Regina v Markar - [2000] NSWCCA 72

CITATION: Regina v Markar [2000] NSWCCA 72

FILE NUMBER(S): CCA 60548/99

HEARING DATE(S): 10/03/00

JUDGMENT DATE:
10 March 2000

PARTIES :

Regina v Kiriakos Markar

JUDGMENT OF: Fitzgerald JA at 21; Abadee J at 1; Barr J at 22

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL
OFFICER : Judge Christie QC

COUNSEL : Mr M. Ierace - Crown
Mr R McCrudden - Appellant

SOLICITORS: Commonwealth Director of Public Prosecutions
Mr Rory McCrudden - Appellant

LEGISLATION CITED: Customs Act (1901)

CASES CITED:
R v Astill [No 2] (1994) 64 A Crim R 289

DECISION: I propose leave to appeal against the sentence be allowed, but I would propose that the appeal be refused.

IN THE COURT

OF CRIMINAL APPEAL

60548/99

FITZGERALD JA
ABADEE J
BARR J

FRIDAY 10 March 2000

REGINA v Kirkiakos MARKAR

JUDGMENT

1 FITZGERALD JA: Justice Abadee will deliver the judgment. 2 ABADEE J: The applicant seeks leave to appeal out of time against a sentence imposed on 27 November 1998 by Judge Christie in the District Court. 3 The applicant was sentenced to imprisonment by way of a head sentence of six years and six months with a non-parole period of four years and six months to date from 6 October 1998. As at the date of the sentence, 27 November 1998, the applicant had been in custody for a period of approximately six months. 4 The applicant on the 6 October 1998 pleaded guilty to an offence of attempt to obtain possession of prohibited import on 14 October 1997. The offence, under section 233B(1)(c) of the Customs Act (1901), related to narcotic goods consisting of a quantity of cocaine which had been imported into Australia and being not less than the commercial quantity relating to cocaine. As his Honour stated in his reasons for sentence, the cocaine was found to be 69 percent pure, had a net weight of 2.635 kilograms of pure cocaine and was said to have a street value of approximately $1.5 million. On any view, his Honour's statement that the amount of cocaine imported was a very substantial amount could not be challenged. 5 It is appropriate for me to state that the maximum penalty imposed is one of life imprisonment. It is also appropriate for me to observe that whilst it is not essential as an aspect of sentencing to attempt to identify with precision the exact role played by the applicant in the present instance, his Honour described the applicant as being at or about the level of a courier. As his Honour also said (page 4 of the sentencing remarks), it is perfectly obvious that the applicant was aware of the enterprise with which he was involved and in respect of which he was arrested and charged and that was a matter that clearly carried considerable weight with his Honour. 6 Against this background, I turn to briefly to consider in greater detail the objective facts and a consideration of the nature…

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.

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Details

Case: [2000] NSWCCA 72
Decision Date: 10 March 2000

CaseChat Overview and Summary

The case of Regina v Markar involved an appeal against a sentence imposed on Kiriakos Markar by Judge Christie in the District Court. Markar was sentenced to imprisonment with a head sentence of six years and six months and a non-parole period of four years and six months, dated from 6 October 1998. The appeal was for leave to appeal out of time against the sentence. Markar had been in custody for approximately six months as at the date of the sentence. He pleaded guilty to attempting to obtain possession of a prohibited import, specifically a commercial quantity of cocaine, under the Customs Act (1901). The cocaine was found to be 69 percent pure, with a net weight of 2.635 kilograms and an estimated street value of approximately $1.5 million.

The legal issues before the Court of Criminal Appeal were whether the sentence was excessive, whether the non-parole period was appropriately calculated, and whether the plea of guilty was adequately considered. The applicant's counsel argued that the non-parole period was excessive and that the pre-sentence custody of six months was not properly taken into account. They also contended that the plea of guilty was not sufficiently factored into the sentencing. The Crown conceded that the appropriate ratio for the non-parole period was a matter of discretion, and there was no fixed ratio.

The Court found that while there might be some mathematical error in the sentence calculation, it did not warrant a redetermination of the sentence. The Court held that the sentence was appropriate given Markar's involvement in the importation of a substantial quantity of cocaine and the significant monetary gain involved. The Court also determined that the plea of guilty was properly considered, and there was no error in the weight given to it. Therefore, the Court allowed leave to appeal against the sentence but refused the appeal itself.

Orders