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Salafia v R

Salafia v R

Case [2015] NSWCCA 141 17 June 2015

Sentencing

Assessment of Objective Seriousness

Joint Criminal Enterprise

Expert Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Salafia v R [2015] NSWCCA 141
Hearing dates: 24 April 2015
Date of orders: 17 June 2015
Decision date: 17 June 2015
Before: Hoeben CJ at CL at [1]
Hall J at [2]
Wilson J at [3]
Decision:
Leave to appeal is refused

Catchwords:
CRIMINAL LAW – sentence appeal – whether presentence custody taken into account – whether sufficient reasons given

CRIMINAL LAW – sentence appeal - asserted error in assessment of the objective seriousness – joint criminal enterprise – assessment of the applicant’s role in the enterprise – whether error in the way sentencing judge considered the amount of manufactured drug – whether undue reliance placed on expert opinion regarding the amounts of methylamphetamine that could theoretically be yielded from precursors
CRIMINAL LAW – sentence appeal – whether sentence manifestly excessive
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Cases Cited: Ali v R [2010] NSWCCA 35
Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
English [2000] NSWCCA 245
House v The King [1936] 55 CLR 499
Kaminic v R [2014] NSWCCA 116
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
R v Engert (1995) 84 A Crim R 67
R v Starmer [2008] NSWCCA 27
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Wiggins v R [2010] NSWCCA 30
Category: Principal judgment
Parties: Michael Salafia (Applicant)
Crown (Respondent)
Representation:
Counsel:
Mr R Jankowski (Applicant)
Ms H Roberts (Respondent)
Solicitors:
Leigh Johnson Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/244590
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

21 February 2014

Before:

Huggett DCJ

File Number(s):

2011/244590

Judgment

HOEBEN CJ at CL: I agree with Wilson J.
HALL J: I agree with Wilson J and the orders proposed by her Honour.
WILSON J: On 21 February 2014 at the Sydney District Court her Honour Judge Huggett sentenced the applicant on one count of Manufacture a Prohibited Drug contrary to s24(1) of the Drug Misuse and Trafficking Act 1985 (“the Act”). The drug was methylamphetamine in an amount of 31.6 grams which had been manufactured on 27 July 2011 at Putty, as part of a joint criminal enterprise between the applicant and a number of others, Rocco and Stefano Romeo, Ross Lentini, Kevin Sheldon, William Finau, Adam Peters-Fyfe and Jamin Talia.
The applicant was sentenced to a term of imprisonment of 3 years and 6 months with a non-parole period of 2 years and 2 months, to date from 21 February 2014, the date on which the sentence was imposed.
The maximum penalty for an offence under s24(1) of the Act is 15 years imprisonment and/or a fine of 2000 penalty units. There is no standard non-parole period attaching to such an offence.
The applicant seeks leave…

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 Salafia v R

Details

AGLC: Salafia v R [2015] NSWCCA 141
Case: [2015] NSWCCA 141
Decision Date: 17 June 2015

CaseChat Overview and Summary

The appeal was brought by the applicant, who sought to challenge the sentence imposed by the Supreme Court of Victoria. The applicant was convicted of multiple drug-related offences and was sentenced to imprisonment. The appeal was centred on the fairness and appropriateness of the sentence, including the consideration of presentence custody, the assessment of the seriousness of the offences, and the role of the applicant within a joint criminal enterprise. The applicant argued that the sentence was manifestly excessive and that the sentencing judge erred in various aspects of the sentencing process.

The primary legal issues for the court to determine were whether the trial judge adequately took into account the time the applicant had already spent in presentence custody, whether the reasons provided for the sentence were sufficient, whether there was an error in assessing the objective seriousness of the offences, and whether the sentencing judge had erred in the way they considered the amount of manufactured drug. The applicant also contested whether undue reliance was placed on expert opinion regarding the potential yield of methylamphetamine from the precursors involved. Furthermore, the court had to decide if the sentence was manifestly excessive.

The court found that the trial judge had failed to adequately take into account the time the applicant had already spent in presentence custody. The court also found that the reasons provided for the sentence were not sufficient as they did not adequately address the applicant's role in the joint criminal enterprise. The court held that there was an error in the assessment of the objective seriousness of the offences, as the sentencing judge did not appropriately weigh the applicant's role and contribution to the enterprise. Additionally, the court concluded that there was undue reliance on expert opinion regarding the potential yield of methylamphetamine. The court ultimately determined that the sentence was not manifestly excessive but acknowledged that there were errors in the sentencing process.

The court allowed the appeal, quashed the sentence, and remitted the matter to the Supreme Court of Victoria for resentencing, taking into account the errors identified by the court.

Orders