Cuong v The Queen
[2021] SASCA 89
•2 September 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
CUONG v THE QUEEN
[2021] SASCA 89
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Livesey and the Honourable Justice Bleby)
2 September 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING HEROIN
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING METHYLAMPHETAMINE
The appellant was sentenced to 10 and a half years imprisonment with eight years and five months non-parole after pleading guilty to three counts of trafficking in a commercial quantity of a controlled drug and one count of money laundering.
The offending comprised the possession of drugs on three separate occasions, being 19 February 2019, involving 5.22 grams of methylamphetamine and 3.84 grams of heroin (the first offending), 2 April 2019, involving 9.72 grams of methylamphetamine (the second offending) and 23 July 2020, involving 171 grams of crystalline methylamphetamine and $61,650 in cash (the third offending).
The appellant appeals on the sole ground that the sentence was manifestly excessive.
Held (per Lovell and Bleby JJA), dismissing the appeal:
1. The relevant starting points in this case, for the purposes of considering the complaint of manifest excess, are the separate starting points imposed in respect of each sentence.
2. The sentence was not manifestly excessive. The appellant engaged in drug trafficking on three separate occasions, the last of which involved a serious escalation as the appellant was motivated principally by profit.
Held (per Livesey JA), allowing the appeal and re-sentencing the appellant:
1.Whilst sentencing guidance is important and must be followed, it is not the words of a statute and must not be applied mechanically so as to impose a tariff or fetter the discretion of the sentencing court.
2.The appeal court must commence with the individual sentences and their respective starting points, together with the overall effect of those starting points, before addressing the structure of the sentence and any other relevant features when determining whether a sentence is manifestly inadequate or manifestly excessive.
3. The markedly less serious circumstances of the first and second offending required that careful consideration be given to the extent of the allowances to be made for concurrency and totality, particularly by comparison with the third offending.
4. Looking at the first and second offending as a period of offending discrete from the third offending is merely one way of coming to grips with the degree of criminality associated with three episodes of offending occurring over two periods of time. The critical consideration remains the ultimate sentence and the proportion it bears to the overall criminality associated with the offending.
5.The starting point for the third drug offending was seven years and six months. The starting points of four years for the first offending and four years and six months for the second offending and the ultimate of sentence of five years, imposed after allowance was made for the guilty pleas, were manifestly excessive.
Controlled Substances Act 1984 (SA) ss 18(3), 32(1), 32(2), 32(3); Criminal Law Consolidation Act 1935 (SA) s 138(1); Sentencing Act 2017 (SA) s 26, referred to.
R v Camarinha [2018] SASCFC 118, distinguished.
Dinsdale v The Queen (2000) 202 CLR 321; Markarian v The Queen (2005) 228 CLR 357; R v Young (2016) 126 SASR 41, discussed.Attorney-General (SA) v Tichy (1982) 30 SASR 84; Barbaro v The Queen (2014) 253 CLR 58; Da Silva v The Queen [2020] SASCFC 66; Dinsdale v The Queen (2000) 202 CLR 321; Giordimania v The Queen [2020] SASCFC 28; Hackett v The Queen [2021] SASCA 32; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; Illich v The Queen [2021] SASCA 45; Knight v The Queen [2021] SASCFC 12; Lane v The Queen [2020] SASCFC 82; Lowndes v The Queen (1999) 195 CLR 665; Pascoe v The Queen [2020] SASCFC 113; Police v Cadd (1997) 69 SASR 150; R v Cleaver [2016] SASCFC 43; R v Collins [2018] SASCFC 97; R v Baker [2015] SASCFC 110; R v Cleaver [2016] SASCFC 43; R v Copeland (No 2) (2010) 108 SASR 398; R v Donald; R v Pitt; R v Whitaker (2016) 126 SASR 276; R v Jongewaard [2009] SASC 346J; R v Kreutzer (2013) 118 SASR 211; R v McIntosh [2017] SASCFC 87; R v Place (2002) 81 SASR 395; R v Robinson (1979) 22 SASR 367; R v W, PL [2017] SASCFC 119; R v Yavuz (2018) 130 SASR 231; R v Young (2016) 126 SASR 41; R v Faehrmann (2014) 118 SASR 549; R v Camarinha [2018] SASCFC 118, considered.
CUONG v THE QUEEN
[2021] SASCA 89Court of Appeal – Criminal: Lovell, Livesey and Bleby JJA
Lovell and Bleby JJA:
We are grateful to Livesey JA for describing the offending, surrounding circumstances and issues arising on this appeal.
The appellant identified and emphasised a key signpost to his claim of manifest excess. This was a starting point of 18 years’ imprisonment in relation to the totality of the offending, being three trafficking offences and one money laundering offence. He submitted that this was a disproportionate starting point that had an obvious flow-on effect.
