Maiolo v The Queen - [2021] SASCA 135

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
MAIOLO v THE QUEEN
[2021] SASCA 135
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice Doyle)
11 November 2021
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 - INVOLVING METHYLAMPHETAMINE
Application for permission to appeal against sentence.
The applicant was convicted of one count of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) and sentenced to four years imprisonment with a non-parole period of 18 months imprisonment.
The sentencing Judge imposed a single sentence for the trafficking offence together with several other related prior and subsequent offences. For the offence of trafficking, the sentencing Judge indicated a notional starting point of four years imprisonment, reduced by 15 per cent on account of the applicant’s plea of guilty to three years, four months, and 25 days. That sentence was aggregated with the sentences for the other offences to arrive at a sentence of four years, five months, and seven days imprisonment. This was ultimately reduced to one sentence of four years imprisonment on account of time served in custody and home detention, as well as the principle of totality.
The applicant seeks permission to appeal against his sentence on the ground that it is manifestly excessive.
Held (the Court), refusing the application for permission to appeal:
1. The sentencing Judge did not err in adopting a notional starting point of four years imprisonment for the trafficking offence.
2. While the circumstances of a case may make it appropriate to adopt a starting point below four years, the circumstances of the applicant and his trafficking offence did not require a notional starting point below that level.
Controlled Substances Act 1984 (SA) s 32(3); Sentencing Act 2017 (SA) s 26, referred to.
R v Young (2016) 126 SASR 41; Davidson v The Queen [2021] SASCA 130; R v Keut [2021] SASCA 39; Pateras v The Queen [2021] SASCA 107, considered.

MAIOLO v THE QUEEN
[2021] SASCA 135
Court of Appeal – Criminal: Livesey P and Doyle JA

THE COURT (ex tempore): The applicant seeks permission to appeal against sentence. The sole proposed ground of appeal involves a complaint of manifest excess. The focus of this ground is a complaint that the sentencing Judge erred in adopting a notional starting point of four years imprisonment for the applicant’s offence of trafficking in a controlled drug. Whilst at times the applicant, through his counsel, suggested that there was a specific error of principle associated with recourse to the decision in R v Young,[1] ultimately the application for permission to appeal was pressed on the basis that the sentencing Judge’s application of that standard resulted in a manifestly excessive penalty.
[1] R v Young

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 Maiolo v The Queen

Details

AGLC: Maiolo v The Queen [2021] SASCA 135
Case: [2021] SASCA 135
Decision Date: 11 November 2021

CaseChat Overview and Summary

The applicant, Maiolo, sought leave to appeal against a sentence imposed by a sentencing judge for drug trafficking offences. The core of the dispute concerned the sentencing judge's adoption of a notional starting point of four years imprisonment for the trafficking offence, which Maiolo argued was manifestly excessive.

The legal issues before the court were whether the sentencing judge erred in adopting a notional starting point of four years imprisonment for the drug trafficking offence, and whether this approach was appropriate given the applicant's circumstances, specifically his motivation for selling drugs to fund his own addiction. The applicant contended that the standard established in *R v Young* regarding profit motivation for trafficking offences did not apply to his situation.

The Court reasoned that while the circumstances of a case can justify a starting point below four years, the applicant's situation did not necessitate such a reduction. The Court referred to *R v Keut*, which held that even when the proceeds of drug dealing are used to satisfy an addiction, the offender is still motivated by profit, albeit to a lesser extent. This would ordinarily have an ameliorating impact on the sentence. The sentencing judge had noted an element of profit in the applicant's conduct, as sales to others covered the costs of his own drug use. The Court found no error in the sentencing judge's approach.

The Court refused the application for permission to appeal, upholding the sentencing judge's decision.

Orders

Orders of the court

Held (the Court), refusing the application for permission to appeal:

1. The sentencing Judge did not err in adopting a notional starting point of four years imprisonment for the trafficking offence.

2. While the circumstances of a case may make it appropriate to adopt a starting point below four years, the circumstances of the applicant and his trafficking offence did not require a notional starting point below that level.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Her Honour declined to suspend this sentence, or order that it be served on home detention. Noting her view that the applicant would benefit from a greater period in the community on supervised parole, the sentencing Judge imposed what she described as a lower than usual non-parole period of 18 months. The head sentence and non-parole period were backdated to 2 March 2021, being the most recent occasion upon which the applicant was taken into custody.Consideration As mentioned at the outset, the sole proposed ground of appeal involves a complaint of manifest excess. The complaint is one focused upon the sentencing Judge’s use of a notional starting point of four years imprisonment for the trafficking offence. While the applicant's counsel made some oral submissions in relation to the penalties imposed for the other offences of which the applicant was convicted, those submissions did not ultimately advance the applicant's contention of manifest excess. Although announced as a complaint of manifest excess, as developed in submissions, the applicant’s complaint encompassed what was also described as a process error in applying the standard in R v Young[2] to the circumstances of the applicant’s offending. The applicant contended that, as described by the Chief Justice in R v Young, the standard only applies to offenders motivated to a greater or lesser extent by profit,[3] and does not apply in the present case given that the applicant was selling drugs to fund his own addiction. The applicant acknowledged the sentencing Judge’s observation (in the passage from her sentencing remarks extracted above) that there “is an element of profit in the sense that you were using sales to others to cover the costs of your own drug use”. But the applicant contended that all trafficking would involve making a profit in this limited sense, and that this was not the notion of profit that the Chief Justice had in mind in R v Young.[2] R v Young (2016) 126 SASR 41.[3] R v Young (2016) 126 SASR 41 at [66] (Kourakis CJ, Vanstone and Stanley JJ agreeing). The continuing applicability of the standard in R v Young, and the flexibility in its application, have been the subject of a number of recent decisions of this Court, including most recently in Davidson v The Queen.[4] [4] Davidson v The Queen [2021] SASCA 130 at [26]ff (Doyle JA, Bleby JA and Stanley AJA). As to the relevance of a defendant’s profit motivation, the Court held in R v Keut:[5][T]he fact that the proceeds of lower-level street dealings are predominantly used to satisfy a defendant’s addiction does not mean that the offender is not motivated by profit. What profit there is may be deployed in a vicious cycle of addiction, but it is still profit. It may fairly be said that such a dealer is motivated, to use the Chief Justice’s language, ‘to a lesser extent’ by profit. That will ordinarily have an ameliorating impact on the sentence to be imposed within the range.[5] R v Keut [2021] SASCA 39 at [22] (Kelly P, Doyle and Bleby JJA); see also Pateras v The Queen [2021] SASCA 107 at [22]-[23] (Lovell, Livesey and Bleby JJA).