Bechara v The Queen - [2022] SASCA 37

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
BECHARA v THE QUEEN
[2022] SASCA 37
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and the Honourable Justice Doyle)
27 April 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
The appellant pleaded guilty to 13 counts of trafficking in controlled drugs; namely, methylamphetamine, cocaine, cannabis and fantasy. In relation to two counts, the appellant was jointly charged with her former partner, Mr Bellal Abdallah.
The appellant appeals against her sentence on five grounds, including, inter alia, that her sentence is manifestly excessive, that the Sentencing Judge erred in setting disparate sentences for her and the co-accused, that a reduction of 30 per cent, rather than 20 per cent, should have been applied to her sentence and that the Sentencing Judge erred in rectifying the arithmetical error in the sentence pursuant to s 20(1) of the Sentencing Act 2017 (SA) as the sentence had been perfected and appellate proceedings had commenced.
Held, by the Court, granting permission to appeal on Ground 1 and dismissing the appeal:
1.The sentence was not manifestly excessive.
2.The disparity between the sentences of the appellant and the co-accused is explicable given the circumstances of their respective offending and the different factual bases upon which they were sentenced.
3.The Sentencing Judge did not err in refusing to accept the appellant’s version of events.
4.The reduction of 20 per cent is the appropriate reduction.
5.The Sentencing Judge appropriately rectified the arithmetical error in accordance with s 20(1) of the Sentencing Act 2017 (SA), and was not precluded from doing so as a result of appellate proceedings having commenced.

Criminal Law (Sentencing) Act 1988 (SA) s 9A(1); Sentencing Act 2017 (SA) ss 20, 40(3), referred to.
Hackett v The Queen [2021] SASCA 32; Markarian v The Queen (2005) 228 CLR 357; Nguyen v The Queen; Tran v The Queen; Nguyen v The Queen [2022] SASCA 25; R v Hunt [2018] SASCFC 137; R v Kuci [2016] SASCFC 136; R v Singh (2018) 132 SASR 1; R v Young (2016) 126 SASR 41, considered.

BECHARA v THE QUEEN
[2022] SASCA 37
Court of Appeal – Criminal: Kourakis CJ, Lovell and Doyle JJA
THE COURT:

In 2019, Ms Shadia Bechara (the appellant) was in the grips of a severe addiction to methylamphetamine; she also had a gambling addiction. To support her addictions, the appellant trafficked methylamphetamine, cocaine, cannabis and fantasy. For part of the time the appellant was trafficking the drugs, she was in a relationship with one of the co-accused, Mr Bellal Abdallah (the co-accused). The appellant pleaded guilty to 13 counts of trafficking in those drugs and was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bechara v The Queen

Details

AGLC: Bechara v The Queen [2022] SASCA 37
Case: [2022] SASCA 37
Decision Date: 27 April 2022

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant by the District Court of South Australia for 13 counts of trafficking in a controlled drug. The appellant had pleaded guilty to these charges, which arose from a covert police operation where she sold various drugs, including cocaine, cannabis, and methylamphetamine, to undercover operatives and civilians between February and October 2019. The sentencing judge characterised the appellant as a persistent, recidivist street dealer, and in some instances, a wholesale dealer, who trafficked consistently over an extended period.

The legal issues before the Court of Appeal were whether the sentence imposed was manifestly excessive, whether the Sentencing Judge erred in refusing to accept the appellant's version of events, and whether the Sentencing Judge correctly rectified an arithmetical error in the sentence calculation after appellate proceedings had commenced. The appellant also raised issues regarding the disparity between her sentence and that of a co-accused, and the appropriateness of the 20 per cent reduction for her early guilty plea.

