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8
Court of Criminal Appeal 7 February 2003

R v MARKARIAN

[2003] NSWCCA 8

Also reported as 137 A Crim R 497
Drugs

Citation: R v Markarian [2003] NSWCCA 8
Court: NSW Court of Criminal Appeal
Date: 7 February 2003
Judge(s): Heydon JA, Hulme J, Carruthers AJ

Background

The respondent pleaded guilty in the District Court to knowingly taking part in the supply of heroin in an amount not less than the commercial quantity (415 grams) over a six-month period in 2000. He acted as a driver and assistant to a principal drug dealer, made over 50 trips, helped prepare deals, personally distributed heroin on occasion, and lent money for drug purchases. Four additional matters were taken into account on a Form 1, including personal supply of heroin in the Chatswood area, supplying cannabis, possession of heroin, and goods in custody.

The respondent had a prior conviction for supplying prohibited drugs, for which he received a custodial sentence. Critically, the principal offence and one Form 1 matter were committed while he was on parole from that earlier sentence.

The District Court sentenced the respondent to 2 years and 6 months imprisonment with a non-parole period of 15 months. The Crown appealed on the ground that the sentence was manifestly inadequate.

  • Whether the sentence of 2 years 6 months with a 15-month non-parole period was manifestly inadequate for the principal offence and the Form 1 matters.
  • Whether the sentencing judge erred in the weight given to the utilitarian value of the guilty plea and the finding of "considerable" contrition.
  • Whether the sentencing judge erred by giving undue weight to the parity principle by reference to the sentence imposed on a co-offender who was less culpable.
  • Whether the sentence properly reflected the aggravating circumstance that the offending occurred while the respondent was on parole.

Decision

Hulme J (with whom Heydon JA and Carruthers AJ agreed) found the original sentence was manifestly inadequate. The sentencing judge had identified a starting point of 3 years 6 months before a 25 percent guilty plea discount, producing a head sentence of 2 years 6 months. The Court of Criminal Appeal found that starting point to be insufficient given the scale of the offending, the respondent's criminal history, and the fact that the offences were committed while on parole.

The Court scrutinised the sentencing judge's characterisation of the guilty plea as having "considerable" utilitarian value. Given the weight of evidence against the respondent (including listening device material, intercepted calls, and police surveillance), and the fact that the plea was entered on indictment rather than at committal, the utilitarian value was not substantial. The reference to "real contrition" was also found to have limited evidentiary support.

Hulme J also examined the co-offender comparison. The sentencing judge had reduced the respondent's sentence partly out of concern for parity with a less culpable co-driver, Mr Chung, who had received periodic detention. The Court found that comparison inappropriate as a basis for reducing the sentence, noting Mr Chung's significantly lesser role and the absence of a comparable prior record. Separately, the Court acknowledged that the sentence for the principal offender, Mr Caccamo, appeared unusually light, and declined to allow that comparison to constrain the outcome.

After considering Judicial Commission statistics, which showed the proposed sentence was at the higher end for this class of offence, Hulme J was satisfied that a sentence of 8 years with a non-parole period of 4 years and 6 months was the minimum that properly reflected the totality of the respondent's criminality.

Orders Made

  • Appeal allowed.
  • Sentence imposed by Judge Hosking on 18 July 2002 quashed.
  • Respondent sentenced to imprisonment for 8 years, with a non-parole period of 4 years and 6 months, both commencing 18 July 2002.
  • Earliest eligible parole date specified as 18 January 2007.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a guilty plea entered on indictment, in the face of overwhelming prosecution evidence, does not warrant characterisation of the plea as having "considerable" utilitarian value.
  • Committing serious drug offences while on parole is a significant aggravating factor that must be meaningfully reflected in the sentence imposed.
  • Parity with a less culpable co-offender who was dealt with leniently does not justify departing downward from an otherwise appropriate sentence; the comparison must be made against offenders of genuinely comparable culpability.
  • Where a co-principal's sentence appears uncommonly light, it provides no reliable benchmark for sentencing an accessory who has a more serious criminal history and additional aggravating circumstances.
  • Judicial Commission sentencing statistics are a relevant reference point, but a sentencing court is not precluded from exceeding the statistical range where the individual circumstances of the offending and the offender justify it.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act (NSW), ss 25(1), 30, 31, 32

Cases:
- No cases cited in the provided text.