Bais v The Queen - [2022] SASCA 53

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
BAIS v THE QUEEN
[2022] SASCA 53
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice Bleby)
15 June 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE
The applicant pleaded guilty to four counts of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). On 3 March 2022, the applicant was sentenced to four years and 19 days’ imprisonment, backdated to 21 December 2021. A non-parole period of two years and two months was fixed.
The offending comprised sales of methylamphetamine to an undercover police operative on four occasions.
By Notice of Appeal filed 1 April 2022, the applicant sought to appeal against her sentence on the ground that the sentencing judge erred in not suspending the term of imprisonment or in not ordering that it be served on home detention.
Held (by the Court) refusing permission to appeal:
1.The findings that there was not good reason to suspend under s 96 and that it was otherwise not appropriate to order that the sentence be served on home detention under s 71 of the Sentencing Act 2017 (SA) were open to the sentencing Judge.
2.When consideration was given to the circumstances of the applicant, her poor criminal record and history of non-compliance with court orders and the circumstances of the offending, it is not reasonably arguable that the exercise of sentencing discretion miscarried.
3.The refusal to suspend or order home detention was in all of the circumstances not plainly unjust.

Controlled Substances Act 1984 (SA) s 32(3); Sentencing Act 2017 (SA) ss 26, 54(1), 96, referred to.
Dinsdale v The Queen (2000) 202 CLR 321; House v King (1936) 55 CLR 499; R v Hocking [2017] SASCFC 50; R v Kent [2021] SASCA 39, [22]; R v Skinner (2016) 126 SASR 120; R v Young (2016) 126 SASR 41; Rendic v The Queen [2021] SASCA 23, considered.

BAIS v THE QUEEN
[2022] SASCA 53
Court of Appeal – Criminal: Livesey P and Bleby JA
THE COURT (ex tempore):
Introduction

