Da Silva v The Queen - [2020] SASCFC 66

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
DA SILVA v THE QUEEN
[2020] SASCFC 66
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Livesey)
9 July 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - GENERALLY
Appeal against sentence.
The appellant pleaded guilty to two counts of trafficking in a controlled drug in September and October 2017 contrary to s 32(2) of the Controlled Substances Act 1984 (SA). He was sentenced for this offending in the District Court on 19 December 2019 to a term of imprisonment of five years, four months and 24 days, which was to be served cumulatively on an earlier sentence of seven years, four months and 23 days. This resulted in a total head sentence of 12 years, nine months and 18 days.
By virtue of s 47 of the Sentencing Act 2017 (SA) (“the Sentencing Act”) it was necessary to extend the existing non-parole period. Further, by reason of the appellant’s previous drug trafficking convictions in 2011 and 2017, he fell to be sentenced as a “serious repeat offender”. The consequence was that s 54(1)(b) of the Sentencing Act mandated that any non-parole period fixed was to be “at least four-fifths the length of the sentence”.
The sentencing Judge applied the “four-fifths rule” to the new, total head sentence of 12 years, nine months and 18 days and extended the existing non-parole period to 10 years and two months.
The appellant sought to appeal his sentence on five grounds, including that the sentencing Judge had erred in sentencing the appellant on an erroneous factual basis, namely that he had been sentenced in 2009 for possession of “a large commercial quantity” of methylamphetamine when in fact he had been sentenced for possession of that drug for sale (ground 1), and that the sentencing Judge had misapplied s 54(1)(b) of the Sentencing Act which resulted in a manifestly excessive non-parole period (ground 5). More particularly, in relation to ground 5, it was contended that the sentencing Judge had erroneously considered herself as bound to extend the non-parole period to at least four-fifths of the total of the accumulated sentences, rather than four-fifths of the sentence imposed for the drug trafficking offending committed between September and October 2017.
The Crown conceded that the sentencing Judge had sentenced the appellant on an erroneous factual basis and that her Honour had misapplied s 54(1)(b). It was contended that this Court was not required to intervene because the head sentence was not manifestly excessive, though it was accepted that it was open to this Court to quash the entire sentence and remit the matter for re-sentencing in the District Court.
Held, per Livesey J (Kourakis CJ and Stanley J agreeing), allowing the appeal on grounds 1 and 5:
1. The sentencing Judge sentenced the appellant on an erroneous factual basis. The reference to “a large commercial quantity” of methylamphetamine was an error as in 2009 there was no such offence known to the law.
2. The sentencing Judge misapplied s 54(1)(b) of the Sentencing Act 2017 (SA). In accordance with R v Culley (2019) 134 SASR 92, having determined to impose a head sentence of five years, four months and 24 days for the September and October 2017 drug trafficking offending, it was to that head sentence that the s 54(1)(b) “four-fifths rule” applied.
3. In the case of a specific error as to one aspect of a sentence, it is usually necessary to reconsider the sentence as a whole.
4. Whilst re-sentencing is usually undertaken by this Court, better evidence about the use and societal effects of buprenorphine is required. It is preferable that this be done in the District Court.
5. It is erroneous to regard the sentencing guidance in R v Young (2016) 126 SASR 41 as directly applicable to the circumstances of this case.
6. The sentence imposed on 19 December 2019 is quashed and the matter is remitted to the District Court for re-sentencing. To the extent necessary, an extension of time to appeal is granted.
Controlled Substances Act 1984 (SA) s 32, s 44; Controlled Substances (Controlled Drugs, Precursors and Cannabis) Amendment Act 2008 (SA) s 14; Controlled Substances (Poisons) Regulations 1996 (SA); Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A, s 21A; Criminal Procedure Act 1921 (SA) s 158; Sentencing Act 2017 (SA) s 26, s 47, s 54, referred to.
R v Culley (2019) 134 SASR 92, applied.
