R v Sakkar [2003] NSWCCA 26

New South Wales Court of Criminal Appeal

CITATION : R v Sakkar [2003] NSWCCA 26 HEARING DATE(S) : 17/02/2003 JUDGMENT DATE : 17 February 2003

JUDGMENT OF : James J at 1; Greg James J at 30 DECISION : Leave to appeal granted - appeal against sentence dismissed

PARTIES : Regina v Sabri SAKKAR FILE NUMBER(S) : CCA 60391/2002 COUNSEL : In Person - Applicant DM Howard - Respondent SOLICITORS : - SE O'Connor

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/3078 FILE NUMBER(S) : LOWER COURT Coleman DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 060391/02

JAMES J GREG JAMES J

MONDAY 17 FEBRUARY 2003 REGINA v SABRI SAKKAR Judgment

1 JAMES J: Sabri Sakkar has applied for leave to appeal against a sentence imposed on him in the District Court by his Honour Judge Coleman on 26 April 2002, after the applicant had pleaded guilty to one charge of the ongoing supply of a prohibited drug (cocaine), an offence under section 25A(1) of the Drug Misuse and Trafficking Act. 2 In sentencing the applicant his Honour took into account, pursuant to part 3 division 3 of the Crimes (Sentencing Procedure) Act, one offence of the deemed supply of a prohibited drug (cocaine) and one charge of being in possession of a prohibited drug (amphetamine). 3 His Honour sentenced the applicant to a sentence of imprisonment for four years to date from 22 November 2001, with a non-parole period of eighteen months which would expire on 21 May 2003. 4 The facts of the principal offence were summarised by his Honour at pages 2-3 of his Honour's remarks on sentence. Essentially, on four separate occasions between 15 November 2001 and 22 November 2001 the applicant supplied an undercover police operative with small amounts of cocaine. The total amount of the drugs supplied to the undercover operative was 1.86 grams 5 On 22 November 2001 a search warrant was executed at the applicant's home and police found at the applicant's home 17.4 grams of cocaine and three grams of methylamphetamine. Police also found a quantity of cash and items such as scales and resealable bags of the kind customarily used in the supply of prohibited drugs. 6 In his Honour's remarks on sentence his Honour described the offences to be taken into account as being (1) the deemed supply of 17.4 grams of cocaine on 22 November 2001, being the cocaine found at the applicant's home during the search, and (2) possession of three grams of methylamphetamine, being the methylamphetamine found at the applicant's home during the search. In respect of the second offence his Honour said that the maximum penalty was imprisonment for fifteen years and/or a fine of 2,000 penalty units. 7 In his remarks on sentence his Honour made the following comments about the principal offence: "The prisoner was operating as a street dealer and conducted a relatively sophisticated operation. He was readily contactable by mobile phone and able to respond promptly to demand. He maintained the necessary paraphernalia at his home to enable him to prepare cocaine for sale." 8 His Honour further found: "For sentencing purposes I am satisfied that he was involved in supply of cocaine to obtain money to fund his own habit which was running at about $600 a day and to clear his debt to his supplier." 9 His Honour found that the applicant's cocaine habit had got out of control when the applicant obtained access to compensation monies which he received for personal injuries he had suffered. 10 In his remarks on sentence his Honour referred to the subjective circumstances of the applicant. The applicant was born on 26 August 1976. He is the oldest of four children. The family migrated from Lebanon, when the applicant was eight years old. When he was a child the applicant's father habitually abused him as being a failure. 11 His Honour noted that the applicant had been involved in a motor vehicle accident in which he received personal injuries. He had received an amount of $40,000 as compensation for these injuries. He used part of this sum as a deposit on a house and used the balance to pay for cocaine. 12 His Honour mentioned that the applicant had a fiancée, that he had been employed as a carpenter and that his former employer was willing to re-employ the applicant after he was released. 13 His Honour noted that the applicant had told his brother before the offences were committed that he wanted to stop using drugs and the applicant's brother had contacted a youth worker, a Mr Sari. Mr Sari gave evidence in the proceedings on sentence that he would assist the applicant by referring him to an appropriate rehabilitation program. His Honour noted that the applicant had the support of his fiancée, his brother and Mr Sari. 14 His Honour described the applicant's criminal history as poor and as not entitling him to any leniency. 15 On 4 November 2001 the applicant had been sentenced to a term of imprisonment for two years, which had been suspended conditionally upon the applicant entering into a good behaviour bond. The applicant was subject to the suspended sentence and the good behaviour bond at the time of committing the offences. 16 In his remarks on sentence his Honour also referred to a report from a chaplain at Parklea Correctional Centre and to a pre-sentence report which had been obtained. 17 In his remarks on sentence his Honour referred to authorities on sentencing for offences under section 25A of the Drug Misuse and Trafficking Act. His Honour noted, correctly, that the objective criminality of an offence under section 25A is considerably greater than the sum of the criminality in the three or more separate acts of supply, considered individually. Section 25A is directed to persons who are carrying on a business or practice of supplying prohibited drugs. 18 The reasoning process his Honour engaged in, in arriving at the sentence he imposed, was as follows. His Honour considered that prima facie an appropriate head sentence would be five years. His Honour discounted this figure by twenty-five percent to allow for the plea of guilty, which his Honour accepted had been entered at the earliest opportunity. His Honour said that the discount of twenty-five percent included a discount for the applicant's willingness to facilitate the course of justice and a discount for the contrition evidenced by the plea. His Honour found that there were special circumstances in that the applicant would benefit from an extended period of supervision. 