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Court of Criminal Appeal 8 February 2008

Jason RUTKOWSKYJ v R

[2008] NSWCCA 10

Drugs
CRIMINAL LAW WHETHER SENTENCE MANIFESTLY EXCESSIVE DISCOUNT FOR ASSISTANCE TO AUTHORITIES

Citation: Jason Rutkowskyj v R [2008] NSWCCA 10
Court: NSW Court of Criminal Appeal
Date: 8 February 2008
Judge(s): McClellan CJ at CL, James J, Barr J

Background

The appellant was 19 years old at the time of sentencing and had no prior criminal convictions. Over approximately ten minutes at a dance party at the State Sports Centre in Homebush Bay, he sold ecstasy tablets to undercover police officers on three separate occasions. He was arrested immediately after the third sale and found with $1,454 in proceeds.

The appellant made immediate admissions to police, described his own activities in detail, and pleaded guilty at the earliest opportunity in the Local Court. He declined, however, to name his supplier. He subsequently indicated a willingness to provide information to the investigating authorities, but no verified information was available to the Crown at the time of sentencing.

In the District Court, Bennett DCJ sentenced the appellant to three years' imprisonment, comprising an 18-month non-parole period and an 18-month balance of term. The judge set a starting point of five years and applied a 40% discount for the utilitarian value of the early guilty plea and for remorse. The judge declined to apply any separate discount for assistance to authorities, but factored the appellant's expressed willingness to assist into the assessment of contrition and remorse.

  • Whether the sentence of three years' imprisonment for ongoing supply of ecstasy was manifestly excessive.
  • Whether the 40% discount applied for the plea of guilty and remorse was excessive, particularly given the appellant's limited assistance to authorities.
  • Whether the sentencing judge erred by effectively absorbing a potential assistance discount into the discount for plea and remorse.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding that while there was an error in the sentencing judge's methodology, the sentence actually imposed was not manifestly excessive.

Barr J (with whom McClellan CJ at CL and James J agreed) found that the sentencing judge was correct to refuse any formal discount for assistance to authorities. The appellant's information related only to his own activities, and he had declined to name his supplier. The Crown could not verify the value of anything the appellant had offered or might provide. The evidence of a genuine intention to assist was, in Barr J's words, "of the weakest kind."

However, Barr J found that the sentencing judge erred by then applying a 40% discount for plea and remorse, a range ordinarily associated with offenders who have genuinely put themselves at risk by providing real assistance to authorities. Having correctly declined to grant an assistance discount, the judge should not have effectively allowed a discount in the same range under the heading of plea and remorse.

Despite identifying this error in methodology, the Court concluded that the correct focus on appeal is the sentence actually imposed rather than the notional starting point. The three-year head sentence, viewed against the applicable sentencing statistics and the circumstances of the offence, did not fall outside the permissible range of the sentencing discretion. The appeal was therefore dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge correctly refuses an assistance discount where the evidence of genuine or meaningful assistance to authorities is weak and unverified.
  • Where a discount for assistance is withheld, a sentencing court should not compensate by inflating the discount for plea of guilty and remorse into the same range that would apply to offenders who have provided real assistance at personal risk.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the central question on a sentence appeal is whether the sentence actually imposed is manifestly excessive, not whether the notional starting point was correct.
  • Judicial Commission statistics may demonstrate that a lower sentence was within range, but they do not of themselves establish that the sentence imposed fell outside the sentencing discretion.
  • A 40% discount for plea and remorse alone was characterised as unduly generous on these facts, consistent with the Court of Criminal Appeal's earlier observations in R v Sukkar and Mirza v R.

Legislation and Cases Referenced

Cases:
- R v SZ [2007] NSWCCA 19
- R v Sukkar [2006] NSWCCA 92
- Mirza v R [2007] NSWCCA 248

Legislation:
No specific legislation was cited by name in the judgment. The offence of ongoing supply of a prohibited drug (3,4-methylenedioxymethamphetamine) carries a maximum penalty of 20 years' imprisonment, with no standard non-parole period.