To this end, the appellant relied on the following statement by the Court of Criminal Appeal in R v Camarinha:[1]
While there cannot be an appeal against a starting point, it is a critical step in arriving at the ultimate sentence to be imposed. It is the stage of the sentencing process at which comparison with the maximum penalty for the offence, and sentences imposed in other cases, is most readily made.[2] The Director points to the starting point of six years imprisonment as demonstrating error.
[1] [2018] SASCFC 118 at [57] (Kourakis CJ, Blue and Lovell JJ).
[2] R v Collins [2018] SASCFC 97 at [47] (per Lovell and Doyle JJ).
As is apparent from this passage, Camarinha concerned an application by the Director for permission to appeal against sentence. The sentencing judge imposed a single sentence of six years’ imprisonment on the respondent’s guilty plea to six counts of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) and one count of possessing a prescription drug in breach of s 18(3) of that Act. The judge then reduced the sentence on account of the guilty plea, time spent in custody and home detention bail, to three years and two months. He fixed a non-parole period of one year and six months. He found that there was good reason to suspend the sentence, and did so.
In that case, the starting point of six years was a figure fixed by the sentencing judge for all offences. It provided an immediate point of comparison with the maximum penalties available, in circumstances where each of the six trafficking offences carried a maximum penalty of 10 years, and where this Court had provided a degree of guidance in sentencing for that offence in R v Young.[3]
[3] R v Young (2016) 126 SASR 41 at [65]-[67].
By contrast, it is not helpful, in our view, to identify a ‘starting point’ of 18 years’ imprisonment in the present matter with a view to making a comparison with the maximum penalties from which to launch a complaint of manifest excess. The sentencing judge did not identify 18 years as a starting point. Neither, in our view, can it be inferred that he did so. That figure represents the sum of the four individual starting points that the judge identified. However, as Livesey JA has recounted, the judge imposed a degree of concurrency in respect of the first two trafficking offences, and then in respect of the third trafficking offence and the money laundering offence. The judge’s methodology never touched on a period of 18 years.
Insofar as any starting point is relevant to assessing the appropriateness of a sentence structured in this way, that is, as a ‘critical step’ in arriving at the ultimate sentence, in our view the relevant starting points in this case are the separate starting points imposed in respect of each offence. These provide the points of comparison contemplated by the Court in Camarinha. By contrast, the period of 18 years in the present case is a construct only, not a starting point adopted by the sentencing judge. It was open to the judge, as part of the process of instinctive synthesis, to identify the accumulation of 18 years as a reference point. It would not have been an error to do so. For the reasons that follow, the utility of that reference point for the purposes of the appeal would depend on the steps he then took.
The degree of utility in accumulating the sentences and using that accumulation as a starting point in a given case will depend on the role of that consequent starting point in fashioning the ultimate sentence. A starting point for an offence or group of offences will always provide some insight into the risk of excess or inadequacy on account of the direct comparability with the maximum available penalty and, to a degree, comparable cases. However, the acuteness of the comparison may be lessened if that starting point is then compromised by orders of concurrency with other penalties with other starting points. That does not mean it becomes irrelevant. It just means that its impact on the final sentence must be considered in its context.
In some cases, the number of offences will be such as to render it pointless to identify separate starting points for each offence, as to do so would lead to an ‘air of unreality’ in the sentencing process. This Court has previously examined the possibilities arising in such a circumstance.[4] For the purposes identified in Camarinha, relevant starting points might be formulated through a single exercise of the power in s 26 of the Sentencing Act 2017 (SA), several exercises of that power over groups of offences, fixing a starting point for a single offence, or any combination of these in the one sentencing exercise.
[4] R v Donald; R v Pitt; R v Whitaker (2016) 126 SASR 276 at [31] (Lovell J, Nicholson and Parker JJ agreeing).
Livesey JA has set out the starting points the judge fixed for the offences in the present matter. When considering these against the single complaint of manifest excess, attention naturally focuses on the starting points for the first two trafficking offences, being four years and four years and six months, respectively. The appellant had no previous convictions. The offences were six weeks apart. On the other hand, the appellant was on bail for the first offence when he committed the second.
Having regard to the circumstances of the offending, and to the guidance provided in Young, we do not think that the starting points for these two offences can be criticised as demonstrating ultimate error. They were within range, albeit at the high end of the range for this offending in these circumstances. They were made partially concurrent.
While it can be helpful to consider the way in which the ultimate sentence was then structured and degrees of concurrency given, in order to understand how the sentence is reached, whether the sentence is manifestly excessive will here be a conclusion not dependent on identified, specific error.[5] To succeed on appeal the appellant must establish that the sentence imposed was unreasonable or unjust warranting the intervention of this Court. As the Court in Hackett v The Queen observed:[6]
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)
[5] Dinsdale v The Queen (2000) 202 CLR 321 at [6] (Gleeson CJ and Hayne J).