AB v The Queen (1999) 198 CLR 111; Bugmy v The Queen (1990) 169 CLR 525; Kentwell v The Queen (2014) 252 CLR 601; R v Mangelsdorf (1995) 66 SASR 60; R v Horstmann [2010] SASC 103; R v Kong (2013) 115 SASR 425; R v Mackay [2019] SASCFC 45; R v McInerney (1986) 42 SASR 111; R v Robinson (1979) 22 SASR 367; Veen v The Queen (No 2) (1988) 164 CLR 465; R v Young (2016) 126 SASR 41, considered.

DA SILVA v THE QUEEN
[2020] SASCFC 66
Court of Criminal Appeal: Kourakis CJ, Stanley and Livesey JJ

KOURAKIS CJ: I joined in the orders made on 11 June 2020 for the reasons given by Livesey J.
STANLEY J: I agree.
LIVESEY J:
Introduction
This is an appeal against a sentence imposed on convictions for two counts of trafficking in a controlled drug, buprenorphine, in which it is conceded by the Crown that the sentencing Judge misapplied s 54 of the Sentencing Act 2017 (SA).
The Crown accepts that this error of law resulted in a manifestly excessive non-parole period and that a new non-parole period must be fixed in accordance with the reasons of this Court in R v Culley.[1]
[1] R v Culley (2019) 134 SASR 92.
The Crown also concedes that the sentencing Judge erred in sentencing the appellant on the basis that in 2009 he had previously been sentenced for possession of a large commercial quantity of methylamphetamine when, in fact, he had been sentenced for possession of that drug for sale.[2]
[2] Contrary to s 32(1)(e) of the Controlled Substances Act 1984 (SA), before the introduction of the current quantity-based penalty regime.
Whilst this comprised a “process error”,[3] it was said that the Court was not required to intervene because the head sentence was not manifestly excessive.[4]
[3] R v Horstmann [2010] SASC 103, [38] (Kourakis J) and R v Mackay [2019] SASCFC 45, [4] (Nicholson J, with whom Peek and Bampton JJ agreed).
[4] Kentwell v The Queen (2014) 252 CLR 601, [42]-[43] (French CJ, Hayne, Bell and Keane JJ).
However, the Crown accepted that, given these concessions, it was open to this Court to quash the entire sentence and remit the matter for re-sentencing by the District Court.[5]
[5] In accordance with s 158(7) of the Criminal Procedure Act 1921 (SA), cf s 150 of the Criminal Procedure Act 1921 (SA).
Disposition of the appeal
At the hearing of the appeal on 11 June 2020 the Court announced the following orders:
1The appeal is allowed.
2The sentence imposed on 19 December 2019 is quashed;
3The matter is remitted to the District Court for re-sentencing; and
4To the extent necessary, an extension of time to appeal is granted.
The Court said that reasons would later be provided.
These are those reasons.
The grounds of appeal
On 8 November 2019 the appellant pleaded guilty to two counts of trafficking in a controlled drug, being buprenorphine, contrary to s 32(3) of the Controlled Substances Act 1984 (SA).
On 19 December 2019 the sentencing Judge imposed a head sentence of five years, four months and 24 days, which she made cumulative upon an earlier sentence of seven years, four months and 23 days, making a total head sentence of 12 years, nine months and 18 days. The sentencing Judge fixed a new non-parole period based on the new, total head sentence, extending the existing period to 10 years and two months, backdated to commence on the date the earlier sentence commenced, 14 September 2016.
By Notice of Appeal dated 11 February 2020 the appellant sought permission to appeal on the following grounds:
1The sentencing Judge erred by sentencing on an incorrect factual basis, being an antecedent report that erroneously recorded a conviction on 4 March 2009 for possession of a large commercial quantity of a controlled drug for sale (ground 1);
2The sentencing Judge erred by applying the sentencing standard set down by the decision of R v Young (ground 2);[6]
3The head sentence was manifestly excessive (ground 3);
4The sentencing Judge erred by failing to reduce the sentence for totality (ground 4); and
5The sentencing Judge erred by misapplying s 54(1)(b) of the Sentencing Act 2017 (SA) when extending the non-parole period because she treated herself as bound to extend the non-parole period to at least four-fifths of the total of the accumulated sentences, rather than just to at least four-fifths of the sentence imposed by the sentencing Judge (ground 5).
