New South Wales Court of Criminal Appeal CITATION: Geokjian v R [2010] NSWCCA 300 HEARING DATE(S): 7 December 2010 JUDGMENT OF: McClellan CJatCL at 1; McCallum J at 2; RA Hulme J at 3 EX TEMPORE JUDGMENT DATE: 7 December 2010 DECISION: Leave to appeal refused. CATCHWORDS: CRIMINAL LAW - appeal and new trial - appeal against sentence - whether sentence manifestly excessive - no point of principle Drugs Misuse and Trafficking Act 1985 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 CATEGORY: Principal judgment Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Markarian v The Queen [2005] HCA 25; 228 CLR 357 CASES CITED : Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 R v Gallagher (1991) 23 NSWLR 220 Regina v Way [2004] NSWCCA 131; 60 NSWLR 168 PARTIES: Vahe Geokjian (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2007/15964 COUNSEL: Mr B Stratton QC (Applicant) Mr P Ingram SC (Respondent) SOLICITORS: Philip Sim & Associates Solicitor for Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2007/11/0901 LOWER COURT JUDICIAL OFFICER: Morgan DCJ LOWER COURT DATE OF DECISION: 21 December 2009 IN THE COURT OF CRIMINAL APPEAL 2007/15964 McCLELLAN CJ at CL McCALLUM J R A HULME J 7 December 2010 Vahe GEOKJIAN v Regina Judgment 1 McCLELLAN CJ at CL: I agree with R A Hulme J. 2 McCALLUM J: I agree with R A Hulme J. 3 R A HULME J: The applicant pleaded guilty in the District Court to a charge that on 8 March 2007 he did attempt to supply a prohibited drug, namely 56 grams of cocaine (the State offence). The offence is contrary to s 25(1) of the Drugs Misuse and Trafficking Act 1985 which prescribes a maximum penalty of imprisonment for 15 years and/or a fine of $220,000. 4 The applicant appeared before her Honour Judge Morgan on 20 February 2009. He adhered to his plea of guilty and asked her Honour to take into account his guilt in respect of an offence of supplying another prohibited drug, namely cannabis. On that occasion he also adhered to a plea of guilty that had been earlier entered in respect of a charge that between 19 April and 22 May 2007 he had aided and abetted the importation of a border controlled drug, namely cocaine (the Commonwealth offence). 5 It is relevant to a procedural aspect that will be discussed later to note that the proceedings before her Honour involved charges on two separate indictments and that the State and Commonwealth Directors of Public Prosecutions were separately represented. 6 The Commonwealth offence was the dominant matter in the proceedings. Although the applicant had adhered to his plea of guilty there was a dispute as to the facts upon which her Honour should proceed to sentence in respect of that offence. It was also a significantly more serious offence. The sentence hearing took place over a number of days until ultimately sentence was imposed in respect of both matters on 21 December 2009. Very little time in the proceedings was devoted to the State offence and relatively little was said about it. 7 The sentence imposed for the State offence was one of imprisonment for a fixed term of 2 years with effect from 21 May 2007 (the State sentence). For the Commonwealth offence there was a sentence of 5 years 10 months, with a non-parole period of 3 years 6 months, with effect from 21 May 2008 (the Commonwealth sentence). Accordingly, the overall sentence was one of 6 years 10 months and the mandatory period of imprisonment was 4 years 6 months, one year of which was attributable to the State offence. 8 The applicant desires leave to appeal but only in respect of the State sentence. It is conceded that the sentence imposed for the Commonwealth offence was an appropriate one. Facts 9 There was a statement of agreed facts tendered to her Honour in respect of the State offence. It related that police were conducting an investigation into the activities of one George Agoulian. On the evening of 8 March 2007, Agoulian was contacted by an undercover police officer who indicated that he wanted to purchase cocaine from him. Agoulian then called the applicant and communicated to him the intention of obtaining cocaine from him in order to supply to the undercover officer. During the course of the conversation, the applicant said, "I had to go to Leichhardt … I'm telling you I can't … actually I will find out for you …". 10 An hour later the applicant spoke again on the phone to Agoulian and gave him directions to the applicant's home at Artarmon. Approximately 15 to 20 minutes later, Agoulian was seen walking to another, but nearby, location in Artarmon where he met with the undercover officer and supplied him with 56 grams of cocaine in exchange for $23,800. 11 The agreed statement of facts includes a concession by the Crown that "although the offender had intended the transaction eventually conducted by Agoulian, the Crown cannot prove beyond reasonable doubt that the offender did more than attempt to facilitate a supply of cocaine to Agoulian". 12 There were also agreed facts in relation to the offence taken into account. About a fortnight after the primary offence the applicant assisted in financing the purchase by another person of about 10 kilograms of cannabis leaf. He received almost half a kilogram of what was purchased. Subjective circumstances 13 The applicant was aged 45 at the time of the offences. He had no previous criminal convictions. Testimonials were tendered which confirmed that he was of otherwise good character. 14 The applicant was born in Lebanon and came to Australia with his family in about 1975. His upbringing was unremarkable. A Pre Sentence Report records that he experienced on-going grief and guilt in relation to a decision he made some 10 years earlier to terminate his father's life support after he had been seriously injured in a motor vehicle collision. 15 The applicant was married and had three children. The marriage became strained in 2003 and he subsequently entered into a relationship with another woman. His wife did not know of this relationship until after the applicant's arrest in May 2007. She ceased contact with him and instituted proceedings in the Family Court. 