R v Behari No. Sccrm-03-76

[2003] SASC 152

R v BEHARI
[2003] SASC 152

Court of Criminal Appeal:  Prior, Bleby and Sulan JJ

1. PRIOR J:              The applicant has been refused leave to appeal against a sentence of 24 months, with a non-parole period of 16 months, imposed for two crimes of knowingly producing cannabis.

2. The application for leave has been considered by a single judge. The judge refused leave to appeal. His Honour described the sentence and non-parole period as being well within the range of the sentencing judge’s discretion. His Honour’s view was that it was not beyond the sentencing judge’s discretion to decline to suspend the sentence.

3. This Court has considered the application afresh. The application has been referred into open court. The applicant has been given the opportunity to make further submissions beyond or, in addition to that put by his counsel before the single judge.

4. The applicant has today referred to the fact that he has spent some time in custody. The prosecutor properly points out that that was a factor expressly considered by the sentencing judge when she sentenced the applicant on 4 March.

5. In the circumstances as they were before the trial judge, and as they were before the single judge on the application for leave, we are of the opinion that there is no proper basis upon which this matter could be said to be fit for the consideration of the Full Court.

6. The sentence imposed was well within the proper exercise of a sentencing discretion. No error is identifiable in the sentencing remarks. Any appeal is, therefore, not reasonably arguable.

7. The application for leave to appeal is therefore refused.