Bechara v The Queen - [2022] SASCA 37

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
BECHARA v THE QUEEN
[2022] SASCA 37
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and the Honourable Justice Doyle)
27 April 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
The appellant pleaded guilty to 13 counts of trafficking in controlled drugs; namely, methylamphetamine, cocaine, cannabis and fantasy. In relation to two counts, the appellant was jointly charged with her former partner, Mr Bellal Abdallah.
The appellant appeals against her sentence on five grounds, including, inter alia, that her sentence is manifestly excessive, that the Sentencing Judge erred in setting disparate sentences for her and the co-accused, that a reduction of 30 per cent, rather than 20 per cent, should have been applied to her sentence and that the Sentencing Judge erred in rectifying the arithmetical error in the sentence pursuant to s 20(1) of the Sentencing Act 2017 (SA) as the sentence had been perfected and appellate proceedings had commenced.
Held, by the Court, granting permission to appeal on Ground 1 and dismissing the appeal:
1.The sentence was not manifestly excessive.
2.The disparity between the sentences of the appellant and the co-accused is explicable given the circumstances of their respective offending and the different factual bases upon which they were sentenced.
3.The Sentencing Judge did not err in refusing to accept the appellant’s version of events.
4.The reduction of 20 per cent is the appropriate reduction.
5.The Sentencing Judge appropriately rectified the arithmetical error in accordance with s 20(1) of the Sentencing Act 2017 (SA), and was not precluded from doing so as a result of appellate proceedings having commenced.

Criminal Law (Sentencing) Act 1988 (SA) s 9A(1); Sentencing Act 2017 (SA) ss 20, 40(3), referred to.
Hackett v The Queen [2021] SASCA 32; Markarian v The Queen (2005) 228 CLR 357; Nguyen v The Queen; Tran v The Queen; Nguyen v The Queen [2022] SASCA 25; R v Hunt [2018] SASCFC 137; R v Kuci [2016] SASCFC 136; R v Singh (2018) 132 SASR 1; R v Young (2016) 126 SASR 41, considered.

BECHARA v THE QUEEN
[2022] SASCA 37
Court of Appeal – Criminal: Kourakis CJ, Lovell and Doyle JJA
THE COURT:

In 2019, Ms Shadia Bechara (the appellant) was in the grips of a severe addiction to methylamphetamine; she also had a gambling addiction. To support her addictions, the appellant trafficked methylamphetamine, cocaine, cannabis and fantasy. For part of the time the appellant was trafficking the drugs, she was in a relationship with one of the co-accused, Mr Bellal Abdallah (the co-accused). The appellant pleaded guilty to 13 counts of trafficking in those drugs and was sentenced, after a reduction of 20 per cent to allow for her guilty plea, to six years, four months and 25 days’ imprisonment. As she was sentenced as a serious repeat offender, a non-parole period of five years, one month and 14 days was imposed.
The appellant submits that the Sentencing Judge made factual errors when sentencing and that the sentence imposed is manifestly excessive. For the reasons that follow, we would grant permission to appeal but would dismiss the appeal.
Background
In 2019, the Drug and Organised Crime Task Force Police Unit conducted a covert operation into suspected drug trafficking. The operation included using undercover police operatives. During this time, the appellant sold drugs to undercover operatives.
In the Adelaide Magistrates Court, the appellant pleaded guilty to 13 counts of trafficking in a controlled drug between February 2019 and October 2019. The transactions included:
a)3.33 g cocaine to undercover operative, on 27 February 2019
b)3.36 g cocaine to undercover operative, on 13 March 2019
c)6.11 g cocaine to undercover operative, on 20 March 2021
d)27.9 g cocaine to undercover operative, on 5 April 2019
e)28.1 g cocaine to undercover operative, on 24 April 2019
f)28.5 g cocaine to undercover operative, on 24 May 2019
g)$50 cannabis to a civilian, on 14 June 2019
h)35 ml fantasy for $70 to a civilian, on 29 June 2019
i)1.69 g methylamphetamine to second undercover operative, on 20 June 2019
j)3.42 g methylamphetamine to second undercover operative, on 3 July 2019
k)3.45 g methylamphetamine to second undercover operative, on 19 July 2019
l)3.49 g methylamphetamine to second undercover operative, on 1 August 2019
m)6.8 g methylamphetamine to second undercover operative, on 13 August 2019
The charged offending was set against a background of numerous uncharged offences in relation to the sale of each drug to other customers.
