R v Mlaco No. Sccrm-02-228

[2002] SASC 315

R v MLACO
[2002] SASC 315

Court of Criminal Appeal:  Doyle CJ, Debelle and Williams JJ (ex tempore)

1. DOYLE CJ             I agree with the reasons of Debelle J. I would dismiss the application for leave to appeal. The sentence was moderate, the non-parole period was low, and I consider that it is not reasonably arguable that the decision not to suspend the sentence was wrong, and so I join in refusing the application.

2. DEBELLE J           The applicant was convicted by the verdict of a jury of four offences relating to drugs. On two of them, he was convicted for possessing drugs for sale.  One count was possessing methylamphetamine for sale. The other was possessing the drug called 4-hydroxybutanoic acid, commonly known as fantasy, for sale. He was also convicted of two offences of possessing each of those drugs. The appellant had substantial quantities of the drug called fantasy in his possession for sale and in his possession.

3. The sentencing judge proceeded on the footing that the offences should be seen as isolated, as distinct from occurring against a background of commercial dealing. As she noted, the applicant was essentially selling drugs for the purpose of servicing his own habit, which had commenced in somewhat unfortunate circumstances. The income received by the applicant was to be measured in terms of hundreds of dollars rather than thousands of dollars.

4. The judge sentenced the applicant to imprisonment for two years and nine months and fixed a non-parole period of one year and two months. She refused an application to suspend the sentence.

5. The applicant applied for leave to appeal contending that the sentence was manifestly excessive and that the sentence should have been suspended. The application was refused by a judge of this Court. The applicant now asks that this Court consider and determine his application. We ordered that the application be listed for oral argument.

6. The sentence imposed was well within the range of penalties for this kind of offending. On one view the sentence was merciful. It is unnecessary to stay with this question, as the gravamen of the application is not that the sentence was manifestly excessive but that in all the circumstances the sentencing judge should have suspended it.

7. These were serious offences. The applicant has a prior record. He did not demonstrate any contrition at the time. He pleaded not guilty to all four offences. On the other hand, the applicant has demonstrated some capacity for rehabilitation and had embarked upon it before sentencing.

8. It cannot be said that the trial judge erred in deciding not to suspend the sentence. Indeed, her sentencing remarks indicate that she has had close regard to the applicant’s prospects of rehabilitation in that she expressly set a lower non-parole period than she might have set in other circumstances.

9. In all the circumstances, there is no arguable ground for interfering with the exercise of discretion. I would dismiss the application.

10. WILLIAMS J         I agree.

11. DOYLE CJ             Accordingly, the order of the court is that the application for leave to appeal be refused.