Maher v The Queen

[2022] SASCA 54

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

MAHER v THE QUEEN

[2022] SASCA 54

Judgment of the Court of Appeal  (ex tempore)

(The Honourable President Livesey and the Honourable Justice Bleby)

15 June 2022

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING

The applicant pleaded guilty to one count of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The applicant was sentenced as a “low-level street dealer funding a drug habit”. The sentencing judge imposed a head sentence of three years and 10 months and fixed a non-parole period of two years.

The applicant now seeks permission to appeal against his sentence on the basis the sentencing judge erroneously applied the sentencing guidance in R v Young (2016) 126 SASR 41 and, as a result, the sentence is manifestly excessive.

Held (by the Court) refusing permission to appeal:

1.It is not reasonably arguable that the sentencing judge applied R v Young and thereby erred in the exercise of his sentencing discretion.

2.When considered as a whole, it is not reasonably arguably that the sentence imposed was manifestly excessive.

Controlled Substances Act 1984 (SA) s 32(3), referred to.
Da Silva v The Queen [2020] SASCFC 66; R v Howell [2018] SASCFC 12; R v Young (2016) 126 SASR 41, considered.

MAHER v THE QUEEN
[2022] SASCA 54

Court of Appeal – Criminal:  Livesey P and Bleby JA

THE COURT (ex tempore):

Introduction

1. This is an application for permission to appeal against sentence.  The contention is that the sentencing judge applied the wrong sentencing guideline and, as a result, imposed a penalty which was manifestly excessive.

2. On 17 February 2022, the applicant pleaded guilty to one count of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA), for which the maximum penalty is imprisonment for 10 years or a fine of $50,000.[1] 

   [1]     For a serious drug offender, imprisonment for 15 years or a fine of $75,000.

3. By reason of the applicant’s guilty plea, he qualified for a reduction of up to 5 per cent and the sentencing judge gave the applicant the full benefit of that reduction.  The applicant was sentenced to imprisonment for three years and 10 months, and a non-parole period of two years was fixed.

   Circumstances of the offending

4. On 14 March 2020, just before 9.00pm, police pulled over a vehicle travelling from Port Germein in the direction of Port Augusta.  The applicant was a passenger.  The applicant was directed to get out of the car, and when he did, he was seen by an officer to be leaning forward and rummaging in the footwell of the front passenger seat.  A second officer arrived, and the applicant was searched.  A small packet in a balloon fell from the bottom of the applicant’s pants. 

5. Although the applicant denied knowledge of any drugs, the packet contained 52 strips of buprenorphine, having a total weight of 2.49 grams. 

6. If sold in prison, the drug had a value in the order of $26,000.  There was no evidence that the drug was destined for prison and the sentencing judge did not sentence on the basis that it was destined for prison.

   The circumstances of the offender

7. Following his arrest, the applicant was released on bail but on 4 June 2020 he was again remanded in custody for other offending.  On 9 November 2020, the applicant was sentenced to five months and 18 days’ imprisonment.  That sentence was backdated to 4 June 2020.  It expired on 22 November 2020, shortly after sentence was imposed.

8. The applicant was again released from custody and remained on bail until 26 August 2021 but on 1 September 2021 the applicant was sentenced to 18 days’ imprisonment for breaches of his bail agreement.  The applicant did not resume as a remand prisoner for the subject offending until 13 September 2021, which was the earliest date that the sentence for the subject offending could commence.

9. The applicant was 31 years at the time of sentence and 29 years at the time of offending.  He has a long criminal antecedent history, most of which are minor matters, apart from the subject offending and a robbery committed in 2014 for which the applicant was sentenced in 2017 to three years and 11 months’ imprisonment; a non-parole period of two and a half years was fixed. 

10. The applicant had a very troubled upbringing, made difficult by his mother’s mental health and drug problems.  She was subjected to domestic violence, as was the applicant, by various of her partners.  The applicant left school in year 8 and left home at 14 years.  The applicant had, by the time of sentence, a 9-year-old daughter from a previous relationship and an 18-month child with his current partner. 

