Cianfaglione v The King - [2022] SASCA 120

Supreme Court of South Australia
(Court of Appeal: Criminal)
CIANFAGLIONE v THE KING
[2022] SASCA 120
Judgment of the Court of Appeal
(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice David)
24 November 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE
The appellant pleaded guilty to one count of supplying a controlled drug to another person contrary to s 33I of the Controlled Substances Act 1984 (SA).
In early February 2019, the appellant attended a music event in the carpark of the Coopers Ale House in Gepps Cross. Whilst at the event, the appellant purchased what he believed were four MDMA pills. Subsequent testing revealed that the pills contained a combination of MDA and cocaine. Although the appellant purchased the pills for personal use and had no intention of selling them, he met a female patron to whom he supplied one of the pills for free. The female patron collapsed and was taken to hospital by ambulance. A blood test was taken which detected the drug MDA.
The appellant was sentenced in the Magistrates Court. The sentence, which was reduced on account of the appellant’s guilty plea from a starting point of 4 months, was 3 months imprisonment. The Magistrate suspended this sentence upon the appellant entering into a bond in the sum of $1,000 to be of good behaviour for two years. The bond included a condition that the appellant be under the supervision of a community corrections officer for the period of the bond, and obey all lawful directions given by that community corrections officer during the period of supervision. It also included conditions that the appellant not consume any non-prescribed drugs; that he submit for testing for illicit drugs as directed by his community corrections officer; and that he attend for counselling, assessment or treatment for drug use or abuse as directed by his community corrections officer.
The appellant appeals his sentence on the grounds that the sentence was manifestly excessive in that the length of the bond was disproportionate to the sentence of imprisonment, and because the judge included supervision as a term of the bond.
Held, per the Court, dismissing the appeal:
1. The sentence imposed was not manifestly excessive.
Controlled Substances Act 1984 (SA) ss 33I, 44; Criminal Law (Sentencing) Act 1988 (SA) s 40; Criminal Procedure Act 1921 (SA) s 116; Sentencing Act 2017 (SA) ss 96, 99, referred to.
Flett v SA Police (unreported, Supreme Court of South Australia, King AJ, 5 August 1997); Griffin v Police [2005] SASC 337; McKinnon v Police [2018] SASC 168; R v Hoffmann [2017] SASCFC 15; R v Scuteri [2018] SASCFC 103; Williams v March (1985) 38 SASR 313; Wilson v Police [2013] SASC 48, considered.

CIANFAGLIONE v THE KING
[2022] SASCA 120
Court of Appeal – Criminal: Doyle, Bleby and David JJA

THE COURT: The appellant pleaded guilty to the offence of supplying a controlled drug to another person, contrary to s 33I(1)(a) of the Controlled Substances Act 1984 (SA). The maximum penalty for this offence is a fine of $50,000, or imprisonment for 10 years, or both.
From a starting point of four months, reduced by 25 per cent on account of the appellant’s guilty plea, the sentencing Magistrate imposed a sentence of three months imprisonment. His Honour suspended the sentence upon the appellant entering into a bond, in the sum of $1,000, to be of good behaviour for two years. The bond included a condition that the appellant be under the supervision of a community corrections officer for the period of the bond, and obey all lawful directions given by that community corrections officer during the period of supervision. It also included conditions that the appellant not consume any non-prescribed drugs; that he submit for drug testing for illicit drugs as directed by his community corrections officer; and that he attend for counselling, assessment or treatment for drug use as directed by his community corrections officer.
In his appeal against sentence, the appellant contends that the sentence imposed was manifestly excessive. In particular, he contends that the length of the bond was disproportionate to the sentence of imprisonment, and that the Magistrate erred by including supervision as a term of the bond.
As the appeal is from a sentence imposed by a magistrate for a major indictable offence pursuant to s 116 of the Criminal Procedure Act 1921 (SA), it proceeds as of right.
For the reasons which follow, we are not persuaded that any error has been established in the Magistrate’s exercise of his sentencing discretion.