[6] R v Young (2016) 126 SASR 41.
A Judge of this Court granted permission to appeal on grounds 1 and 5, permission on those grounds having been conceded by the Crown, and referred the other grounds to this Court.
The sentencing context
Before addressing the approach taken by the sentencing Judge to the sentences imposed, it is necessary to first outline the appellant’s antecedents.
At the time of sentencing in December 2019 the appellant was 36 years of age and he had the following prior convictions and sentences:
1On 4 March 2009 the appellant was sentenced on one count of possessing methylamphetamine for sale and one count of possessing MDMA.[7] Judge McIntyre imposed a sentence of two years and three months’ imprisonment, with a non-parole period of one year and three months. That sentence was suspended upon the appellant entering into a bond to be of good behaviour for three years. The offending related to the possession of 41.93 grams of a substance which contained 3.6 grams of methylamphetamine. It was this sentence which was erroneously described in an antecedent report as “possessing a controlled substance for sale” and “possess large commercial quantity controlled drug for sale”. Neither counsel pointed out the error to the sentencing Judge. It is the sentencing Judge’s reliance on this error that underpins ground 1.
2On 8 December 2011 the appellant was sentenced for trafficking in a controlled drug, methylamphetamine. The trafficking offence concerned the possession of four grams of a substance which contained 0.97 grams of methylamphetamine, other indicia of trafficking and some $1,700 in cash That offending, including summary offending for which the appellant was sentenced simultaneously, was committed during 2010 and 2011 and, as a result, comprised a breach of the terms of a suspended sentence bond. The appellant was sentenced by Judge Brebner on the basis that he was selling methylamphetamine to support his own addiction. The suspended sentence imposed by Judge McIntyre was revoked and it was ordered that this be served cumulatively upon the three years’ imprisonment imposed for the trafficking offending and the three months’ imprisonment for the summary offending, resulting in a total head sentence of five years and six months. A non-parole period of three years was fixed.
3On 20 July 2017 the appellant was sentenced for two counts of trafficking in a commercial quantity of a controlled drug and unlawful possession. The drugs were methylamphetamine and 1,4-Butanediol, also known as fantasy. The offending was committed in September 2016, whilst the appellant was still on parole for his prior offences. Judge Stretton sentenced the appellant to seven years’ imprisonment, to be served cumulatively upon the unexpired parole period of four months and 23 days and a new non-parole period of four years and nine months was fixed. That sentence was backdated to commence on 14 September 2016. The offending concerned the possession of 144.03 grams of a substance containing methylamphetamine and 722 grams of 1,4-Butanediol. It was the taking into account of the unexpired non-parole period of this sentence when applying s 54 of the Sentencing Act 2017 (SA) that underpins appeal ground 5.
[7] This is the acronym for the chemical compound methylenedioxymethamphetamine.
This long history of drug offences was, of course, relevant to both deterrence and any assessment of the appellant’s prospects for rehabilitation. Whilst it could not increase the sentences to be imposed for the offending considered by the sentencing Judge, it negated the extent to which the appellant could expect leniency.[8]
[8] R v McInerney (1986) 42 SASR 111, 113 (King CJ), 124 (Cox J), cf Veen v The Queen (No 2) (1988) 164 CLR 465, 477 (Mason CJ, Brennan, Dawson and Toohey JJ).
The subject offending
The appellant was charged with others on Information with two counts of trafficking, the particulars of which were:
1That the appellant and another between 10 September 2017 and 30 September 2017 trafficked in a controlled drug, namely buprenorphine, knowing or being reckless as to the fact the substance was a controlled drug (second count); and
2The appellant and another between 1 October 2017 and 20 October 2017 trafficked in a controlled drug, namely buprenorphine, knowing or being reckless as to the fact the substance was a controlled drug (fourth count).
