Melikian v R

Crimes Act 1900 s 527C(1) LEGISLATION CITED: Criminal Appeal Act 1912 s 6(3) Drug Misuse and Trafficking Act 1985 s 25(1)

Postiglione v The Queen (1997) 189 CLR 295 R v Kairouz [2005] NSWCCA 247 R v Kollas & Mitchell [2002] NSWCCA 491 R v Ilbay [2000] NSWCCA 251 CASES CITED : R v M.A.K R v M.S.K [2006] NSWCCA 381 R v McNaughton [2006] NSWCCA 242 R v Shi [2004] NSWCCA 135 Regina v Fernando [2002] NSWCCA 28 Regina v MacDonnell (2002) 128 A Crim R 44 Thompson v R [2007] NSWCCA 299

PARTIES: Vartan Melikian Regina

COUNSEL: H Cox (Applicant) P Ingram (Respondent)

SOLICITORS: S O'Connor Legal Aid Commission S Kavanagh Solicitor for Public Prosecutions

IN THE COURT OF CRIMINAL APPEAL 2007/2783

Spigelman CJ Hidden J Price J

1 SPIGELMAN CJ: I agree with Price J. 2 HIDDEN J: I agree with Price J.

3 PRICE J: The applicant Vartan Melikian seeks leave to appeal against the sentence imposed upon him by Sides DCJ (the sentencing Judge) in the District Court at Campbelltown on 2 February 2007. He had pleaded guilty in the Local Court to a charge of knowingly take part in the supply of heroin between 25 and 27 October 2005 and adhered to his plea in the District Court. 4 The offence being contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 is punishable by 15 years imprisonment and/or a fine of 2000 penalty units. 5 A related offence of goods in custody contrary to s 527C(1)(a) of the Crimes Act 1900 namely $350 had been included in a s 166 certificate. 6 The applicant was sentenced to a term of imprisonment of five years consisting of a non-parole period of three years and nine months commencing on 16 February 2006 and expiring on 15 November 2009 and a balance of term of one year and three months expiring on 15 February 2011. 7 The notice of appeal identifies the following grounds: 1. The applicant suffers a justifiable sense of grievance when comparing the sentence imposed upon him with the sentence imposed upon his co-offender, Jennar. 2. The sentence imposed is manifestly excessive. The offence 8 A statement of facts was tendered without objection and may conveniently be summarised as follows:

In October 2005, police intercepted a number of telephone calls between the applicant and others relating to the supply of heroin. The applicant, who was in Newcastle, made arrangements over the telephone with a person known as Bobby to buy 28 grams of heroin for $5,600. The actual purchaser of the heroin was Ryker Jennar. The applicant travelled with Jennar to Sydney where he received the drug from Bobby. He then handed over the drugs to Jennar. Shortly afterwards, the applicant and Jennar were arrested. The drugs were found on Jennar and weighed 27.2 grams, fifteen and a half per cent of which was pure heroin. The street value of the heroin was estimated as being between $6,900 and $12,000. At the time of his arrest, the applicant had $350 in his possession which was part of his reward for his role in the supply. In addition, he was to receive some of the drugs for his own use. 9 The sentencing Judge was satisfied that the applicant in effect was a "facilitator or a conduit" so that the heroin could be purchased from Bobby on behalf of or by Jennar. The applicant was, his Honour found, "actively involved in the offence and not involved in one simple step in the process of supply" and was involved in drug trafficking to a significant degree. 10 The sentencing Judge said (ROS at 7): "The quantity of drugs indicates that he was facilitating a wholesale drug deal and accordingly had no way of knowing who the ultimate users would be because he was only involved in the facilitation of the supply from the buyer to the seller at the wholesale level. The Court does not accept that his criminality is at the bottom end of the range of offences covered by the particular provision. Drug trafficking is often undertaken using facilitators so that the buyers and the sellers can distance themselves from the illegal drugs in an attempt to avoid detection and being brought to justice. The Court is satisfied that his criminality is very much greater than being described at the bottom of the range and that it cannot be described as minor."