[6] Hackett v The Queen [2021] SASCA 32 at [8] (Kelly P, Lovell and Livesey JJA).
We are not persuaded that the sentence was manifestly excessive. The appellant engaged in drug trafficking on three separate occasions. While the first two were relatively close in time, the second of these occurred while the appellant was on bail for the first. The appellant committed these offences to support his addiction to methylamphetamine and heroin, but also derived what the sentencing judge described as a ‘modest profit’. We infer from this finding that while the main purpose was to support his addiction, he was prepared to traffic more than he strictly needed for this purpose. In this sense, profit constituted a subsidiary motive. Only a modest degree of concurrency was appropriate given those circumstances.[7]
[7] R v Cleaver [2016] SASCFC 43 at [31] (Kourakis CJ).
The third offending represented a serious escalation of the enterprise. By this time, the appellant was motivated principally by profit. This offending occurred again while the appellant was on bail, having spent time in custody and on home detention bail in respect of Counts 1 and 2. Personal deterrence was an important consideration, as were general deterrence and the protection of the community.
The appellant’s personal circumstances, as set out by Livesey JA, evoke sympathy. The judge paid close attention to them and no complaint of process error is made in this regard. Indeed, the judge’s sentencing remarks were, in their entirety, admirably clear and comprehensive. While we accept that other sentencing judges may have found scope for further leniency on account of the appellant’s personal circumstances, we are not persuaded that the sentence was unreasonable or unjust. In our view the sentence imposed was not manifestly excessive.
We would dismiss the appeal.
Livesey JA:
Introduction
The appellant is a Vietnamese national who has resided in Adelaide under the sponsorship of his paternal aunt since he was 16 years old. He appeals against the sentence imposed on 18 February 2021 following guilty pleas for three counts of trafficking in a commercial quantity of a controlled drug on 19 February 2019, 2 April 2019 and 23 July 2020.[8]
[8] Contrary to s 32(2) of the Controlled Substances Act 1984 (SA).
The offending on 23 July 2020 also gave rise to one count of money laundering involving cash totalling $61,650 which was derived from the sale of drugs,[9] to which the appellant also pleaded guilty.
[9] Contrary to s 138(1) of the Criminal Law Consolidation Act 1935 (SA).
The sentences imposed
The sentencing Judge imposed a head sentence of 10 and a half years imprisonment and fixed a non-parole period of eight years and five months. The non-parole period imposed was “marginally greater than” the minimum four-fifths of the head sentence required by s 54 of the Sentencing Act 2017 (SA) (the Act) for “serious repeat offenders”.
The offending broadly fell into three categories, trafficking in February 2019 and April 2019 (whilst on bail) and again in July 2020. Nonetheless, there is a clear difference in seriousness between the periods of offending in 2019, and the far more serious period of offending in 2020. The sentencing for all of this offending was arrived at in the following way:
Date
Offence
Maximum Sentence
Sentence Imposed
19 February 2019
Trafficking in a controlled drug, namely 5.22 grams of methylamphetamine and 3.84 grams of heroin, contrary to ss 32(3) and 33N of the Controlled Substances Act.
10 years imprisonment
4 years, reduced by 30% to
2 years, 7 months and 18 days
2 April 2019
Trafficking in a controlled drug, namely, 9.72 grams of methylamphetamine, contrary to s 32(3) of the Controlled Substances Act.
This offence was committed whilst the appellant was on bail.
10 years imprisonment
4 years and six months imprisonment, reduced by 30% to
3 years, 1 month and 24 days
Allowance for concurrency:
9 months and 12 days
Total sentence for the 19 February 2019 and the 2 April 2019 offending (the first and second offending):
5 years imprisonment
23 July 2020
Trafficking in a controlled drug, namely 171 grams of crystalline material containing 88.1 grams of methylamphetamine, contrary to s 32(3) of the Controlled Substances Act.
10 years imprisonment
7 years and 6 months, reduced by 33% to
5 years
23 July 2020
Money laundering in the amount of $61,500, contrary to s 138 of the Criminal Law Consolidation Act 1935 (SA).
20 years imprisonment
2 years, reduced by 33% to
16 months
Allowance for concurrency:
10 months
Total sentence for the 23 July offending (the third offending):
5 years and 6 months
Total Effective Sentence:
10 years and 6 months
Non-Parole Period:
8 years and 5 months
This appeal is primarily concerned with the starting point for each sentence concerning the offending in February and April 2019, and the extent of the concurrency allowance made for those sentences, for around 15 grams of methylamphetamine and 3.84 grams of heroin. The result was, after the 30 per cent reductions for the pleas of guilty, a sentence of 5 years.
It is submitted that the starting points and sentence for the offending in February and April 2019 were excessive for what really amounted to an extended course of “street level” trafficking, primarily motivated by the desire to fuel addictions to methylamphetamine and heroin.[10]
[10] R v Young (2016) 126 SASR 41, [65]-[67] (Kourakis CJ).