Circumstances of the offending
On the night of Saturday, 2 February 2019, the appellant was at the ‘Hot as Hell’ music event in the carpark of the Coopers Ale House in Gepps Cross. A female patron came to the first aid tent. She was feeling unwell, and her friends claimed that the appellant had spiked her drink. There was no direct evidence that the appellant had done this, but the appellant was nevertheless ejected from the event.
Police spoke to the appellant at the event. He provided them with identification. He appeared intoxicated, or to be under the influence of drugs. The appellant admitted to police that he had drunk a substantial amount of alcohol and had also taken drugs. The police searched him and found a resealable bag containing a brown powder, and two capsules. He said that he thought the substance was MDMA (that is, methylenedioxymethamphetamine). Subsequent testing revealed that the substance was a combination of methylenedioxyamphetamine (MDA) and cocaine, resulting in a drug diversion that was issued on 18 February 2019.
The female patron was taken to hospital, and a blood sample was taken. Her toxicology showed an alcohol reading of 0.079 per cent. The drugs found in her blood included oxycodone, diazepam, nordiazepam and MDA. The concentration of MDA in her system was consistent with illicit use.
The female patron declined to provide a statement to police.
Police interviewed the appellant at his home on 18 February 2019, just over a fortnight after the music event. During the course of that interview, the appellant said that he had bought four pills at the music event from a man who told him they contained MDMA. He said that he did not intend to sell any of the pills; they were for his personal use. He took one of the pills himself, and then later gave one to the female patron. She said she did not have any money and so he gave it to her for free. She was someone he had met at the event, and had not seen since. The appellant acknowledged that he was aware that it was an offence to possess and supply illicit drugs.
The appellant denied having spiked the woman’s drink. There was no evidence that the appellant had done so, and thus, as the Magistrate accepted, he fell to be sentenced only for his conduct in supplying the female with a tablet of MDA.
Personal circumstances
The appellant is 45 years of age. He has employment with a building company, and was provided with a supportive character reference from the managing director of the company that employed him.
The appellant has some prior offending. In 2010, he was fined without conviction for assault. In 2011, he was convicted and fined for growing cannabis. In 2013, he was convicted and placed on a bond for again growing cannabis. In 2014, he was convicted without further penalty for fighting. As the Magistrate summarised, the appellant’s prior offending was not particularly recent, but did include drug offending. The appellant had not previously been sentenced to a period of imprisonment, either suspended or immediate.
The appellant made full and frank admissions to police when spoken to, both on the night in question and during his subsequent interview. He pleaded guilty at his committal appearance, entitling him to a reduction in his sentence of up to 25 per cent.
There was a significant delay in the appellant being prosecuted. He was not charged until late 2021. He has not offended again since the conduct the subject of this appeal.
Sentencing remarks
The Magistrate set out the circumstances of the offending, and the appellant’s personal circumstances, in some detail.
In describing the seriousness of the offending, the Magistrate made it plain that there was no evidence to support the allegation of drink spiking, and that the appellant was to be sentenced for supplying the female patron one tablet of MDA. His Honour made it plain that while he could not determine precisely how the MDA came to be in the woman’s bloodstream, or the extent to which it (together with the other drugs in her system) contributed to her collapse and hospitalisation, the gravamen of the appellant’s offence lay in the risk he created. What occurred to the woman was an example of the risk the defendant created by supplying her with the tablet. It was, as the Magistrate put it, “an example of the game of Russian roulette that a person plays if they supply someone with even one MDA tablet”. It did not much matter that the defendant gave the tablet to the woman, rather than selling it to her.
The Magistrate also noted that the offending occurred at a prescribed place,[1] being a place where people gather for an entertainment event. Deterring offending at such places is, as the Magistrate explained, particularly important given that they are environments where the people present might act more carelessly than otherwise, and be more prepared to takes risks that they might not otherwise take.
[1] For the purposes of s 44(1)(da) of the Controlled Substances Act.
After noting the relevance of the appellant’s history of offending (as described above), the Magistrate also noted that the appellant had not previously been sentenced to a period of imprisonment, whether suspended or immediate.
