Citation: GHARIBIAN v R [1999] NSWCCA 138
Court: NSW Court of Criminal Appeal
Date: 26 May 1999
Judge(s): Barr J; McInerney AJ
Background
The applicant was convicted by a jury in the District Court of two counts of supplying prohibited drugs, namely cocaine and methylamphetamine, following a police search of his vehicle during a random breath testing exercise in August 1996. Officers found re-sealable bags containing drugs, electronic scales, a razor blade with cocaine residue, and a substantial amount of cash. The applicant made no admissions and continued to deny at sentencing that the drugs were for anything other than personal use.
Judge Luland DCJ sentenced the applicant to a total of two years imprisonment for the cocaine supply charge, with a minimum term of one year and an additional term of one year, and a concurrent fixed term of six months for the methylamphetamine supply charge. His Honour found special circumstances under s 5(2) of the Sentencing Act, citing the applicant's engagement with rehabilitation, and directed parole supervision for the additional term.
The applicant sought leave to appeal to the Court of Criminal Appeal, not challenging the overall length of the sentence but contending that the sentencing judge had failed to give adequate weight to rehabilitation evidence.
Legal Issues
- Whether the sentencing judge gave proper weight to the psychological evidence of rehabilitation placed before the court
- Whether the minimum term imposed was excessive in light of the applicant's personal circumstances
- Whether exceptional circumstances existed that would justify a non-custodial approach for a drug supply offence
Decision
The Court of Criminal Appeal found that the sentencing judge had given proper regard to the psychological report prepared by the clinical psychologist. Barr J noted that his Honour had specifically acknowledged the applicant's difficult family history, traumatic experiences in Lebanon during his youth, and early exposure to the violence of civil conflict. The sentencing judge was not, however, satisfied with the explanation offered for how the applicant came to use drugs, and considered that question to remain unanswered.
Barr J affirmed the principle that those who deal in drugs must ordinarily receive custodial sentences, absent exceptional circumstances justifying a different course. His Honour concluded that the sentencing judge was correct to find no such exceptional circumstances existed in this case. The submission that rehabilitation considerations warranted a different outcome, drawing on authority from R v Molina, was rejected.
The challenge to the minimum term was also dismissed. Barr J described both the total term and the minimum term as well within the bounds of the sentencing judge's proper discretion. McInerney AJ agreed with that assessment without adding further reasons.
Orders Made
- Leave to appeal refused
Key Takeaways
- A sentencing court's recognition of rehabilitation evidence, including psychological reports, does not necessarily translate into a reduced or non-custodial sentence where the offending involves drug supply.
- Where an applicant does not challenge the overall length of a sentence, the Court of Criminal Appeal's scrutiny is directed at whether the sentencing judge correctly weighed the relevant factors, not at recalibrating the outcome from scratch.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that drug supply offences ordinarily require custodial sentences, and that departure from this approach demands exceptional circumstances.
- No error was established in the sentencing judge's finding of special circumstances under s 5(2) of the Sentencing Act, even though that finding benefited the applicant by extending the additional (post-minimum) term.
- The principle in R v Molina, which acknowledges rehabilitation as a significant sentencing consideration, does not override the custodial norm for supply offences where no truly exceptional circumstances are demonstrated.
Legislation and Cases Referenced
Legislation:
- s 5(2) Sentencing Act (NSW)
Cases:
- R v Molina (1984) 13 A Crim R 76