Whilst it is accepted that the offending in July 2020 was far more serious, it is also submitted that the combined starting point of 18 years for all of the offending was disproportionate to the circumstances of the offending and the offender. It is contended that the overall sentence, and non-parole period, are manifestly excessive.
Before addressing these contentions, it is appropriate to consider the circumstances of the offending and the offender in more detail.
Circumstances of the offending
The first offending
The appellant was first detected trafficking drugs in February 2019. On 19 February 2019, the appellant was pulled over whilst speeding along Port Wakefield Road, Green Fields. Upon searching the appellant, the police located a plastic resealable bag containing a substance weighing 3.48 grams, of which 1.29 grams was heroin. Inside the pocket of another jacket, the police located a number of empty plastic resealable bags, as well as a hand pipe.[11] The police located further incriminating evidence inside a black hard covered wallet belonging to the appellant, including a plastic resealable bag containing a substance weighing 3.60 grams, of which 1.99 grams was methylamphetamine and a plastic bag containing 1.62 grams of methylamphetamine. The police also found other drug paraphernalia, including a number of empty small resealable bags, a set of digital scales with traces of methylamphetamine, $1,180 in cash (predominately in $50 denominations) and a mobile phone which, once examined, contained evidence consistent with drug trafficking.[12]
[11] Sentencing Remarks dated 19 February 2021, p 2 (Sentencing Remarks).
[12] Sentencing Remarks, p 2.
Upon searching the appellant’s home, the police found further evidence linking him to drug trafficking and use, including another set of digital scales, three mobile phones, a hand pipe and counterfeit money.[13] The appellant was arrested and charged with offences pursuant to sections 32(3) and 33N of the Controlled Substances Act 1984 (SA) (Controlled Substances Act). The appellant was released on bail, which included a condition that the appellant be under curfew between the hours of 10pm and 6am.[14]
[13] Sentencing Remarks, p 2.
[14] Sentencing Remarks, p 2.
This offending is referred to as the February 2019 offending, or the first offending.
The second offending
Despite the appellant’s arrest and release on bail, the appellant continued to be involved in drug trafficking. On 2 April 2019, at 10:35pm, the police observed the appellant and another man sitting together in the appellant’s vehicle in Seaton.
A check of the vehicle’s registration revealed that it was registered to the appellant who had been released on bail and was subject to a curfew condition. The appellant was subsequently arrested by the police for breaching the curfew condition of his bail agreement.
Following this arrest, the appellant was searched and police located two resealable plastic bags in the appellant’s jacket pocket containing 1.02 grams and 1.74 grams of methylamphetamine. The police also located a bottle containing three Viagra tablets and a total of $1,415 in cash.
Upon searching the appellant’s vehicle, the police located two metal containers containing 2.48 grams and 2.63 grams of methylamphetamine, respectively. Underneath the driver’s seat, the police located a small compartment containing a further 1.85 grams of methylamphetamine. In total, the police located 9.27 grams of methylamphetamine.[15]
[15] Sentencing Remarks, p 3.
The appellant was again arrested and charged with trafficking methylamphetamine. The appellant was refused bail and was remanded in custody until 21 August 2019, when he was released on home detention bail.
This offending is referred to as the April 2019 offending, or the second offending.
The third offending
On 23 July 2020, police officers attended a self-storage facility in Croydon Park. The appellant and another man were located inside one of the units, sitting at a small glass table. On the glass table was a set of digital scales, some scissors, plastic circles used to package drugs and dozens of small and medium‑sized plastic resealable bags. At the foot of the table there was a plastic bag containing 171 grams of a moist crystalline substance, of which 88.1 grams was pure methylamphetamine. The plastic bag containing that methylamphetamine was later found to have the appellant’s fingerprints on it.
The police also located a total of $61,650 cash in the storage unit. This included an amount of $40,000 found inside a Calvin Klein box which had the appellant’s fingerprints on it. It was apparent to the police that the unit was being used to package drugs for sale. The appellant was arrested by police at the storage unit. CCTV footage later revealed that between 18 and 27 June 2020 and 15 to 23 July 2020, the appellant had visited the unit 274 times.[16]
[16] Sentencing Remarks, p 4.
The circumstances of the offender
At the time of sentence, the appellant was a 25-year-old Vietnamese national who had migrated to Australia on a family sponsored visa in 2011 when he was 16 years old. The appellant’s upbringing in Vietnam was described by the sentencing Judge as “very disruptive and unsettled”.[17]
[17] Sentencing Remarks, p 7.
The appellant’s parents divorced when he was two years old and the appellant’s mother subsequently abandoned him to start a new family. The appellant’s father was an alcoholic, prone to outbursts of physical and verbal abuse. The appellant’s father passed away suddenly when the appellant was aged 10 from a condition and complications associated with his chronic alcohol abuse. The appellant’s stepmother passed away only months later.
