Capone v The King

[2025] SASCA 19

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

CAPONE v THE KING

[2025] SASCA 19

Judgment of the Court of Appeal  (ex tempore)

(The Honourable Justice S Doyle and the Honourable Justice David)

5 March 2025

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING METHYLAMPHETAMINE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - POSSESSION

Application for permission to appeal against sentence. 

Following pleas of guilty, the applicant was sentenced for two offences committed in September 2022, being possession of a controlled drug, and trafficking in a controlled drug.

For the possession offence, the applicant was convicted with no further penalty. For the trafficking offence, the sentencing judge imposed a sentence of imprisonment for 4 years and 9 months.  A reduction of five per cent for his late plea of guilty and 8 months for time served on home detention bail, resulted in a head sentence of 3 years, 10 months and 5 days imprisonment, with a non-parole period of 2 years.

The applicant challenges the adequacy of the sentencing judge’s reasons and reasoning for exercising his discretion against making an order that the applicant’s sentence of imprisonment be served on home detention.

Held, by the Court, dismissing the application for permission to appeal:

1.The remarks, particularly when read as a whole, indicate that the sentencing judge understood and applied the correct approach to the exercise of his discretion under s 71 of the Sentencing Act 2017 (SA).

2.The complaint about the adequacy of the sentencing judge’s reasons or reasoning is not reasonably arguable. 

Controlled Substances Act 1984 (SA) ss 32(3), 33L(1)(a); Sentencing Act 2017 (SA) s 71, referred to.

CAPONE v THE KING
[2025] SASCA 19

Court of Appeal – Criminal:    S Doyle and David JJA

1. THE COURT (ex tempore):  This is an application for permission to appeal against sentence.  The applicant challenges the adequacy of the sentencing judge’s reasons and reasoning for exercising his discretion against making an order that the applicant’s sentence of imprisonment be served on home detention.

   Background

2. Following pleas of guilty, the applicant was sentenced for two offences committed in September 2022:

   ·possession of a controlled drug, namely 1.68 grams of methylamphetamine (contrary to s 33L(1)(a) of the Controlled Substances Act 1984 (SA), with a maximum penalty of imprisonment for 2 years or a fine of $2,000 or both); and

   ·trafficking in a controlled drug, relating to 56 grams of methylamphetamine located at the applicant’s residence (contrary to s 32(3) of the Controlled Substances Act, with a maximum penalty of imprisonment for 10 years or a fine of $50,000 or both).

3. After describing the circumstances of the applicant’s offending, and his personal circumstances, the judge in his sentencing remarks reiterated several of the key considerations in sentencing the applicant. 

4. The judge said that the applicant was to be sentenced on the basis he was ‘a street level dealer’, but whose dealing appeared to have been ‘prolific and regular’.  There was ample basis for this finding and it is, in any event, not challenged on appeal.

5. Whilst emphasising the objective seriousness of the offending, the judge also acknowledged that there was ‘a clear nexus’ between the applicant’s methylamphetamine addiction and trafficking; and that it seemed he was selling, at least in part, to support his own addiction.

6. As to the applicant’s personal circumstances, the judge noted that he was 47 years of age.  He had an extensive criminal history, including drug related offending which had resulted in previous sentences of custody.  He had also received bonds and home detention orders which he had breached.  The judge acknowledged, by reference to matters included in a report from Dr Lim (psychologist), various challenges the applicant had faced in his upbringing.  His Honour also noted, however, that the applicant had made progress whilst on home detention bail for the present offending, referring to his compliance with the conditions of that bail, his apparent abstinence from illicit substances in the face of regular drug testing, and what the judge described as his ‘genuine rehabilitative efforts’ through participation in drug programs.

7. For the possession offence, the applicant was convicted with no further penalty.

8. For the trafficking offence, the sentencing judge imposed a sentence of imprisonment for 4 years and 9 months.  A reduction of five per cent for his late plea of guilty resulted in a head sentence of 4 years, 6 months and 5 days.  The judge fixed a non-parole period of 2 years and 8 months.

9. By the time he was sentenced, the applicant had spent over 16 months on home detention bail.  After a reduction of 8 months for this time served, the judge imposed a head sentence of 3 years, 10 months and 5 days imprisonment, with a non-parole period of 2 years.

10. The judge accepted defence counsel’s concession that good reason to suspend did not exist.

11. Turning to the issue of home detention, the judge noted the applicant’s compliance with home detention bail for over 16 months, including no drug related breaches despite regular testing.  The judge also repeated his reference to the applicant’s ‘considerable efforts’ to rehabilitate himself whilst on home detention, including his participation in the matrix drug program.