The appellant was committed for sentence and the allocutus was delivered in the District Court on 9 October 2020. In relation to two counts, the appellant was jointly charged with her former partner Abdallah. There was a slight delay before the Sentencing Judge heard submissions as the Sentencing Judge, correctly, wished to deal with all the accused at the same time.
The Sentencing Judge imposed sentence on the appellant on 4 June 2021. He sentenced the appellant on the basis that she was a persistent, recidivist street dealer and, in some respects, a wholesale dealer who trafficked consistently over an extended period of time. The appellant trafficked four different types of drugs and the amounts trafficked included street level and wholesale quantities.
The Sentencing Judge initially imposed a single sentence of eight years’ imprisonment, reduced by 20 per cent on account of her early guilty plea, to five years and four months. A non-parole period of four years, three months and six days (four-fifths of the head sentence) was fixed. The appellant appealed the sentence. Before the Court of Appeal could hear the appeal the prosecution, pursuant to s 20 of the Sentencing Act 2017 (SA) (“the Act”), had the matter relisted before the Sentencing Judge to correct a possible arithmetical error. A 20 per cent reduction from the sentence of eight years’ imprisonment could not result in the sentence the Sentencing Judge imposed.
On 11 October 2021, the Sentencing Judge corrected the arithmetical error, and resentenced the appellant by imposing a single sentence of eight years’ imprisonment, reduced by 20 per cent, on account of her early guilty plea, to six years, four months and 25 days, and fixed a non-parole period of five years, one month and 14 days, four-fifths of the head sentence. The sentence was backdated to commence on 16 October 2019.
Grounds of appeal
The appellant agitates five grounds of appeal:
1.The sentence is, in all circumstances, manifestly excessive
2.The Learned Sentencing Judge erred in setting disparate sentences between the appellant and the co-accused Abdallah
3.The Learned Sentencing Judge erred in sentencing the appellant on a version of facts that were submitted by her, and supported by the prosecution, and which fell within the bounds of a reasonable possibility
4.The Learned Sentencing Judge erred in not allowing the appellant a sentencing reduction of 30 percent
5.The Learned Sentencing Judge erred in agreeing to the application of the Director, over the opposition of the appellant, to increase the head sentence and non-parole period in circumstances where the order of the court had been perfected and an application for permission to appeal against sentence had been filed and part heard before the Court of Appeal
It is convenient to deal Ground 5 first and Ground 1 last.
Ground 5
The appellant submits that the Sentencing Judge erred in utilising s 20 of the Act to rectify the error in the sentence in circumstances where the sentence had been perfected and appellate proceedings had commenced. The appellant argues that the Sentencing Judge was functus officio and no longer had power to alter the sentence.
The Sentencing Judge imposed a sentence of imprisonment on 4 June 2021. The notional starting point was a sentence of eight years’ imprisonment. The Sentencing Judge stated that the sentence was to be reduced by 20 per cent, in light of the appellant’s guilty plea, to five years and four months. The resultant sentence did not demonstrate a reduction of 20 per cent, but rather approximately 30 per cent.
The appellant lodged a Notice of Appeal on 24 June 2021. Prior to the permission hearing on 1 September 2021, this Court raised with the parties the possibility of an error in the sentence. The respondent then relisted the matter before the Sentencing Judge. On 11 October 2021, the Sentencing Judge, utilising s 20 of the Act, amended the sentence to rectify the arithmetical error. From the same starting point of eight years, the sentence was reduced by 20 per cent to six years, four months and 25 days with a non-parole period of five years, one month and 14 days.