The loss of his father and stepmother took an emotional toll upon the appellant. With encouragement from the appellant’s paternal grandmother, the appellant’s paternal aunt agreed to sponsor his move to Australia to enhance his prospects of a sound education and career opportunities. Whilst the appellant’s aunt was supportive, his uncle resented his imposition on the family and required the appellant to work in his market garden business to repay his debt to the family.
The appellant was first introduced to methylamphetamine when he was 18 years old. The appellant used it as a means of combatting the tiredness and fatigue he experienced due to working long hours at the market garden. The appellant’s use of methylamphetamine developed into an addiction as he became dependent upon the drug to sustain a normal level of functioning. By the age of 22, the appellant had developed such a tolerance to methylamphetamine that he turned to heroin instead.
As the sentencing Judge acknowledged, “given the serious nature and repetition of [the appellant’s] offences … [the appellant’s] visa will be cancelled and [the appellant] will almost certainly be deported to Vietnam” upon completion of his sentence. There seemed to be no issue but that this would be associated with some hardship for the appellant.[18]
[18] Kroni v The Queen [2021] SASCFC 15, [13]-[16] (Kourakis CJ), [227]-[229] (Livesey J, with whom Doyle J agreed).
Grounds of appeal
On 7 April 2021, after considering the DPP Notice filed on 28 March 2021, President Kelly granted the appellant leave to appeal on the sole ground that the sentence was manifestly excessive. Whilst it is not necessary for the appellant to show any specific error in order to succeed, the appellant pointed to the following matters in support of his complaint of manifest excess:
1.The overall starting point of 18 years imprisonment was manifestly excessive.
2.Even if the combined starting point was not unreasonable, the starting point of eight years and six months imprisonment for the February 2019 and April 2019 offending was disproportionate to the quantities of the substances involved and failed to reflect the influence of the appellant’s addiction.
3.The sentence for the third count, being a term of seven years and six months imprisonment, reflected 75 per cent of the maximum penalty prescribed by s 32(3) of the Controlled Substances Act and did not reflect the appellant’s culpability.
4.Notwithstanding the adverse features of the offending, the appellant’s personal circumstances justified a more merciful approach to sentence that would not have undermined the importance of deterrence.
Consideration of the appeal
The principles concerning the manifest inadequacy or excess of a sentence are well-established.[19] In Dinsdale v The Queen, the High Court summarised those principles:[20]
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy of excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short.
[19] See, e.g., Hili v The Queen (2010) 242 CLR 520, [59]-[60] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Dinsdale v The Queen (2000) 202 CLR 321, [6] (Gleeson CJ and Hayne J).
[20] Dinsdale v The Queen (2000) 202 CLR 321, [6] (Gleeson CJ and Hayne J).
An appellant will not succeed on an appeal against sentence merely because the appeal court would have exercised its discretion differently from the manner in which the sentencing judge exercised his or her discretion.[21] It is not enough that the appellate court would have imposed a different sentence to that imposed by the sentencing judge.[22] Rather, the appellant must demonstrate either that the sentence was unreasonable or plainly unjust, or the result of specific error on the behalf of the sentencing judge. As was said in Markarian v The Queen:[23]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King,[24] itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentence allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentence not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust. It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
[21] Lowndes v The Queen (1999) 195 CLR 665, [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
[22] R v Jongewaard [2009] SASC 346, [40] (Doyle CJ, with whom Layton and Kourakis JJ agreed); R v Kreutzer (2013) 118 SASR 211, [8] (Kourakis CJ); R v Wheeler [2015] SASCFC 83, [20] (Stanley J, with whom Gray and Peek JJ agreed).
[23] Markarian v The Queen (2005) 228 CLR 357, [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[24] House v The King (1936) 55 CLR 499, 504-505.
Determining whether a sentence is manifestly excessive requires consideration of a number of factors including: the maximum penalty for the offence, the range of sentencing customarily observed for the type of offending, the seriousness of the offending and the personal circumstances of the offender.[25] In the case of drug trafficking offences, the relevant considerations include:[26]
… the quantity, purity and varieties of the drug or drugs involved; the defendant’s position in the drug trafficking hierarchy; the defendant’s role in the trafficking (eg principal/sole trade, courier, handler, assistance, ect); the level of reward the defendant may be expected to have received as a result of the trafficking; whether the trafficking was undertaken solely for profit or solely to support a drug addiction or a combination; whether the offending was an isolated transaction or part of a course of conduct and in the latter case the period over which the defendant undertook the trafficking. The relevance of those features follow from a legislature’s prescription of relevant factors in s 44 of the [Controlled Substances Act 1984 (SA)].