16 The applicant gave evidence before her Honour. It included how he had established a successful panel beating business which at one point had an annual turnover of $4.5 million and 26 staff. The business did a lot of insurance work and it suffered irreparable damage when a major insurance company went into liquidation. The applicant's business itself went into liquidation in about 2003. Eventually his brother bought the business and employed the applicant as manager. The applicant had also operated a property investment and development business since about 1996. 17 Alcohol and drug use emerged as a significant feature of the applicant's life in the period leading up to his arrest. He told the author of the Pre Sentence Report that he was drinking up to half a bottle of spirits and smoking a gram of cocaine per day. His consumption of cannabis, something in which he had engaged throughout his adult years, had also increased. He cited stress associated with his extra-marital relationship as the cause. He said that it had also precipitated his offending behaviour. There was evidence from other sources to the effect that there was a notable deterioration in the applicant's general mood and behaviour in the year or so preceding the offences. 18 A report by Dr Stephen Allnutt, forensic psychiatrist, included that the applicant spoke of various matters which were causing him stress in the period leading up to the offences such as the extramarital relationship, paranoia associated with drug use and general difficulties arising from his work. Aside from substance abuse and some symptoms of depression and anxiety, Dr Allnutt did not detect any sign of mental illness or personality disorder. 19 The judge recorded that she took into account the absence of previous convictions, prior good character, good prospects of rehabilitation and remorse. I take it that her Honour must have put to one side the evidence that the applicant had been a user of illicit drugs for all of his adult life in making the finding as to his character. Although the plea of guilty in respect of the State offence was entered 10 months after the applicant had been committed for trial, and after he had been arraigned, pleaded not guilty and the matter listed for trial, the judge nonetheless allowed a discount of 20 per cent for its utilitarian value. In R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 it was said that a discount of more than 15 per cent would not usually be allowed for a plea entered on arraignment. With respect, it is hard to understand how a reduction of more than 10 per cent was appropriate. 20 Her Honour noted a submission that the State sentence should be concurrent with the Commonwealth sentence. In that context she referred to Pearce v The Queen [1998] HCA 57; 194 CLR 610 and the principle of totality before stating: The State offences are totally separate to the Commonwealth matters and to reflect the criminality I consider it is appropriate that there should be a partial accumulation of the sentences. The application 21 There is a sole ground of appeal asserting that the State sentence "was too severe in all the circumstances". Four reasons are advanced for that proposition: that the fixed term was excessive in the light of the low level of objective criminality involved; the absence of any criminal history and prior good character; a failure to take into account the applicant's drug addiction at the time of the offence; and that the sentence did not reflect that the applicant had given assistance to authorities. A preliminary matter 22 The applicant's case is, in effect, that there should be no requirement for him to serve any additional period in custody referrable to the State offence. His complaint is twofold. First, that the sentence for the State offence is excessive. Secondly, that the two sentences should be served concurrently (despite what has been said on the subject in cases such as Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41). Alternatively, it was put that the degree of partial accumulation should be less. 23 However, the partial accumulation of the sentences was no part of the sentencing order in respect of the State offence. It was a result of the commencement date specified in respect of the Commonwealth sentence. There is no appeal before this Court in relation to the Commonwealth sentence. We have not heard from the Commonwealth Director of Public Prosecutions. 24 I take the applicant to be relying upon the provisions of s 59 of the Crimes (Sentencing Procedure) Act 1999 which empowers a court when quashing or varying a sentence to vary the date of commencement of any other sentence that has been imposed upon the person by that or any other court. This is in addition to powers of the Court under s 7(1A) Criminal Appeal Act 1912. Both of those provisions, however, are only activated upon the quashing or varying of a sentence. If this Court was of the view that it should not interfere with the State sentence, there is no power to vary the commencement date of the Commonwealth sentence. 25 The application was first listed for hearing before a differently constituted bench of this Court on 5 November 2010. The matter I have just alluded to was the subject of some discussion. It culminated in Mr Stratton QC successfully persuading the Court to adjourn the proceedings so as to enable an application for leave to appeal in respect of the Commonwealth sentence to be filed. It was accepted that for practical reasons the hearing would have to commence afresh before a differently constituted bench. Despite the reason given in support of the adjournment application, the foreshadowed further application for leave to appeal has not been filed. Merits of the application 26 It may be accepted that the applicant's role in attempting to facilitate a supply of cocaine to Mr Agoulian represented criminality of a low order in the scale of offences against s 25(1) Drugs Misuse and Trafficking Act. However, the amount of cocaine involved, 56 grams, was not insignificant, being almost 20 times the prescribed traffickable quantity. Moreover, it was necessary for her Honour to also take into account the applicant's guilt in respect of an entirely separate and distinct offence which involved him financing the purchase by another person of 10 kilograms of cannabis leaf. That is 33 times the traffickable quantity and 40 per cent of the commercial quantity prescribed in respect of that drug. 27 Sentencing statistics were relied upon to support the proposition that the sentence imposed was excessive. They show that 52 per