Citation: R v Karagezian; R v Kupelian [2019] NSWDC 208
Court: District Court of New South Wales
Date: 7 June 2019
Judge: Grant DCJ
Background
Two co-offenders pleaded guilty to attempting to possess a commercial quantity of cocaine (2.955 kilograms) for the purpose of supply, contrary to s 25(2) of the Drugs Misuse and Trafficking Act. The drug had been concealed inside a welded metal box within an air conditioning unit shipped from Los Angeles and addressed to an auto parts business in Gladesville. Border protection officers intercepted the package, removed the cocaine, and replaced it with a weight of similar mass before a controlled delivery was arranged.
Over several days, both offenders were observed conducting surveillance near the delivery address. One offender ultimately collected the package from the business premises and, together with the other, transported it to a granny flat at a Gladesville residential address. Police executed a search warrant shortly after the package was brought inside.
Neither offender was aware of the precise quantity of cocaine involved, and there was no evidence connecting either man to the importation, financing, or organisation of the drug shipment. Their role was characterised as that of collectors who maintained custody of the package for a short period.
Legal Issues
- What discount applied to the sentence given the timing of the guilty pleas?
- How should the court assess objective seriousness, given the offenders' limited knowledge of the drug quantity?
- What weight should be given to each offender's role in the enterprise, personal circumstances, criminal history, and prospects of rehabilitation?
- Whether special circumstances existed to justify a variation from the standard non-parole period ratio?
Decision
Guilty plea discount: Grant DCJ accepted the Crown's concession that both pleas were entered at the earliest reasonable opportunity in the Local Court. A full 25% discount was applied to the sentences of both offenders.
Objective seriousness: The court accepted that the offenders' knowledge of the drug quantity extended no further than the commercial quantity threshold of 250 grams, which sits at the lower end of the commercial quantity range. They were unaware of the actual 2.955 kilogram weight or the drug's purity. The court also accepted that the offenders did not own, finance, or organise the importation of the cocaine, and played a limited collection role.
Individual offenders: Karagezian was said to have acted to assist a friend despite knowing the conduct was illegal, had a less serious criminal history, and had spent approximately three months in pre-sentence custody on bail. Kupelian had a more significant criminal history, had been in continuous custody since arrest, admitted he was offered "a few grand" to take possession of the goods, and was diagnosed with Polysubstance Use Disorder and Antisocial Personality Disorder. He expressed remorse and had undertaken positive steps in custody, including employment and regular church attendance.
Special circumstances: The court found special circumstances for both offenders, citing social deprivation and the need for extended supervision and community reintegration to address ongoing substance abuse. This justified a longer balance of term (parole period) than the standard ratio would otherwise produce.
Orders Made
No orders were made in this decision.
Note: The sentencing orders were recorded in the body of the judgment rather than a separate orders section. The key terms were:
- Karagezian: Convicted. Sentenced to 4 years imprisonment with a non-parole period of 2 years and 6 months, commencing 6 March 2019. Earliest parole eligibility: 5 September 2022.
- Kupelian: Convicted. Sentenced to 4 years and 6 months imprisonment with a non-parole period of 3 years and 2 months, commencing 19 October 2016. Earliest parole eligibility: 18 December 2019. Two Form 1 matters (possession of cannabis and testosterone) taken into account.
Key Takeaways
- Where co-offenders plead guilty at the earliest reasonable opportunity, the full 25% sentencing discount under the Crimes (Sentencing Procedure) Act 1999 is available, and the District Court confirmed that concession was appropriate here.
- A finding that offenders were unaware of the actual drug weight beyond the commercial quantity threshold limits the court's ability to treat the full quantity as aggravating; the court assessed objective seriousness by reference to what the offenders actually knew.
- Limited role in a drug enterprise, specifically collecting and briefly storing a package without involvement in financing or organising the importation, is a relevant mitigating consideration even where the offence is serious.
- Special circumstances sufficient to vary the standard non-parole period ratio can be established where an offender has experienced social deprivation and has ongoing substance abuse issues requiring structured supervision on release.
- Sentences imposed on co-offenders in a joint enterprise may differ where their individual criminal histories, personal circumstances, and periods of pre-sentence custody diverge materially.
Legislation and Cases Referenced
Legislation:
- Drugs Misuse and Trafficking Act (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(k), 22
Cases:
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- Parente v R [2017] NSWCCA 244
- R v Dodd (1991) 57 A Crim R 349
- R v Wilhelm [2010] NSWSC 378