Calabrese v The Queen - [2022] SASCA 65

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
CALABRESE v THE QUEEN
[2022] SASCA 65
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice David)
7 July 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS
The appellant pleaded guilty to two counts of trafficking in a controlled drug, namely methylamphetamine, contrary to s 32(3) of the Controlled Substances Act 1984 (SA), and one count of money laundering, contrary to s 138(2) of the Criminal Law Consolidation Act 1935 (SA).
On 17 December 2021 the appellant was sentenced to six years and five months’ imprisonment, with a non-parole period of three years and two months fixed.
The appellant sought permission to appeal his sentence on the grounds that: the sentence was manifestly excessive, the sentencing judge erred in failing to order that the sentence of imprisonment either be suspended or served on home detention, and the sentencing judge erred in failing to put the appellant on notice before rejecting a mitigatory submission not supported on oath.
Held (the Court) granting permission to appeal and allowing the appeal:
1.Given the appellant’s subsidiary role in the enterprise conducted by another person, the starting point of eight years’ imprisonment is manifestly too high.
2.The sentence must be set aside and the appellant resentenced.
3.The appellant is resentenced to imprisonment for four years and nine months, with a non-parole of two years and four months fixed.

Controlled Substances Act 1984 (SA) s 32(3); Criminal Law Consolidation Act 1935 (SA) s 138(2); Sentencing Act 2017 (SA) ss 26, 40(3), referred to.
Law v Deed [1970] SASR 374; Liddicoat v The Queen [2021] SASCA 18; MJDH v Director of Public Prosecutions (SA) (2013) 116 SASR 180; R v Camarinha [2018] SASCFC 118; R v Filipponi (2016) 126 SASR 464; R v Fresiello (2020) 137 SASR 258; R v Lobban (2001) 80 SASR 550; R v Lyberopoulos [2017] SASCFC 139; R v McIntosh [2017] SASCFC 87; R v Perre (1986) 41 SASR 105; R v Yavuz (2018) 130 SASR 231, considered.

CALABRESE v THE QUEEN
[2022] SASCA 65
Court of Appeal – Criminal: Livesey P, Lovell and David JJA
THE COURT:
Introduction

The appellant seeks leave to appeal a sentence of imprisonment of six years and five months, and a non-parole period of three years and two months, on the grounds that it was manifestly excessive and the sentencing judge erred in failing to suspend or order that it be served on home detention.
The appellant pleaded guilty to two counts of trafficking in a controlled drug, namely methylamphetamine, contrary to s 32(3) of the Controlled Substances Act 1984 (SA), and one count of money laundering, contrary to s 138(2) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for trafficking is 10 years’ imprisonment and, for money laundering, four years’ imprisonment.
This matter was initially listed for permission before a bench of two judges but, following argument, the matter was adjourned to a hearing before three judges.[1] At that hearing on 20 June 2022, the appellant was given leave to add the further ground of appeal that the sentencing judge erred by failing to put the appellant on notice before rejecting a mitigatory submission not supported on oath.
[1] See s 19C of the Supreme Court Act 1935 (SA) and r 119 of the Supreme Court Criminal Rules 2014 (SA).
For the two counts of trafficking and one count of money laundering the sentencing judge started with a single sentence of eight years imprisonment, reduced by 15 per cent on account of the appellant’s guilty pleas to six years, nine months and 18 days. After a further reduction for time spent in custody and on home detention, the head sentence became six years and five months imprisonment.
The circumstances of the offending
As part of a broader police investigation, police searched the appellant’s house and found in a locked safe: 83.7g of methylamphetamine, $66,150 in cash and a set of digital scales. A further 7.7g of methylamphetamine was found in the appellant’s bedroom.
The appellant was sentenced on the basis that he allowed an associate to store significant quantities of methylamphetamine in his safe, together with the financial proceeds of that associate’s drug trafficking. The appellant accepted that he sold small amounts of methylamphetamine on behalf of his associate from time to time.
Whilst the sentencing judge rejected the submission that the appellant received only small amounts of methylamphetamine to support his own habit, he was not able to make any finding as to the extent of any profit made by the appellant from this arrangement.
