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Court of Criminal Appeal 15 October 2002

R v Kirikian

[2002] NSWCCA 422

Drugs
CRIMINAL LAW NO QUESTION OF PRINCIPLE

Citation: R v Kirikian [2002] NSWCCA 422
Court: NSW Court of Criminal Appeal
Date: 15 October 2002
Judge(s): Sperling J; Buddin J

Background

The applicant was convicted of two counts of knowingly taking part in the supply of a commercial quantity of heroin, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. Both offences occurred in late 2000 and involved a brokering role: the applicant arranged access to heroin, negotiated transactions, and facilitated payment and delivery across two separate dealings totalling approximately 1.4 kilograms of heroin with an estimated street value of $1.4 million.

The applicant pleaded guilty at the Local Court and was sentenced in the District Court by Patten DCJ to six years' imprisonment with a three-year non-parole period for each offence, both sentences to run concurrently from the date of arrest in December 2000. The sentencing judge identified a starting point of around 12 years for the totality of the offending, then reduced the head sentence to nine years to reflect the utilitarian value of the guilty plea, and further reduced it to six years to account for significant assistance provided to authorities.

The applicant sought leave to appeal, arguing that the non-parole period was insufficiently reduced to reflect his contrition, guilty plea, assistance to authorities, time spent in protective custody, rehabilitation efforts, and parity with co-offenders.

  • Whether the non-parole period adequately reflected the applicant's assistance to authorities, guilty plea, and remorse
  • Whether the hardship of serving the sentence in protective custody warranted a greater reduction in the non-parole period
  • Whether the sentence was disproportionate when compared to sentences imposed on co-offenders, particularly Sukkar and Nguyen (parity ground)
  • Whether the Court should grant an adjournment of the appeal pending additional materials, including the sentencing remarks for co-offender Sukkar and potential further evidence of assistance

Decision

The Court granted leave to appeal but dismissed the appeal. Sperling J, with Buddin J agreeing, found no error in the sentencing judge's approach. The sentencing judge had identified an appropriate starting point, applied discounts in proper sequence for the guilty plea and substantial assistance to authorities, and found special circumstances justifying the equal split between the parole period and the balance of the sentence.

On the parity argument, the Court examined the sentences imposed on co-offenders Nguyen and Sukkar. The materials available indicated that the applicant's sentence was not disproportionate when his role and circumstances were compared to those of his co-offenders. The absence of the sentencing remarks for Sukkar did not cause the applicant prejudice, as it was clear from other available materials that Sukkar was not a comparable case for parity purposes.

The Court also refused an adjournment sought on four grounds: the lateness of receiving the transcript, the absence of Sukkar's sentencing remarks, uncertainty about a legal aid decision, and the prospect of further evidence of assistance becoming available. The Court found no substance in any of these grounds. It noted, in relation to the last point, that if significant further assistance was provided to authorities after sentence, the executive government retained the power to consider early release.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a discount of one third of the otherwise appropriate head sentence can be warranted where an offender provides substantial assistance to authorities, including agreeing to give evidence against co-offenders and accepting the associated risks of protective custody.
  • A starting point of approximately 12 years' imprisonment for two concurrent offences involving commercial quantities of heroin, where the offender played an active brokering role, was treated as appropriate before discounts for the guilty plea and assistance.
  • On the parity ground, the absence of a co-offender's sentencing remarks does not automatically warrant an adjournment where other available materials make sufficiently clear that the co-offender's circumstances are not truly comparable.
  • Under the sentencing framework applied, protective custody and genuine rehabilitation efforts were capable of supporting a finding of special circumstances, but did not compel a more generous non-parole period than the court below had allowed.
  • No error was established in the sentence despite the applicant's troubled personal history, including substance dependency and a difficult childhood, as the sentencing judge had addressed those matters and was not required to treat prior drug and alcohol abuse as a mitigating factor given the applicant's prior drug supply conviction.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6
- Drug Misuse and Trafficking Act 1985 (NSW), s 25

Cases Cited:
- Astill (No. 2) (1992) 64 A Crim R 289
- Cocking [1999] NSWCCA 331
- Nguyen [2002] NSWCCA 183
- Simpson (2001) 53 NSWLR 704