Markarian v R

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gummow,Hayne,Callinan JJ,McHugh J,Kirby J
• Judgment Date: 18 May 2005
• Neutral Citation: 2005-0518 HCA A,[2005] HCA 25
• Court: High Court
• Docket Number: S600/2003
• Date: 18 May 2005

[2005] HCA 25

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Callinan JJ

S600/2003

Anthony Vasken Markarian

Appellant

and

The Queen

Respondent

Representation:

A C Haesler and R W Burgess for the appellant (instructed by Legal Aid Commission of New South Wales)

R D Cogswell SC with G E Smith and J A Quilter for the respondent (instructed by Solicitor for Public Prosecutions (New South Wales))

Crimes (Sentencing Procedure) Act 1999 (NSW), Div 3 Pt 3, s 21A, s 31, s 32, s 34(1), s 101A.

Criminal Appeal Act 1912 (NSW), s 5D.

Drug Misuse and Trafficking Act 1985 (NSW), s 33(2).

Markarian v The Queen

Criminal law — Sentence — Principles — Drug offence — Appellant acted as driver for heroin dealer — Appellant pleaded guilty and asked that four other offences be taken into account by sentencing judge — Whether Court of Criminal Appeal adopted impermissible approach to sentencing by means of staged approach — Whether staged approach to be preferred to instinctive synthesis of sentencer — Relevance of maximum available sentence — Relevance of quantity of drug.

Criminal law — Appeal — Prosecution appeal against sentence — Court of Criminal Appeal increased sentence from 2 years and 6 months to 8 years — Whether Court of Criminal Appeal was wrong to find that the original sentence was manifestly inadequate — Whether re-sentencing discretion miscarried.

Criminal law — Sentence — Re-sentencing — Further offences — Additional discrete sentence added to head sentence for further offences disclosed by offender — Whether such approach a breach of totality principle.

Criminal law — Sentence — Principles — Failure by trial judge and Court of Criminal Appeal to consider an obligatory requirement of sentencing statute in determining appellant's sentence — Whether sentencing discretion of trial judge and Court of Criminal Appeal miscarried because of such omission.

Words and phrases — ‘staged approach’, ‘two-stage approach’, ‘instinctive synthesis’.

ORDER

1. Appeal allowed.

2. Set aside the sentence and orders of the Court of Criminal Appeal of the Supreme Court of New South Wales.

3. Remit the matter to the Court of Criminal Appeal of the Supreme Court of New South Wales to dispose of the appeal in accordance with the reasons for judgment of this Court.

1 Gleeson CJ, Gummow, Hayne and Callinan JJ. The question in this case is whether the Court of Criminal Appeal of New South Wales failed to apply or misapplied orthodox sentencing principles in upholding an appeal against sentence by the Crown.

Facts

2 At his arraignment on 3 May 2002, the appellant pleaded guilty to a charge that between 18 April and 10 October 2000 he did knowingly take part in the supply of a prohibited drug, namely heroin, in an amount not less than the commercial quantity for that drug — 415 grams pursuant to s 33(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (‘the Act’) (‘the principal offence’). He asked that in sentencing him for the principal offence four other matters (‘the further offences’) be taken into account by the sentencing judge. The way in which the further offences should be dealt with is governed by a special statutory regime to which some detailed reference is necessary and will be made later.

3 On 15 April 2002, before the arraignment, s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘the Sentencing Act’) had commenced 1. Section 21A, headed ‘General sentencing principles’, was not referred to by the sentencing judge or by the Court of Criminal Appeal. This may have been on the assumption of counsel that insofar as it applied to the present case it did not alter the general law principles which otherwise applied. No contrary submission, requiring further attention to s 21A, was made in this Court and, accordingly, its terms need not be considered.

4 The most serious of the further offences were the supply of in excess of 5 grams of heroin between 25 September and 1 October 2001, and of 232.5 grams of cannabis leaf, another prohibited drug, on 29 September 2000.

5 On 18 July 2002 Hosking DCJ sentenced the appellant to a term of imprisonment of 2 years and 6 months from 18 July 2002 with a non-parole period of 15 months. His Honour was of the opinion that the appellant's plea of guilty had utilitarian value. He accordingly discounted the sentence by 25%. The appellant was therefore eligible for release on parole on 17 October 2003.