The associate was the target of the broader police operation, but died before the appellant was sentenced.
The circumstances of the offender
The appellant is 39 years with no children. He has no prior convictions. The appellant has been in stable employment for a decade. Nonetheless, he began using drugs in his late teens and, over time, his use escalated so that he began using methylamphetamine daily.
After arrest, the appellant was placed on home detention and regular drug testing delivered negative results.
The appellant’s contentions
It is contended that the head sentence of eight years and non-parole period of three years and two months are excessive, and manifestly so,[2] for a number of reasons. These included: that the appellant’s early guilty pleas in the Magistrates Court indicated contrition, his co-operation with police as evidenced by full and frank admissions, his good work history, the absence of any antecedent history, the appellant’s limited role in allowing his premises to be used and his good conduct whilst on home detention.
[2] Ndreka v The Queen [2021] SASCA 11, [28] (Doyle JA, with whom Kelly P and Bleby JA agreed).
The appellant particularly emphasised the continued support of his family, employer and friends.
As for the suggested failure by the sentencing judge to put the appellant on notice before rejecting a mitigatory submission not supported on oath, the appellant says that he had conceded only that, by allowing his home to be used for drug trafficking and money laundering, he was conferred the financial benefit that he was supplied with methylamphetamine to support a daily habit of two points, around $700 a day.
Instead, the sentencing judge rejected the proposition that this was the extent of the appellant’s benefit, finding that there was some additional profit, though the extent could not be determined:[3]
The court simply cannot accept, as submitted by your counsel, that you were receiving nothing for all of this beyond small amounts of drugs for your personal use. This was clearly a significant operation in which you were taking a significant role, generating significant profit. It is simply not possible that you would have been doing all of that for nothing beyond small amounts of drugs.
That said, it is not possible beyond that to say how and to what extent you were profiting from the operation.
[3] AB 108.
The appellant submits that it was incumbent on the sentencing judge to warn him that his explanation was not accepted, in which case he could have given evidence on oath.
The appellant referred to authorities where it was suggested that sentencing practice has changed over the last few decades, and it is now necessary for the prosecution and the court to challenge submissions in mitigation if they are not accepted. For example, in MJDH vDirector of Public Prosecutions (SA), Kourakis CJ held:[4]
A defendant’s onus to prove a mitigating circumstance deprives the often heard prosecution submission, that the defendant’s account cannot be disputed, of any meaningful utility. The question is not whether the prosecution has positive evidence to contradict that mitigating circumstances. As this case shows, and Bray CJ observed in Law v Deed, the prosecution will seldom have any such evidence. The question is whether the prosecution accepts the defendant’s account or instead requires the defendant to prove a matter in mitigation on the balance of probabilities.
The dictates of procedural fairness play an important part in this aspect of sentencing procedure. A sentencing court should not, in the face of a challenge by the prosecution, or on its own initiative, reject a defendant’s explanation without according the defendant an opportunity to give evidence on oath in support of it. As Bray CJ explained in Law v Deed:[5]
Some stories which might appear incredible when related in oratio oblique by counsel, or for that matter by the defendant himself, become believable, or at least appear as if there is a reasonable possibility that they might be true, when related on oath in the box and after surviving the test of cross-examination.
Subject to the qualification with respect to the onus, that proposition remains sound.
[4] MJDH v Director of Public Prosecutions (SA) (2013) 116 SASR 180, [17]-[18] (Kourakis CJ).
[5] Law v Deed [1970] SASR 374, 378.
Subsequently, in R v Fresiello the Chief Justice acknowledged that he had overlooked the earlier decision of King CJ in R v Perre,[6] but he adhered to his earlier views:[7]
In making those observations, I had overlooked the observations of King CJ in Perre. However sentencing practice has changed substantially in the last three decades. Prosecutors generally expressly challenge submissions in mitigation which they consider to be improbable. Judges commonly alert defence counsel if they are unlikely to accept a submission from the bar table. Moreover, and with the greatest respect to the decision in Perre, a higher standard is now demanded by the rules of procedural fairness. Accordingly, it should now be accepted that if a mitigatory explanation is likely to be substantially rejected if not supported on oath, the defendant should, as a general rule, be put on notice. Defendants should be ready, by way of anticipation, to support a mitigatory explanation on oath. If the prosecutor and the judge indicate that it is not necessary to give evidence on oath, the defendant will be sentenced on the factual basis outlined in the defendant’s submissions. There may be some cases in which limited aspects of a defendant’s explanation can be rejected without the need to forewarn the defendant because they are plainly contrary to sworn evidence or improbable.
