R v Lynch No. Sccrm-02-65

[2002] SASC 228

R v LYNCH
[2002] SASC 228

Court of Criminal Appeal:  Perry, Williams and Bleby JJ

1. PERRY J.  (ex tempore)     The appellant, Mr Lynch, was sentenced in the District Court on 12 February 2002 following his plea of guilty to the offence of knowingly taking part in the sale of cannabis. The learned sentencing judge imposed a sentence of three years imprisonment with a non-parole period of one year and nine months.

2. The appellant applied for leave to appeal against the sentence. His application was listed before a single judge of this Court. After hearing argument from Mr Lynch in person on 5 March 2002, he gave leave to appeal on the proposed ground one of appeal which alleged that the sentence was manifestly excessive, but refused leave on ground two.

3. The proposed ground two was:

   “His Honour wrongly took into consideration unproven passages in the (taped police) transcripts of conversations which disclosed alleged trading in cannabis in sentencing the defendant.”

4. The appellant was arrested as a result of a police undercover operation which extended over a period of six months or so. He eventually purported to sell to the undercover police agents approximately seven pounds in weight of cannabis for a price of $25,900.

5. In the District Court, sentencing submissions were made on the appellant’s behalf by two separate counsel on different occasions. The second counsel rejected some of the submissions which had been put by the previous counsel.

6. However, it is clear that the learned sentencing judge directed his attention to the submission which was put on the appellant’s behalf and which is dealt with in the following passage from his sentencing remarks:

   “... both of your counsel have sought to characterise much of what you said to the police as bravado and enticement in circumstances where, all along, you suspected who they were, that you were in effect, playing with them and knew that they were setting you up. I was referred to various passages in the transcript in support of that claim.”

   Later, he remarked:

   “As to your explanation for your offending, having considered the very lengthy transcripts of your discussions with the undercover police, it is apparent to me that, at the relevant time, you were not really responding to an opportunity to make some money in circumstances where you were under financial and other pressures. Rather, you were engaged in a commercial transaction against a background of prior involvement in dealings with that drug.”

7. When the appellant complains of the matters referred to in proposed ground two of his appeal, it is clear that he is referring to the transcripts of the discussions which took place between the appellant and the undercover police officers referred to in the passages which I have just quoted from in his sentencing remarks.

8. There is no merit in the suggestion that those transcripts were not properly before the learned judge. Furthermore, there is no reason to suppose that he did not properly consider them, together with explanations given by the appellant, in reaching the conclusion which he did.

9. The appellant appeared in person before the Court this morning to advance his case for the allowance of the proposed ground two in his notice of appeal. Although unassisted by counsel, he repeated much the same argument which it appears was put before the judge who refused leave on that ground. The Crown continues to oppose the appeal going forward on ground two.

10. The Court gave every opportunity for the appellant to put the matters which he wished to put in support of the allowance of ground two but, in my view, he has failed to identify any aspect of the matter which could give rise to a reasonably arguable case on appeal on that ground.

11. I would confirm the refusal of leave on ground two.

12. WILLIAMS J:        I agree.

13. BLEBY J:               I agree. The transcript of the conversations properly inform the nature and quality and purpose of the transaction, the subject of the charge. It cannot be argued that the transcripts were not properly before the sentencing judge or not properly used by him.

14. PERRY J:               In the result, the application by way of an appeal against the refusal by a single judge to allow ground two as part of the notice of appeal is, in turn dismissed.