This is an application for permission to appeal against sentence on the ground that the sentencing Judge erred in not suspending the term of imprisonment or ordering that it be served on home detention.
The applicant pleaded guilty to four counts of trafficking in a controlled drug, being methylamphetamine, between 26 April and 6 August 2018, contrary to s 32(3) of the Controlled Substances Act 1984 (SA), for which the maximum penalty was a $50,000 fine or imprisonment for 10 years, or both.
After making allowance for pleas of guilty made just before trial, the sentencing Judge imposed one sentence pursuant to s 26 of the Sentencing Act 2017 (SA) (the Sentencing Act) of four years and 19 days. The applicant was also sentenced for a breach of bail, for which she was convicted without further penalty.
The circumstances of the offending
The offending comprised sales of methylamphetamine to an undercover police operative on four occasions, involving amounts of between 0.2 and 0.98 grams for between $100 and $350 on each occasion. During the middle of August and early September 2018, the undercover operative attempted to purchase more methylamphetamine, but the applicant said that she was no longer willing to sell as the risk was too high.
On 2 October 2018 the applicant was arrested, and a search of her home disclosed $1,980 in cash, a plastic resealable bag containing a crystallised substance, various pipes and bongs and a set of scales and bags. The evidence of the undercover operative suggested that the applicant was involved in trafficking drugs to a wide range of people; though the applicant was not charged for these other sales, she was sentenced on the basis that the charged offending was not isolated.
The serious repeat offender ruling
The applicant gave evidence on oath concerning the potential operation of the serious repeat offender provisions. It will be necessary to return to the applicant’s personal circumstances. The sentencing Judge was sympathetic to the applicant’s personal circumstances and various health conditions and found that these were so exceptional as to outweigh the paramount considerations specified in s 54(1) of the Sentencing Act, with the result that a non-parole period of two years and two months was fixed, rather than the mandatory minimum four-fifths of the head sentence that might otherwise have applied.
Refusal to suspend the sentence or order home detention
On the question of suspension, the sentencing Judge took into account the circumstances of the applicant’s offending as well as her personal circumstances. On the question of the applicant’s medical conditions, the sentencing Judge was satisfied that these could be adequately treated in custody, assuming that the applicant wished them to be treated at all.
Otherwise, the sentencing Judge did not consider that there was good reason to suspend or order home detention given various matters including the quantity of drugs, the period of the offending and a demonstrated poor history of compliance with court orders.
The circumstances of the offender
It is appropriate to address the applicant’s personal circumstances.
At the time of sentence, the applicant was 49 years of age. She had experienced a difficult childhood with parents who had emigrated from Holland. Her mother had a significant mental health problem. The applicant left home at 13 and lived in youth shelters but continued with schooling until she achieved year 10 qualifications. She later undertook tertiary qualifications and qualified as a real estate agent. She eventually opened her own franchise and worked in the real estate industry for many years.
The applicant has two children, one of which has significant issues. In 2016, the applicant’s grandson died from meningococcal disease at 16 months which caused unresolved grief for the applicant and her daughter.
In addition and as mentioned, the applicant had many health issues. A severe back injury and subsequent surgery resulted in the applicant becoming bedridden and beset by daily pain. In 2021, the applicant was diagnosed with breast cancer. This was treated with a total mastectomy and a left ancillary node clearance. There was some chemotherapy during mid-2021 followed by daily medication.
The applicant’s compliance with treatment and medication has been variable. Whilst in custody, the applicant took an overdose of prescribed medication and was hospitalised. She received psychiatric consultations and was diagnosed with an adjustment disorder.
The applicant gave evidence about a large number of other health issues.
The applicant came before the sentencing Judge with a very long criminal history commencing in 1990. In 2012, the applicant was sentenced for the offence of possessing methylamphetamine after having been found guilty by a jury. The sentencing judge recorded a conviction with no further penalty subject to the applicant’s entry into a bond to be of good behaviour for three years.
However, by 2014, the applicant was back before the District Court, having pleaded guilty to nine offences including supplying a controlled drug to another, supplying cannabis to another, possessing a controlled drug, supplying a controlled drug to a child and five counts of failing to comply with bail. The applicant breached the good behaviour bond entered in 2012.
In addition, the applicant failed to comply with bail by submitting urine samples with traces of methylamphetamine on five occasions, the first of which was only a few months after having entered into the bond.
The offence of supplying a child with drugs concerned the supply of cannabis to the applicant’s daughter on a regular basis over a six-month period. For this, the applicant was sentenced to 22 months’ imprisonment, reduced for time spent in custody to 15 months. A non-parole period of seven months was fixed. An appeal against sentence was dismissed.
Later in 2014 the applicant pleaded guilty to possession of methylamphetamine and fantasy. As the applicant had spent nearly three months in custody, she was convicted without further penalty.
During 2015, a search of the applicant’s home revealed a starter pistol for which there was no licence. At the time, the applicant was on bail and this comprised a breach of her bail agreement. The sentencing Judge started with a term of imprisonment of 10 months but reduced it to five months on account of the plea of guilty and time spent in custody and on home detention. The resulting sentence was suspended on the condition that the applicant enter into a good behaviour bond for 10 months. It would seem that that bond was not breached.
During 2017, the applicant was convicted of dishonestly dealing with property without consent and placed on another good behaviour bond for 12 months. The subject offending commenced around four months after the end of that bond.
As the sentencing Judge explained, the subject offending demonstrated “an escalation in the seriousness of … criminal offending and a complete disregard for the bonds and sanctions that the court has sought to impose upon you over many years”.
The determination of the application for permission to appeal
Whilst the applicant suggests that the reliance on R v Young suggests error, we disagree.[1] A low level dealer funding a drug habit is in a relevant sense motivated by a form of profit.[2]
[1] R v Young (2016) 126 SASR 41.
[2] R v Kent [2021] SASCA 39, [22].
It is clear that in considering whether to suspend a sentence, or order home detention, the sentencing Judge exercised a broad discretion which was not confined to considering the applicant’s prospects for rehabilitation.[3]
[3] Dinsdale v The Queen (2000) 202 CLR 321. See also R v Skinner (2016) 126 SASR 120, [77]-[86] (Doyle J) as to suspension and R v Hocking [2017] SASCFC 50, [60] (Blue J) as to home detention.
Whilst the sentencing Judge was prepared to make a finding that the applicant’s personal circumstances were so exceptional as to warrant a favourable finding under s 54(1) of the Sentencing Act, those and all other relevant circumstances were not regarded as comprising good reason to suspend under s 96 or as justifying home detention under s 71 of the Sentencing Act.
We do not accept that it is reasonably arguable that the Judge made any specific error. Rather, she had regard to all relevant circumstances when finding that this was not a proper case for suspension or home detention.[4]
[4] Rendic v The Queen [2021] SASCA 23, [44] (Bleby JA).
Those findings were open to the sentencing Judge. When consideration was given to the circumstances of the offender, her poor criminal record, her history of non-compliance with court orders and the circumstances of the subject offending, it cannot be said that it is reasonably arguable that the exercise of sentencing discretion in these respects miscarried.
Whilst some judges may have suspended or ordered home detention, that is not the test for this Court. Respectfully, the refusal to suspend or order home detention was in all of the circumstances not plainly unjust.[5]
[5] House v King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).
Permission to appeal should be refused.