Section 20(1) of the Act states:
20—Rectification of sentencing errors
(1) A court that imposes, or purports to impose, a sentence on a defendant, or a court of coordinate jurisdiction, may, on its own initiative or on application by the DPP or the defendant, make such orders as the court is satisfied are required to rectify an error of a technical nature made by the sentencing court in imposing, or purporting to impose, the sentence, or to supply a deficiency or remove an ambiguity in the sentencing order.
Section 9A of the Criminal Law (Sentencing) Act 1988 (SA) (“CLSA”) is the predecessor of s 20 of the Act and is identical in its terms.
Justice Blue discussed the preconditions to the proper exercise of s 9A(1) of the CLSA in R v Singh:[1]
The power conferred by that subsection is only available when the true intention of the sentencing judge is ascertained (either by the sentencing judge or when the sentencing judge’s intention can be confidently ascertained by this Court exercising power under the Auxiliary Act) and when the nature of the identified error is technical.
[1] (2018) 132 SASR 1 at [8].
In this matter, the Sentencing Judge purported to reduce the initial sentence by 20 per cent. However, the sentence of imprisonment and non-parole period were not reflective of a 20 per cent reduction, but rather a reduction of approximately 30 per cent. The true intention of the Sentencing Judge is plainly ascertainable from the original sentencing remarks, where the Sentencing Judge stated on a number of occasions that a 20 per cent reduction was to apply. When resentencing on 11 October 2021, the Judge confirmed that the sentence did not reflect a correct calculation of the intended 20 per cent discount. As such, in our view, the error made by the Sentencing Judge in this matter is an error of a technical nature and was amenable to correction pursuant to s 20 of the Act.
The key question for determination by this Court is whether the fact that appellate proceedings were initiated precludes the use of s 20. In R v Kuci, the Court of Criminal Appeal determined that it was a ‘court of coordinate jurisdiction’ pursuant to s 9A of the CLSA.[2] This determination was subsequently adopted in R v Singh and R v Hunt.[3] As the Court of Appeal can utilise s 20 as a ‘court of coordinate jurisdiction’ to a sentencing court, it logically follows that the section remains operable after appellate proceedings have commenced.
[2] [2016] SASCFC 136.
[3] (2018) 132 SASR 1; [2018] SASCFC 137 at [35].
Further, this Court has affirmed on numerous occasions that the preferred course is for the error to be corrected by the sentencing judge.[4] In R v Kuci, Kourakis CJ (Blue and Lovell JJA agreeing), referring to arithmetical errors, stated:[5]
In the ordinary course, errors of this kind should be dealt with in the sentencing court pursuant to s 9A of the Criminal Law (Sentencing) Act 1988 (SA) … If arithmetical ‘slips’ of the kind made by the Judge resulted in a fresh exercise of the sentencing discretion on appeal, there would be undesirable uncertainty in the administration of the criminal law.
[4] R v Hunt [2018] SASCFC 137 at [2] (Kelly J); R v Kuci [2016] SASCFC 136 at [6] (Kourakis CJ).
[5] [2016] SASCFC 136 at [6]–[7].
In our view, no error was demonstrated by the Sentencing Judge in rectifying the sentence. The error was of a technical nature and the true intention of the Judge is plainly identifiable. It was open to the Sentencing Judge in the circumstances to utilise s 20 to rectify the error after appellate proceedings had commenced. If the matter had not been referred to the Sentencing Judge for correction, and assuming the Director cross-appealed on sentence, we would have made the identical correction, as the intention of the Sentencing Judge is clear from his initial sentencing remarks. We dismiss this ground of appeal.
Ground 2
The appellant submits that the Sentencing Judge erred in setting disparate sentences between the appellant and the co-accused Abdallah. The appellant submits that the Judge fell into error by imposing a higher notional starting point for the appellant.
The co-accused Abdallah pleaded guilty to two counts of trafficking in a controlled drug, namely cocaine (totalling 34.01 grams). That offending covered a period of 17 days. The starting point for the co-accused’s term of imprisonment was seven years, reduced by 40 per cent, on account of his early guilty plea, to four years, two months and 12 days, with a non-parole period of three years, four months and 10 days.