[6] R v Perre (1986) 41 SASR 105, 105-106 (King CJ). See also R v Lobban (2001) 80 SASR 550, [17]-[18] (Martin J, with whom Mullighan and Bleby JJ agreed).
[7] R v Fresiello (2020) 137 SASR 258, [31]-[33] (Kourakis CJ, with whom Peek and Blue JJ agreed).
Whilst this ground, if successful, might be thought to require that the matter be remitted, the appellant pressed for resentence by this Court.
The respondent’s contentions
The respondent maintained that the appellant was appropriately sentenced, and the proposed sentence of eight years in R v McIntosh was invoked in circumstances where the quantities traded by the respondent in that case did not permit him to be described as a mid-level dealer.[8]
[8] R v McIntosh [2017] SASCFC 87, [166]-[179] (Hinton J, with whom Peek and Nicholson JJ agreed).
On the question of notice as to whether a mitigatory explanation would be accepted, the respondent emphasised the following exchange with the prosecutor in the course of sentencing submissions:[9]
Mr Owen-Thomas: I note too in relation to the issue of profit, when the defendant was speaking with police he denied receiving profit or payment as part of his involvement in this offending. He also told this to the psychologist. The defendant had to have been profiting financially in some way as part of this operation and I say that because the quantity of methylamphetamine and cash located in the safe was substantial.
It’s difficult to accept that someone would agree to store this quantity of methylamphetamine and this quantity of cash and assume the level of risk that comes in doing so if they were not benefiting from this arrangement and the operation in some way.
His Honour: That is the obvious inference.
Mr Owen-Thomas: Yes. …
[9] Sentencing Submissions, TX 7.15-7.30; AB 91.15-91.30.
Emphasis was also given to a passage in which the sentencing judge took the appellant’s counsel to task over his submission that there was “no formal arrangement” between the appellant and his associate, and all that the appellant derived from his assistance was the capacity to “help himself” to some of his associate’s supply of drugs.[10]
[10] Sentencing Submissions, TX 14-15; AB 98-99.
Determination of the appeal – the failure to put the appellant on notice
It is convenient to address the most recent ground first.
We assume that the law is as stated by the Court of Criminal Appeal in R v Fresiello,[11] an issue on which we heard only limited submissions. There is much to be said for the proposition that, when the transcript is considered as a whole, the concerns of the sentencing judge were made clear to the appellant. Nonetheless, there may have been some scope for misunderstanding given the way in which the terms “profit” and “arrangement” were used interchangeably during the hearing.
[11] R v Fresiello (2020) 137 SASR 258, [31]-[33] (Kourakis CJ, with whom Peek and Blue JJ agreed).
It would have been preferable if the sentencing court clearly stated in response to the submissions from counsel for the appellant that the appellant’s version of events was in dispute, and the size of the associate’s drug trafficking and money laundering operation left open the inference that the appellant must have obtained benefits over and above access to drugs to meet his own habit.
Ultimately, it is not necessary to resolve this issue given that, in our opinion, the appellant must be resentenced because the sentence is manifestly excessive.
Determination of the appeal – suspension or home detention
It is not necessary to address these grounds as we have formed the view that the appellant must be resentenced.
Determination of the appeal – manifest excess
It must be acknowledged that the appellant was sentenced on the basis that his offending was considerably more serious than that of a low-level, street-level dealer, trafficking small amounts to support an addiction. He was an integral part of a significant drug trafficking operation run by an associate of the appellant.
