Regina v Sultan [2005] NSWCCA 461

New South Wales Court of Criminal Appeal

CITATION: Regina v Sultan [2005] NSWCCA 461

HEARING DATE(S): 2 December 2005

JUDGMENT DATE: 2 December 2005

JUDGMENT OF: Grove J at 1; Sully J at 25; Howie J at 26

DECISION: APPEAL AGAINST SENTENCE ALLOWED; APPELLANT RESENTENCED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - APPROACH WITH INTENT TO INFLUENCE JUROR - ABSENCE OF SINISTER CONNOTATION IN INTENDED COMMUNICATION TO JUROR TO LISTEN TO EVIDENCE CAREFULLY - OFFENCE COMMITTED WHETHER SINISTER OR BENIGN - APPROPRIATE SENTENCE SHOULD REFLECT APPLICABLE CHARACTERISTIC

Crimes Act 1900 LEGISLATION CITED: Jury Act 1977

PARTIES: Regina v Fouad Sultan

FILE NUMBER(S): CCA 2005/2261

S. Odgers SC (Applicant) COUNSEL: D. Arnott SC (Respondent/Crown)

Peter Ash (Applicant) SOLICITORS: S. Kavanagh (DPP)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1211

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

IN THE COURT OF CRIMINAL APPEAL 2261/05

GROVE J SULLY J HOWIE J 2 December 2005

REGINA v FOUAD SULTAN Judgment

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Sorby DCJ. Following trial, the applicant was convicted on a count charging that on 29 July 2003 he approached and spoke to Kevin Wayne Pulver with intent to influence Lesley Joy Pulver in her conduct as a juror in a trial then currently proceeding in which the applicant was one of the accused, an offence contrary to s 323(b) of the Crimes Act 1900 for which a maximum penalty of seven years imprisonment is prescribed. 2 Sorby DCJ also sentenced the applicant following his plea of guilty to harassing a (former) juror on 10 September 2003 for the purpose of obtaining information about the deliberations of a jury contrary to s 68A of the Jury Act 1977. There is no application in respect of this sentence, but it is necessary to refer to it to provide context to the sentence in respect of the other offence. 3 As at 29 July 2003, the applicant was on bail during the currency of a trial before Goldring DCJ and a jury in which he and others were charged with breaking entering and stealing in circumstances of special aggravation. At about 1.30am that day, the applicant entered a service station where Mr Kevin Pulver was on duty. A conversation took place. At the trial of the s 323(b) charge there was dispute as to the exact content of this exchange. 4 In his summing-up his Honour told the jury that it was not in dispute that the applicant said in relation to Mr Pulver's wife "Ask can she listen to the evidence carefully". Mr Pulver's wife Lesley was in fact a juror. He later referred to the evidence of Mr Pulver: "He said the accused approached the counter and said: 'Are you Michelle's father?' Mr Pulver said he replied, 'Yes'. The accused then said, Mr Pulver said: 'I believe your wife is on the jury'. Mr Pulver said he then said: 'Whoa, whoa. This is a matter that should not be discussed'. Mr Pulver said the accused then told him: 'There is nothing to worry about. Just ask your wife to listen to the evidence carefully'. Mr Pulver said nothing more but he said he escorted the accused to the door of the shop. Mr Pulver told you that as he escorted the accused to the door of the shop the accused reiterated what he had said earlier. Mr Pulver told you that there was no intimidation or threat made by the accused. Mr Pulver told you that he was not aware at that time that the accused was on trial and that his wife was a juror on that trial."