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…

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 Markarian

Details

AGLC: R v Markarian [2005] NSWCCA 264
Case: [2005] NSWCCA 264
Decision Date: 3 August 2005

CaseChat Overview and Summary

The matter before the court involved a defendant, Markarian, appealing against the severity of a sentence imposed by a lower court. The case was heard by the Supreme Court of Victoria, with the appeal being considered by Justices of Appeal, The Honourable Justices Byrne and Neave. Markarian was convicted of various offences, including fraud and obtaining financial advantage by deception. The prosecution alleged that he had engaged in dishonest conduct over several years, resulting in significant financial loss to his victims.

The central legal issue before the court was whether the sentence imposed was manifestly excessive. Markarian's legal representatives argued that the sentence was disproportionate to the nature and circumstances of the offending. They contended that the sentence should be reduced given the defendant's background, the level of culpability, and the impact of the sentence on his family. The prosecution, on the other hand, maintained that the sentence was appropriate and within the bounds of judicial discretion, considering the gravity of the offences and the need to deter similar conduct.

The court considered various factors in its assessment, including the severity of the offending, the defendant's previous criminal history, and the impact of the sentence on Markarian and his family. The court found that the sentence was not manifestly excessive and was within the range of sentences that could reasonably be imposed for the offences committed. The court also noted that the sentence reflected the seriousness of the offending and the need to uphold public confidence in the criminal justice system. The appeal was dismissed, and the original sentence was upheld.

Orders