11 A twenty five per cent discount was allowed to reflect the utilitarian value of the plea of guilty. Subjective circumstances 12 The applicant gave evidence before the sentencing Judge and a pre-sentence report was tendered. 13 The applicant was born in Iraq on 24 April 1961 and is the youngest of five siblings of Armenian background. His father was arrested in Iraq for political reasons and died shortly after his release from prison from suspected poisoning injested during his imprisonment. The applicant and his siblings escaped to Greece. Their mother stayed behind to sell the family home. Before she could do so, she was detained and the property confiscated. She remained in custody for three years before she was able to join the family in Greece. The applicant had attended school in Iraq until the age of fifteen. 14 The applicant, then 18-years old, his mother, a brother and a sister migrated to Australia in 1979. He was employed by his uncle and worked long hours. It was, the applicant said, his first girlfriend who introduced him to amphetamines. The relationship lasted five years. He started a relationship with another girl who was using cocaine and heroin. He first supplied heroin in 1989 to support his cocaine habit and served a prison sentence for supply. 15 The applicant was married in about 1999 and divorced in 2001. He maintains regular contact with his daughter from the marriage, who is in the care of her maternal grandmother. The applicant formed a new relationship in 2002 and a child of that relationship was born in 2006. 16 The applicant was shot through the right thigh in 1999 during an armed robbery when he was at work. The applicant said he then started using heroin. He was diagnosed with post traumatic stress disorder for which he ultimately received anti-depressant drugs to assist him to deal with that condition. 17 The applicant testified that he was 46-years old and was determined to change his ways. He knew he was causing great shame to his family and wished to be a better example for his 9-year old daughter. At the time of the offence, the applicant was 44-years old. 18 The author of the pre-sentence report opined that the applicant had a traumatic past which he had not been able to overcome. Instead he appeared to take refuge in the drug sub-culture with a succession of remissions and relapses and likewise expressed good intentions to remain drug free. He had good family support. 19 The sentencing Judge observed that the applicant had prior offences of a similar nature. In March 1992 he was sentenced for using a drug to commit an offence to a minimum term of imprisonment of 12 months with an additional term of four months. For an offence of supply of a prohibited drug sentence was deferred upon his entering into a recognisance to be of good behaviour for three years. Probation and Parole supervision was a condition of the recognisance. Two matters of possession of a prohibited drug were taken into account on a schedule. In September 1992, he was sentenced to a minimum term of imprisonment of two years and six months with an additional term of 10 months for an offence of supply of a prohibited drug. Two offences of possession of a prohibited drug were taken into account on a schedule. In 1996 he was fined for possession of a prohibited weapon. In July 2000 he was placed on a twelve month good behaviour bond for possession of a prohibited drug. 20 In July 2003 he was sentenced to imprisonment for three years and four months with a non-parole period of one year and three months for an offence of supply prohibited drugs on an ongoing basis. Matters taken into account on a Form 1 included supply of a small quantity of a prohibited drug. He was released to parole on 5 December 2003 and the sentence was not due to expire until 5 January 2006. The sentencing Judge noted that at the time of the commission of the offence he was on parole and found that to be an aggravating feature of the present offence. 21 The sentencing Judge found that "in all the circumstances, notwithstanding his evidence about his intentions concerning drugs in the future, it is difficult to be optimistic that he will remain drug free". His Honour reached the view that if special circumstances were found "the non-parole period would fail to reflect the objective seriousness of the offence".