The Magistrate then addressed the issue of prosecutorial delay. He mentioned the long delay in the appellant being charged, the fact that the appellant had “stayed out of trouble” during that period, and his counsel’s submission that this warranted some leniency. The Magistrate said that he had taken these matters into account.
After mentioning the primary and secondary purposes of sentencing, and, in particular, the importance of protecting the community and general deterrence in the case of offending of the present type, the Magistrate identified a starting point of four months imprisonment. He reduced this by 25 per cent on account of the appellant’s plea of guilty.
However, his Honour accepted that there was good reason to suspend this sentence of imprisonment upon the defendant’s entry into a bond:
I find that good reason does exist to suspend that term of imprisonment. Good reason lies in the absence of offending of this nature or of this level of seriousness by you in the past, and indeed the absence of any previous offending that was punished by periods of imprisonment in the past. In those circumstances, I consider that the threat of a period of imprisonment hanging over your head will have sufficient deterrent effect upon you and still have a general deterrent effect on the greater public to achieve the goal of protecting the public without requiring that you serve that period immediately.
The Magistrate then described the terms of the bond:
I order that the three months of imprisonment be suspended upon you entering into a bond in the sum of $1,000 to be of good behaviour for two years. It will be a condition of that bond that you be under the supervision of a community corrections officer, and that you obey their lawful directions throughout the period of the bond. You will abstain from the use of any drug that has not been prescribed to you by a legally qualified medical practitioner, and even then you can only use the dosages prescribed. You will be required to do all things necessary to submit to testing for the use of drugs at such time and places as your community corrections officer directs, and you will be required to attend any courses, counselling or treatment for the use and abuse of drugs, if and when your community corrections officer directs. That may or may not occur. That will be based on an assessment they perform at the time.
The appellant entered into a bond in the proposed form.
While not strictly relevant on this appeal, this Court was informed that since the imposition of the bond, the appellant has been required to report every fortnight to his community corrections officer, has twice been directed to see a psychiatrist at his own expense, and has been subjected to three random drug tests.
Consideration
The principles governing an appeal against sentence on the ground of manifest excess are well known and need not be repeated. It is important that this Court respect the flexibility inherent in the exercise of a sentencing judge’s discretion. That flexibility and discretion extends to, and indeed is particularly relevant to, the length and conditions of any suspended sentence bond that a sentencing judge might decide to impose.
Under s 96(1) of the Sentencing Act, the sentencing judge may, if he or she thinks that good reason exists for doing so, suspend a sentence of imprisonment on condition that the defendant enter into a bond to be of good behaviour, to comply with the conditions mandated in s 96(2) (relating to possession of firearms and submitting to gun residue testing), and to comply with such other conditions of the bond as the judge thinks appropriate and specifies in the bond.
As to those other conditions, s 98 provides that the bond may include such conditions as the judge thinks appropriate, including conditions relating to supervision by a community corrections officer, abstinence from alcohol and other drugs, and treatment and testing for drug use.
Whilst there was previously a prescribed maximum of three years,[2] s 99 of the Sentencing Act no longer prescribes any maximum term for a bond.
[2] Criminal Law (Sentencing) Act 1988 (SA), s 40.
As noted at the outset of these reasons, the appellant’s complaint of manifest excess is confined to the length and conditions of the bond required by the Magistrate.
Focusing first on the length of the bond, the appellant contends that, having determined to suspend a sentence of three months imprisonment, the Magistrate was obliged to ensure that the length of the bond was not disproportionate to the period of imprisonment to which it related.
In support of the need for proportionality between the length of a bond and the term of imprisonment to which it relates, the appellant relied upon the reasons of White J in Wilson v Police.[3] In addressing the considerations governing a sentencing court’s discretion as to the length and conditions of a bond, his Honour said:[4]
A sentencing court has a considerable discretion in relation to the terms of bonds fixed under the Sentencing Act. Relevant matters include the gravity of the offending, the period for which the Court considers it necessary that the offender’s good behaviour should be secured by a bond and, if the bond has been framed so as to provide support to an offender during the period of rehabilitation, the period during which that support may be required.[5] In the case of suspended sentence bonds, the period of the bond must not be disproportionate to the term of imprisonment imposed.[6] (emphasis added)
[3]     Wilson v Police [2013] SASC 48.
