Citation: Regina v Hagopian [2001] NSWCCA 149
Court: New South Wales Court of Criminal Appeal
Date: 26 March 2001
Judge(s): Smart AJ; Greg James J
Background
The appellant had pleaded guilty in the District Court to supplying cannabis leaf, with related offences of goods in custody and deemed supply of amphetamines taken into account. Police intercepted him in a car park at Erskineville in May 1998, finding approximately 658 grams of cannabis leaf (valued at $8,000 to $9,000) and a small quantity of amphetamine powder on his person. A co-accused was present carrying $9,900 in cash.
The sentencing judge, Shadbolt DCJ, imposed a sentence of two years and eight months imprisonment with a non-parole period of two years. The appellant had a prior conviction from 1994 for supplying a commercial quantity of a prohibited drug.
The appellant sought leave to appeal against the severity of the sentence, raising five specific grounds targeting the sentencing judge's reasoning and one ground asserting the sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge failed to adequately credit the appellant for his guilty plea, including the timeliness and utility of that plea and his demonstrated remorse
- Whether the judge wrongly excluded or failed to properly consider a clinical psychologist's report when assessing prospects of rehabilitation and the question of special circumstances
- Whether the judge sentenced on an incorrect factual basis regarding the weight of amphetamine (21.2 grams recorded rather than the correct 14.2 grams)
- Whether the judge failed to make an express finding as to whether the appellant was acting as a courier
- Whether the judge improperly treated telephone call evidence as demonstrating offending beyond the charges before the court
- Whether the overall sentence was manifestly excessive
Decision
On the guilty plea ground, the Court noted that the sentencing judge had been asked directly, after sentencing, whether he had taken the plea into account and confirmed that he had. The Court also observed that the Crown case was very strong. While the sentence pre-dated the Court of Criminal Appeal's guidance in The Queen v Thompson & Houlten, the failure to explicitly articulate credit for the plea in the remarks on sentence was not, in the circumstances, sufficient to justify intervention.
On the psychologist's report, the Court rejected the appellant's contention that the material was improperly excluded. The sentencing judge had in fact referred to the report, using it to confirm the appellant had no relevant psychological disability. The findings the appellant sought to rely upon were also substantially reflected in other materials before the sentencing judge. The Court noted that caution about rehabilitation prospects was appropriate given the appellant's recent similar prior conviction.
The factual error concerning the amphetamine weight (21.2 grams recorded, rather than the correct 14.2 grams) related to an offence taken into account on schedule rather than the primary charge, and the Court found this error made no difference to the sentence ultimately imposed. The remaining grounds, including the failure to make an express courier finding and the use of telephone call evidence, were also dismissed. The Court found the judge was entitled to consider the calls as indicating the offence was not isolated, and that the judge had dealt with the courier explanation appropriately on the evidence before him.
On the overarching ground of manifest excess, Smart AJ stated that the sentence fell fully within the permissible range and that the sentencing judge could not reasonably have imposed a lesser sentence. Greg James J agreed, adding that a ground alleging failure to express a matter in sentencing remarks is unlikely to succeed unless that failure can be shown to have produced a more severe sentence than would otherwise have been passed.
Orders Made
- Application for leave to appeal refused
Key Takeaways
- A sentencing judge's failure to express credit for a guilty plea in the remarks on sentence will not, by itself, ground a successful appeal unless the omission can be shown to have produced a sentence more severe than would otherwise have been imposed.
- Where a psychologist's report is before the sentencing court and its substantive findings are reflected in other accepted materials, a complaint that the report was "wrongly rejected" will not succeed if the judge demonstrably engaged with the relevant content.
- Factual errors in sentencing remarks concerning offences taken into account on schedule, rather than primary charges, will not warrant appellate intervention if the error had no material effect on the sentence imposed.
- Evidence of telephone calls and other conduct beyond the specific charges before the court may legitimately be considered by a sentencing judge to the extent it indicates an offence was not an isolated incident.
- In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that the sentence of two years and eight months with a two-year non-parole period for drug supply, on these facts and with this criminal history, was well within the permissible range.
Legislation and Cases Referenced
Cases:
- The Queen v Thompson & Houlten (2000) 115 A Crim R 104
Legislation:
- No legislation was cited in the judgment.