Jason RUTKOWSKYJ v R [2008] NSWCCA 10 | Case summary

8 FEBRUARY 2008 Jason RUTKOWSKYJ v REGINA Judgment 1 McClellan CJ at CL: I agree with Barr J. 2 JAMES J: I agree with Barr J. 3 BARR J: Jason Rutkowskyj has applied for leave to appeal against a sentence imposed in the District Court. He attended a dance party at the States Sports Centre at Homebush Bay on 10 September 2006. On three separate occasions over a period of about ten minutes he sold ecstasy tablets to under cover police officers. Immediately after the third sale he was arrested and charged with ongoing supply of a prohibited drug, 3, 4 methylenedioxymethamphetamine, or ecstasy. The applicant was in the business of selling on that night and there was found on him the sum of $1454, the proceeds of such sales. He made immediate admissions to the police. He told them something about his selling activities, including an account of how he had replenished his sale stocks during the night. However, he declined to name his supplier. He pleaded guilty at the earliest opportunity in the Local Court and maintained his plea of guilty before the sentencing judge. The maximum penalty for the ongoing supply of the drug is imprisonment for 20 years. There is no standard non-parole period. During sentencing the applicant asked the Court to take into account two other matters, the first his possession of 18 ecstasy tablets which were found on him at the time of his arrest and the other possession of the sum of money I have mentioned, being goods unlawfully obtained. 4 The applicant was sentenced to a period of imprisonment for three years, comprising of non-parole period of 18 months and a balance of term of 18 months. 5 There is one ground of appeal, namely that the sentence is manifestly excessive. 6 The evidence established that the applicant was 19 years old. He had no criminal convictions. He was not a person of prior good character, however. According to the pre sentence report that was put into evidence, his adolescence was disrupted by his parents' marital problems. They separated when he was 13 years old. He began to use cannabis at 14 and ecstasy at 16. By 17 years of age he had tried amphetamines and cocaine. Even so, he had completed high school to year 10 and had entered on a TAFE apprenticeship course in shop fitting. He had failed to complete the course but had always been employed in one or other of a variety of manual jobs. He was earning $300 per week from lawful work at the time of his arrest. Immediately before his arrest he was using ecstasy every day and amphetamines every week. He was also taking the crystalline form known as ice. His habit was costing $350 per week and he was selling drugs to fund it. Since his arrest he had, he said, ceased using illegal drugs. He told the probation and parole office that he was sorry for committing the offence. He repeated that expression before the sentencing judge, who accepted it as genuine. 7 His Honour noted the early frank admissions and plea of guilty. He noted that the applicant had declined to name his supplier. The Crown told the sentencing court that the applicant had since changed his mind and had expressed the intention to supply information to the investigating authorities and might even have supplied some information, but that there was no material available to the Crown to verify the value of any information provided or to be provided. His Honour noted that the applicant wished to be sentenced forthwith and not to suffer the delay which would have been necessary to enable information to be put before the Court to enable the valuation of anything the applicant might have done or promised to do. His Honour therefore decided that it was inappropriate to make any allowance for assistance to the authorities but to take account of the applicant's desire to assist when assessing contrition and remorse. 8 His Honour assessed the starting point for the head sentence at five years. He acknowledged the utilitarian value of the early plea of guilty, the applicant's remorse, his young age, the fact that this would be his first time in custody and his strong prospects of rehabilitation. His Honour decided to reduce the starting sentence by 40% on account of the utilitarian value of the early plea of guilty and the applicant's remorse. His Honour varied the prime facie non-parole component of the resulting three year sentence so as to produce the sentence that I have mentioned. 9 It was submitted on appeal that the five year starting sentence was too high. Although attacking the starting sentence, counsel for the applicant submitted that his Honour's decision to discount it by 40% was within the limits of his discretion. 10 Ultimately, as this Court has pointed out in R v SZ [2007] NSWCCA 19, per Buddin J at [40], with whom the remaining members of the Court agreed, the focus in an appeal against sentence must be on the sentence actually imposed rather than on the notional starting point. That is not to say that it is never appropriate to have regard to the starting point, if the court can be confident of what that was. But where, as in R v SZ, the discount employed is seen to be unjustified, the starting point must be regarded as to that extent irrelevant. 11 The evidence of the asserted desire of the applicant to assist the authorities was of the weakest kind. He had early in the investigation declined to name his supplier. Although he had given a detailed account of his own activities, which included the disclosure of criminal activity somewhat outside the bounds of the charge ultimately laid, he gave no information likely to assist the police apprehend anyone else concerned in the supply of the drug. His Honour was correct to conclude that the evidence did not justify any discount for assistance. But in my opinion his Honour erred when, having withheld a discount for assistance of the order appropriate to those who assist the authorities, his Honour allowed a discount in much the same range, expressed as appropriate for the utilitarian value of the plea of guilty and for remorse. This was a discount in the range appropriate to an offender who has put himself in danger by the promise or the provision of real assistance. In my view the discount of 40% was unduly generous. See R v Sukkar [2006] NSWCCA 92, Mirza v R (2007) NSWCCA 248. 12 Accordingly, in my view, the starting sentence is irrelevant for present purposes. The Court should rather concentrate on the sentence actually imposed. 13 It was submitted that the resulting head sentence and non-parole period were manifestly excessive. It was pointed out that the applicant was 18 when he committed the offence and had no prior criminal record, that he was using the proceeds of sale to fund his own addiction, that the objective gravity of the offence was not serious, that the applicant had made full and frank admissions, that there was an indication of his preparedness to assist the police, that there was early plea of guilty, that there were good prospects of rehabilitation, that the applicant was unlikely to re-offend, that he was contrite and that the Form 1 offences, representing no more than the completeness of his criminal activities on the one occasion, were not calculated to have more than a marginal effect upon the sentence to be imposed. 14 Ultimately the submission was that, bearing in mind everything that had to be considered, the resulting sentence was too long. The sentence does not strike me in that way. 15 Counsel relied on the statistics published by the Judicial Commission of New South Wales. There is no need here to emphasise the care with which such statistics should be approached in appeals against sentence. They show that between January 2000 and December 2006 29 out of 63 offenders dealt with for the ongoing supply of ecstasy were given gaol sentences. Sixteen of those, slightly more than one half, resulted in sentences of 36 months or longer. The maximum was five years. There are rather more recorded sentences for the ongoing supply of heroin - some 259, but they, too, show that a sentence of 36 months would have been roughly at the mid point of the distributed sentences. 16 To my mind the statistics allow that a lower sentence might have fallen within the limits within his Honour's discretion, but they do not demonstrate that the one imposed fell outside that discretion. 17 I would grant leave to appeal but would dismiss the appeal.

Jason RUTKOWSKYJ v R

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