[25] R v Baker [2015] SASCFC 110, [36] (Nicholson, Parker and Lovell JJ), citing R v Scarpantoni [2013] SASCFC 120.
[26] R v Yavuz (2018) 130 SASR 231, [67] (Kourakis CJ, Blue and Hinton JJ), citing R v Young (2016) 126 SASR 41, [210]-[213] (Blue J). In R v Young (2016) 126 SASR 41, [68], Kourakis CJ made further observations about the relevance and interrelation of these matters (cited with approval in R v Camarinha [2018] SASCFC 118, [44]). See also, Knight v The Queen [2021] SASCFC 12, [14] (Livesey J, with whom Kelly and Bleby JJ agreed).
The scale of penalties prescribed by s 32 of the Controlled Substances Act is of considerable importance to cases of this kind. The Controlled Substances Act establishes a hierarchy of drug trafficking offences “built on the quantity of illicit drugs trafficked”.[27] It starts with a maximum penalty of 10 years imprisonment for a basic offence,[28] increasing to 25 years imprisonment for trafficking a commercial quantity of a controlled substance,[29] with a maximum of life imprisonment for the trafficking of large commercial quantities.[30] It is the quantity of the trafficable substances that determines where the offending sits in the s 32 hierarchy. The quantity of the trafficable substances is ordinarily intricately connected with commercial gain derived from trafficking offending.[31]
[27] Illich v The Queen [2021] SASCA 45, [88] (Kelly P, Lovell and Livesey JJA).
[28] Controlled Substances Act 1984 (SA), s 32(3).
[29] Controlled Substances Act 1984 (SA), s 32(2).
[30] Controlled Substances Act 1984 (SA), s 32(1).
[31] See the discussion in R v Young (2016) 126 SASR 41, [217]-[222] (Blue J), cited with approval in R v Yavuz (2018) 130 SASR 231, [67]-[68] (Kourakis CJ, Blue and Hinton JJ).
It was said in R v Young that a street dealer “whose addiction has left him or her largely impoverished and who trades in very small amounts” to fuel an addiction will be at the lower end of the scale of seriousness and may attract a sentence of less than four years imprisonment. However, others who may only be social or occasional users that traffic to “fund a comfortable, usually hedonistic lifestyle” and non-users who traffic to derive a profit can expect a sentence in the range of four to seven years:[32]
There will be a relatively greater scope for rehabilitation in the case of a first offender dealer whose offending arises out of an all-consuming addiction but who has voluntarily embarked on a course of withdrawing from use of the drug. A sentence of less than four years imprisonment may be appropriate for offenders of that kind … There is much less reason for leniency in the face of persistent and recidivist trafficking even for the heavily addicted street dealer. As the prospects of rehabilitation diminish and the need for personal deterrence increases, the addicted street dealer can expect sentences in the same order as those imposed on profit driven offenders.
[32] R v Young (2016) 126 SASR 41, [65]-[67] (Kourakis CJ).
Whilst this sentencing guidance is important and must generally be followed, the words of the Chief Justice are not the words of a statute and they must not be applied mechanically so as to impose a “tariff” or fetter the exercise of discretion. There is “nothing rigid” about a sentencing standard.[33]
[33] R v King (1988) 48 SASR 555, 557-558 (Cox J). See also Police v Cadd (1997) 69 SASR 150, 165-167 (Doyle CJ) and R v Place (2002) 81 SASR 395, [31]-[33] (Doyle CJ, Prior, Lander and Martin JJ).
As matters transpired in this case, despite a period exceeding one year between the first and second offending and the third offending, the appellant fell to be sentenced for all of his offending at the same time. Unlike some cases, he had not previously been sentenced and received whatever deterrence or rehabilitative effect might follow from an initial sentence.
The conduct the subject of the first and second offending is clearly of less seriousness than the third offending, though it must be acknowledged that the second offending occurred whilst on bail. The quantities of illicit substances were considerably smaller and the offending was, on the findings of the sentencing Judge, primarily motivated by the need or desire to fuel addictions to methylamphetamine and heroin. In addition, the circumstances suggest that these offences traversed what may fairly be described as an ongoing course of conduct over a period of some months, which required that careful consideration be given to the extent of the allowance to be made for concurrency and totality when determining the sentence for these offences.
It is also important to recognise in this case that, not only were the February and April 2019 offences clearly linked, but they represented the appellant’s first and second offences; his first forays into the criminal court. At that point, the appellant had not been convicted of any criminal wrongdoing. Whilst deterrence, both personal and general, was important, so too were the appellant’s youth and personal circumstances. And, whilst it may be accepted that the quantity of illicit drugs found on an offender may at times be a matter of happenstance, depending on the offender’s trading cycle,[34] it nevertheless remains an important determinant of the seriousness of the offending.
