Sukkar v R - [2007] NSWCCA 298

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: SUKKAR Paul Tony v R [2007] NSWCCA 298

FILE NUMBER(S):
2007/2772

HEARING DATE(S): 10 October 2007

JUDGMENT DATE: 10 October 2007
EX TEMPORE DATE: 10 October 2007

PARTIES:
Paul Tony Sukkar - Appellant
Crown - Respondent

JUDGMENT OF: Giles JA Hulme J Hislop J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/1127

LOWER COURT JUDICIAL OFFICER: Charteris DCJ

LOWER COURT DATE OF DECISION: 19 January 2007

COUNSEL:
P Byrne SC; A Williams - Appellant
M Barr - Respondent

SOLICITORS:
Horowitz & Bilinsky - Appellant
S Kavanagh - Respondent

CATCHWORDS:
Appeal against sentence – Drug Misuse and Trafficking Act – supply large commercial quantity of ecstasy – Crimes (Sentencing Procedure) Act s23 – offer of assistance unlikely to be used – no large discount appropriate – plea guilty – conditional liberty on drug offence – sentence of 11.5/7.5 years not excessive

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985

CASES CITED:
R v Barrientos [1999] NSWCCA 1
R v Cartwright (1989) 17 NSWLR 243
Regina v Way (2004) 60 NSWLR 168
Veen v Regina (No 2) (1987-1988) 164 CLR 465
Yenice (1994) 72 1 Crim R 234

DECISION:
(1) Leave to appeal granted.
(2) Appeal dismissed.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

2007/2772
GILES JA
HULME J
HISLOP J
WEDNESDAY 10 OCTOBER 2007

SUKKAR Paul Tony v REGINA

Judgment

GILES JA: I agree with the reasons of Hulme J. I would add that in R v Barrientos [1999] NSWCCA Abadee J, with whom Sheller JA agreed, referred at [46] to the need to recognize the distinction between, on the one hand the giving of the discount, and on the other, the quantum of the discount where an entitlement to some discount was established. His Honour referred to this need in considering a discount for assistance to authorities. He said that entitlement to a discount does not necessarily depend upon establishing whether or not the information supplied turns out in fact to have been effective, but that the extent of benefit which flows from assistance is a matter relevant to the evaluation of the discount.
His Honour spoke in the past tense, as was appropriate on the facts. At times in submissions this morning Senior Counsel for the applicant suggested that s 23 of the Crimes (Sentencing Procedure) Act was concerned only with past assistance, and therefore where it referred in para (b) of subs (2) to regard to the significance and usefulness of the offender's assistance it provided no warrant for paying account to a forecast of the significance and usefulness where, as in the present case, that was a matter for the future.
I do not think that that can be accepted. Apart from the reference in para (d) of s 23(2) to promised assistance, para (b) itself refers to the significance and usefulness of the assistance "taking into consideration any evaluation by…

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 Sukkar v R

Details

AGLC: Sukkar v R [2007] NSWCCA 298
Case: [2007] NSWCCA 298
Decision Date: 10 October 2007

CaseChat Overview and Summary

The case involved an appeal against a sentence handed down to a person found guilty of supplying a large commercial quantity of ecstasy. The accused, Sukkar, was prosecuted under the Drug Misuse and Trafficking Act and was sentenced to 11.5 years imprisonment, with a non-parole period of 7.5 years. The matter was heard in the High Court of Australia. The main issue before the court was whether the sentence imposed was excessive, particularly in light of the accused's guilty plea and offer of assistance to authorities.

The court considered whether the sentence was appropriate in light of the relevant legislation and case law. It was noted that the sentence was not excessive given the gravity of the offence and the need to deter others from engaging in similar criminal conduct. The court also considered the Crimes (Sentencing Procedure) Act section 23, which sets out the factors that must be taken into account when imposing a sentence. The court found that the offer of assistance by the accused was unlikely to be used by authorities and that a large discount on the sentence was not appropriate. The court also noted that the accused had previously been granted conditional liberty on a drug offence, which was a relevant factor in the sentencing decision.

In conclusion, the court upheld the sentence imposed by the trial judge, finding that it was not excessive. The court emphasised the need to balance the deterrence and denunciation aspects of sentencing with the need to consider the individual circumstances of the offender. The final orders of the court were that the appeal against sentence be dismissed.

Orders