Citation: Regina v Fred Nassif [2005] NSWCCA 38
Court: NSW Court of Criminal Appeal
Date: 15 February 2005
Judge(s): Grove J, Bell J, Buddin J
Background
The appellant pleaded guilty in the Sydney District Court to attempting to receive for supply a large commercial quantity of MDMA (ecstasy), an offence under s 25(2) of the Drug Misuse and Trafficking Act 1985. The charge arose from a police and Customs operation in late 2001, during which approximately 123.5 kg of ecstasy concealed in imported deep freezers was intercepted and largely replaced with an inert substance.
Intercepted telephone calls and a listening device recorded the appellant negotiating with a co-offender, Louis Sukkar, to take possession of approximately 14,000 ecstasy tablets (estimated at 3.25 kg and worth between $700,000 and $980,000 on the street) for on-supply through the appellant's own associates. The appellant admitted to receiving eight tablets as a sample, though he claimed at sentencing he had merely been exaggerating his importance to Sukkar. The sentencing judge rejected that account.
The appellant was sentenced in the District Court to six years' imprisonment with a non-parole period of three years. He initially appealed both conviction and sentence, but by the time of the hearing he had abandoned the conviction ground and pursued only the severity of the sentence.
Legal Issues
- Whether the sentence of six years' imprisonment with a three-year non-parole period was manifestly excessive in all the circumstances
- Whether the sentence imposed on the co-offender Sukkar, who received the same six-year term despite being found to have played a greater role, gave rise to a justified sense of grievance on the appellant's part
Decision
On the sentence appeal, the Court granted leave to appeal but ultimately dismissed the challenge. Bell J, who delivered the primary judgment, examined the objective seriousness of the offence. The large commercial quantity threshold for MDMA is 50 grams; the drugs involved here exceeded that threshold significantly, and the potential street value was up to $980,000. The appellant also had prior drug supply convictions dating from 1993.
The appellant's central argument was that parity with Sukkar's sentence demonstrated his own was excessive. Sukkar had pleaded guilty at the earliest opportunity, had no prior convictions, co-operated with authorities, and was found by the sentencing judge to have been the instigator of the offence. The sentencing judge had expressly found Sukkar's role was greater than the appellant's, yet imposed the same six-year term, because Sukkar's significant mitigating factors (including cooperation that facilitated the appellant's own plea) effectively balanced the disparity in culpability.
Bell J found that the equal sentence imposed on Sukkar did not support a finding that the appellant's sentence was manifestly excessive. Because the sentencing judge had explained his reasoning for applying the same term to a more culpable offender with strong mitigating features, the appellant could not point to a justified sense of grievance. Furthermore, Sukkar's six-year sentence was in any event absorbed into an eighteen-year term imposed for a separate Commonwealth offence, which the Court noted as relevant context.
Grove J and Buddin J both agreed with Bell J's reasons and proposed orders without addition.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that a co-offender receiving the same sentence does not automatically demonstrate manifestly excessive sentencing, where the sentencing judge has given coherent reasons explaining the equivalence despite differing culpability.
- A justified sense of grievance from parity arguments requires more than identical sentencing outcomes; it requires that the comparison reveal an unjustified disparity that reflects poorly on the appellant's sentence, rather than a considered balancing of aggravating and mitigating factors across offenders.
- Prior drug supply convictions remained a relevant aggravating consideration, contributing to the maintenance of a six-year head sentence for an offence carrying a maximum of life imprisonment.
- Where a sentencing judge rejects an offender's account of their own role as exaggeration, that credibility finding underpins the objective characterisation of the offence and the sentence imposed.
- The large commercial quantity threshold under the Drug Misuse and Trafficking Act 1985 for MDMA is 50 grams; the quantity involved here (approximately 3.25 kg in 14,000 tablets) significantly exceeded that threshold and was treated as a marker of objective seriousness.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33(3)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases: No specific cases were cited in the portions of the judgment provided.