The Court of Appeal granted permission to appeal on one ground but ultimately dismissed the appeal. It found that the sentence was not manifestly excessive, holding that the Sentencing Judge had correctly sentenced the appellant on the basis of her offending, which involved trafficking multiple types of drugs in both street-level and wholesale quantities over an extended period. The court also determined that the Sentencing Judge did not err in refusing to accept the appellant's version of events, and that the 20 per cent reduction for the guilty plea was appropriate. Furthermore, the court held that the Sentencing Judge had correctly rectified an arithmetical error pursuant to section 20(1) of the Sentencing Act 2017 (SA), and was not precluded from doing so by the commencement of appellate proceedings. The disparity in sentences between the appellant and her co-accused was found to be explicable by the differing circumstances of their offending and the factual bases upon which they were sentenced.

Orders

Orders of the court

Held, by the Court, granting permission to appeal on Ground 1 and dismissing the appeal:

1. The sentence was not manifestly excessive.

2. The disparity between the sentences of the appellant and the co-accused is explicable given the circumstances of their respective offending and the different factual bases upon which they were sentenced.

3. The Sentencing Judge did not err in refusing to accept the appellant’s version of events.

4. The reduction of 20 per cent is the appropriate reduction.

5. The Sentencing Judge appropriately rectified the arithmetical error in accordance with s 20(1) of the Sentencing Act 2017 (SA), and was not precluded from doing so as a result of appellate proceedings having commenced.

Background

Background to the litigation

The appellant submits that the Sentencing Judge made factual errors when sentencing and that the sentence imposed is manifestly excessive. For the reasons that follow, we would grant permission to appeal but would dismiss the appeal.Background In 2019, the Drug and Organised Crime Task Force Police Unit conducted a covert operation into suspected drug trafficking. The operation included using undercover police operatives. During this time, the appellant sold drugs to undercover operatives. In the Adelaide Magistrates Court, the appellant pleaded guilty to 13 counts of trafficking in a controlled drug between February 2019 and October 2019. The transactions included:a)3.33 g cocaine to undercover operative, on 27 February 2019b)3.36 g cocaine to undercover operative, on 13 March 2019c)6.11 g cocaine to undercover operative, on 20 March 2021d)27.9 g cocaine to undercover operative, on 5 April 2019e)28.1 g cocaine to undercover operative, on 24 April 2019f)28.5 g cocaine to undercover operative, on 24 May 2019g)$50 cannabis to a civilian, on 14 June 2019h)35 ml fantasy for $70 to a civilian, on 29 June 2019i)1.69 g methylamphetamine to second undercover operative, on 20 June 2019j)3.42 g methylamphetamine to second undercover operative, on 3 July 2019k)3.45 g methylamphetamine to second undercover operative, on 19 July 2019l)3.49 g methylamphetamine to second undercover operative, on 1 August 2019m)6.8 g methylamphetamine to second undercover operative, on 13 August 2019 The charged offending was set against a background of numerous uncharged offences in relation to the sale of each drug to other customers. The appellant was committed for sentence and the allocutus was delivered in the District Court on 9 October 2020. In relation to two counts, the appellant was jointly charged with her former partner Abdallah. There was a slight delay before the Sentencing Judge heard submissions as the Sentencing Judge, correctly, wished to deal with all the accused at the same time. The Sentencing Judge imposed sentence on the appellant on 4 June 2021. He sentenced the appellant on the basis that she was a persistent, recidivist street dealer and, in some respects, a wholesale dealer who trafficked consistently over an extended period of time. The appellant trafficked four different types of drugs and the amounts trafficked included street level and wholesale quantities. The Sentencing Judge initially imposed a single sentence of eight years’ imprisonment, reduced by 20 per cent on account of her early guilty plea, to five years and four months. A non-parole period of four years, three months and six days (four-fifths of the head sentence) was fixed. The appellant appealed the sentence. Before the Court of Appeal could hear the appeal the prosecution, pursuant to s 20 of the Sentencing Act 2017 (SA) (“the Act”), had the matter relisted before the Sentencing Judge to correct a possible arithmetical error. A 20 per cent reduction from the sentence of eight years’ imprisonment could not result in the sentence the Sentencing Judge imposed.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

We grant permission to appeal on this ground, however we dismiss this ground of appeal.Conclusion Permission has been granted for Ground 5. We grant permission for Ground 1. We refuse to grant permission on Grounds 2–4. For the reasons given, we dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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