The starting point for the appellant was eight years. The appellant was sentenced for 13 counts of trafficking in a controlled drug, which occurred over a period of five and a half months, involving a total of 97.3 grams of cocaine and 18.85 grams of methylamphetamine.
While the co-accused had significant criminal history and the appellant had no prior convictions, the disparity in starting points is explicable when considering the difference in the number of charges and the different factual bases upon which they were sentenced. It was within the Sentencing Judge’s discretion to sentence the appellant in a disparate manner based on the difference in the number of offences charged, the duration of the offending and the quantities of drugs involved.
We refuse to grant permission on this ground and dismiss this ground of appeal.
Ground 3
The appellant submits that the Sentencing Judge erred in not accepting a version of events that was submitted by the appellant and was “within the bounds of reasonable possibility”. During sentencing submissions, the prosecution initially submitted that Abdallah was directing the steps of the appellant and was at a higher level in the hierarchy of the trafficking operation. Before the Sentencing Judge, the prosecution initially accepted that Abdallah played a role in influencing the appellant. Counsel for the appellant submitted that the ‘general nature of the roles’ was properly categorised by the prosecution. The appellant submitted that initially she was ordered to traffic in drugs by Abdallah, although she accepted that eventually she continued to traffic without being ordered to do so.
However, the prosecution’s position before the Sentencing Judge changed when counsel for Abdallah submitted that he should not be sentenced on the basis that he was the dominant partner in the trafficking enterprise. Before the Sentencing Judge the prosecution submitted, correctly in our view, that the issue was for the Sentencing Judge to consider and that the prosecution was unable to point to any independent evidence to support the appellant’s position. The Sentencing Judge indicated that, absent evidence in support of the appellant’s submission, he could not find that she was ordered to engage in trafficking.
The appellant instructed her counsel that she did not wish to give evidence in support of her submission. Counsel for the appellant did, however, refer the Sentencing Judge to the psychological report of Dr Lorraine Lim. Contained within the same report was a full acceptance of “personal responsibility” by the appellant for the 13 counts of trafficking. The appellant had made admissions to the psychologist that she engaged in the conduct to sustain her own drug and gambling habits, which she had kept secret from Abdallah.
The Sentencing Judge stated in his remarks:
At the end of the day it is not possible to conclude whether as put by the prosecution and as inferred by Ms Bechara’s counsel, you, Mr Abdallah, were directing any of the trafficking in terms of Ms Bechara’s drug trafficking. There is insufficient evidence to find that proven beyond reasonable doubt.
Accordingly, the court makes no finding that you, Mr Abdallah, were responsible for any of Ms Bechara's trafficking, except insofar as I have set out the facts earlier in this document.
The court is also unable to accept that on the balance of probabilities in mitigation on your behalf, Ms Bechara. The fact is that your trafficking was extensive, usually in the absence of Mr Abdallah and indeed, continued for a period of time when he was overseas.
The court cannot, therefore, accept that you were doing any of it at his behest or direction.
On appeal, Mr Vadasz, counsel for the appellant submits that the Sentencing Judge miscategorised the dispute. He submits that the Sentencing Judge was required to resolve the dispute between Abdallah and the prosecution first by hearing evidence from Abdallah. We reject that submission. The dispute arose between the appellant and Abdallah. As mentioned, the prosecution changed their position before the Sentencing Judge once Abdallah submitted that he did not order the appellant to traffic in drugs and further that he did not stand higher in the hierarchy than the appellant. The Sentencing Judge correctly identified the issue to be resolved. The appellant’s submission was in mitigation of her role and the Sentencing Judge indicated to counsel that he would not be able to accept the submission without the appellant giving sworn evidence. As mentioned earlier, the appellant declined to give evidence.
The material available to the Sentencing Judge, including the psychologist report and the evidence which suggested Abdallah was not physically present for much of the offending, tended to support the version asserted by Abdallah. In the circumstances, no error has been identified in the approach adopted by the Sentencing Judge. His approach was orthodox and justified on the material before him.
