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Court of Criminal Appeal 17 February 2003

R v Sakkar

[2003] NSWCCA 26

Drugs

Citation: Sakkar v R [2003] NSWCCA 26
Court: NSW Court of Criminal Appeal
Date: 17 February 2003
Judge(s): James J; Greg James J

Background

The applicant pleaded guilty in the District Court to one count of ongoing supply of cocaine, an offence under section 25A(1) of the Drug Misuse and Trafficking Act. The offending involved four separate sales of small cocaine quantities to an undercover police operative over a one-week period in November 2001, totalling 1.86 grams. When police executed a search warrant at his home, they found 17.4 grams of cocaine, three grams of methylamphetamine, cash, scales, and resealable bags.

Judge Coleman of the District Court sentenced the applicant to four years' imprisonment, with a non-parole period of eighteen months, dating from 22 November 2001. His Honour took into account two additional offences: deemed supply of the cocaine found at the home, and possession of the methylamphetamine. A twenty-five percent discount was applied for the early guilty plea.

The applicant, appearing for himself on the appeal, argued the sentence was too severe. He pointed to his lack of prior violent convictions, his stated rehabilitation in custody, and an offer of employment upon release.

  • Whether the sentence imposed by Judge Coleman was manifestly excessive having regard to the objective and subjective circumstances.
  • Whether the sentencing judge erred by misstating the maximum penalty for one of the offences taken into account.
  • Whether the sentencing judge properly applied the utilitarian discount for the early guilty plea.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. James J found that, subject to two matters raised by the Crown, the sentence was appropriate and properly reflected both the objective seriousness of the offending and the applicant's subjective circumstances. The sentencing judge had been entitled to find the applicant was running a relatively sophisticated street-dealing operation to fund a severe cocaine habit and clear a debt to his supplier.

The first Crown-identified issue was a misstatement by Judge Coleman of the maximum penalty for the methylamphetamine possession offence taken into account. His Honour had described the maximum as fifteen years, when the correct maximum under the Drug Misuse and Trafficking Act was two years and a fine. The Court of Criminal Appeal acknowledged this as a genuine error but found it had no bearing on the sentence actually imposed. The error related to a take-into-account offence, not the principal offence, and on a fair reading of the remarks on sentence, the error did not enter the reasoning process by which the sentence was reached.

The second matter concerned whether the sentencing judge had properly accounted for the utilitarian value of the guilty plea, separate from the element of contrition. The Court was satisfied that, whatever terminology Judge Coleman used, his Honour had in substance taken the utilitarian value of the plea into account when applying the twenty-five percent discount.

The Court found no lesser sentence was warranted in law. Significant aggravating factors weighed against the applicant, including a prior criminal history that included terms of imprisonment and the fact that he was subject to a suspended sentence and good behaviour bond at the time of the offending.

Orders Made

  • Leave to appeal granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • A sentencing judge's misstatement of the maximum penalty for a take-into-account offence does not automatically vitiate the sentence, provided the error did not form part of the reasoning process used to arrive at the sentence for the principal offence.
  • Under section 25A(1) of the Drug Misuse and Trafficking Act, the objective criminality of ongoing supply is considerably greater than the sum of the criminality in the individual acts of supply considered separately, because the provision is directed at persons carrying on a business or practice of supplying prohibited drugs.
  • In dismissing the appeal, the Court confirmed that a twenty-five percent discount for an early guilty plea can properly encompass both the utilitarian value of the plea and the contrition it evidences, even if the sentencing judge's language did not draw a sharp distinction between the two.
  • Committing offences while subject to a suspended sentence and good behaviour bond constitutes a serious aggravating circumstance that weighs against leniency.
  • Post-sentence rehabilitation and employment prospects are matters that arose after sentencing and were not, on these facts, a basis for disturbing the sentence on appeal.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act (NSW), sections 10(1), 21, and 25A(1)
- Crimes (Sentencing Procedure) Act (NSW), Part 3 Division 3

Cases:
No specific cases are named in the provided text, though James J noted that the sentencing judge's statements of principle on section 25A sentencing were supported by authorities on which his Honour relied.