R v Markarian

[2005] NSWCCA 264

CITATION:	R v Markarian [2005] NSWCCA 264
HEARING DATE(S):	22/7/05
JUDGMENT DATE:	3 August 2005
JUDGMENT OF:	Brownie AJA at 1; Buddin J at 9; Latham J at 10
DECISION:	Appeal Dismissed

CATCHWORDS:	Sentence. No question of principle.
PARTIES:	Regina Anthony Vasken Markarian
FILE NUMBER(S):	CCA 2002/2516
COUNSEL:	Crown: JA Girdham Respondent: A Haesler and R W Burgess
SOLICITORS:	Crown: S Kavanagh (Solicitor for Public Prosecutions) Respondent: S O'Connor (Legal Aid Commission)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/0259
LOWER COURT JUDICIAL OFFICER:	Hosking DCJ

2002/2516

BROWNIE AJA
BUDDIN J
LATHAM J

Wednesday 3 August 2005

REGINA v Anthony MARKARIAN

Judgment

1 BROWNIE AJA: On 22 July 2005 the Court dismissed the Crown’s appeal against sentence, saying that it would give reasons for the decision later. These are those reasons.

2 On 3 May 2002 the respondent pleaded guilty to a charge that, between 18 April 2000 and 20 October 2000, he knowingly took part in the supply of a commercial quantity of a prohibited drug, namely 415 grams of heroin. The maximum penalty for this offence was imprisonment for twenty years, or a fine of $385,000, or both. He asked for four further offences to be taken into account on a Form 1: in short, supplying more than 5 grams of heroin between 24 September 2001 and 1 October 2001, supplying 232.5 grams of cannabis leaf on 29 September 2001, possessing 1.31 grams of heroin, and possessing $160 that had been unlawfully obtained, on 2 October 2001.

3 On 18 July 2002 Hosking DCJ imposed a sentence of two years and six months imprisonment, commencing on that day and expiring on 17 January 2005, with a non-parole period of fifteen months, expiring on 17 October 2003. The Crown appealed to this Court, contending that the sentence was manifestly inadequate. On 7 February 2003 the Court delivered judgment, allowing the appeal, quashing the sentence that had been imposed, and imposing instead a sentence of eight years imprisonment, to expire on 17 July 2010, with a non-parole period of four years and six months, expiring on 17 January 2007: [2003] NSWCCA 8, 137 A Crim R 497. On 2 November 2003, the High Court of Australia granted special leave to appeal, and on 18 May 2005, that Court allowed the appeal, set aside the sentence and orders made by this Court, and remitted the matter to this Court to dispose of the appeal to it in accordance with the reasons for judgment of the High Court: [2005] HCA 25. The respondent was in fact released from prison on 27 May 2005, the sentence imposed by Hosking DCJ having expired on 17 January 2005, and the sentence imposed by this Court having been quashed.

4 The central facts are set out in the reasons for judgment of Gleeson CJ, Gummow, Hayne and Callinan JJ at [6] – [9], but on the further hearing in this Court there was additional evidence, none of it the subject of any challenge, going to events that have happened since the order of this Court of 7 February 2003.

5 The Crown submits that the sentence imposed by Hosking DCJ was manifestly inadequate. I do not consider that there is advantage to anyone in again setting out the competing considerations concerning the adequacy of the sentence originally imposed, stated in the reasons for judgment of the High Court. Although it is a question upon which minds may reasonably differ, I consider that the sentence was manifestly inadequate. The question then arises whether, as a matter of discretion, the Court should allow the appeal, particularly having regard to the additional facts now proved.

6 The respondent was sentenced to imprisonment for two years and six months, but in fact was imprisoned for two years and ten months. He did not receive the benefit of the release to parole that was intended by Hosking DCJ, served the period of imprisonment mentioned without having had the benefit of progressing through decreasing security classifications, as usually happens when prisoners approach the end of their sentences, and did not have the benefit of supervised parole. He suffered from the uncertainties and anxiety following upon the appeal to this Court, and from the further appeal to the High Court, and from the fact that he was in custody for a period of nine days after the delivery by the High Court of its judgment, and from the uncertainties and anxiety attendant upon the further hearing in this Court. The case might be described as one of multiple jeopardy. He was released from prison on some thirty minutes notice, and in substance had to find his own way back into the general community, without assistance. Unless he is now to be sentenced to some term of imprisonment, he will have to make do in future without the benefits of supervised parole.

7 In all the circumstances the proposition that he had already been punished sufficiently is a compelling one, but in addition, the evidence appears to establish that he has made real progress towards rehabilitation, notwithstanding what appears to have been a significant setback, prompted by his reaction of depression following upon the earlier orders of this Court. For a time, he lost motivation. He had planned to cease taking methadone, but instead found that he had to increase his dosage. However, he ceased taking methadone in April 2004, and since then has not used that drug, or any illegal drug. He no longer associates with those with drug habits, with whom he was associating when he committed the offences for which he was sentenced. Records of the Department of Corrective Services, tendered now, demonstrate that whilst in the prison he made good progress towards rehabilitation, and other evidence points to his having continued to do so since his release from prison.

8 Having regard to all these circumstances, I consider that the appeal should be dismissed, in the exercise of discretion. The justice of the case does not require that the respondent be sent back to prison

9 BUDDIN J: I agree with Brownie AJA.

10 LATHAM J: I agree with Brownie AJA

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