The appellant offered the use of his house. His role thereby extended to facilitating the weighing and packaging of drugs using the scales and plastic bags at his house, as well as the appellant using the money counter to count the drug profits of his associate’s extensive drug enterprise.[12] The appellant’s role allowed his associate to distance himself from the drugs and money involved in that enterprise.
[12] See R v McIntosh [2017] SASCFC 87, [80] (Hinton J, with whom Peek and Nicholson JJ agreed); R v Yavuz (2018) 130 SASR 231, [67] (Kourakis CJ, Blue and Hinton JJ); R v Camarinha [2018] SASCFC 118, [59] (Kourakis CJ, Blue and Lovell JJ).
The sentencing judge accepted that there were a number of favourable features in the appellant’s case, recognising the scope for leniency when fixing the non-parole period. He found that there were grounds to believe that rehabilitation should be supported and so he fixed a non-parole period at what he regarded as the lower end of the range.
Whilst the various features of the appellant’s offending are important, as is the destructive role of this drug in the community, they cannot elevate or alter the subsidiary role performed by the appellant. He assisted in a business operated by another. Whilst the sentence in another case does not guide the exercise of discretion in another, the eight years imposed in this case compares unfavourably with the eight years proposed in R v McIntosh where the respondent was the dealer and not merely assisting the trafficking conducted by another.[13] Even allowing for the money laundering charge, the starting point of eight years is manifestly toohigh.[14]
[13] R v McIntosh [2017] SASCFC 87, [166], [170]-[172] (Hinton J).
[14] See generally R v Morse (1979) 23 SASR 98, 99 (King CJ, with whom White and Mohr JJ agreed); Dinsdale v The Queen (2000) 202 CLR 321, [6] (Gleeson CJ and Hayne J); Hili v The Queen (2010) 242 CLR 520, [59]-[60] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Determination of the appeal – resentencing the offender
The sentence must be set aside and the appellant resentenced.
We resentence generally on the basis of the submissions made to the sentencing judge by counsel for the appellant; the arrangement between the appellant and his associate enabled the appellant to access methylamphetamine to feed his daily drug habit, but there is no evidence that any additional profit was made. Whilst there are a number of favourable features in mitigation, which have already been outlined, it would appear that it took a little time before the appellant was prepared to acknowledge his guilt. He did not plead guilty at the earliest opportunity.[15] The appellant is not to be punished for that: it is a question of evaluating the extent of the contrition which is evident in this case.
[15] The appellant pleaded at the answer charge hearing, rather than at two earlier hearings, and qualified for a 15 per cent reduction, not a 25 or 35 per cent reduction, s 40(3)(c) of the Sentencing Act 2017 (SA).
We start under s 26 of the Sentencing Act 2017 (SA) with a sentence of five years and six months for the trafficking offences and twelve months for the money laundering offence, with concurrency of six months. That results in a starting point of six years imprisonment.
After allowance for the guilty plea (15 per cent) the sentence becomes five years, one month and seven days. After further allowance for time spent in custody and on home detention bail (four months and seven days) the head sentence will be four years and nine months.
We fix a low non-parole period of two years and four months. A lengthy period on parole is likely to assist the appellant’s rehabilitation. We decline to find that there is “good reason” for suspension,[16] or to make an order that the sentence be served on home detention.[17] The offending is too serious to countenance these sentencing options.
[16] See Sentencing Act 2017 (SA) s 96(1); R v Lyberopoulos [2017] SASCFC 139; R v Yavuz (2018) 130 SASR 231.
[17] See Sentencing Act 2017 (SA) s 71(1), though each of ss 71(1)(a), (b) and (c) are satisfied; R v Filipponi (2016) 126 SASR 464, [37] (Kourakis CJ, with whom Vanstone and Nicholson JJ agreed); Liddicoat v The Queen [2021] SASCA 18, [34]-[35] (Bleby JA, with whom Kelly P and Lovell JA agreed).
Conclusion
In all of these circumstances, leave to appeal is granted.
The sentence imposed on 17 December 2021 is set aside and the appellant is sentenced to imprisonment for four years and nine months and a non-parole period is fixed of two years and four months, both of which must commence on 17 December 2021.