R v GHARIBIAN [1999] NSWCCA 138

New South Wales Court of Criminal Appeal CITATION : R v GHARIBIAN [1999] NSWCCA 138 FILE NUMBER(S) : CCA 60598/98 HEARING DATE(S) : 26 May 1999 JUDGMENT DATE : 26 May 1999

REGINA (Crown)

PARTIES : v

Johnny GHARIBIAN (Applicant) JUDGMENT OF : Barr J at 1; McInerney AJ at 11

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0453 LOWER COURT JUDICIAL OFFICER : Luland DCJ

LMB Lamprati (Crown) COUNSEL : GM Galuzzo (Applicant) CK Smith (Crown) SOLICITORS : Alexanders (Applicant) CATCHWORDS : Criminal Law - sentencing - whether proper regard had to rehabilitation ACTS CITED : s 5(2) Sentencing Act CASES CITED: R v Molina (1984) 13 A Crim R 76 DECISION : Leave to appeal refused

IN THE COURT OF CRIMINAL APPEAL 60598/98

BARR J McINERNEY AJ

Wednesday, 26 May 1999 REGINA v Johnny GHARIBIAN JUDGMENT

1 BARR J: The applicant, Johnny Gharibian, seeks leave to appeal against sentences imposed upon him by Judge Luland of Queen's Counsel after the applicant had been convicted by a jury in the District Court of two counts of supplying prohibited drugs. On a charge of supplying cocaine, his Honour sentenced the applicant to imprisonment for two years comprising a minimum term of one year commencing on 19 August 1998 and expiring on 18 August 1999 and an additional term of one year commencing on 19 August 1999 and expiring on 18 August 2000. On a charge of supplying methylamphetamine his Honour sentenced the applicant to a fixed term of six months, commencing on 19 August 1998. His Honour directed the release of the applicant to parole at the expiration of the minimum term and directed that thereafter he be under the supervision of the parole service for the period of the additional term. 2 The applicant was stopped by police during a random mobile breath testing exercise on 12 August 1996. His behaviour made police suspicious and they searched his car. They found a small quantity of powder. He tried to hide something in his trousers and that turned out to be a large plastic bag containing a number of smaller re-sealable plastic bags containing a drug. Also found in his car was a set of electronic scales and a razor blade bearing cocaine residue. He had $785 in cash in one of his pockets. He made no admissions to the police and pleaded not guilty. At the time of sentence, he was still denying that he had the drugs other than for his own use. 3 Counsel for the applicant did not attack the length of the overall sentence. It was submitted on appeal that his Honour did not give proper weight to the evidence of rehabilitation that was presented on behalf of the appellant. Dealing with the question of rehabilitation, his Honour remarked that the fact that the applicant had gone down the road of rehabilitation enabled him to find the existence of special circumstances for the purposes of s 5(2) Sentencing Act. 4 Counsel for the appellant drew attention to the report of a clinical psychologist, Mr Borenstein, 15 September 1998, which was before his Honour for consideration on sentence. That report set out the background and family history of the applicant and proffered an explanation of how he first became involved with the use of cocaine, through his membership of the militia in Lebanon. 5 Mr Borenstein stated his opinion that the custody the applicant was then suffering had the effect of reactivating early traumatic life experiences such as those he had mentioned in his report. That was a reference to early separation from his parents, and familiarity as a child with the horrors of war and civil unrest as well as his violent experience after conscription at age fifteen. 6 It was submitted that his Honour should have taken into account that it will often be in the best interests of society if emphasis is put on rehabilitation, particularly where the offender can genuinely be at cross roads between a useless, drug-ridden and probably criminal existence and relatively normal life in society, supported by a caring family. Reference was made to R v Molina (1984) 13 A Crim R 76. 7 In my opinion, his Honour paid proper regard to the report of Dr Borenstein. His Honour remarked on the applicant's family history and the other problems which had beset him. Having said that, his Honour was not satisfied that the explanation given by the applicant through Dr Borenstein of why he began to take drugs was acceptable. His Honour took the view that the question why the applicant began taking drugs was left unanswered. 8 In my opinion, his Honour was correct in recognising that those who deal in drugs must accept gaol sentences unless there are exceptional circumstances that would allow a court to take some other course. His Honour concluded that there were no such exceptional circumstances, in my opinion correctly. 9 It was submitted that his Honour imposed a minimum term that was too severe in the circumstances, but in my opinion that submission has no substance. The total term of the sentence and the minimum term imposed by his Honour were well within the bounds of his Honour's proper sentencing discretion. 10 I would refuse to grant leave to appeal. 11 McINERNEY AJ: I agree. 12 BARR J: The order of the Court is as I have proposed. **********