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

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.
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.
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
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…

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 Maher v The Queen

Details

AGLC: Maher v The Queen [2022] SASCA 54
Case: [2022] SASCA 54
Decision Date: 15 June 2022

CaseChat Overview and Summary

In *Maher v The Queen*, the applicant sought leave to appeal against a sentence imposed by a sentencing judge. The specific grounds for appeal related to the alleged manifest excessiveness of the sentence.

The central legal issue before the Court was whether the sentencing judge had erred in the exercise of their discretion by imposing a sentence that was manifestly excessive. This required the Court to consider the totality of the sentence in light of the relevant sentencing principles and the circumstances of the offence.

The Court concluded that it was not reasonably arguable that the sentence imposed was manifestly excessive. The Court found no error in the sentencing judge's exercise of discretion. Accordingly, the Court refused the application for leave to appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 In our view, it is not reasonably arguable that the sentencing judge erred in the exercise of his sentencing discretion. The order of the Court is that permission to appeal is refused.

Ratio Decidendi

Legal Principle Established

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