11. Whilst in prison, the applicant developed an addiction to Suboxone.  After release, the applicant struggled with that addiction and with methylamphetamine.  The sentencing judge recognised that the applicant has finally realised the importance of undertaking courses and rehabilitating.  The applicant has some support from his grandmother, though that support is not unconditional and depends upon the applicant abstaining from drug use. 

    The sentence imposed

12. Before the sentencing judge, there was no dispute that the applicant should be sentenced on the basis that his trafficking was that of a low-level street dealer funding a drug habit.  The prosecution and the defence agreed with this description.

13. But for the guilty plea, the sentencing judge would have sentenced the applicant to four years’ imprisonment.  After reduction by 5 per cent, that became three years and 10 months. 

14. Recognising the applicant’s prospects for rehabilitation, the sentencing judge fixed a lower non-parole period than he “might otherwise fix”, being a non-parole period of two years. 

    The contention on appeal

15. The contention is that the sentencing judge erroneously applied the sentencing guidance in R v Young[2] and, as a result, the sentence is manifestly excessive.  The submission is that when describing his approach to sentence, the judge used the phrase “low-level street dealer funding a drug habit” and that this “makes the inference irresistible” that R v Young was applied.

    [2]     R v Young (2016) 126 SASR 41.

16. The applicant maintains that R v Young was not concerned with sentencing for buprenorphine, as was made clear by the Court of Criminal Appeal in Da Silva v The Queen.[3]  The applicant refers to a passage in that decision where the following was said:[4]

    It is difficult to regard the guidance given by R v Young as directly applicable to the circumstances of this case.  This case did not involve drugs of the kind addressed in R v Young (ecstasy, cocaine, methylamphetamine and MDMA), and the seriously damaging societal effects of those drugs are well known and well recognised. 

    [3]     Da Silva v The Queen [2020] SASCFC 66.

    [4]     Da Silva v The Queen [2020] SASCFC 66, [42] (Livesey J, with whom Kourakis CJ and Stanley J agreed).

17. The implication, it would seem, is that it was open to the sentencing judge to start at less than four years before reduction for the applicant’s guilty plea.  Whilst it was open to start at less than four years, that does not of itself suggest that there has been any error made in the exercise of the sentencing discretion. 

18. First, it is necessary to return to Da Silva v The Queen because what was said about R v Young was by way of obiter dictum.  In the next paragraph it was explained that, even if the sentencing guidance provided by R v Young was not directly applicable, “that is not to say that R v Young is not of some relevance” ,[5] and the example was given of R v Howell, where the Court regarded R v Young as relevant — even though not directly applicable — because it identified:[6]

    … the salient features of the present offending [which] place it in company with the type of offending in Young said to warrant a starting point towards the low end of the range there indicated of four to seven years imprisonment.

    [5]     Da Silva v The Queen [2020] SASCFC 66, [43] (Livesey J, with whom Kourakis CJ and Stanley J agreed).

    [6]     R v Howell [2018] SASCFC 12, [32] (Kourakis CJ, Nicholson and Doyle JJ).

19. Second, even if R v Young was accorded relevance by the sentencing court in this case, which is neither clear nor beyond argument, the sentencing remarks do not suggest that it was assumed that R v Young was directly applicable, as distinct from being of some relevance. 

20. Third, we accept that the salient features of the offending in this case do “place it in company” with the type of offending for which a starting point of around four years was thought appropriate in R v Young.  That is, the sentencing guidance given by R v Young may be regarded as relevant even if not directly applicable.

21. Finally, we do not regard it as reasonably arguable that the sentence imposed in this case, when considered as a whole, was manifestly excessive.

    Conclusion

22. In our view, it is not reasonably arguable that the sentencing judge erred in the exercise of his sentencing discretion.

23. The order of the Court is that permission to appeal is refused.