Dealing with the appeal 22 Ground 1 of the appeal raises the issue of due proportion between the applicant's sentence and the sentence imposed on Ryker Jennar, his co-offender. Whilst conceding that the different subjective circumstances of the applicant and Jennar required different sentences, Ms Cox for the applicant submitted that the sentence imposed on Jennar was markedly more lenient than those subjective circumstances would justify. She argued that the sentences reveal a marked disparity such that the different sentences imposed do not reflect a due proportion. 23 The Crown submitted that the sentence imposed upon the applicant was commensurate with the significant differences in his circumstances at sentence and those of Jennar. This Court would not be satisfied that the sentence imposed upon the applicant could give rise to a justifiable sense of grievance. 24 Jennar was sentenced by Keleman DCJ on 21 August 2007 to a term of imprisonment of two years and six months consisting of a non-parole period of eighteen months and balance of term of twelve months. He had pleaded guilty to the charge of supplying a prohibited drug, namely, heroin contrary to s 25(1) of the Drug Misuse and Trafficking Act. Two offences on a Form 1, namely a charge of possess prohibited drug (0.38 grams of methylamphetamine) and a charge of goods in custody, namely $976.05 were taken into account on sentence. 25 The facts upon which Jennar was sentenced were similar to the facts before the sentencing Judge. The offences on the Form 1 concerned items found on Jennar at the time of his arrest. The maximum penalty for the charge of supply was the same as for the offence of knowingly take part in the supply. 26 Keleman DCJ when sentencing Jennar expressly considered the principle of parity and referred to the terms of the sentence that had been imposed by the sentencing Judge upon the applicant, to the findings made of the applicant's role in the offence and to his subjective features including his criminal history. Keleman DCJ found beyond reasonable doubt that the criminality in the role played by Jennar was broadly equivalent to that of the applicant and as a result of considerations of parity, Jennar would receive a sentence "that is less than would otherwise have been appropriate". 27 There were proper grounds available in Jennar's case for Keleman DCJ to have imposed a sentence upon him which was shorter than the applicant's sentence. 28 Jennar had no prior criminal history whereas the applicant's prior offending included two offences of supply of a prohibited drug and one offence of ongoing supply. At the time of the commission of the offence, Jennar was not on conditional liberty whereas the applicant was on parole for a similar offence which was an aggravating feature. Jennar was 20-years old whereas the applicant was 44-years old when the offence was committed. Jennar was found to have good prospects of rehabilitation whereas the sentencing Judge found that it was difficult to be optimistic that the applicant would remain drug free. Keleman DCJ found that Jennar's plea represented "genuine remorse and contrition" whereas the sentencing Judge was only satisfied that there was "some contrition" indicated by the applicant's plea and evidence. 29 Jennar's age, first time in custody and anticipated benefit from an extended period of supervision to overcome his drug addiction were found to be special circumstances. The sentencing Judge did not find special circumstances in the case of the applicant. 30 Ms Cox argued that the applicant had come out somewhat harshly in the assessment by Keleman DCJ that the two offenders had played similar roles. She submitted that the role the applicant played was objectively less serious as it was Jennar who was the purchaser of the drugs and stood to make the real profit out of the transaction. 31 The sentencing Judge appropriately assessed the applicant's degree of criminality by defining his role and the level of his actual participation in the criminal offending. His Honour found that the applicant was a facilitator so that heroin could be purchased for Jennar and that he was actively involved in the offence. He had not only made arrangements over the telephone for the purchase of the drug but had accompanied Jennar to Sydney where he had received the drug from Bobby and then handed it over to his co-offender. As his Honour observed in the passage I have quoted at paragraph 10 drug trafficking is often undertaken using facilitators so that buyers and sellers can distance themselves from the illegal drugs to escape detection. It is not to the point that the co-offender was the purchaser of the drugs and stood to profit more than the applicant. An important role of an intermediary, such as the applicant, is to satisfy other parties to a drug transaction that they are not the subject of a police undercover operation. 32 It is well recognised that the culpability of those who engage, at any level, in drug supply is significant and that deterrent sentences are necessary: R v Shi [2004] NSWCCA 135. There was no error in the assessment of equivalence in the role of the co-offenders by Keleman DCJ. 33 Ms Cox contended that so far as prospects of rehabilitation are concerned, the difference between the co-offender and the applicant related in effect to their ages. In my view, this submission has no merit. The applicant had exhibited in the past an inability to remain drug free over extended periods of time and at the time of the offence was on parole for a similar offence. The sentencing Judge's finding that, notwithstanding the applicant's evidence, it was difficult to be optimistic that he could remain drug free was plainly open to his Honour. 34 The issue of parity is not simply determined in the present case by the different subjective circumstances of the applicant and the co-offender. As was said by Dawson and Gaudron JJ in Postiglione v The Queen (1997) 189 CLR 295 at 301: "Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality." 35 A marked disproportion between the sentences imposed on co-offenders of a degree or a kind which gives rise to a justifiable sense of grievance is required before appellate intervention. A sentence, which is otherwise appropriate or within the permissible sentencing range, which offends that principle should be reduced: Postiglione at 301; R v Kollas & Mitchell [2002] NSWCCA 491 per Wood CJ at CL at [45]. This Court retains a discretion not to intervene where it is apparent that the sentence under comparison is unjustifiably lenient and that to do so would be to produce a sentence which is totally inappropriate to the objective criminality involved: Kollas & Mitchell at [45]; R v Kairouz [2005] NSWCCA 247 per Wood CJ at CL at [45]. 