New South Wales Court of Criminal Appeal CITATION : Regina v Hagopian [2001] NSWCCA 149 FILE NUMBER(S) : CCA 60348/00 HEARING DATE(S) : 26 March 2001 JUDGMENT DATE : 26 March 2001 PARTIES : Regina v Vatche Hagopian JUDGMENT OF : Greg James J at 26; Smart AJ at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0492 LOWER COURT JUDICIAL Shadbolt DCJ OFFICER : COUNSEL : (A) J P Doris (R) E Wilkins SOLICITORS : (A) Neil J O'Connor & Associates (R) S E O'Connor CATCHWORDS : Sentencing - supplying prohibited drugs - sentence not excessive LEGISLATION CITED : Nil CASES CITED: The Queen v Thompson & Houlten 115 A Crim R 104 DECISION : Application for leave to appeal refused IN THE COURT OF CRIMINAL APPEAL 60348/00 GREG JAMES J SMART AJ Monday, 26 March 2001 REGINA v VATCHE HAGOPIAN JUDGMENT 1 SMART AJ: Vatche Hagopian seeks leave to appeal against the severity of a sentence of imprisonment of two years and eight months with a non-parole period of two years for the offence of supplying a prohibited drug, cannabis leaf, and taking into account the offences of goods in custody and supply prohibited drug (amphetamines) (deemed). The appellant pleaded guilty. 2 About 4.10 pm on 23 May 1998 Evelyn Hickey was waiting in a car park at Erskineville. After a few minutes the applicant entered the car park driving a Corolla sedan. She got into the front passenger seat. The police stopped the vehicle as it attempted to leave the car park. The police found three clear re-sealable plastic bags containing green vegetable matter, cannabis leaf, in a back pack on the floor of the passenger's side of the car. 3 The woman was carrying $9900. Two clear re-sealable plastic bags containing white powder (amphetamines) were located in the defendant's right-hand trouser pocket. $700 was found on the applicant along with a wallet containing $488. 4 The judge, following the statement of facts, said that there was 21.2 grams of amphetamine whereas the analyst's certificate showed the total of the amphetamine powder was 14.2 grams. The methylamphetamine content of both bags was found to be 3.5 per cent. 5 The amphetamine was said to have a value of about $2,000. The cannabis leaf weighed 657.9 grams and was said to have a value of $8,000 to $9,000. Hickey had enough money to purchase the cannabis leaf. The applicant was carrying a mobile phone. It rang after the sedan was stopped. A police officer answered. He and the caller made arrangements for the caller to come to the carpark. That caller described it as "the usual place". 6 The applicant was born on 15 February 1969. He was sentenced in 1994 to a minimum term of 2 years with an additional term of one year for supplying a commercial quantity of a prohibited drug. Other matters were taken into account. The judge noted at the start of his remarks that the applicant had pleaded guilty. He was very frank with the police from the moment he was arrested and placing no impediment in their investigation. He told the police of his prior conviction. The judge recorded the applicant's explanation that he was acting as a courier in relation to the cannabis leaf to obtain the money to buy amphetamines which he used in conjunction with the sport of body building with which he had become compulsively involved. 7 The applicant comes from a close and supportive family. He left school in year 10, completing the School Certificate, and appears to have been gainfully employed in a variety of occupations for most of his working life. For a couple of years prior to his arrest, he and a business partner were running a seafood business. His fellow director speaks well of him as does Mr McColl of his public and community service. The judge found there were no special circumstances. 8 Appeal ground 1 (a) reads: "There was a failure to express in the remarks on sentence the extent to which, if at all, the applicant was credited for his plea of guilty." 9 The judge has not stated in his remarks that he has reduced the sentence because of the plea of guilty nor has he intimated the size of any reduction. 10 Counsel pointed out that there was no reference to the timeliness and the utility of the plea, nor to the question of contrition. It was submitted that the judge should have treated Mr Hagopian as if he had pleaded guilty at the earliest opportunity. Nothing, it was submitted, in the judge's remarks indicated that he gave credit for an early indication of a plea of guilty. Further, it was submitted that the judge did not analyse or discuss the considerable remorse which the applicant had exhibited. 