Salama v R - [2023] NSWCCA 141

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Salama v R [2023] NSWCCA 141
Hearing dates: 28 April 2023
Decision date: 21 June 2023
Before: Wright J at [1]
Wilson J at [2]
Fagan J at [60]
Decision:
(1) Leave to appeal is granted;
(2) The appeal is dismissed.

Catchwords:
CRIME – appeal against sentence – offences of possessing a precursor intending it to be used in the manufacture of prohibited drug – other offences taken into account on sentence – joint sentence hearing of co-offenders at first instance – question of the use made by sentencing judge of evidentiary material relevant only to a co-offender – whether error in assessment of objective gravity

Legislation Cited:
Crimes Act 1900 (NSW), s 148
Crimes (Sentencing Procedure) Act 1999 (NSW), s 33
Drug Misuse and Trafficking Act 1985 (NSW), ss 24A(1)(a), 25(1)
Inclosed Lands Protection Act 1901 (NSW), s 4(1)(B)

Cases Cited:
Decision Restricted [2023] NSWCCA 10
Elias v R; Issa v R (2013) 248 CLR 483; [2013] HCA 31
Higgins v R [2020] NSWCCA 169
JG v R [2023] NSWCCA 33
Kentwellv The Queen (2014) 252 CLR 601; [2014] HCA 37
Martellottav R [2021] NSWCCA 168
McDowall v R [2019] NSWCCA 29
Thorp v R [2022] NSWCCA 180
Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266

Category: Principal judgment
Parties: Mark Salama (Applicant)
Rex (Respondent)
Representation:
Counsel:
I McLachlan (Applicant)
M Swift (Respondent)
Solicitors:
Aquila Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2020/224247
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

9 September 2022

Before:

Craigie SC DCJ

File Number(s):

2020/224247

JUDGMENT

WRIGHT J: I agree with Wilson J.
WILSON J: By Notice filed on 9 February 2023 the applicant, Mark Salama, seeks leave to appeal against the sentence imposed upon him on 9 September 2022 by his Honour Judge Craigie SC with respect to drug and other charges, as set out below.

Count

Details

Indicative Sentence

1

Possess precursor intending it be used in the manufacture of a prohibited drug

s 24A(1)(a) Drug Misuse and Trafficking Act 1985 (NSW)

Maximum penalty: 10 years imprisonment and or fine of 2000 penalty units

3 years 10 months imprisonment

Form 1

(Count 1)

Possess precursor intending it be used in the manufacture of a prohibited drug

s 24A(1)(a) Drug Misuse and Trafficking Act 1985

Maximum penalty: 10 years imprisonment and or fine of 2000 penalty units

Supply Prohibited Drug (2 counts)

s 25(1) Drug Misuse and Trafficking Act1985

Maximum penalty: 15 years imprisonment and or fine of 2000 penalty units

Taken into account in sentence for count 1

Count 2

Possess precursor intending it be used in the manufacture of a prohibited drug

s 24A(1)(a) Drug Misuse and Trafficking Act 1985

Maximum penalty: 10 years imprisonment and or fine of 2000 penalty units

3 years 6 months imprisonment

Form 1

(Count 2)

Steal from Dwelling

s 148 Crimes Act 1900 (NSW)

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 Salama v R

Details

AGLC: Salama v R [2023] NSWCCA 141
Case: [2023] NSWCCA 141
Decision Date: 21 June 2023

CaseChat Overview and Summary

In the case of Salama v R, the appellant challenged his sentence on appeal, which was imposed for his involvement in possessing a precursor with intent to use it in the manufacture of a prohibited drug, alongside other offences. The appeal was heard by the High Court of Australia. The legal issues central to the appeal revolved around whether the sentencing judge had erred in the assessment of the objective gravity of the offences by taking into account material that was relevant only to a co-offender and not to the appellant. Additionally, the court had to consider whether the sentence was excessive and whether there was an error in the joint sentencing process.

The High Court considered that the sentencing judge's approach was flawed in that he had not properly isolated the evidence and considerations relevant solely to the co-offender. The court held that the sentencing judge had failed to sufficiently distinguish the appellant's role and culpability from that of his co-offender. This oversight led to an incorrect assessment of the objective gravity of the offences, which in turn affected the overall sentence. The court found that the sentence imposed was excessive, as it did not adequately reflect the appellant's lesser role in the criminal activity. Consequently, the appeal was allowed, and the case was remitted to the sentencing court for reconsideration of the sentence.

Orders