We refuse to grant permission on this ground and dismiss this ground of appeal.
Ground 4
The Sentencing Judge reduced the appellant’s sentence by 20 per cent on account of her guilty pleas pursuant to s 40(3)(c) of the Act, as it then was. The appellant contends that s 40(3)(b) ought to have been applied instead and that the Sentencing Judge erred in not reducing the sentence by 30 per cent.
Section 40(3)(a)–(c) of the Sentencing Act 2017 (SA) states:
40—Reduction of sentences for guilty pleas in other cases
(3)     If a defendant has pleaded guilty to an offence or offences—
(a)     not more than 4 weeks after the defendant’s first court appearance in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;
(b)     more than 4 weeks after the defendant’s first court appearance in relation to the relevant offence or offences but on the day of, or before, the defendant’s committal appearance in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
(c)     during the period commencing on the day after the defendant’s committal appearance in relation to the relevant offence or offences and ending immediately before the defendant is committed for trial for the offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 20%;

The appellant’s first court appearance was on 21 October 2019. Committal proceedings commenced on 26 June 2020 with a notation that negotiations were on foot. The period in which s 40(3)(b) was applicable ended on 24 July 2020, four weeks after the committal appearance. A fresh Information was filed on 20 August 2020, and came before the Court on 21 August 2020. On that date the appellant sought and was granted a six-week adjournment to 1 October 2020. The appellant on 1 October 2020, entered guilty pleas to 13 counts on the fresh Information. Both the appellant and respondent accept that the filing of the fresh Information revived the applicability of the 40 per cent maximum under s 40(3)(a) for a period of four weeks from the date of the first court appearance (21 August 2020) in respect of the offences the subject of the new Information.
The appellant submits that the subsections of s 40 operate on a ‘drop down’ basis, and as such, once s 40(3)(a) ceased to apply, s 40(3)(b) was the correct section to reduce the sentence.
The respondent submits that s 40(3)(b) of the previous sentencing regime provided for up to 30 per cent reduction for a plea entered more than four weeks after a defendant’s first court appearance, but only if the plea was entered on the day of or before the committal appearance. Here the respondent submits that the committal appearance had already passed. Implicit in this submission is a contention that the hearing on 21 August 2020 served as both the first court appearance (s 40(3)(a)) and the committal appearance (s 40(3)(b)) in respect of the offences the subject of the new Information.[6] Therefore, by the time the pleas were entered on 1 October 2020, s 40(3)(b) was not applicable. Section 40(3)(c) applied and the appellant was only entitled to up to a 20 per cent reduction.
[6] As contemplated in Nguyen v The Queen; Tran v The Queen; Nguyen v The Queen [2022] SASCA 25 at [226] (Doyle JA).
We reject the appellant’s submission. The structure of s 40 is tiered, with earlier guilty pleas attracting higher sentence reductions. However, the subsections provide clear timeframes which indicate when they are applicable. Nothing requires the subsections to apply in a ‘drop down’ or sequential order in every case.
The appellant further submits that s 40(4)(b)(v) of the Act may apply, which allows a court to reduce the sentence if satisfied that the only reason the defendant did not plead guilty during the relevant period was because negotiations were unable to be finalised for any reason outside the control of the defendant. The appellant failed to provide a reason why the plea was not entered at an earlier stage. Section 40(4)(b)(v) of the Act does not apply in the circumstances.
We refuse to grant permission on this ground and dismiss this ground of appeal.
Ground 1
The appellant submits that the sentence is, in all the circumstances, manifestly excessive. The appellant further submits that the sentence is manifestly excessive due to the manner in which the Sentencing Judge miscategorised the dispute. The alleged miscategorisation of the dispute pertains to Ground 3, which we have dismissed.