11 The judge sentenced the applicant before the decision in The Queen v Thompson & Houlten 115 A Crim R 104. What the judge did was to record the plea of guilty and the co-operation and frankness with the police. After the judge had completed his remarks and imposed the sentence, the judge was asked by counsel for the applicant if he, the judge, had taken into account the plea of guilty in imposing the sentence. The judge replied in the affirmative. I should add that it was a very strong Crown case. 12 In the circumstances, this complaint provides no sufficient ground for intervention. 13 Appeal ground 1(b) reads: "The learned judge wrongly rejected from consideration material relevant to an assessment of the applicant's prospects of rehabilitation contained in the report of clinical psychologist Anne Robiliard. In the result there was a consequent failure adequately to address the question whether there should be a finding of special circumstances. 14 The applicant complained about the judge's attitude to the presentation of a psychologist's report. The judge doubted if it would serve any useful purpose. Despite this the judge used it to affirm that the applicant was normal and suffered no relevant psychological disability. Further, the findings of the psychologist on which the applicant relied emerged from other materials and findings to their effect were substantially made in the judge's remarks on sentence. The judge's approach was that all these matters were dependent on primary facts and that he was not much assisted, if at all, by then being rehearsed in the psychologist's report. The judge was correct to be wary about rehabilitation given the applicant's relevantly recent prior conviction for a similar offence. 15 There was no material suggesting that an additional term longer than 8 months was desirable. The applicant simply has to stop selling prohibited drugs. He can undertake a drug education course in prison. He insisted that he was not an addict. I would reject this ground. 16 Appeal ground 1(c) reads: "The learned judge sentenced the applicant on the factual basis that the quantity of the methylamphetamine in the offence taken into consideration on the schedule was 21.2 grams whereas it was 14.2 grams. This complaint relates to one of the offences being taken into account. This matter would not have made any difference to the sentence." 17 Appeal ground 1(d) reads: "The learned judge failed to express a finding as to whether he the applicant was a courier and sentenced him on that basis." 18 The judge dealt with the applicant on the basis the evidence before him. He referred to the explanation that the applicant gave to the police and to the Probation and Parole Service. The judge finally stated that the applicant must learn that he may not sell drugs in the community for whatever reason without incurring a prison sentence if he is caught. 19 I do not think that there is any substance in the complaint given the judge dealt with the matter on the material before him. 20 Appeal ground 1(e) reads: "The learned Judge treated as significant evidence from which the inference was to be drawn that the applicant was guilty of offences other than those for which he was being sentenced." 21 The judge was entitled to take into account the telephone calls as to indicate that the offence charged was not an isolated one. It had no other relevance. I would reject this complaint. 22 Appeal ground 2 reads: "The sentence imposed was manifestly excessive." 23 It is, in my view, unnecessary to say more than that the sentence was not manifestly excessive. It was fully within the permissible range. Indeed, I doubt if the judge could reasonably have imposed a lesser sentence. 24 In my opinion the application for leave to appeal should be refused. 25 GREG JAMES J: I agree. I would wish however to add something shortly concerning certain grounds of appeal. A ground expressed as ground 1(a) was, that is that there was a failure to express in the remarks on sentence some matter, is unlikely to be successful unless that failure is said to be indicative of a clear disadvantage to the applicant in the ultimate sentence. In this case the sentence was not on its face manifestly excessive nor does the asserted failure appear to carry forward to a sentence more severe than would otherwise have been passed. 26 The ground that asserts the sentencing judge wrongly rejected from consideration the psychiatrist's material is a ground that fails to give regard to his Honour's express consideration of that very material. 27 Other than in respect of those remarks I have nothing further to say and I agree with the order proposed. 28 The orders shall be as proposed by Acting Justice Smart. ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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