His head sentence was to expire on 17 January 2005. In August 2002 however the respondent appealed

6 The facts constituting the principal offence consisted of the appellant's acting over a period of 5 months as a driver for Vincent Caccamo, a dealer in heroin. The appellant, who was himself a heroin addict, was paid in heroin for his services. The material before the sentencing court emphasized the different degree of criminality of the appellant from Caccamo's. Caccamo had previously been sentenced to 8 years imprisonment with a non-parole period of 5 years for a number of offences of supply in the course of an illicit business of handling and selling drugs. The relative brevity in all of the circumstances of his sentence is explained by the significant value that the judge who sentenced him attached to his cooperation with the police. Another of Caccamo's drivers, Chung, was sentenced to periodic detention of 3 years with a 2 years period of non-parole. Chung did not have a criminal record. He had fewer other matters to be taken into account, and he had driven less frequently for Caccamo than had the appellant.

7 The appellant gave evidence at the sentence hearing. This, in summary, was that he was born in December 1963 and started to use heroin soon after his mother's death in August 1996. Caccamo became his source for the drug. In April 1998, he was sent to prison. By the time of his release in October 1999 he had taken himself off both heroin and methadone. He however resumed contact with Caccamo in about July 2000. He regarded himself as indebted to Caccamo for the latter's kindness to his father when he was in prison. At this point the appellant resumed drug taking. Caccamo, who did not have a valid driver's licence, used the appellant as his driver in return for drugs. Before he was charged the appellant had dissipated, largely on illegal drugs, an inheritance from his father of $200,000. He claimed that his own criminal activities had been done out of desperation and in despair at the loss of his parents.

8 The appellant has a criminal history. He was placed on recognisance of 3 years for cultivating a prohibited plant and fined for possessing a prohibited imported drug in 1991. In May 1998 he was sentenced to imprisonment for supplying a prohibited drug. For that offence he spent 18 months in prison and an additional 18 months on parole. He was on parole at the time of the commission of the principal offence and one of the further offences.

9 The sentencing judge had before him an optimistic pre-sentence report indicating that the appellant had been in regular employment until about 1990. He had apparently made genuine progress towards drug rehabilitation by the time of sentence.

10 The appeal to the Court of Criminal Appeal was upheld 2 (Hulme J with whom Heydon JA and Carruthers AJ agreed). A sentence of 8 years imprisonment with a non-parole period of 4 years and 6 months was imposed in lieu of the earlier sentence of 2 years and 6 months with a 15 month non-parole period. The appellant is now eligible for release on parole on 18 January 2007. His sentence will expire on 17 July 2010.

11 In his reasons for judgment Hulme J referred to relevant penalties imposed under the Act 3:

‘The Drug Misuse and Trafficking Act provides for a variety of maximum periods of imprisonment, depending on the quantity and type of drug involved. In the case of the supply, or knowingly take part in the supply, of heroin, the periods are:

• (i) where the quantity is not more than 1 g (a “small quantity”), and the matter is dealt with summarily, two years imprisonment (s 30);

• (ii) where the quantity is not more than 5 g (an indictable quantity), and the matter is dealt with summarily, two years imprisonment (s 31);

• (iii) where the quantity is less than 250 g and the matter is dealt with on indictment, 15 years imprisonment (s 32);

• (iv) where the quantity is not less than 250 g but not as much as 1,000 g (a “commercial quantity”), 20 years imprisonment (s 33(2)); and

• (v) where the quantity is not less than 1,000 g (a “large commercial quantity”), life imprisonment (s 33(3)).’

As to these his Honour observed 4:

‘Although this summary makes it clear that the maximum sentences prescribed are not proportional to quantities, it is clear that, all other things being equal, Parliament intended that the greater the quantity, the higher the sentence should be. Of course, that is not to say that all other matters relevant to sentence should not also have their proper weight 5.’

His Honour then referred to other judgments 6 of the Court of Criminal Appeal of New South Wales in which statements drawing attention to the need in sentencing to deter criminal conduct, and to protect the public, without losing sight of tailoring the sentence to the particular circumstances of the offence charged, and to the ensuring of ‘reasonable proportionality’ in that regard, have been made.

12 Hulme J was of the opinion that not one of the principles reflected in the statements to which we have referred was applied by the sentencing judge. He was influenced by his own experience as a trial judge. He said 7:

‘Much, if not most of the work of the courts is taken up with the consequences of the ravages drugs, particularly heroin, inflict on those who take it and, by them, on society. The survey of imprisoned burglars reported in “The Stolen Goods Market in New South...