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R v Markarian

R v Markarian

Case [2003] NSWCCA 8 7 February 2003

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Reported Decision:
137 A Crim R 497

New South Wales

Court of Criminal Appeal

CITATION: R v MARKARIAN [2003] NSWCCA 8

HEARING DATE(S): 20 November 2002

JUDGMENT DATE:
7 February 2003

JUDGMENT OF: Heydon JA at 1; Hulme J at 2; Carruthers AJ at 58

DECISION: Appeal allowed; See paragraph 57

PARTIES :
Regina
Anthony Markarian

FILE NUMBER(S): CCA 60430/02

COUNSEL: Crown: P Ingram
Respondent: A Haesler

SOLICITORS: Crown: SE O'Connor
Respondent: Michael Croke & Co

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0259

LOWER COURT
JUDICIAL OFFICER : Hosking DCJ

- 19 -

60430/2002
HEYDON JA
HULME J
CARRUTHERS AJ

Friday 7 February 2003

REGINA v Anthony MARKARIAN

Judgment

1 HEYDON JA: I agree with Hulme J

2 HULME J: On 3 May 2002 the Respondent to this Crown appeal pleaded guilty to a charge that between 18 April and 10 October 2000 he did knowingly take part in the supply of a prohibited drug, namely heroin, in an amount not less than the commercial quantity for that drug. He asked that four matters on a Form 1 be also taken into account. On 18 July 2002 Judge Hosking sentenced the Respondent to imprisonment for 2½ years from 18 July 2002, such period to include a non-parole period of 15 months. His Honour directed the Respondent’s release to parole at the end of the non-parole period on condition that he place himself under the supervision of the Probation and Parole Service and obey all reasonable directions of that service. On 20 August 2002, the Crown served a Notice of Appeal.

3 The Respondent’s principal offence consisted of acting throughout the period mentioned as a chauffeur for one Vincent Caccamo in connection with a substantial business Mr Caccamo carried on of buying and distributing heroin. There were over 50 return trips by the Respondent from the northern beaches to Croydon and other journeys. From time to time the Respondent remained with Mr Caccamo at meetings where heroin was purchased, he made up deals for Mr Caccamo and on occasion personally distributed heroin and collected money from Mr Caccamo’s runners. On occasions the Respondent also lent Mr Caccamo money for the purpose of purchasing heroin. The quantity of heroin in the supply of which the Respondent was knowingly concerned was 415gms.

4 The first offence on the Form 1 was of supplying in excess of 5gms of heroin contrary to s25(1) of the Drug Misuse and Trafficking Act between 25 September and 1 October 2001. The offender was receiving 2-3gms of heroin daily from Mr Caccamo, using a portion himself and selling the balance to drug users in the Chatswood area.

5 The second offence was of supplying 232.5gms of cannabis on 29 September 2000. The cannabis was exchanged in return for $2,700 and the Respondent’s participation included at least counting the money and apprising the purchaser of the strength of the cannabis. Mr Caccamo was present but the relative roles of Mr Caccamo and the Respondent are not revealed.

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 [2003] NSWCCA 8
Case: [2003] NSWCCA 8
Decision Date: 7 February 2003

CaseChat Overview and Summary

In the case of Regina v Anthony Markarian, the New South Wales Court of Criminal Appeal reviewed the sentence imposed on Markarian for his involvement in the supply of a commercial quantity of heroin. The Court was tasked with determining whether the sentence imposed by the District Court was appropriate given the nature and circumstances of the offence. The key legal issue was whether the sentence adequately reflected the objectives of the Drug (Misuse and Trafficking) Act and the principles of sentencing. The Court found that the District Court's sentence of 2½ years imprisonment, including a non-parole period of 15 months, was manifestly inadequate given the gravity of Markarian's criminal conduct and the legislative objectives of deterring drug trafficking. The Court emphasized the importance of proportionality in sentencing, noting that the quantity of heroin involved in the offence warranted a significantly higher penalty. The Court also considered various mitigating factors, such as Markarian's role in the drug operation, his plea of guilty, and his efforts towards rehabilitation. However, these factors were deemed insufficient to justify the lenient sentence imposed. As a result, the Court allowed the appeal, quashed the original sentence, and imposed a new sentence of 8 years imprisonment with a non-parole period of 4½ years, effective from the date of the original sentence.

Orders