[34] R v Young (2016) 126 SASR 41, [63]-[64] (Kourakis CJ) citing R v Rocco (1985) 37 SASR 515, 517 (White J).
Of course, whilst the scope for rehabilitation was undermined by the serious escalation in trafficking associated with the July 2020 offending, that consideration was properly to be brought to account when setting the sentence for that later offending. Any proper scope for leniency on account of the lesser quantities involved, the appellant’s youth and the absence of any prior record when addressing the sentences for the first and second offending in 2019 was not properly to be undermined by the knowledge, gained with hindsight, of what later occurred the following year.
This is not a case where any specific error was asserted. Indeed, counsel and the members of this Court regarded the sentencing remarks in this case as a model of clarity. Rather, the appellant’s submissions proceeded by reference to a number of cases where this Court had addressed sentencing for drug trafficking, emphasising the starting points adopted in each case, whilst also acknowledging that comparison with other cases is typically unhelpful or at best of limited utility.[35] Nonetheless, as the Court of Criminal Appeal said in R v Camarinha:[36]
While there cannot be an appeal against a starting point, it is a critical step in arriving at the ultimate sentence to be imposed. It is the stage of the sentencing process at which comparison with the maximum penalty for the offence, and sentences imposed in other cases, is most readily made.
[35] Hili v The Queen (2010) 242 CLR 520, [53]-[55] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Barbaro v The Queen (2014) 253 CLR 58, [40]-[41] (French CJ, Hayne, Kiefel and Bell JJ); R v Faehrmann (2014) 118 SASR 549, [39] (Kourakis CJ, Blue and Nicholson JJ).
[36] R v Camarinha [2018] SASCFC 118, [57] (Kourakis CJ, Blue and Lovell JJ).
The appellant emphasised the sentencing Judge’s starting point of 18 years for the offending in this case, particularly the 16 years for the drug trafficking. The cases relied on by the appellant may be briefly addressed.
In R v McIntosh, a Crown appeal against sentence, a starting point of 8 years was said to be appropriate for 32 counts of trafficking over a 56-day period involving a total of 135 grams of methylamphetamine. Whilst the individual amounts were considerably smaller than the amount the subject of the July offending in this case, the combined total was not insignificant.[37]
[37] R v McIntosh [2017] SASCFC 87, [67], [80] (Hinton J, with whom Peek and Nicholson JJ agreed).
In R v Camarinha, another Crown appeal against sentence, the Court of Criminal Appeal indicated a starting point of 8 years was appropriate for 6 counts of trafficking over a two-month period, involving 164 grams of methylamphetamine, 2000 ecstasy tablets and repeated sales to an undercover police officer.[38]
[38] R v Camarinha [2018] SASCFC 118.
In Pascoe v The Queen, the appellant pleaded guilty to 11 counts of trafficking and two counts of trafficking in a commercial quantity of controlled drugs.[39] The sentence of 9 years, 7 months and 6 days was imposed from a starting point of 12 years for 7 offences of trafficking and the two commercial quantity offences. A concurrent sentence of 4 years, 2 months and 12 days was imposed from a starting point of 6 years for four trafficking offences. After reductions for time in custody and on home detention, a total effective sentence of 9 years was imposed. Some of the trafficking offences involved quantities of methylamphetamine and cocaine ranging from 15 grams up to an ounce.[40] The two commercial quantity charges concerned 980 grams of cocaine and 500 grams of methylamphetamine.[41]
[39] Pascoe v The Queen [2020] SASCFC 113.
[40] Pascoe v The Queen [2020] SASCFC 113, [27] (Tilmouth AJ, with whom Stanley and Doyle JJ agreed).
[41] Pascoe v The Queen [2020] SASCFC 113, [28].
The appellant highlighted that the starting point in Pascoe was the same as the starting point in this case, though this case involved fewer and less serious charges.
In Knight v The Queen, a sentence of 6 years and 8 months imposed from a starting point of 10 years and 4 months for three counts of trafficking (one of which involved 336 grams of methylamphetamine), was not considered to be manifestly excessive.[42] The offending was committed over a 4-month period to fund gambling and drug addictions. The appellant had been reported for trafficking methylamphetamine early on but continued to offend. The Court remarked that a starting point of 8 years would have been appropriate for the later offending, but for the appellant’s addiction.
[42] Knight v The Queen [2021] SASCFC 12, [21] (Livesey J, with whom Kelly and Bleby JJ agreed).
The appellant submitted that the combined starting point in Knight was substantially less than the starting point adopted by the Judge in this case for, overall, what appears to be less methylamphetamine.