36 The undiscounted starting point of the applicant's head sentence is six years and eight months. The undiscounted starting point of Jennar's sentence is 36 months (round figures). The undiscounted starting point of the applicant's sentence is 122 per cent (round figures) more than the starting point of his co-offender's sentence. The differential of three years and eight months does more than adequately reflect, to my mind, the different subjective cases of the co-offenders. Whilst their subjective circumstances necessarily required significantly different sentences, the disproportion is such as gives rise, in my opinion, to a justifiable sense of grievance. 37 As the applicant came to be sentenced first, the sentencing Judge was not required to consider the issue of parity. The issue of disproportion arises as a consequence of the sentence imposed by Keleman DCJ. Keleman DCJ recognised in his sentencing remarks that as a result of considerations of parity, Jennar was to receive a lesser sentence than otherwise would have been appropriate. It seems to me that whilst Jennar's sentence might be regarded as being lenient, it is not unjustifiably so. The Crown does not complain about Jennar's sentence. Notwithstanding that the sentence imposed on the applicant by the sentencing Judge was, in my view, appropriate and within the permissible sentencing range, (a topic which will be considered under Ground 2 of the appeal), this Court should intervene and reduce the applicant's sentence. I am persuaded that a reasonable person looking at the circumstances of this case would regard the applicant's grievance as justified: R v Ilbay [2000] NSWCCA 251. 38 Ground 1 of the appeal is established. 39 Ground 2 of the appeal is that the sentence imposed is manifestly excessive. In support of that contention, Ms Cox referred to statistics maintained by the Judicial Commission for the offences of both knowingly take part in supply of less than the commercial quantity of heroin and supply of less than the commercial quantity of the same prohibited drug. She submitted that the statistics for the offence of supply demonstrate that the applicant's sentence was in the top 11 per cent of sentences imposed and the non-parole period fell into the top three per cent of non-parole periods. The statistics for knowingly take part in supply demonstrate, Ms Cox contended, that no person had actually received a sentence of five years. She argued that a relatively small amount of drugs of a low purity was involved and the offence of supply was of a low order in the range of offences under s 25(1). 40 Whilst the statistical material provides useful information about the range of sentences imposed, it must be remembered that the upper limit of the range of sentence is not provided by the Judicial Commission statistical information but by the maximum penalty which in this case is 15 years imprisonment: Thompson v R [2007] NSWCCA 299 per Hislop J at [24]. Moreover, each sentence depends on its own facts. 41 The sentencing Judge was entitled to have regard to the applicant's record of repeat similar offending in giving more weight to retribution, personal deterrence and the protection of the community than would be the case if such a record did not exist: R v McNaughton [2006] NSWCCA 242, R v M.A.K R v M.S.K [2006] NSWCCA 381 at [51]. Furthermore, the commission of an offence whilst on conditional liberty has long been regarded as a factor of aggravation requiring the passing of a deterrent sentence: see, for example, Regina v Fernando [2002] NSWCCA 28 at [40-42]. 42 It is well established that the quantity of the drugs is not the sole or even the principal determinant for sentencing in relation to drug offences. As was pointed out by Wood CJ at CL in Regina v MacDonnell (2002) 128 A Crim R 44 at [33]: "What is more important is the role of the offender, and the level of his or her participation in the offence; subject of course to the fact that, in relation to supply offences under State law, there is a gradation of seriousness reflected by an increase in penalty as the quantity of drug involved moves into those levels which answer the descriptions of a commercial quantity, or of a large commercial quantity." 43 The sentencing Judge found that the quantity of drugs indicated that the applicant was facilitating a wholesale drug deal and that his criminality was very much greater than being described at the bottom of the range. These findings were open to his Honour. The quantity of heroin was more than five times the indictable quantity applicable to the prohibited drug and had a street value estimated as being between $6,900 and $12,000. 44 In all the circumstances of this case, I am unable to find that the sentence is manifestly excessive. Ground 2 of the appeal has not been established. 45 It is the sentence imposed upon Jennar which gives rise to the unjustifiable disproportion in this case. The Court, in my view, should form as required by s 6(3) of the Criminal Appeal Act 1912 an opinion that "some other sentence…is warranted in law and should have been passed" and proceed to re-sentence the applicant so as to provide equal justice to him. 46 In an affidavit sworn 6 June 2008 the applicant affirms that he has completed a self management and recovery training program and remains free of illicit drugs. The pre-sentence report before the sentencing Judge noted that the applicant had good family support. It seems that support has continued whilst he has been in custody. 47 I consider that the unjustifiable disproportion between the sentences may be removed by a reduction in the applicant's head sentence and by the finding of special circumstances. An extension of the period on parole might assist the applicant to overcome his drug addiction. The proposed reduction in sentence will not produce a result which is inappropriate to the objective and subjective criminality involved in the offence. 48 The orders I propose are:

(i) Leave to appeal be granted. (ii) Quash the sentence imposed by the sentencing Judge. (iii) Sentence the applicant to imprisonment for a non-parole period of three years to date from 16 February 2006 and expire on 15 February 2009 and a balance of term of one year and six months expiring on 15 August 2010. The earliest date on which the applicant will be eligible for release to parole is 15 February 2009. **********

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.