This offending occurred whilst the appellant was still in custody at the Mobilong Prison for the sentence imposed in 2017. The appellant planned with others to smuggle drugs into the Mobilong Prison. As it turned out, none of the buprenorphine ever made its way into the prison.
The appellant initially planned for Ms Bennett to bring the buprenorphine into Mobilong on 30 September 2017. On that day she arranged to visit another prisoner. Ms Bennett apparently had second thoughts. When she and the other prisoner were searched following her visit, no buprenorphine was found. However, 46 strips of the drug were later found when Ms Bennett’s car was searched.
Undeterred, the appellant planned for Ms Papandrea to bring more buprenorphine into the Mobilong Prison. His planning was revealed by telephone intercept evidence commencing on 4 October 2017, when he knew the earlier attempt had failed. During a search of Ms Papandrea’s house on 20 October 2017, 45 strips of buprenorphine were found.
The appellant submitted that, though the charges concerned 91 strips of buprenorphine, his plan was limited to bringing half that amount into the prison. That is to say, the second attempt merely involved a replacement for the first attempt. That way of looking at the offending was correctly criticised by the Crown. There was no evidence from the appellant to that effect. The circumstances, taken as a whole, suggested only a persistent, if not stubborn, determination to engage in drug trafficking. Otherwise, the evidence before the sentencing Judge disclosed the following key circumstances:
1The appellant knew that each strip was, at least inside the prison, worth around $100. The total value of 91 strips was around $9,100. This was so whether payment was made in “cash or in kind”.
2The appellant’s motivation was profit. Whilst the profit was difficult to determine, the sentencing Judge accepted that it might not have been purely financial. Either way, the appellant well knew the value and likely profit.
3The appellant had described himself as “Pablo Escobar”, which the sentencing Judge found “telling”. The appellant had also said that “everyone in here is hooked on this shit, it’s like synthetic heroin”.
4In addition to these aggravating features, the appellant had tried to mitigate his moral culpability by producing a letter to the Court in which he had denied knowing that what he was doing involved trafficking. This supposed naivety, the sentencing Judge correctly said, was disingenuous.
5Before the sentencing Judge there was relatively little evidence about the nature of buprenorphine, its use, physiological effects or its societal impact. There was no evidence about its impact on prison populations.
More should be said about the last point. Reference has already been made to the appellant’s awareness of the use of buprenorphine within Mobilong Prison. The sentencing Judge described the drug as “an opioid prescribed for pain relief and for the treatment of opioid dependence”. An affidavit from a policeman suggested that it was the most common drug consumed within South Australian prisons and, in addition, that when smoked or injected, it caused effects similar to heroin.
The police officer’s evidence was far from expert or compelling.[9] Any attempt to equate offending involving heroin or methylamphetamine, with a view to demonstrating that this case fell within the guidelines established by R v Young,[10] depended upon proof of the use, prevalence and societal effects of buprenorphine. Unlike heroin,[11] or methylamphetamine (one of the drugs considered in R v Young), the courts in this State have comparatively much less institutional experience with buprenorphine. The Court was told that there are no prior sentences in this State involving buprenorphine, and relatively few examples interstate.[12] The Crown contested the relevance of these examples.[13]
[9] Cf R v Fazio (1997) 69 SASR 54, 61-62 (Bleby J) regarding police evidence about the street value of cocaine.
[10] R v Young (2016) 126 SASR 41, [62]-[69] (Kourakis CJ, with whom Vanstone and Stanley JJ agreed).
[11] R v Kong (2013) 115 SASR 425, [90] (Kourakis CJ, Sulan and David JJ).
