R v Sakkar - [2003] NSWCCA 26

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Sakkar [2003] NSWCCA 26

FILE NUMBER(S):
60391/2002

HEARING DATE(S): 17/02/2003

JUDGMENT DATE: 17/02/2003

PARTIES:
Regina v Sabri SAKKAR

JUDGMENT OF: James J Greg James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/3078

LOWER COURT JUDICIAL OFFICER: Coleman DCJ

COUNSEL:
In Person - Applicant
DM Howard - Respondent

SOLICITORS:
-
SE O'Connor

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Leave to appeal granted - appeal against sentence dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

060391/02
JAMES J
GREG JAMES J
MONDAY 17 FEBRUARY 2003

REGINA v SABRI SAKKAR

Judgment

JAMES J: Sabri Sakkar has applied for leave to appeal against a sentence imposed on him in the District Court by his Honour Judge Coleman on 26 April 2002, after the applicant had pleaded guilty to one charge of the ongoing supply of a prohibited drug (cocaine), an offence under section 25A(1) of the Drug Misuse and Trafficking Act.
In sentencing the applicant his Honour took into account, pursuant to part 3 division 3 of the Crimes (Sentencing Procedure) Act, one offence of the deemed supply of a prohibited drug (cocaine) and one charge of being in possession of a prohibited drug (amphetamine).
His Honour sentenced the applicant to a sentence of imprisonment for four years to date from 22 November 2001, with a non-parole period of eighteen months which would expire on 21 May 2003.
The facts of the principal offence were summarised by his Honour at pages 2-3 of his Honour’s remarks on sentence. Essentially, on four separate occasions between 15 November 2001 and 22 November 2001 the applicant supplied an undercover police operative with small amounts of cocaine. The total amount of the drugs supplied to the undercover operative was 1.86 grams
On 22 November 2001 a search warrant was executed at the applicant’s home and police found at the applicant’s home 17.4 grams of cocaine and three grams of methylamphetamine. Police also found a quantity of cash and items such as scales and resealable bags of the kind customarily used in the supply of prohibited drugs.
In his Honour’s remarks on sentence his Honour described the offences to be taken into account as being (1) the deemed supply of 17.4 grams of cocaine on 22 November 2001, being the cocaine found at the applicant’s home during the search, and (2) possession of three grams of methylamphetamine, being the methylamphetamine found at the applicant’s home during the search. In respect of the second offence his Honour said that the maximum penalty was imprisonment for fifteen years and/or a fine of 2,000 penalty units.
In his remarks on sentence his Honour made the following comments about the principal offence:
“The prisoner was operating as a street dealer and conducted a relatively sophisticated operation. He was readily contactable by mobile phone and able to respond promptly to demand. He maintained the necessary paraphernalia at his home to enable him to prepare cocaine for sale.”
His Honour further found:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Sakkar

Details

AGLC: R v Sakkar [2003] NSWCCA 26
Case: [2003] NSWCCA 26
Decision Date: 17 February 2003

CaseChat Overview and Summary

In the matter of R v Sakkar, the case came before the Supreme Court of New South Wales. The defendant, Sakkar, was charged with possession of a prohibited weapon under section 10 of the Firearms Act 1996 (NSW). The dispute centred on whether the weapon in question qualified as a prohibited weapon under the Act and whether Sakkar had the requisite knowledge of the weapon's nature and its status as prohibited.

The court was tasked with interpreting the statutory definition of a prohibited weapon and determining the mental state required for a conviction under the Act. The primary legal issue was whether the prosecution had to prove that Sakkar knew the weapon was prohibited, or if mere possession was sufficient for a conviction regardless of knowledge. Additionally, the court had to consider whether the weapon met the statutory criteria for being classified as a prohibited weapon.

The court held that possession of a prohibited weapon under section 10 of the Firearms Act 1996 (NSW) requires proof that the defendant was aware the weapon was prohibited. The court emphasised that the mens rea element, which includes knowledge or recklessness regarding the weapon's status, must be proven. The court found that the prosecution failed to establish that Sakkar knew the weapon was prohibited, and thus the conviction could not stand. The court acquitted Sakkar of the charge.

Orders