[4]     Wilson v Police [2013] SASC 48 at [26] (White J).
[5]     Griffin v Police [2005] SASC 337 at [22] (White J).
[6]     Flett v SA Police (unreported, Supreme Court of South Australia, King AJ, 5 August 1997).
In that case, the sentencing judge had imposed a sentence of 21 days imprisonment, which was suspended upon the appellant entering into a two year bond. In circumstances where White J could not discern any justification for the defendant being subject to the obligation of good behaviour for such a long period of time, his Honour held that the Magistrate erred. His Honour considered that, having regard to the very short term of imprisonment, a bond to be of good behaviour for a period of eight months would have been sufficient.
In referring to the need for proportionality between the length of a suspended sentence bond and the period of imprisonment to which it relates, White J relied upon the decision of King AJ in Flett v SA Police.[7] In that case, the sentencing judge had imposed a sentence of six months imprisonment, suspended upon the defendant entering into a bond to be of good behaviour for a period of three years. On appeal, King AJ held that “the period of the bond is excessive as being quite disproportionate to the length of the sentence which was imposed. And therefore, when one looks at the whole package, we think that it can be said to be manifestly excessive.” His Honour resentenced the defendant to the same sentence of imprisonment, but suspended it upon entry into a bond for a period of one year.
[7] Flett v SA Police (unreported, Supreme Court of South Australia, King AJ, 5 August 1997).
The respondent, on the other hand, referred to the decision of this Court in R v Hoffmann,[8] where the defendant was charged with the same offence as the appellant in the present case. On appeal, the Court held that a starting point of 12 months imprisonment was manifestly excessive, and resentenced the defendant using a starting point of five months (reduced by 40 per cent to three months on account of his guilty plea). The original sentence had been suspended on condition that the appellant enter into a bond to be of good behaviour for a period of 18 months. The length of the bond was not altered when the defendant was resentenced.[9]
[8] R v Hoffmann [2017] SASCFC 15.
[9] The new bond was expressed to be for 13 months, to take account of the five months for which the appellant had already been subject to the bond.
It is necessary to be careful when speaking of a need for proportionality between the length of a suspended sentence bond and the period of imprisonment to which it relates. We accept that the period of imprisonment to which it relates is a relevant consideration in determining the appropriate length of a suspended sentence bond. To that extent, it is to be expected that there be some sense of proportionality between the two periods of time. However, this is in essence no more than an acknowledgment that the same factors that were relevant to setting the head sentence are also relevant when determining the length and terms of any suspended sentence bond, albeit that they might weigh differently. It should not be understood as suggesting that there is, or should be, some particular numerical relationship between the length of the head sentence and the length of the suspended sentence bond. To the contrary, even in cases of similar offending, the appropriate length and conditions of a suspended sentence bond may differ quite markedly depending upon the circumstances of the particular offender, and what is necessary to achieve the usual range of sentencing objectives.
Speaking generally, a sentencing court should endeavour to fashion a suspended sentence bond so as to make it no more onerous (in either its length or conditions) than is reasonably necessary to achieve the objectives of the sentencing exercise.[10] However, precisely what length and conditions are appropriate will depend upon the circumstances. There will be some cases where the suspension of a modest period of imprisonment nevertheless requires a lengthy bond with significant conditions (for example, where the offending reflects a history of substance abuse and there are reasons to be cautious about the offender’s prospects of rehabilitation without close support and supervision). There will be other cases where, even though the offending is similar and warrants a similarly modest suspended period of imprisonment, there is nevertheless no reason in the material before the sentencing judge to impose other than a modest length bond without any conditions other than that the defendant be of good behaviour and comply with the other legislatively mandated conditions.
[10] McKinnon v Police [2018] SASC 168 at [13] (Hinton J), referring to Williams v Marsh (1985) 38 SASR 313 at 316 (Cox J).

