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Court of Criminal Appeal 3 August 2005

R v Markarian

[2005] NSWCCA 264

Drugs
SENTENCE. NO QUESTION OF PRINCIPLE.

Citation: R v Markarian [2005] NSWCCA 264
Court: NSW Court of Criminal Appeal
Date: 3 August 2005
Judge(s): Brownie AJA, Buddin J, Latham J

Background

The respondent pleaded guilty in May 2002 to knowingly taking part in the supply of a commercial quantity of heroin (415 grams), with four further drug-related offences taken into account on a Form 1. The maximum penalty for the principal offence was 20 years imprisonment. In July 2002, Hosking DCJ in the District Court sentenced the respondent to two years and six months imprisonment, with a non-parole period of 15 months.

The Crown appealed on the ground of manifest inadequacy. In February 2003, the Court of Criminal Appeal allowed that appeal and substituted a sentence of eight years with a non-parole period of four years and six months. The respondent then successfully appealed to the High Court of Australia, which set aside the Court of Criminal Appeal's orders and remitted the matter back to this Court for redetermination in accordance with the High Court's reasons.

By the time the matter returned to the Court of Criminal Appeal, the respondent had already been released from prison. He had served two years and ten months in custody, somewhat more than the original sentence Hosking DCJ had intended. The further hearing before this Court included unchallenged additional evidence of events occurring after the earlier orders.

  • Whether the sentence originally imposed by Hosking DCJ was manifestly inadequate
  • Whether, even if manifestly inadequate, the Court should exercise its discretion to dismiss the Crown's appeal in light of subsequent events and the respondent's circumstances since release

Decision

Brownie AJA (with whom Buddin J and Latham J agreed) accepted that the original sentence of two years and six months was manifestly inadequate, acknowledging this was a question on which minds could reasonably differ. However, the court found this did not automatically require the appeal to be allowed; the question of whether to intervene remained a matter of discretion.

The court identified several significant factors weighing against re-imprisonment. The respondent had in fact served two years and ten months, exceeding the intended sentence, without the benefit of progressive security classification reductions or supervised parole. He was released on approximately 30 minutes' notice and had to reintegrate into the community without assistance. The proceedings were characterised as a case of "multiple jeopardy," encompassing successive appeals and associated anxiety over several years.

On top of those hardships, the court found persuasive evidence of genuine rehabilitation. After a period of depression and loss of motivation triggered by the Court of Criminal Appeal's earlier orders, the respondent had ceased methadone use entirely by April 2004, had not used any illegal drug since, and had distanced himself from those associated with drug use. Prison records and other evidence confirmed ongoing rehabilitation both during and after custody.

Taking all circumstances together, the court concluded that the respondent had already been punished sufficiently and that the justice of the case did not require a return to prison. The Crown's appeal was dismissed in the exercise of discretion.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • Even where a sentencing court's original sentence is found to be manifestly inadequate, the appellate court retains a discretion to dismiss the Crown's appeal if the interests of justice so require.
  • Relevant factors in the exercise of that discretion include the actual period already served (including any excess over what was intended), the absence of parole and rehabilitation support, and the cumulative hardship of prolonged appellate uncertainty.
  • A pattern of successive appeals and re-hearings may be characterised as "multiple jeopardy," which can weigh against further intervention even where the original sentence was inadequate.
  • Evidence of genuine and sustained rehabilitation, including cessation of drug use and changed associations, can constitute a compelling discretionary consideration against resentencing.
  • In dismissing the appeal, the Court confirmed that the question of manifest inadequacy and the question of whether to allow an appeal are analytically distinct steps in the Crown appeal process.

Legislation and Cases Referenced

Cases:
- R v Markarian [2003] NSWCCA 8, 137 A Crim R 497 (earlier Court of Criminal Appeal decision)
- Markarian v The Queen [2005] HCA 25 (High Court decision remitting the matter)

Legislation:
No specific legislation was cited in the text provided, though the principal offence related to supply of a commercial quantity of a prohibited drug (heroin) under NSW drug laws, with a maximum penalty of 20 years imprisonment or a fine of $385,000, or both.