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9
Court of Criminal Appeal 19 November 2001

REGINA v. BOULGHOURGIAN (aka SIMONS)

[2001] NSWCCA 460

Also reported as 125 A Crim R 540
Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION AND SENTENCE DIRECTIONS SUITABLE TO ISSUES AT TRIAL ON SENTENCE

Citation: [2001] NSWCCA 460
Court: New South Wales Court of Criminal Appeal
Date: 19 November 2001
Judges: Spigelman CJ, Sully J, Greg James J

Background

The appellant was convicted by a District Court jury of being knowingly concerned in the importation of not less than a trafficable quantity of cocaine, contrary to s 233B(1)(d) of the Customs Act 1901 (Cth). The offence arose from the collection of a package containing approximately 114.5 grams of cocaine, concealed inside a car radio cassette player, from a freight importer in Sydney in December 1999. The appellant collected the package under a false name alongside a co-accused, with evidence also showing that he had previously transferred funds overseas around the time of the importation.

The co-accused was not tried at the same time due to representation difficulties, and the prosecution proceeded against the appellant alone. After a three-day trial, the jury returned a guilty verdict. The District Court judge sentenced the appellant to six years imprisonment with a four-year non-parole period.

The appellant challenged both the conviction and the severity of the sentence on appeal to the Court of Criminal Appeal.

  • Whether the trial judge's directions to the jury on the element of being "knowingly concerned" were adequate in the circumstances of the trial
  • Whether the jury's verdicts were unreasonable or unsupported by the evidence
  • Whether the sentence was excessive, particularly given that the sentencing judge had applied the sentencing parameters from Wong & Leung (1999) 108 A Crim R 531, which the High Court had since overruled on that point

Decision

On the conviction appeal, the Court found that the jury directions on "knowingly concerned" were suitable to the issues as they arose at trial. The verdicts were not unreasonable and were adequately supported by the evidence, including the appellant's physical collection of the package under a false name, his presence at the freight depot on two occasions, his mobile number being provided as a contact, and the international money transfer receipts bearing his name.

On the sentence appeal, the Court acknowledged that the sentencing judge had followed the sentencing parameters prescribed in Wong & Leung (1999), and that this aspect of the decision had since been overruled by the High Court. However, the Court held that the sentence remained appropriate notwithstanding that development. Looking at the relevant single-instance decisions from New South Wales and other states that pre-dated Wong & Leung, Greg James J found no inconsistency in the sentence imposed that required correction.

The Court accepted that the appellant had a number of subjective factors in his favour, including that this was his first time in custody, his age, his close family ties, and his having overcome a prior drug addiction. The sentencing judge had considered all of these matters and concluded they did not displace the appropriate sentence level. The Court agreed with that conclusion.

Spigelman CJ and Sully J both agreed with the judgment delivered by Greg James J, and the appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • Jury directions on "knowingly concerned" will be assessed for adequacy by reference to the actual issues that arose at trial, rather than by abstract standards.
  • No error was established in the conviction where the verdict was supported by evidence including the appellant's direct participation in collecting the package, use of a false identity, and financial records linking him to the scheme.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that the overruling of Wong & Leung on sentencing parameters by the High Court does not automatically invalidate sentences imposed under the earlier approach, where the sentence remains appropriate when assessed against the broader range of relevant authorities.
  • Subjective factors such as family circumstances, first-time custody, and rehabilitation from drug addiction were considered by the sentencing court but found insufficient to reduce the sentence for a serious and sophisticated drug importation offence.
  • A sentence of six years with a four-year non-parole period was upheld as the proper sentence for importation of approximately 114.5 grams of cocaine by a scheme involving overseas funds transfers and concealment of identity.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), ss 233B(1)(d), 235
- Crimes Act 1914 (Cth), ss 16A, 16G

Cases:
- Wong & Leung (1999) 108 A Crim R 531 (overruled in part)
- Wong & Leung [2001] HCA 64
- House v The King (1936) 55 CLR 499
- Neal v The Queen (1982) 149 CLR 305
- R v Astill (No 2) (1992) 64 A Crim R 289
- Gipp v The Queen (1998) 155 ALR 15
- Jones v The Queen (1997) 191 CLR 439
- M v The Queen (1994) 181 CLR 487
- Morris v The Queen (1987) 163 CLR 454