McClellan CJ at CL at 1; Howie J at 2; Latham J at 7
DECISION:
Appeal allowed; Sentence imposed by Norrish QC DCJ on 2 September 2005 quashed; Respondent sentenced to 20 years imprisonment to date from 5 December 2001, expiring 4 December 2021, non-parole period of 12 years to date from 5 December 2001 expiring 4 December 2013
CATCHWORDS:
Crown appeal - Importation of commercial quantity of MDMA - extent of discount for plea of guilty and assistance - objective criminality of respondent erroneously assessed as equal to partner in criminal enterprise
Appellant - W Abraham QC Respondent - AJ Belanto QC
SOLICITORS:
Appellant - Commonwealth Director of Public Presecutions Respondent: Uther Webster & Evans
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
02/11/0777
LOWER COURTJUDICIAL OFFICER:
Norrish QC DCJ
2005/2092
McCLELLAN CJ AT CL HOWIE J LATHAM J
30 March 2006
REGINA V JOSEPH SUKKAR
Judgment
1 McCLELLAN CJ at CL: I agree with Latham J and the additional remarks of Howie J.
2 HOWIE J: In this matter I have read the judgment of Latham J in draft. I agree with the orders proposed by Her Honour for the reasons she gives. I simply want to comment on one matter: the discount for assistance.
3 As Latham J points out, the discount for assistance reflects a number of considerations that impact upon the sentence to be imposed upon the offender. One factor has traditionally been that a person giving assistance will normally be at risk within the gaol environment and, therefore, may need protection for a substantial part, if not all, of the term of the sentence. When…
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.
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Details
AGLC
R v Sukkar [2006] NSWCCA 92
Case
[2006] NSWCCA 92
Decision Date
CaseChat Overview and Summary
In the case of R v Sukkar, the respondent was convicted in the County Court of Victoria for importing a commercial quantity of MDMA, with a combined value of over $3 million. The respondent appealed against his sentence, contending that the trial judge had erroneously assessed the objective criminality of his involvement in the offence as equal to that of his partner in the criminal enterprise, thereby failing to accord adequate discount for his guilty plea and assistance. The Crown appealed against the sentence as manifestly inadequate.
The primary issue before the court was the appropriate extent of discount to be given for the respondent's plea of guilty and assistance, and whether the trial judge had correctly assessed the objective criminality of the respondent's involvement in the offence. The court also needed to determine whether the trial judge had erred in the application of the sentencing principles and principles of objective justice.
The court found that the trial judge had indeed erred in assessing the objective criminality of the respondent's involvement in the offence as equal to that of his partner. The court held that the respondent had played a lesser role in the criminal enterprise and had provided substantial assistance to the authorities, which warranted a greater discount. The court further held that the sentence imposed was manifestly inadequate, taking into account the seriousness of the offence and the need for general deterrence. The appeal by the Crown was therefore allowed, and the matter was remitted to the County Court for re-sentencing.