SADEK, Robert v R [2010] NSWCCA 99

New South Wales Court of Criminal Appeal

CITATION: SADEK, Robert v R [2010] NSWCCA 99

HEARING DATE(S): 22 March 2010

JUDGMENT DATE: 13 May 2010

JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Rothman J at 3

(i) Leave to appeal be granted; DECISION: (ii) Appeal be dismissed.

CATCHWORDS: CRIMINAL LAW – sentence appeal – totality – alleged error in categorisation of role of applicant in criminal enterprise – use of impermissible material – no error disclosed – no manifest excess – appeal dismissed

CATEGORY: Principal judgment

PARTIES: Robert Sadek (Applicant) Regina (Respondent)

FILE NUMBER(S): CCA 2008/12676

COUNSEL: R Sutherland SC (Applicant) J Girdham (Respondent)

SOLICITORS: Penelope Purcell Solicitors (Applicant) Office of the Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/0872

LOWER COURT JUDICIAL OFFICER: Marien DCJ

LOWER COURT DATE OF DECISION: 23 January 2009

IN THE COURT OF CRIMINAL APPEAL 2008/12676

McCLELLAN CJ at CL JAMES J ROTHMAN J

13 MAY 2010 SADEK, Robert v R Judgment 1 McCLELLAN CJ at CL: I agree with Rothman J. 2 JAMES J: I agree with Rothman J. 3 ROTHMAN J: Robert Sadek seeks leave to appeal sentence imposed upon him by the Sydney District Court on 23 January 2009. On that date, Mr Sadek, the applicant, was sentenced in relation to two charges, to each of which he had pleaded guilty. The first charge was for ongoing supply of a prohibited drug, for which the maximum sentence is 20 years' imprisonment and/or a fine of 3,500 penalty units, and the District Court sentenced Mr Sadek to a fixed term of imprisonment of 2½ years commencing on 18 December 2007 and expiring on 17 June 2010. Charge 2, supply of a commercial quantity of a prohibited drug (methylamphetamine, the same drug as in Charge 1), was the subject of a term of imprisonment, the District Court imposing a non-parole period of 4 years' imprisonment commencing 18 December 2008 and expiring 17 December 2012 as part of a total sentence of 7 years' imprisonment expiring 17 December 2015. The sentence in relation to Charge 2 included a Form 1 offence of suppling a prohibited drug (benzylpiperazine). 4 The first offence for which Mr Sadek was sentenced was said to have occurred between 4 December 2007 and 10 December 2007 and the second offence was said to have been committed between 10 December 2007 and 18 December 2007. The Form 1 offence occurred on 22 November 2007. Facts 5 A set of Agreed Facts were provided to the sentencing judge and those facts, because of their brevity, may be repeated: " AGREED FACTS One Count of Ongoing Supply Prohibited drug s25A(1) Drug Misuse and Trafficking Act 1985 One Count Supply Prohibited Drug >Commercial Quantity (offer) S25 (2) Drug Misuse and Trafficking Act 1985 One count of Supply Prohibited drug s25 (1) on a form one