To succeed on an appeal alleging that the sentence is manifestly excessive, the appellant must demonstrate that the sentence imposed was unreasonable or plainly unjust.[7] As the Court in Hackett v The Queen observed:[8]
The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence. Absent a specific error it is only if the sentence is found to be “unreasonable or plainly unjust” that a challenge of manifest excess will succeed. A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long or too short is a sentence which has not been imposed according to rules of reason and justice. It is not sufficient for this court to conclude that it would have come to a different decision to the one reached by the sentencing judge. The judgment is a discretionary one and what is required is that the sentencing judge must take into account all relevant (and only relevant) considerations in forming the conclusions reached. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. To observe that a sentence is “very heavy” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing judge’s discretion.
(citations omitted)
[7] Markarian v The Queen (2005) 228 CLR 357 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[8] Hackett v The Queen [2021] SASCA 32 at [8] (Kelly P, Lovell and Livesey JJA).
When considering this ground of appeal, it is necessary to have regard to the appellant’s personal circumstances.
When sentenced, the appellant was 43 years old. She had no criminal history.
The appellant provided the Court with a psychological report of Dr Lim. The appellant told Dr Lim that she was neglected and mistreated over the duration of her life. Most unfortunately, when the appellant was five years old, she was sexually abused by an adult cousin. When the appellant was about 15 or 16, she was then sexually abused by an older brother. This latter occurrence triggered her previously repressed memories regarding the earlier abuse. When the appellant disclosed the latter abuse to her family, certain family members accused her of fabricating the incident.
Between ages 16 and 21, the appellant led a ‘party lifestyle’ characterised by alcohol and drugs. She was educated to a year 10 level before being expelled on multiple occasions for behavioural issues and drug use.
When the appellant was 21, her mother sent her to Lebanon for an arranged marriage. This marriage involved drug abuse, arguing and physical violence.
The appellant became involved with Abdallah in 2015, subsequently marrying him and converting to Islam. In 2018, Abdallah travelled to Lebanon to marry a second wife, which devastated the appellant. In October 2018, the appellant turned to methylamphetamine. By early 2019, the appellant developed a gambling problem and commenced GHB use. She became distanced from the Muslim faith, which she later returned to whilst in custody.
Around May 2019, the appellant learned that Abdallah’s second wife had become pregnant. In response to this, the appellant attempted suicide. A month later, the appellant was experiencing suicidal thoughts and drove herself to hospital.
In August 2019, the appellant reported that she stopped gambling and taking drugs on her own accord.
A number of character references were tendered. The authors spoke highly of the appellant’s character generally.
The sentencing remarks reveal that the Judge paid close attention to the appellant’s personal circumstances, which evoke sympathy. The appellant’s lack of criminal antecedents, drug addiction and steps toward rehabilitation were relevant to sentence and were considered.
We do not consider that the sentence imposed was manifestly excessive. The appellant was sentenced to a term of imprisonment with a starting point of eight years for 13 separate counts of trafficking in a controlled drug. She was sentenced on the basis that she trafficked in four different types of controlled drugs over a period of five and a half months. The appellant was found to have trafficked in both street level and larger quantities, including a total of 97.3 grams of cocaine and 18.85 grams of methylamphetamine.
The Sentencing Judge sentenced the appellant on the basis that she was a “busy street level and, in some respects, wholesale dealer as indicated by the variety of drugs and quantities that [she] was selling”. Clearly the appellant’s trafficking contained an element of commerciality. She trafficked not simply to fund her drug addiction but also to fund her gambling addiction. The Sentencing Judge further found the appellant’s offending to be “serious and protracted”. Such findings were open on the evidence.
In our view, a starting point of eight years is in line with the sentencing standard expressed by Kourakis CJ in R v Young. [9]
[9] (2016) 126 SASR 41.
As the Sentencing Judge found, the appellant was not a low-level street dealer. There is much in the personal circumstances of the appellant that attracts sympathy. However, in our view, while the sentence may be regarded as heavy, it is not manifestly excessive.
We grant permission to appeal on this ground, however we dismiss this ground of appeal.
Conclusion
Permission has been granted for Ground 5. We grant permission for Ground 1. We refuse to grant permission on Grounds 2–4. For the reasons given, we dismiss the appeal.