[12] For example, R v Davis [2015] QCA 139 concerned the unlawful supply of buprenorphine to a correctional facility contrary to ss 6(1)(e) and 6(2)(d) of the Drugs Misuse Act 1986 (Qld), the maximum penalty for which was 20 years’ imprisonment. A starting point of two years’ imprisonment, reduced to 16 months for a plea of guilty, was held not to be manifestly excessive. R v Farr [2018] QCA 41 concerned four counts of aggravated supply of buprenorphine to persons within a correctional facility for which imprisonment for 11 months and 14 days was imposed. In DPP v Page [2019] VCC 1468 possession of just over 105 tabs with a total weight of five grams carried a maximum penalty of 15 years’ imprisonment, for which two years’ imprisonment was imposed. In DPP v Mueller [2018] VCC 2191 concerned a guilty plea to trafficking 80 strips of buprenorphine and for which a sentence of one year’s imprisonment was imposed. In R v Losco [2019] NSWDC 837 there was a plea of guilty to supply of 0.95 grams of buprenorphine which was to be supplied to a prisoner in a corrections facility. The maximum penalty was 15 years’ imprisonment and, a head sentence of one year and 10 months was imposed after taking into account a 25 per cent discount for a plea of guilty.
[13] The reasons included: that most of the examples were not concerned with offenders serving custodial sentences for drug offending, particularly multiple prior trafficking offences, and that they concerned supply rather than trafficking for profit.
Whilst the appellant asserted that buprenorphine had therapeutic benefits and could not be equated to heroin or methylamphetamine, the Crown relied on what the appellant had said about this drug and that, regardless, the penalty had to be determined on the basis that all controlled drugs are harmful, relying upon s 44(2) of the Controlled Substances Act 1984 (SA).

Neither approach is entirely satisfactory, at least on the present state of the evidence in this case and the authorities more generally. Whilst it may be assumed that this drug is as “equally harmful” as other controlled drugs, much clearer evidence is required concerning the use of buprenorphine before reliable comparison with heroin or methylamphetamine could be made. That evidence will not be particularly compelling unless it comes from someone whose qualifications, training and experience enables a reliable expert opinion to be given. As well, the effect of buprenorphine on the prison populations of this State is best addressed by a person who operates prisons or comes into daily contact with prisoners who may be known to use the drug.
Whilst it may readily be accepted that changing social conditions and the prevalence of particular drugs over time may increase the importance of considerations such a general deterrence,[14] this will usually be a conclusion drawn from a variety of sources, particularly the extent of any experience of the courts when addressing a particular drug on numerous occasions with the benefit of evidence or agreed material.
[14] R v Young (2016) 126 SASR 41, [43] (Kourakis CJ, with whom Vanstone and Stanley JJ agreed).
The absence of considered evidence about the use and societal consequences of buprenorphine is not overcome by reliance on s 44(2) of the Controlled Substances Act 1984 (SA):
In determining the penalty to be imposed in respect of a summary or indictable offence against Part 5 involving a controlled drug (other than cannabis, cannabis resin or cannabis oil), the degree of physical or other harm generally associated with the consumption of that particular type of controlled drug, as compared with other types of controlled drugs, is not a relevant consideration and the court must determine the penalty on the basis that controlled drugs are all categorised equally as very harmful.
This provision was inserted in September 2009[15] so as to eliminate the distinction between what had been described as “middle range” and “upper range” drugs in R v Mangelsdorf.[16] Whilst it may be accepted that the appellant had to be sentenced on the basis that “controlled drugs are all categorised equally as very harmful”, the use and societal consequences of a drug not often encountered cannot be simply assumed.
[15] Section 44(2) was inserted in the Controlled Substances Act 1984 (SA) by s 14(2) of the Controlled Substances (Controlled Drugs, Precursors and Cannabis) Amendment Act 2008 (SA).