12. However, the judge added that these favourable considerations needed to be considered in the context of a background which included 13 prior convictions for failing to comply with bail agreements, two breaches of bonds, a breach of a home detention order, a number of previous drug related offences, and five previous custodial sentences.  The judge explained that the applicant was not to be punished again for these matters, but considered that they were nevertheless ‘instructive in an assessment of future performance’.  The judge also noted the need to ensure that the sentence to be imposed reflect the need for general and personal deterrence. After noting the paramountcy of protecting the safety of the community, and some of the authorities addressing home detention in the context of drug offending, the judge returned to the objective seriousness of the trafficking offending and concluded that this was not an appropriate case in which to make a home detention order.

13. The judge concluded that ‘[e]ven if you were to be a suitable person to serve the sentence on home detention, in all of the circumstances, I am of the view that the making of a home detention order may affect public confidence in the administration of justice’.

    Consideration

14. In his proposed ground of appeal, the applicant challenges the adequacy of the sentencing judge’s reasons and reasoning in support of his decision to decline to exercise his discretion to order that the sentence be served on home detention under s 71 of the Sentencing Act 2017 (SA).

15. In considering this complaint, it is of course critical to bear in mind that the challenge is to sentencing remarks and not reasons for verdict.  In a case such as the present, where home detention was a key aspect of the sentencing exercise, it is to be expected that the judge will identify the key considerations guiding the decision made.  However, the reasons may be very brief, and must be read in the context of the sentencing remarks as a whole.

16. It is true that an exercise of the discretion under s 71 involves a two-staged inquiry, addressing first the issue of the offender’s suitability for home detention, and then secondly, whether it is appropriate to make an order in all the circumstances of the case. Whilst the first stage invites a closer focus upon the circumstances of the offender, and the second stage a broader focus upon the full range of sentencing considerations, there will often be significant overlap in the two stages of the inquiry. Although both stages or limbs must be addressed, and ‘satisfied’, before an order can be made, it does not follow that sentencing remarks must always address them separately. That is particularly so in cases where a judge declines to order home detention. In that circumstance, a conclusion that either of the two stages or limbs has not been made out may well suffice.

17. Contrary to the submissions of the applicant, the judge’s remarks indicate that his Honour understood and applied the correct approach to the exercise of his discretion under s 71 of the Sentencing Act.  He did not conflate the two stages or limbs.  The judge’s concluding observation made it express that he understood that the first stage or limb required satisfaction that the applicant was a suitable person for home detention.  It would appear that his Honour was not satisfied that the applicant was a suitable person, but nevertheless indicated that he based his ultimate conclusion on the ground that this was not a case warranting an exercise of the ultimate discretion in the applicant’s favour.

18. Nor is there any reason to think that the sentencing judge erred in his consideration of the applicant’s personal circumstances, and their relevance to both stages or limbs of the enquiry.  The judge plainly attached significant weight to the applicant’s compliance with his recent period of home detention and his progress towards rehabilitation.  At the same time, it was appropriate for the judge to assess these matters in the context of his history of offending and non-compliance.  In circumstances where the judge described the approach he took, and expressly warned himself against punishing the applicant again for this history, the complaint about the adequacy of his reasons or reasoning in this respect is not reasonably arguable. 

19. The judge’s sentencing remarks, particularly when read as a whole, demonstrate that he identified and weighed the relevant considerations.  Contrary to the central thrust of the oral submissions advanced this morning, it was not necessary for the judge to make any further intermediate findings, or otherwise articulate his reasoning in any greater detail than he did.  Whilst his Honour did not, for example, make express reference to Dr Lim’s reference to the applicant’s low risk of reoffending if he maintained his current prosocial lifestyle, it is apparent that he had appropriate regard to Dr Lim’s report and opinions.  It is also apparent that he had regard to the change in the applicant’s lifestyle, and in particular his abstinence from illicit substances during the period of his home detention bail.  At the same time, it was perfectly appropriate for the judge to consider the significance of this matter in the context of the applicant’s history of substance abuse, offending and non-compliance.

20. It is plain from his Honour’s remarks that he considered that the seriousness of the applicant’s offending, and the consequential need for general deterrence and concern for protection of the community, ultimately outweighed the other considerations that weighed in favour of a grant of home detention.  This key plank in the sentencing judge’s reasoning was not only sufficiently articulated, but also sound in the circumstances of the present case.

21. For completeness, we would add that even if we had been satisfied that arguable error had been established, it is not clear to us that it is reasonably arguable that on re-sentencing this Court would exercise its discretion in favour of home detention.

22. The proposed ground of appeal is not reasonably arguable.  The application for permission to appeal must be dismissed.