cent of all offenders sentenced for supplying less than the commercial quantity of cocaine from July 2002 to June 2009 received a full-time custodial sentence. In respect of those who did receive such a sentence, 28 per cent received a sentence of 2 years or less. 28 Other matters, however, emerge from the statistics. Where an offence listed on a Form 1 document is taken into account the rate of full-time imprisonment increases to 59 per cent. They also disclose that 91 per cent of all offenders received a term of imprisonment of some form. In the applicant's case, of course, there was no cause for her Honour to consider ordering that the term be served other than by way of full-time imprisonment. Senior counsel for the applicant, who also appeared in the court below, did not submit to her Honour that some sentence other than full-time imprisonment should be imposed. His submission was that there should be concurrent sentences. In those circumstances, any comparison with statistics should be with sentences of full-time imprisonment that have been imposed. 29 The statistics indicate that the vast majority of offenders pleaded guilty but they do not show the extent by which the sentences were reduced on account of that fact. They do not show the quantity of the drug involved (which can be anything above 0 grams up to 250 grams) or the role played by the offender. Where there are additional offences listed on a Form 1 document taken into account, the statistics do not reveal what those offences were. In the present case it was a further drug supply offence which would not be expected to be a common occurrence. For all these reasons I find the statistics to be of little assistance. 30 It was submitted that the judge should somehow have taken into account that the applicant was addicted to both cocaine and cannabis. It is not clear from the evidence that the applicant was addicted, but I accept that drug use brought him into contact with others involved in drug supply activity. There was no claim by the applicant that there was any causal connection between his drug use and his involvement in the offences. It was not suggested, for example, that he was supplying in order to feed an addiction and that the objective gravity of the offence was reduced on that account: Regina v Way [2004] NSWCCA 131; 60 NSWLR 168 at [86]. The judge referred to the applicant's drug use. She referred to the report by Dr Allnutt, noting his recommendation that the applicant should attend a drug and alcohol rehabilitation program. I am not persuaded that there was any failure by her Honour to take the applicant's drug abuse into account in an appropriate way. 31 A submission was made that the judge erred in not taking into account the applicant's assistance to authorities in respect of the State offence. Her Honour did take this matter into account but only in relation to the Commonwealth offence. She allowed a reduction of 35 per cent for a combination of the applicant's plea of guilty and his assistance. Given that the Commonwealth sentence was the major consideration in the sentence proceedings I cannot detect error in the judge's approach. Whether to discount one or both sentences was entirely discretionary: R v Gallagher (1991) 23 NSWLR 220 at 230F and 234D. In any event, the starting point for the State sentence was 2 years 6 months prior to reduction by 20 per cent for the plea of guilty. If it had been reduced as well for assistance, it would have been a sentence of 1 year 7.5 months. Given that only the first year of the State sentence was to be served before the commencement of the Commonwealth sentence, there was no practical utility in her Honour discounting the State sentence for assistance as well. 32 In my view the sentence imposed by her Honour for the State offence was within the range of her sentencing discretion. All matters that were favourable to the applicant were taken into account but, in the end, it was necessary that a sentence be imposed that was consistent with the objective seriousness of the offence and reflected an appropriate degree of general deterrence, an important factor in sentencing for drug supply offences. There was also the need to take into account the additional drug supply offence on the Form 1. No specific error by the judge has been established and I am not persuaded that the sentence was unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357. 33 There is a further matter to note. The day after the applicant was sentenced in the District Court he appeared in a Local Court and was sentenced to terms of imprisonment of 12 months for the possession of an unauthorised prohibited firearm and 18 months for the possession of two unauthorised pistols. 34 The Crown tendered to this Court the facts upon which the applicant was sentenced for those matters. They disclose that the applicant's home was searched when he was arrested on 21 May 2007. Police found a loaded .25 Colt self-loading pistol, a loaded .380 Browning self-loading pistol, and a .22 Stirling single shot bolt action rifle which was not loaded but had a silencer attached. 35 The magistrate ordered that the sentences for these offences commence on 21 May 2007, the same commencement date as the sentence for the State drug supply offence. They would have warranted a separate and discrete custodial imposition but the magistrate had limited jurisdiction to achieve that end. Section 58 of the Crimes (Sentencing Procedure) Act provides that a Local Court may not impose a sentence partially or wholly accumulative upon an existing sentence if it would extend the length of the total sentence beyond five years. The magistrate could have extended the mandatory period of incarceration of the applicant by six months but exercised his discretion not to do so. Imposing such a sentence would have reduced the potential period for parole considered appropriate by her Honour. 36 Accordingly, even if this Court did intervene and reduce the term of the sentence for the State offence, there is, at least in my mind, considerable doubt as to whether it would be appropriate to bring forward the commencement date of the Commonwealth sentence so as to perpetuate the subsuming of sentences for separate and serious firearms offences. Order I propose that leave to appeal be refused. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.