19 The applicant was legally represented in the proceedings on sentence. He has, however, acted and appeared for himself on this application for leave to appeal. In a letter to the registrar of the Court of Criminal Appeal of 22 November 2002 the applicant said that the grounds of his application were that the sentence was too severe and that he had no previous serious convictions. 20 In oral submissions before us the applicant submitted that the sentencing judge should have afforded him a chance to be rehabilitated, that he had no previous conviction for an offence of violence, that this offence was not an offence of violence, that at the time of committing the offence he was unemployed and that after being sentenced he had served fifteen months in remand gaols. He said that he had become fully rehabilitated while in custody. He reiterated that he had an offer of full time employment after his release from custody. 21 The Crown submitted that, apart from two possible matters, the sentence imposed by his Honour should stand. In my opinion, subject to the two matters raised by the Crown, the sentence imposed by his Honour was an appropriate sentence and had proper regard to the objective facts of the principal offence, the offences to be taken into account and the subjective circumstances of the applicant. I am satisfied that the sentencing judge had regard to such of the matters the applicant seeks to rely on, as the sentencing judge was required to take into account. Some of the matters the applicant has referred to in his submissions to this Court relate to matters occurring after the applicant had been sentenced. 22 The first of the two matters raised by the Crown was that his Honour had misstated the maximum penalty for one of the offences to be taken into account in sentencing the applicant. In his Honour's remarks on sentence one of the offences to be taken into account was described, correctly, as being in possession of methylamphetamine. In the form signed by the applicant pursuant to the Crimes (Sentencing Procedure) Act the offence to be taken into account was described as possession of three grams of methylamphetamine. By virtue of section 10 (1) and section 21 of the Drug Misuse and Trafficking Act, the maximum penalty for the offence of being in possession of a prohibited drug would be two years imprisonment and/or a fine of twenty penalty units. However, in his Honour's remarks on sentence his Honour said that the maximum penalty for this offence was imprisonment for fifteen years or a fine of 2,000 penalty units. 23 Three grams of methylamphetamine is in fact not less than the trafficable quantity for methylamphetamine and it would seem that section 29 of the Drug Misuse and Trafficking Act could have been applied, with the consequence that possession of that quantity of methylamphetamine would prima facie have amounted to a deemed supply of methylamphetamine. If there had been a deemed supply of methylamphetamine the maximum penalty under section 32 of the Drug Misuse and Trafficking Act would have been as stated by his Honour. 24 However, as I have said, the offence as described in the form signed by the applicant was merely possession of three grams of methylamphetamine; hence, the maximum sentence for one of the offences to be taken into account was misstated by his Honour. I will return to the effect, if any, of this misstatement later in this judgment. 25 The second matter raised by the Crown was whether the sentencing judge had taken into account the applicant's plea of guilty in all the ways in which the judge was required to do so. In his remarks on sentence the sentencing judge said that he took into account the applicant's plea of guilty as showing contrition and as showing the applicant's willingness to facilitate the course of justice. It is clear that his Honour derived the latter expression from the decision of the High Court in Cameron v The Queen. Counsel for the Crown raised the possibility that the sentencing judge might not have had regard to the utilitarian value of the plea of guilty as saving the cost and time of a trial, quite independently of any subjective feature. The Court of Criminal Appeal in its decision in R v Sharma (2002) NSWCCA 142 held that, even after the decision of the High Court in Cameron, this factor is a matter properly to be taken into account where the person being sentenced has pleaded guilty. 26 As regards this second matter, I am satisfied that, on a fair reading of his Honour's remarks on sentence, whatever terminology his Honour adopted, his Honour in deciding what discount should be allowed for the plea of guilty did take into account the utilitarian value of the plea of guilty. 27 The first matter raised by the Crown does constitute an error on his Honour's part. However, the error was a misstatement by his Honour, not of the maximum penalty for the offence for which his Honour was sentencing the applicant, but of the maximum penalty for one of the offences his Honour was taking into account in sentencing the applicant for the principal offence. On a fair reading of his Honour's remarks on sentence, I do not consider that the error made by his Honour in stating the maximum penalty for one of the offences his Honour was taking into account entered in any way into the reasoning process by which his Honour arrived at the sentence he imposed on the applicant. 28 Furthermore, I do not consider that any lesser sentence than the sentence imposed by his Honour would be warranted in law. In reaching this conclusion, I have had regard to the objective facts of the offence and the findings which his Honour was clearly entitled to make about the offence. The statements of principle his Honour made about sentencing for offences under section 25A of the Drug Misuse and Trafficking Act were justified by the authorities on which his Honour relied. His Honour had regard to the favourable subjective circumstances of the applicant. A discount of twenty-five percent was allowed for the applicant's plea of guilty, at the time of committing the offence the applicant was subject to a good behaviour bond and the existence of that good behaviour bond at the time of committing the offence was a serious circumstance of aggravation. As his Honour found, the applicant's previous criminal history, which included sentences of imprisonment, did not entitle him to leniency. 29 In my opinion, leave to appeal should be granted but I would dismiss the appeal against sentence. 30 GREG JAMES J: I share his Honour's view. In my view the orders that his Honour proposes should be made for the reasons he has given. 31 JAMES J: The orders of the Court will be as proposed by me. 32 Mr Sakkar, we've given you leave to argue the appeal but the appeal against sentence has been dismissed.