Da Silva v The Queen

This matter concerned an appeal against sentence brought by the applicant, Da Silva, against the respondent, The Queen. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Stanley and Livesey JJ.

The central legal issue before the Full Court was whether the sentence imposed on Da Silva for drug trafficking offences was demonstrably unjust or inappropriate, thereby warranting appellate intervention. This involved a consideration of the sentencing judge's exercise of discretion and whether it had miscarried.

The Full Court reasoned that regardless of whether an appellate court chooses to resentence independently or adopts aspects of the original sentencing judge's approach, the ultimate question is whether the sentence imposed was correct. In this instance, the Court concluded that the sentencing discretion had miscarried. Consequently, the appeal was allowed, the sentence was quashed, and the matter was remitted to the District Court for resentencing by a different judge, who was to exercise the discretion afresh concerning both the head sentence and the non-parole period.