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80
Court of Criminal Appeal 30 March 2006

Regina v Joseph Sukkar

[2006] NSWCCA 92

Also reported as (2006) 172 A Crim R 151
Drugs
CROWN APPEAL

Citation: Regina v Joseph Sukkar [2006] NSWCCA 92
Court: NSW Court of Criminal Appeal
Date: 30 March 2006
Judge(s): McClellan CJ at CL, Howie J, Latham J

Background

The respondent was convicted of being knowingly concerned in the importation of a commercial quantity of MDMA (approximately 123.6 kg, with 34.4 kg pure) into Australia in November 2001. The drugs were concealed inside refrigeration equipment shipped from Antwerp, Belgium. The respondent was one of six co-offenders and was arrested in December 2001 after participating in the collection and transport of the shipment.

At first instance, Norrish QC DCJ sentenced the respondent to 13 years and 3 months imprisonment, with a non-parole period of 8 years and 6 months. The sentencing judge applied a substantial discount reflecting the respondent's early guilty plea and the assistance he had provided to authorities.

The Commonwealth Director of Public Prosecutions appealed that sentence as manifestly inadequate, arguing that the sentencing judge had wrongly assessed the respondent's objective criminality and had applied an excessive discount for the plea and assistance.

  • Whether the sentencing judge erred in equating the respondent's objective criminality with that of his co-offender and partner in the enterprise, despite differences in their respective roles
  • Whether the discount applied for the respondent's guilty plea and assistance to authorities was excessive
  • Whether the assumed impact of assistance on prison conditions still justifies large discounts in the absence of supporting evidence
  • Whether the repealed s 16G of the Crimes Act 1914 (Cth), which provided a reduction in federal sentences to account for the absence of remissions, should still apply when both the plea and the sentence post-dated its repeal

Decision

The Court of Criminal Appeal allowed the appeal, finding that the sentencing judge had made two significant errors. First, the judge had incorrectly assessed the respondent's objective criminality as equivalent to that of his co-offender and partner in the criminal enterprise, when the evidence disclosed meaningful differences in their respective roles and culpability. This error infected the entire sentencing exercise.

Second, the sentencing judge had applied an excessive discount for the respondent's guilty plea and assistance. The established range for such discounts had been expressed as between 20 and 50 per cent. However, Howie J, with whom McClellan CJ at CL agreed, observed that one of the traditional bases for the upper end of that range, namely that informants face more onerous prison conditions, is no longer reliably applicable. His Honour indicated that discounts exceeding 40 per cent should be granted only in exceptional cases where there is actual evidence that the offender will serve the sentence in more onerous conditions than the general prison population. In this case, no such evidence was led.

On the question of s 16G, the Court did not need to reach a concluded view because the Crown again conceded that general discretionary considerations supported its application, consistent with the approach taken in sentencing a co-offender. Applying a 35 per cent discount and the s 16G reduction, the Court substituted a head sentence of 20 years imprisonment with a non-parole period of 12 years.

Orders Made

  • Appeal allowed
  • Sentence imposed by Norrish QC DCJ on 2 September 2005 quashed
  • Respondent sentenced to 20 years imprisonment, dating from 5 December 2001, expiring 4 December 2021, with a non-parole period of 12 years dating from 5 December 2001, expiring 4 December 2013

Key Takeaways

  • A sentencing court errs if it treats co-offenders as having equivalent objective criminality without adequate factual foundation for that equivalence, even where they are partners in the same criminal enterprise.
  • Discounts for a guilty plea and assistance have traditionally been set in a range of 20 to 50 per cent, partly to compensate offenders for more onerous prison conditions resulting from their cooperation. The Court of Criminal Appeal confirmed that this rationale no longer reliably holds in practice.
  • Where an offender wishes to rely on the hardship of serving a sentence as a consequence of having provided assistance, evidence of that hardship must now be placed before the court. The Court will not simply assume it.
  • Discounts exceeding 40 per cent for a plea and assistance should be granted only in very exceptional circumstances, and only where there is evidence that the offender will actually face more onerous prison conditions.
  • Whether the repealed s 16G of the Crimes Act 1914 (Cth) should apply to offenders who both pleaded guilty and were sentenced after its repeal was left unresolved on the facts, as the Crown conceded its application based on the circumstances of co-offender sentencing.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Customs Act 1901 (Cth), s 233B(1)(d)
- Crimes Act 1914 (Cth), s 16G
- Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth)

Cases:
- R v Cartwright (1989) 17 NSWLR 243
- R v Mostyn (2004) 145 A Crim R 304
- R v Louis Sukkar [2005] NSWCCA 55
- R v Speer [2004] NSWCCA 118
- R v Schofield [2003] NSWCCA 3
- R v Todd (1982) 2 NSWLR 517
- Mill v The Queen (1988) 166 CLR 59
- The Queen v Olbrich (1999) 199 CLR 270
- Veen (No 2) (1988) 164 CLR 465
- R v Bragias (1997) 92 A Crim R 330
- R v Gutierrez [2004] NSWCCA 22
- R v Prasad [2004] NSWCCA 293
- R v El Hani [2004] NSWCCA 162
- R v Shepherd [2003] NSWCCA 287