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Court of Criminal Appeal 13 May 2010

SADEK, Robert v R

[2010] NSWCCA 99

Drugs
CRIMINAL LAW SENTENCE APPEAL TOTALITY USE OF IMPERMISSIBLE MATERIAL NO ERROR DISCLOSED NO MANIFEST EXCESS

Citation: SADEK, Robert v R [2010] NSWCCA 99
Court: NSW Court of Criminal Appeal
Date: 13 May 2010
Judge(s): McClellan CJ at CL, James J, Rothman J

Background

The applicant pleaded guilty in the Sydney District Court to two drug offences: ongoing supply of a prohibited drug (methylamphetamine), and supply of a commercial quantity of the same drug by way of an offer to supply. A third offence (supply of benzylpiperazine) was listed on a Form 1 and taken into account on the more serious charge. The offending occurred over approximately four weeks in late November and December 2007, and involved a series of controlled drug purchases arranged through an undercover police operative.

The District Court sentenced the applicant to a fixed term of 2.5 years for the first charge, and for the second charge imposed a non-parole period of four years as part of a total sentence of seven years, with a degree of accumulation producing an overall effective sentence of a five-year non-parole period within an eight-year head sentence.

The applicant sought leave to appeal to the Court of Criminal Appeal, arguing that the combined sentences were manifestly excessive and that the sentencing judge had made a number of specific factual errors.

  • Whether the total accumulated sentences were manifestly excessive, having regard to the principle of totality
  • Whether the sentencing judge impermissibly relied on a statement by the undercover police operative (Exhibit 6) tendered by the applicant's own counsel
  • Whether the sentencing judge misused a psychologist's report (Exhibit 1)
  • Whether the sentencing judge misinterpreted the applicant's evidence
  • Whether the sentencing judge was entitled to find, beyond reasonable doubt, that the applicant received profits from his offending

Decision

On the specific error grounds, Rothman J (with whom McClellan CJ at CL and James J agreed) found no appealable error. The undercover operative's statement had been tendered by the applicant without objection, and the sentencing judge was entitled to rely on it. There was no procedural unfairness in doing so, even though the Crown had not cross-examined the applicant on the inconsistencies between his account and the operative's statement: it was the applicant who had placed that material before the court.

On the psychologist's report, the sentencing judge had questioned the applicant's claim that he had never handled the drugs or money. The Court of Criminal Appeal noted that it was beyond doubt the applicant had in fact handled the drugs and money, and that the applicant's own counsel before the appeal court accepted the earlier claims amounted to an "overstatement" or "exaggeration." The description of the applicant's role as "crucial" was plainly open on the evidence.

On manifest excess, the court applied the principle that sentencing is a process of intuitive synthesis and that a manifest excess ground calls for an intuitive response. The applicant's involvement, while not at the highest level of the operation, included arranging supply, delivering persons to the supplier, and introducing them to the drug supplier over four weeks. The more serious charge carried a standard non-parole period of ten years, yet the overall head sentence of eight years was actually less than that standard non-parole period. The court found it difficult to conceive how the combined sentences could be manifestly excessive in those circumstances.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge may properly rely on material tendered by the applicant, even where the Crown has not cross-examined the accused about inconsistencies between that material and his own account.
  • No error is established merely because a sentencing judge draws adverse inferences from evidence placed before the court by the defendant's own counsel.
  • A combined effective head sentence that falls below the standard non-parole period for the most serious charge will face a very high bar when challenged as manifestly excessive.
  • Sentencing is a process of intuitive synthesis, and a manifest excess ground invites a correspondingly intuitive assessment rather than a purely arithmetical one.
  • The court characterised the applicant's role as "crucial" despite his position not being at the top of the supply hierarchy, reinforcing that an intermediary who arranges supply and facilitates introductions to drug suppliers occupies a significant role in the assessment of objective seriousness.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) (supply of a prohibited drug), s 25(2) (supply of a commercial quantity), s 25A(1) (ongoing supply of a prohibited drug)

Cases:
- No specific cases were cited in the portions of the judgment provided. The court referenced the High Court of Australia's authoritative determination that sentencing is a process of intuitive synthesis, but no case name was identified in the available text.