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Court of Criminal Appeal 10 October 2007

SUKKAR Paul Tony v R

[2007] NSWCCA 298

Drugs
APPEAL AGAINST SENTENCE DRUG MISUSE AND TRAFFICKING ACT CRIMES (SENTENCING PROCEDURE) ACT S23 OFFER OF ASSISTANCE UNLIKELY TO BE USED NO LARGE DISCOUNT APPROPRIATE PLEA GUILTY

Citation: SUKKAR Paul Tony v R [2007] NSWCCA 298
Court: New South Wales Court of Criminal Appeal
Date: 10 October 2007
Judge(s): Giles JA, Hulme J, Hislop J

Background

The appellant was convicted of supplying a large commercial quantity of ecstasy, having participated in a transaction involving 25,000 tablets (approximately 5.9 kg) with a total street value of around $1.15 million. He played the role of a middleman, introducing the buyer to the primary supplier and participating in related conversations, and was arrested at the scene shortly after the supply occurred. He pleaded guilty in the Local Court in November 2005.

In January 2007, Judge Charteris of the District Court sentenced the appellant to a total term of 11 years and 6 months imprisonment, with a non-parole period of 7 years and 6 months. The standard non-parole period for this category of offence is 15 years. The sentencing judge characterised the appellant's role as slightly below mid-range in seriousness and found that he had been suffering from major depression at the time of offending.

The appellant sought leave to appeal on the sole ground that the sentencing judge had failed to give him an appropriate discount for his willingness to assist authorities in the future.

  • Whether the sentencing judge erred by failing to give an adequate discount for the appellant's offer of future assistance to authorities, under section 23 of the Crimes (Sentencing Procedure) Act 1999
  • Whether section 23 permits a court to account for the significance and usefulness of assistance that has been promised but not yet rendered (as opposed to past assistance only)
  • Whether the overall sentence of 11 years 6 months, with a non-parole period of 7 years 6 months, was excessive in light of the offence and the appellant's subjective circumstances

Decision

The Court of Criminal Appeal dismissed the appeal, finding no error in the sentencing judge's approach. The court granted leave to appeal but upheld the sentence as not excessive, having regard to the enormous quantity of drugs involved and the appellant's prior conduct.

On the section 23 question, Giles JA rejected the submission that the provision operates only in respect of past assistance. The relevant subsections refer expressly to assistance "undertaken to be rendered" and require the sentencing court to evaluate the significance and usefulness of any proffered assistance, including a promise of future cooperation. A discount for future assistance is therefore available in principle, but its quantum depends on an assessment of how likely that assistance is to be of genuine value.

The court found that the appellant's offer of future assistance was unlikely to be utilised and therefore did not warrant a substantial discount. Critically, the appellant's own senior counsel at sentencing had asked the judge not to specify a discrete discount for the offer of future evidence, framing it instead as one of a range of factors to weigh in the balance. The sentencing judge proceeded accordingly, and it was not possible to isolate what weight, if any, had been given to this factor in isolation.

Hulme J, with whom the other members agreed, concluded that when the seriousness of the offence and the appellant's subjective circumstances were considered together, no lesser sentence should have been imposed. The quantity of drugs involved was nearly twelve times the commercial threshold, and the street value exceeded $1 million. These features, together with the organised nature of the offending, supported the sentence handed down.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Section 23 of the Crimes (Sentencing Procedure) Act 1999 extends to promised future assistance, not merely assistance already rendered. A sentencing court must evaluate the likely significance and usefulness of any undertaking to assist, including where cooperation has yet to occur.
  • Entitlement to some discount for assistance to authorities does not automatically translate to a substantial discount. The quantum of any reduction depends on an assessment of the actual benefit the assistance is likely to deliver.
  • Where defence counsel at sentencing invites the judge not to specify a discrete discount for future assistance, treating it instead as a general mitigating factor, the appellate court will assess the sentence globally rather than isolating the weight given to that factor.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence of 11 years 6 months (non-parole period 7 years 6 months) for a middleman role in supplying nearly twelve times the commercial quantity of ecstasy was not excessive, particularly where the offending involved organised criminal activity.
  • No large discount for future assistance is appropriate where the offer is assessed as unlikely to be used, even if the offender has also pleaded guilty and demonstrated prospects of rehabilitation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly sections 21A, 23, and 54A
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), Schedule 1

Cases:
- 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 A Crim R 234