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Court of Criminal Appeal 20 October 1999

Regina v Arikan [1999] NSWCCA 331 revised - 25

[1999] NSWCCA 331

Drugs
CRIMINAL LAW PRACTICE AND PROCEDURE

Citation: Regina v Arikan [1999] NSWCCA 331 revised - 25/10/99
Court: NSW Court of Criminal Appeal
Date: 20 October 1999
Judge(s): Mason P, James J, Kirby J

Background

The respondent was charged with knowingly taking part in the manufacture of a commercial quantity of methylamphetamine between May and August 1997, contrary to s 24(1) of the Drug Misuse and Trafficking Act 1985. Police surveillance uncovered an operational drug laboratory at a remote rural property near Booral, north of Newcastle, where the respondent was arrested alongside the principal manufacturer.

The respondent pleaded guilty mid-trial, after a jury had been empanelled and proceedings had run for a day. Evidence at the sentencing hearing established that his role was characterised by the sentencing judge, Woods DCJ, as "minimal", "minor", or "tangential". The principal organiser was identified as a third party, with the manufacturer described as a "lieutenant" and the respondent as "just a hanger on."

The Crown appealed on the basis that the sentence of 18 months imprisonment served by way of periodic detention was manifestly inadequate for an offence of this nature and seriousness.

  • Whether the sentencing judge erred in imposing periodic detention rather than full-time custody for a commercial quantity drug manufacturing offence
  • Whether the respondent's role in the manufacturing operation was sufficiently minor to justify a departure from the principle of general deterrence
  • Whether, even if sentencing error were established, the double jeopardy principle applicable to Crown appeals warranted the Court of Criminal Appeal declining to intervene and increase the sentence

Decision

Kirby J, with whom Mason P and James J agreed, accepted that the sentencing judge had erred. General deterrence required a full-time custodial sentence for an offence of this kind, and the respondent's personal circumstances, while sympathetic, were not sufficiently exceptional to displace that principle. The Court noted that the respondent's guilty plea acknowledged he knew precisely what he was doing, notwithstanding any depression affecting his thinking at the time.

The Court nonetheless declined to increase the sentence, citing the double jeopardy element inherent in any Crown appeal. Where the Crown appeals against inadequacy of sentence, any sentence imposed by the appellate court must account for the additional hardship a defendant faces in being re-sentenced after having already been sentenced once. That consideration carried particular weight here.

The respondent's subjective case was described as strong. He was 41 years old with effectively no prior criminal history. He suffered from depression linked in part to the assassination of his father, a Turkish ambassador, by Armenian terrorists while posted to the United States. A further emotional blow, the discovery that a child he had raised was not biologically his, had compounded his psychological difficulties at the relevant time. Taking these factors together with the double jeopardy principle, the Court concluded that intervention was not warranted despite the identified error.

Orders Made

  • The appeal is dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that the double jeopardy principle applicable to Crown sentence appeals can justify declining to increase a sentence even where genuine sentencing error is found.
  • General deterrence ordinarily requires a full-time custodial sentence for offences involving the manufacture of a commercial quantity of prohibited drugs; personal hardship and depression will not readily displace that principle.
  • The appropriate sentencing approach requires identification of the offender's specific role in the offending conduct, particularly in drug manufacturing cases involving multiple participants with different levels of culpability (drawing on s 16A(2)(a) of the Crimes Act 1914 (Cth) and the principles in Queen v Raz and Olbrich).
  • A finding that an offender's "thought processes were substantially impaired" by depression may mitigate culpability but does not remove it where the offender's guilty plea acknowledged full knowledge of the conduct.
  • Exceptional subjective circumstances, including significant personal trauma and an absence of prior convictions, remain relevant in Crown appeals but must be weighed alongside the double jeopardy consideration rather than assessed in isolation.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 24(1)
- Crimes Act 1914 (Cth), s 16A(2)(a)

Cases:
- Queen v Raz (NSW Court of Criminal Appeal, unreported, 17 December 1992)
- The Queen v Olbrich [1999] HCA 54
- R v Clarke (NSW Court of Criminal Appeal, unreported, 15 March 1990)