REGINA v. BOULGHOURGIAN (aka SIMONS) [2001] NSWCCA 460

The application for leave to appeal against sentence 29 The learned trial judge was of the view that the factual material disclosed that the appellant had played a very significant role in the importation of the prohibited drug and was one of the principals of that importation. The quantity of the drug was substantial. His Honour found it had a street value of between $50,000 and $70,000. His Honour found a lack of remorse and considered the matters referred to in s.16A of the Crimes Act 1914 (Cth). His Honour applied the allowance provided for by s.16G of the Crimes Act 1914 (Cth). However, his Honour said:- "I am guided in my sentence by the case of Regina v. Wong & Leung [1999] NSWCCA 420." 30 His Honour said at p.5 of his remarks on sentence, when dealing with that case:- "I am guided in my sentence by the case of Regina v. Wong & Leung [1999] NSWCCA 420 delivered on 30 July 1999 in which it was said that a general pattern of sentence for a case of drug importation where the quantity was between two grams and 200 grams should be in the range of five to seven years, where those involved were couriers or persons low in the hierarchy of the importation. In this case, the quantity falls above the mid-level of that range, being 14.5 grams of pure cocaine. The prisoner's involvement however was something greater than one at the low level of hierarchy. In all of the circumstances, I have come to the view that an appropriate sentence is one of six years imprisonment." 31 Thus it seems that his Honour applied the guidelines set out by this court in Regina v. Wong & Leung (1999) 108 A. Crim. R. 531 and in particular applied the pattern of sentences provided in that decision. His honour has had regard to the mid-level of the range referred to in that decision, when considering the quantities of drugs, and when he referred to general deterrence, and that in the context of profit, it appears to me that his Honour's sentence turned on his application of the decision in Wong & Leung (supra). 32 In Wong & Leung v. The Queen [2001] HCA 64, the High Court of Australia, by majority, allowed the appeal and set aside the order of the Court of Criminal Appeal, remitting both matters to this court for further hearing and determination conformably with the High Court's decision. It is sufficient to note that the High Court reached the conclusion that the guidelines set out in the judgment of this court were inconsistent with the proper application of s.16A of the Crimes Act 1914 (Cth), and hence the application by his Honour of those guidelines in this matter must be considered as being in error. 33 I would therefore grant leave to appeal against sentence. However, it remains to consider whether the court is of the opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed. It is only if the court is of this view that the court is empowered to quash the sentence and pass another sentence in substitution for that imposed in the exercise of discretion by the trial judge: s.6(3) of the Criminal Appeal Act 1912; House v. The King (1936) 55 CLR 499 at 504. 34 Even though three is error detected in the reasoning process of a trial judge, s.6(3) does not enable this court, much less require it, to interfere with the sentence unless it is of the view that a more lenient sentence should have been passed: Regina v. Astill (No. 2) (1992) 64 A. Crim. R. 289 per Sully, J. at 303 and Lee, AJ. at 304. 35 Should the court be of the view the same or a more severe sentence is warranted, it should not interfere (unless in the special restriction circumstances that are applicable to the latter case: see Neal v. The Queen (1982) 149 CLR 305). 36 In the present case, the unchallenged evidence and the verdict clearly establish a serious infringement of s.233B by the appellant, acting as a joint principal with Mr. Helou. There was imported a substantial quantity of prohibited drugs by a scheme involving the prior remission of funds overseas, and a technique of some sophistication. Further, the appellant was party to a concealment of the identities of those involved. The scheme plainly had the potential for considerable profit at the expense of the vulnerability of Australia's importing systems, and the potential of causing severe harm to the community. 37 There is no reason to doubt any of the factual findings of the trial judge, nor his application to those matters of s.16A of the Crimes Act 1914 (Cth). His Honour applied, as he was required to do., s.16G. 38 Notwithstanding this is the first time in custody, and the submission that the sentence should have been less, notwithstanding his particular subjective circumstances to which his Honour referred in his remarks on sentence and which included his age, his close knit family, the circumstances of his relationship with his girlfriend, and his avoidance of his earlier drug addiction, I am not persuaded that there should have been any sentence other than that originally imposed by the trial judge. 39 The trial judge took into account the prospects of the prisoner for the future, including the prospects of the prisoner's parents' health. The trial judge concluded, when applying the relevant criteria under s.16A, that those matters did not affect the appropriate level of sentence. I agree. 40 Having regard to all the subjective matters and the objective criminality and taking into account the various single instance decisions prior to Wong & Leung (1999) 108 A. Crim .R. 531 both of the courts of this State and of other courts of other States referred to in that decision at pp.547-555, I see no inconsistency in this sentence requiring correction, and indeed, in my view, it is the proper sentence, synthesising all relevant considerations. 41 I therefore have come to the view that the appropriate course to take is to dismiss the appeal. 42 The orders I propose are that leave to appeal against sentence be granted, but the appeal be dismissed. 43 SPIGELMAN, CJ: I agree. 44 SULLY, J: I too agree. 45 SPIGELMAN, CJ: Accordingly the orders are as indicated by Justice Greg James. ********