[16] R v Manglesdorf (1995) 66 SASR 60; R v Tassone (2011) 209 A Crim R 290, [17]-[18] (Gray, Sulan and Anderson JJ) and R v Levy (2015) 122 SASR 445, [25] (Kourakis CJ, with whom Stanley J agreed): where it was explained that the requirement to treat all drugs other than cannabis as equally harmful should be understood as applying to their physiological consequences on those who take or are addicted to them, but that this did not preclude the Court adjusting penalties to deal with increasing prevalence and consequential social damage.
Whilst it is often desirable, and usually in the interests of justice, that this Court embark upon re-sentencing where errors in the sentencing process require that a sentence be quashed, that is not an appropriate course in the circumstances of this case. Much clearer information about the use and societal impacts of buprenorphine is required before re-sentencing can be undertaken. It is preferable that this be done in the District Court before a different sentencing Judge.
The appeal grounds
Because of the concessions as to appeal grounds 1 and 5 it is unnecessary to address the appeal grounds other than briefly so as to explain why the entire sentence should be quashed.
Appeal ground 1
In the course of her sentencing remarks the sentencing Judge emphasised that she was addressing “offending … against a background of similar offending. In 2009 you were sentenced in relation to the possession of a large commercial quantity of methylamphetamine for sale and possessing MDMA”.
The reference to “a large commercial quantity” was an error. In 2009 there was no offence known to the law, as described. This error was based on an erroneous antecedent report tendered by the prosecution. The error was not corrected by either counsel.
The offence relevant to the 2009 sentence concerning methylamphetamine was “possession for sale” contrary s 32(1)(e) of the Controlled Substances Act 1988 (SA). The offending in 2007 concerned just over 40 grams of powder, 3.6 grams of which was pure methylamphetamine. The relevance of the quantity of drug involved was that there were two maximum penalty tiers, differentiated by amounts referable to particular drugs as prescribed by regulation: by s 32(5)B(b)(i) the penalty was both a fine not exceeding $500,000 and imprisonment for life (or such lesser term as the court thinks fit), whereas under s 32(5)B(b)(ii) the penalty was a fine not exceeding $200,000 or imprisonment for 25 years, or both.
In 2007 there were no prescribed quantities concerning methylamphetamine under the Controlled Substances (Poisons) Regulations 1996 (SA).[17] Accordingly, the appellant was sentenced under s 32(5)B(b)(ii) against a maximum penalty of a fine not exceeding $200,000 or imprisonment for 25 years, or both.
[17] See reg 31K(2) and sch KB of the, now repealed, Controlled Substances (Poisons) Regulations 1996 (SA).
This was all before the current cascade of offences prescribed by s 32 of the Controlled Substances Act 1984 (SA). However, even under the current cascade, the amount did not equate to a large commercial quantity,[18] still less a commercial quantity.[19]
[18] Large commercial: one kilogram mixed or 750 grams pure, reg 6 and Sch 1 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA).
[19] Commercial: 500 grams mixed or 100 grams pure, reg 6 and sch 1 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA).
As has been mentioned, the Crown rightly conceded the “process error” but maintained that there was no “outcome error”.[20] Both parties relied on Kentwell v The Queen (Kentwell).[21] The appellant submitted that he was not required to show whether and to what degree the error influenced the outcome. The Crown submitted that because the head sentence was not manifestly excessive, this Court is not required to resentence.
[20] Referring to R v Horstmann [2010] SASC 103, [38] (Kourakis J) and R v Mackay [2019] SASCFC 45, [4] (Nicholson J, with whom Peek and Bampton JJ agreed) as an example of error in sentencing on an erroneous factual basis.
[21] Kentwell v The Queen (2014) 252 CLR 601, [42]-[43] (French CJ, Hayne, Bell and Keane JJ).
In my view, Kentwell, together with AB v The Queen,[22] are authority for the propositions that, where there is a “specific” or “process” error the appellate court’s power to intervene is enlivened, and it is duty bound to exercise the sentencing discretion afresh, but it is not required to re-sentence where it concludes that no different sentence should be imposed.[23] Nonetheless, aside from immaterial specific errors which do not vitiate the exercise of discretion:[24]
When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration,[25] the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing[26] and the factors that the Sentencing Act,[27] and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be “warranted in law”. A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not “warranted in law” unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence.
