AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
21
Court of Criminal Appeal 10 July 2008

Melikian v R

[2008] NSWCCA 156

Drugs
CRIMINAL LAW SENTENCING PARITY JUSTIFIABLE SENSE OF GRIEVANCE SENTENCE

Citation: Melikian v R [2008] NSWCCA 156
Court: NSW Court of Criminal Appeal
Date: 10 July 2008
Judge(s): Spigelman CJ, Hidden J, Price J

Background

The applicant pleaded guilty in the Local Court to knowingly taking part in the supply of heroin between 25 and 27 October 2005, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, and maintained that plea in the District Court. In substance, he acted as a facilitator, travelling from Newcastle to Sydney to arrange and receive approximately 27 grams of heroin on behalf of his co-offender, Jennar, who was the actual purchaser. Both men were arrested shortly after the transaction.

The sentencing judge in the District Court characterised the applicant as more than a minor participant, finding his criminality was well above the bottom of the range for the offence. He was sentenced to five years imprisonment with a non-parole period of three years and nine months, commencing 16 February 2006. A 25 per cent discount was applied to reflect the utilitarian value of the guilty plea.

On appeal, the applicant argued two grounds: first, that his sentence was disproportionate to that imposed on his co-offender Jennar, giving rise to a justifiable sense of grievance; and second, that the sentence was manifestly excessive in its own right.

  • Whether the disparity between the applicant's sentence and that imposed on his co-offender Jennar gave rise to a justifiable sense of grievance warranting appellate intervention.
  • Whether the sentence was manifestly excessive having regard to the objective and subjective circumstances of the offending.

Decision

On the manifestly excessive ground, the Court of Criminal Appeal found no error. The sentencing judge's findings that the applicant was actively involved in a wholesale drug deal and that his criminality was well above the bottom of the range were open on the evidence. The quantity of heroin (27.2 grams, more than five times the indictable quantity) and its street value of between $6,900 and $12,000 supported those conclusions. Ground 2 was not established.

The parity ground succeeded. The Court found the disparity between the applicant's sentence and Jennar's sentence was unjustifiably disproportionate, and that the applicant harboured a justifiable sense of grievance as a result. The principle applied, drawn from the High Court's decision in Postiglione v The Queen, is that co-offenders should not receive sentences so different that one could reasonably perceive the disparity as unfair, even if both sentences might individually be within range.

Applying s 6(3) of the Criminal Appeal Act 1912, the Court formed the view that some other sentence was warranted in law and should have been passed. The disproportion was addressed by reducing the applicant's head sentence and finding special circumstances, which allowed an extension of the parole period. The Court noted that a longer period on parole could assist the applicant to address his drug addiction, and that the reduced sentence remained appropriate to the objective and subjective criminality involved.

Orders Made

  • Leave to appeal granted.
  • Sentence imposed by the sentencing judge quashed.
  • Applicant sentenced to imprisonment comprising a non-parole period of three years commencing 16 February 2006 and expiring 15 February 2009, with a balance of term of one year and six months expiring 15 August 2010.

Key Takeaways

  • A co-offender's sentence can ground a successful parity appeal even where the applicant's own sentence is not, in isolation, manifestly excessive; the two grounds are legally distinct.
  • Where unjustifiable disproportion exists between co-offenders' sentences, the Court of Criminal Appeal may re-sentence under s 6(3) of the Criminal Appeal Act 1912 to restore equal justice.
  • Finding special circumstances to extend the balance of term (and therefore the parole period) is a recognised mechanism for addressing sentencing disparity without simply reducing the non-parole period alone.
  • Active and knowing participation in a wholesale drug transaction, even in a facilitative role, will not ordinarily be treated as minor criminality for the purposes of sentencing under s 25(1) of the Drug Misuse and Trafficking Act 1985.
  • Subjective factors including traumatic personal history, post-traumatic stress disorder, drug dependency, and evidence of rehabilitation efforts during custody are relevant to sentence but will not necessarily displace findings about the objective seriousness of commercial drug supply.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW) s 25(1)
- Crimes Act 1900 (NSW) s 527C(1)(a)
- Criminal Appeal Act 1912 (NSW) s 6(3)

Cases
- Postiglione v The Queen (1997) 189 CLR 295
- R v Kairouz [2005] NSWCCA 247
- R v Kollas & Mitchell [2002] NSWCCA 491
- R v Ilbay [2000] NSWCCA 251
- R v M.A.K; R v M.S.K [2006] NSWCCA 381
- R v McNaughton [2006] NSWCCA 242
- R v Shi [2004] NSWCCA 135
- Regina v Fernando [2002] NSWCCA 28
- Regina v MacDonnell (2002) 128 A Crim R 44
- Thompson v R [2007] NSWCCA 299