R v Behari No. Sccrm-03-76 Summary

R v BEHARI
[2003] SASC 152
Court of Criminal Appeal: Prior, Bleby and Sulan JJ

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

CaseChat Overview and Summary

The case of R v Behari No. Sccrm-03-76 was heard in the Court of Criminal Appeal, where Prior, Bleby, and Sulan JJ presided. The applicant, Behari, sought leave to appeal against a 24-month sentence, with a non-parole period of 16 months, imposed for two charges of knowingly producing cannabis. The initial application for leave to appeal was considered by a single judge who declined to grant leave, stating that the sentence was within the sentencing judge’s discretion and that it was not an abuse of discretion to refuse to suspend the sentence. The case was then reconsidered by the full Court, which also found no basis for the appeal.

The primary legal issues before the Court were whether the sentence was within the proper exercise of the sentencing judge’s discretion and if there was any identifiable error in the sentencing remarks. The Court had to assess whether the sentence was appropriate and whether the grounds for appeal were sufficiently arguable to warrant a full hearing by the Court. The Court also considered the applicant's submissions and the fact that the sentencing judge had already taken into account the time the applicant had spent in custody.

In reaching its decision, the Court noted that the sentence was within the range of what the sentencing judge could impose and found no error in the sentencing remarks. The Court concluded that the sentence was a proper exercise of discretion and that any appeal would not be reasonably arguable. Consequently, the Court refused the application for leave to appeal. This decision was based on the premise that the sentence was not excessive and that there were no significant grounds to warrant further consideration by the Full Court.

R v Behari No. Sccrm-03-76

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established