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Court of Criminal Appeal 7 December 2010

Geokjian v R

[2010] NSWCCA 300

Drugs
CRIMINAL LAW APPEAL AND NEW TRIAL APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE NO POINT OF PRINCIPLE

Citation: Geokjian v R [2010] NSWCCA 300
Court: NSW Court of Criminal Appeal
Date: 7 December 2010
Judges: McClellan CJ at CL, McCallum J, RA Hulme J

Background

The applicant pleaded guilty in the District Court to a charge of attempted supply of 56 grams of cocaine, contrary to the Drugs Misuse and Trafficking Act 1985. The offence arose from his role in facilitating a transaction between an associate and an undercover police officer in March 2007. The agreed facts acknowledged that the Crown could not prove beyond reasonable doubt that the applicant did more than attempt to facilitate the supply.

The applicant also pleaded guilty to a separate Commonwealth charge of aiding and abetting the importation of cocaine, and asked the District Court to take into account a cannabis supply offence on a Form 1. Sentence was imposed on both matters on 21 December 2009 by Morgan DCJ.

For the State offence (attempted cocaine supply), the applicant received a fixed term of two years commencing 21 May 2007. The Commonwealth sentence was five years and ten months with a non-parole period of three years and six months, commencing 21 May 2008. The applicant sought leave to appeal against the State sentence only, conceding the Commonwealth sentence was appropriate.

  • Whether the two-year fixed term for the State offence of attempted cocaine supply was manifestly excessive
  • Whether the sentencing judge erred in the exercise of her sentencing discretion, including in the degree of discount applied for the guilty plea and in the structure of the sentence

Decision

The Court, in a judgment delivered by RA Hulme J (with McClellan CJ at CL and McCallum J agreeing), refused leave to appeal. The Court found no specific error in the judge's exercise of her sentencing discretion and was not persuaded the sentence was unreasonable or plainly unjust, applying the principles in Markarian v The Queen.

Hulme J did note some tension in the sentencing process. The discount of 20 per cent for the guilty plea was questioned, given the plea was entered approximately ten months after committal, after arraignment, a not guilty plea, and listing for trial. The Court observed that under R v Borkowski, a discount exceeding 15 per cent would not usually be appropriate for a plea entered on arraignment, and expressed doubt that more than 10 per cent was warranted in the circumstances.

The Court also examined the structure of the sentence. The judge imposed the State sentence as a fixed term running before the Commonwealth sentence, rather than concurrently. This approach meant the State sentence effectively contributed one year to the total mandatory period of imprisonment. The Court considered arguments about how the totality principle applied across the two sentences, including the relevance of the Pearce v The Queen principles for co-offenders sentenced together.

An additional factor weighed in the analysis. On the day after the District Court sentencing, the applicant was sentenced in a Local Court to imprisonment for possession of a loaded .25 Colt pistol, a loaded .380 Browning pistol, and a silenced .22 rifle found at his home when he was arrested. Those sentences were ordered to commence on the same date as the State drug sentence. The Court noted considerable doubt about whether, even if the State sentence were reduced, it would be appropriate to bring forward the commencement of the Commonwealth sentence in a way that would effectively subsume those separate and serious firearms sentences.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • No specific error by the sentencing judge was established, and the Court of Criminal Appeal declined to intervene where the sentence was not shown to be unreasonable or plainly unjust under the Markarian standard.
  • A guilty plea entered after arraignment, a not guilty plea, and listing for trial will ordinarily attract a discount of no more than 15 per cent, and the Court of Criminal Appeal expressed doubt that more than 10 per cent was appropriate in this case, though the point did not alter the outcome.
  • Where separate sentencing proceedings in different courts produce overlapping or concurrent sentences, the structure of those sentences can affect the practical significance of any appellate intervention, and the Court of Criminal Appeal took this into account in declining to reduce the State sentence.
  • Subjective factors including prior good character, absence of previous convictions, remorse, and good prospects for rehabilitation were all taken into account at first instance, but they did not overcome the objective seriousness of the offence or the need for general deterrence in drug supply sentencing.
  • A Form 1 offence (here, a cannabis supply matter taken into account on sentence) is a legitimate factor increasing the overall sentence, even where the primary charge involves a different drug.

Legislation and Cases Referenced

Legislation:
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 58
- Criminal Appeal Act 1912 (NSW)

Cases:
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Regina v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v Gallagher (1991) 23 NSWLR 220