Salama v R

Case [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

  1. WRIGHT J: I agree with Wilson J.

  2. 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)

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Salama v R [2023] NSWCCA 141
Case
[2023] NSWCCA 141
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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