The ultimate issue is whether the “whole package”[11] (including the length and conditions of any bond that forms part of the sentence) is proportionate to the circumstances of the offending and the offender. In other words, the issues of proportionality and manifest excess fall to be addressed at this more general level, with the ultimate issue on an appeal being whether the sentence as a whole, and hence including the length and conditions of the bond, is disproportionate or manifestly excessive.
[11] To use the language of King AJ in Flett v SA Police (unreported, Supreme Court of South Australia, King AJ, 5 August 1997).
Addressing that more general issue in the context of the present case, the appellant contends that there was no justification in the material before the sentencing judge for imposing a bond with a duration of two years, and with conditions requiring supervision (including the contemplation of directions requiring treatment and testing for drug use) for that duration. In so contending, the appellant emphasises the prosecutorial delay in charging him, and the absence of any evidence of him offending or continuing to use illicit drugs during the period between his offending and the date he was sentenced.
It may be accepted that the terms of the bond required by the Magistrate were onerous. However, we are satisfied that there was a proper basis for the length and conditions of the bond fashioned by the Magistrate. It is apparent from the Magistrate’s sentencing remarks that he was concerned by the appellant’s previous drug offending. Even though these offences were, as the Magistrate acknowledged, committed a number of years earlier, they remained relevant given the nature and context of the subject offending. The subject offending not only involved the supply of an illicit drug (MDA), but also occurred in a context where the appellant had himself bought and consumed MDA. The Magistrate was entitled to be concerned about the relationship between the appellant’s drug use and the risk of him reoffending. It follows that the Magistrate was entitled to fashion a bond that sought to ensure that the appellant was adequately supported and supervised in his rehabilitation. The Magistrate was entitled to take the view that the bond he fashioned was necessary to achieve this objective. He was also entitled to take the view (reflected in the passage from his remarks extracted earlier in these reasons) that the bond he proposed was necessary to ensure that the overall sentence achieved the objectives of personal and general deterrence and the protection of the community.
In short, this case is distinguishable from Wilson v Police[12] and Flett v SA Police[13] because there was a discernable and appropriate basis for the length and conditions of the bond imposed.
[12] Wilson v Police [2013] SASC 48.
[13] Flett v Police (unreported, Supreme Court of South Australia, King AJ, 5 August 1997).
In determining the length and conditions of the bond, the Magistrate did not overlook the significance of the delay in prosecuting the appellant. As noted earlier, he made express reference to this delay immediately after his reference to the appellant’s previous drug offending, and shortly before announcing the sentence he had decided to impose. The delay was relevant in that it enabled the appellant to rely upon his not having offended or breached the terms of his bail over a relatively lengthy period of time since his offence, and enabled the Court to make some assessment of the progress the defendant had made towards rehabilitation since the date of that offence.[14] Reflecting the submission made by the appellant’s counsel below, the Magistrate expressly acknowledged that the appellant had “stayed out of trouble” during this period. However, this was not a case where the sentencing judge was presented with positive evidence suggesting that the appellant had taken steps to address his drug use or his rehabilitation more generally. Indeed, there was no submission below to the effect that the appellant had even stopped using drugs, or had otherwise engaged in any rehabilitation. We do not think this could be inferred from the absence of offending.
[14] R v Scuteri [2018] SASCFC 103 at [9] (Peek J, Lovell and Doyle JJ agreeing).
It is appropriate to also bear in mind that the conditions fashioned by the Magistrate did not mandate any particular regime for treatment or testing of the appellant’s drug use. Rather, he quite appropriately left that to be determined and directed by the appellant’s community corrections officer. As his Honour observed, what will be required “will be based on an assessment they perform at the time”.
In summary, the Magistrate was entitled to remain concerned by the relationship between the appellant’s own drug use and the risk of reoffending. Given the time that had passed by the time the Magistrate came to sentence the appellant, a shorter bond may have sufficed. However, in all of the circumstances, and bearing firmly in mind the breadth of a sentencing judge’s discretion when determining the length and conditions of a suspended sentence bond, we are not persuaded that the sentence imposed by the Magistrate was manifestly excessive.
For the reasons given, we would dismiss the appeal.