(Footnotes in original.)
[22] AB v The Queen (1999) 198 CLR 111, [130] (Hayne J), see also [104]-[107] (Kirby J).
[23] Kentwell v The Queen (2014) 252 CLR 601, [35] (French CJ, Hayne, Bell and Keane JJ). Should the appeal court decide that a harsher sentence is appropriate, convention requires that it give the appellant an opportunity to abandon the appeal, Neal v The Queen (1982) 149 CLR 305, 308 (Gibbs J) and Parker v Director of Public Prosecutions (1992) 28 NSWLR 282, 290 (Kirby P).
[24] Kentwell v The Queen (2014) 252 CLR 601, [42] (French CJ, Hayne, Bell and Keane JJ), contra [47]-[48] (Gageler J).
[25] House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).
[26] Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A.
[27] Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A.
The Crown does not suggest that the erroneous factual basis on which the sentencing Judge proceeded was immaterial, simply that the head sentence was appropriate. However, that is a conclusion that can only be determined following an independent exercise of sentencing discretion. As I shall explain in connection with appeal ground 5, it is best that this be done at the same time as reconsideration is given to what the parties agreed was a flawed non-parole period.
Appeal grounds 2, 3 and 4
It is convenient to address these grounds briefly. Properly analysed, each is a complaint about the approach taken to the setting of the head sentence, although reliance on the principle of totality reflected a complaint about the overall effect of the sentence imposed.[28]
[28] The relevant cases were collected in R v Standley [2016] SASCFC 141, [40]-[52] (Blue J, with whom Kelly and Doyle JJ agreed).
The sentencing Judge heard conflicting submissions on whether the guidance provided by the decision of this Court in R v Young to cases concerning the admittedly imprecise category of drug trafficking by a “street-level dealer” was relevant to the appellant’s offending.[29] The sentencing Judge said only that “the guidance provided by R v Young is relevant to the circumstances of your offending”. That comment suggested that a range of four to seven years was thought appropriate to a case of drug trafficking motivated by profit,[30] and probably explains the starting point of six years adopted by the sentencing Judge.
[29] R v Young (2016) 126 SASR 41, [62] (Kourakis CJ, with whom Vanstone and Stanley JJ agreed).
[30] R v Young (2016) 126 SASR 41, [66] (Kourakis CJ, with whom Vanstone and Stanley JJ agreed).
It is difficult to regard the guidance given by R v Young as directly applicable to the circumstances of this case. This case did not involve drugs of the kind addressed in R v Young (ecstasy, cocaine, methylamphetamine and MDMA), and the seriously damaging societal effects of those drugs are well known and well recognised.
In addition, whilst the appellant was clearly engaged in trafficking motivated by profit, it is hard to correlate his circumstances to those of a “street-level dealer” with a recognised trading cycle.[31] In my view, it would be wrong to regard R v Young as directly applicable. Whilst that is not to say that R v Young is not of some relevance, it is important to identify precisely why that might be so. In the circumstances, any assumption that R v Young and the guidance it provides is directly applicable is erroneous. That is illustrated by R v Howell, a case involving an isolated event of trafficking in methylamphetamine so as to generate profit and support a habit.[32] In that case the Court explained how R v Young was relevant — though not directly applicable — and why a starting point of six years was too high:[33]
Whilst the discussion and sentencing guidance in Young is of great assistance it is not possible to apply the guidance as to sentencing street offenders directly to the particular circumstances of this case. Nevertheless, we are satisfied that the salient features of the present offending place it in company with the type of offending in Young said to warrant a starting point towards the low end of the range there indicated of four to seven years imprisonment.
[31] R v Rocco (1985) 37 SASR 515, 517 (White J).
[32] R v Howell [2018] SASCFC 12.
[33] R v Howell [2018] SASCFC 12, [32] (Kourakis CJ, Nicholson and Doyle JJ).
