholesale heroin, purely for commercial gain. They are, to put it another way, links of equal size and strength in the chain of distribution.” Conformably with the determination of the Court of Criminal Appeal in Nguyen, Latham DCJ took a sentence of 12 years imprisonment as a starting point when sentencing Mr Petrea.
In these circumstances, it is immaterial whether there was any error on the part of the sentencing judge in the present case, so far as concerns the process of reasoning which led to the effective sentence of nine years imprisonment. I will, however, briefly traverse grounds 1, 2 and 3.
As to ground 1, the Crown did not concede error on the part of the sentencing judge in not fixing a sentence for each of the two offences viewed in isolation before moving to apply the principle of totality. It was argued the two offences should properly be regarded as part of the same course of conduct and that separate treatment was, on that account, not required pursuant to the decision in Pearce. I disagree with this approach. The sentencing judge should, as asserted by the applicant, have determined a sentence for each offence in isolation. Since, however, I do not disagree with the effective sentence or with the effective non-parole period resulting from his Honour’s approach, the point is academic.
As to ground 2, the trial judge should have specified the discount allowed for the utilitarian value of the pleas of guilty. However, the allowance made is apparent by implication and, once recognised, is uncontroversial.
As to ground 3, the submission that the effective sentence of nine years was manifestly excessive cannot stand with the decision of this Court in Nguyen. So far as parity is concerned, Mr Sukkar received a much less severe sentence, but his role was much less involved than that of the present applicant. As for parity with Mr Nguyen’s sentence, I believe I have demonstrated that the result in the present case is entirely consistent with the sentence imposed on that co-offender on appeal.
As to ground 4, following the decision of this Court in Simpson, the Court will rarely interfere with a finding in relation to special circumstances or with the discretionary exercise of adjusting the provisional statutory relationship of the non-parole period with the sentence. In the present case, there is no basis shown for impugning what was done by the sentencing judge in that regard.
For these reasons, I would grant leave to appeal and dismiss the appeal.
I should take the opportunity of recording the reasons for refusal of an application for adjournment made on behalf of the applicant at the commencement of the hearing of this application for leave to appeal.
The first ground on which an adjournment was sought was that the applicant's solicitor had received the transcript of the sentencing proceedings only last Friday. There was, in the Court's view, no substance in this. The transcript was not long, and the same solicitor had appeared for the applicant on sentence as appeared on the appeal. It was not suggested that anything arose out of a reading of the transcript which needed to be done and had not been done.
The second ground was that the remarks on sentence in relation to the co-offender Sukkar were not yet to hand. This was because the application for the remarks on sentence had inadvertently been made to the wrong authority. The error had been discovered only about one week ago. Mistakes happen. Ordinarily, a litigant will not be required to suffer the consequences. However, in this instance, there was no prejudice to the applicant because it was patently clear from other materials that Mr Sukkar was not a comparable case in relation to parity of sentence .
Thirdly, the outcome of an application by the applicant for legal aid had not been notified to the applicant's solicitor. However, the content of advice by counsel on the merits of the appeal, being an advice given for the purpose of the applicant's application for legal aid, was known to the applicant’s solicitor in August, and was such as to imply that legal aid would be refused. There was, accordingly, no substance in the argument advanced that, if legal aid was refused, the applicant would wish to brief counsel privately. In practical terms, there had been the opportunity to do that. The fact that it had not been done spoke for itself.

Lastly, it was said that further evidence in relation to assistance to the authorities was likely come to hand at a future date. No evidence was adduced to show the present situation in that regard, as could have been done on a confidential basis. Again, the fact that this was not done went to the prospect that any such evidence would become available at a future time. The Court cannot wait indefinitely for such developments. In any event, the applicant was not unfairly prejudiced. If significant assistance is given to the authorities after sentence, which has not been taken into account on sentence, it is known that the executive government will entertain an application for early release and will grant such an application if warranted.
Those are the reasons for the application for adjournment having been refused.
I propose the following orders:
1. Leave to appeal granted;
2. Appeal dismissed.
Buddin J: I agree with Sperling J.

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LAST UPDATED: 15/10/2002