Suman v The Queen - [2013] NSWCCA 3

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Suman v R [2013] NSWCCA 3
Hearing dates: 6 December 2012
Decision date: 01 February 2013
Before: Simpson J at [1]
McCallum J [2]
Bellew J [39]
Decision:
Leave to appeal granted; appeal dismissed

Catchwords: CRIME - sentencing - whether sentencing judge erred by adopting an impermissible tiered or mathematical approach - whether sentencing judge erred in the exercise of the discretion as to the degree of accumulation between sentences - whether aggregate sentence manifestly excessive
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Firearms Act 1996
Drug Misuse and Trafficking Act 1985
Cases Cited: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
Category: Principal judgment
Parties: Nirmal Suman (applicant)
Regina (respondent)
Representation: Counsel:
GD Wendler (applicant)
R Herps (Crown)
Solicitors:
Van Houten Solicitors (applicant)
Office of the Director of Public Prosecutions (respondent)

File Number(s): 2010/370788
Publication restriction: None
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-02-10 00:00:00

Before:

Woods DCJ

File Number(s):

2010/370788

Judgment

SIMPSON J: I agree with McCallum J.

McCALLUM J: Nirmal Suman seeks leave to appeal against the sentences imposed upon him in the District Court on 10 February 2012. The applicant was sentenced on six charges on that date, with a further two outstanding offences being taken into account as allowed under s 33 of the Crimes (Sentencing Procedure) Act 1999.

The applicant had pleaded guilty to four of the charges at the earliest opportunity. They were:

(a) two offences of supplying a prohibited drug (methylamphetamine) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The two offences taken into account under s 33 were also offences of supplying a prohibited drug contrary to that section, which carries a maximum penalty of 15 years imprisonment;

(b) an offence of receiving stolen property contrary to s 188(1)(a) of the Crimes Act 1900, which carries a maximum penalty of 12 years imprisonment;

(c) an offence of dealing with the proceeds of crime contrary to s 193C(1) of the Crimes Act, which carries a maximum penalty of two years imprisonment.

The applicant pleaded not guilty to two further charges of possessing a prohibited firearm without a licence contrary to s 7(1) of the Firearms Act 1996 and possessing ammunition contrary to s 65(3) of the Firearms Act. He consented to the tender of the Crown brief in respect of those charges but submitted that the firearm and the ammunition, which were found by police in a car at his residence, were not in his possession. The learned sentencing judge heard those matters and was satisfied beyond reasonable doubt as to the applicant's guilt in respect of those two offences.

Separately, while pleading guilty to the offence of dealing with the proceeds of crime, the applicant…

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 Suman v The Queen

Details

AGLC: Suman v The Queen [2013] NSWCCA 3
Case: [2013] NSWCCA 3
Decision Date: 01 February 2013

CaseChat Overview and Summary

The case of Suman v The Queen involved the appellant, who was convicted of a series of drug-related offences. The central issue before the court was whether the sentencing judge had erred in the manner in which they imposed sentences, specifically by adopting an impermissible tiered or mathematical approach and by making an error in the exercise of the discretion regarding the degree of accumulation between sentences. The appellant also contended that the aggregate sentence was manifestly excessive.

The court examined the sentencing principles and the exercise of judicial discretion in imposing sentences. It was noted that the sentencing judge must avoid any mathematical or tiered approach and instead consider the totality of the offending and the principles of proportionality, deterrence, and rehabilitation. The court further considered the discretion in determining the degree of accumulation between sentences, ensuring that the sentences reflect the gravity of the offending and do not result in an excessive overall punishment. The court found that the sentencing judge had not erred in their approach and that the degree of accumulation between sentences was appropriately exercised. The aggregate sentence was also deemed to be proportionate and not manifestly excessive.

The court dismissed the appeal, affirming the sentence imposed by the sentencing judge. The decision emphasised the importance of considering the totality of the offending and the principles of sentencing, while also recognising the broad discretion afforded to the sentencing judge in determining the degree of accumulation between sentences. The court's decision in this case provides guidance for sentencing judges in similar cases involving multiple offences and the imposition of aggregate sentences.

Orders