Manifestly excessive
In my view, the sentence imposed in this case was manifestly excessive. Whilst the cases relied on by the appellant are capable of being distinguished in various ways, they do tend to suggest that the overall starting point in this case of 18 years was too high. Whether the sentencing Judge described the tally of the sentences he imposed as his starting point or not is of little moment. An objective review of sentence cannot commence other than by reviewing what was in fact imposed. That is why it was, with respect, correct for the Court of Criminal Appeal in R v Camarinha to recognise the “starting point” as a “critical step”, enabling comparison with the maximum available sentences as well as the sentences imposed in other cases. Naturally enough, any appellate review of sentence cannot end with the starting point. How the sentencing court then assesses concurrency, totality and the ultimate sentence is important. The appeal court must commence with the individual sentences and their respective starting points, together with the overall effect of those starting points, before addressing the structure of the sentence and any other relevant features when determining whether a sentence is manifestly inadequate or manifestly excessive.
In this case, the starting points of four years for the first offending and four years and six months for the second offending, and the ultimate sentence of five years imposed after allowance was made for the guilty pleas were, with respect, manifestly excessive. That conclusion is reinforced by comparing the starting point of seven years and six months adopted for the third drug offending, and the ultimate sentence of five years imposed after allowance was made for the guilty plea.
This proposition may be tested by considering what an appropriate sentence might have been had the appellant been sentenced for the first and second offending in June 2019. Whatever the potential constraints on concurrency because the second offending occurred whilst on bail,[43] it is difficult to regard that offending as warranting anything more than a starting point of five years before allowance is made for the appellant’s pleas of guilty.
[43] R v Cleaver [2016] SASCFC 43, [31] (Kourakis CJ).
It may be debated whether what was involved was an inadequate concurrency allowance, or a failure to properly adjust for totality, in connection with the first and second offending, so as to arrive at a sentence that is proportionate to the degree of criminality involved:[44]
As has been explained,[45] a sentencing Judge has considerable latitude in the exercise of the sentencing discretion when structuring a sentence, or a number of sentences, in order to achieve proportionality ...
…
… In seeking to achieve proportionality a sentencing Judge has a number of tools and a broad discretion. In connection with this aspect of totality, these tools include concurrency,[46] lowering one or more of the sentences,[47] and the imposition of a single sentence under s 26 of the Sentencing Act 2017 (SA).[48]
[44] Lane v The Queen [2020] SASCFC 82, [4]-[5] (Livesey J, with whom Kelly J agreed).
[45] R v W, PL [2017] SASCFC 119, [36]-[38] (Doyle J, with whom Bampton and Lovell JJ agreed) and Giordimania v The Queen [2020] SASCFC 28, [36] (Doyle J, with whom Nicholson and Hughes JJ agreed).
[46] Attorney-General (SA) v Tichy (1982) 30 SASR 84, 92-93 (Wells J) and R v Copeland (No 2) (2010) 108 SASR 398, [102]-[106] (Kourakis J).
[47] Though in Mill v The Queen (1988) 166 CLR 59, 63 the Court emphasised that, where practicable, concurrency is preferable.
[48] See generally R v W, PL [2017] SASCFC 119, [38]-[50] (Doyle J, with whom Bampton and Lovell JJ agreed).
Looking at the first and second offending as a period of offending discrete from the third offending is, however, merely one way of coming to grips with the degree of criminality associated with what appears to be three episodes of offending broadly occurring across two periods of time. The critical consideration remains the ultimate sentence and the proportion it bears to the overall criminality associated with the offending.
Resentence
In my opinion, the sentence should be quashed and the appellant resentenced:[49]
… Whilst a sentencing Judge will conventionally address the constituent elements of a sentence, particularly where legislation increasingly dictates particular treatment for aspects of those elements, the discretion is exercised as to the sentence as a whole. A specific error as to one constituent element usually calls into question the whole sentence, because the exercise of discretion on resentencing must ensure “a duly proportioned and properly balanced sentence that is appropriate to meet all the circumstances of the case”.[50]
That will be so regardless whether the appeal court, in the independent exercise of its sentencing discretion, declines to resentence or adopts aspects of the approach taken by the sentencing Judge.
[49] Da Silva v The Queen [2020] SASCFC 66, [56]-[57] (Livesey J, with whom Kourakis CJ and Stanley J agreed).
[50] R v Robinson (1979) 22 SASR 367, 369 (King CJ with whom Walters and White JJ agreed).
On resentence, I would start with a combined notional sentence of five years pursuant to s 26 of the Sentencing Act2017 (SA) for the first and second offending. After a thirty per cent reduction for the guilty pleas, this becomes a sentence of three years and six months. I would respectfully adopt the approach taken by the sentencing Judge to the third offending, resulting in a sentence for that offending of five years and six months.
The result is that the appellant would be subject to a new head sentence of nine years. The minimum mandatory non-parole period to be fixed under s 54 would become seven years, two months and thirteen days.
Conclusion
I would allow the appeal, quash the sentence and resentence the appellant to a head sentence of nine years and fix a non-parole period of seven years, two months and thirteen days, both of which must be backdated to commence on 6 March 2020.
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