Whilst there is nothing rigid about sentencing standards,[34] it is essential that they not be misapplied.
[34] R v King (1988) 48 SASR 555, 557-558 (Cox J).
In the circumstances of this case, and in view of the concessions made by the Crown, it is unnecessary to finally rule on appeal grounds 2, 3 and 4 because the sentencing discretion will be exercised afresh, with the benefit of whatever further submissions or evidence the parties put before the District Court.
Appeal ground 5
Although the sentencing Judge did not say so expressly, it is clear that she decided to fix one sentence for both offences pursuant to s 26 of the Sentencing Act 2017 (SA). There can be no complaint about that. Sentencing proceeded on the agreed basis that, as the appellant had already been convicted of trafficking offences in 2011 and in 2017, he fell to be sentenced as a “serious repeat offender” within the meaning of ss 52 and 53 of the Sentencing Act 2017 (SA). The consequence was that s 54(1)(b) mandated that any non-parole period fixed was “at least four-fifths the length of the sentence”.
The complicating feature was that the appellant was still serving an earlier sentence of imprisonment and so it was necessary to extend the existing non-parole period pursuant to s 47 of the Sentencing Act 2017 (SA). Although the Crown cited R v Culley to the sentencing Judge, and explained its effect, the concluding submission was “that the whole non-parole period needs to be four-fifths of the eventual head sentence”. That submission was, with hindsight, unclear.
The appellant was already serving a sentence of seven years’ imprisonment with a non-parole period of four years and nine months, backdated to commence on 14 September 2016. That meant that, as at the date of sentencing in December 2019, the appellant had served approximately three years and three months of his existing sentence. Whilst it was necessary for the sentencing Judge to determine an appropriate head sentence, s 47 required that the existing non-parole period be extended.
Having determined to impose a head sentence of five years, four months and 24 days (this being a reduction from a starting point of six years for the late guilty pleas), it was to that head sentence that the s 54 “four-fifths rule” applied, requiring that the non-parole period be at least four years, three months and 26 days. As was agreed by the parties on this appeal, that was less than the non-parole period to which the appellant was already subject.
Accordingly, when extending the non-parole period as s 47 required, the sentencing Judge was not constrained by s 54(1)(b) as to the length of the new non-parole period. That is, even without adding more time for the new offending, the non-parole period would exceed the required four years, three months and 26 days because in 2017 the earlier sentencing Judge had already imposed a non-parole period of four years and nine months. This outcome was explained in R v Culley:[35]
… Section 47 of the Sentencing Act 2017 required the earlier non-parole period to be reviewed and extended. The non-parole period, once extended, must therefore not be less than four-fifths of the sentence the imposition of which invokes s 47 of the Sentencing Act 2017. That sentence is the sentence of four years and 19 days. Whether it is imposed concurrently or cumulatively, we acknowledge that it follows that in the sentencing of a serious repeat offender who is subject to an existing non-parole period, the four-fifths requirement will be easily satisfied. The consequence is that a sentencing judge will retain a wider discretion when extending a non-parole period than when fixing one for a serious repeat offender who is not then subject to an existing non-parole period.
It may well be that Parliament thought s 54(1)(b) would operate differently and that an existing non-parole period would be extended by four-fifths of the subsequently imposed sentence or by four-fifths of the effective increase in the total period of imprisonment. It may be that Parliament did not turn its mind to the problem at all. The failure to expressly deal or even mention extensions suggests the latter. Be that as it may, the text itself does not support any construction other than the one we would adopt. This is not a case in which the ambiguity can be removed by contracting the breadth of the meaning of the words of the section. To reach a different outcome would require the Court to read text into the section. There is insufficient justification to do so and to thereby limit the discretion of sentencing courts. Sentencing courts will of course exercise their discretion having regard to Parliament’s concern that the community be protected from serious repeat offenders.
[35] R v Culley (2019) 134 SASR 92, [58]-[59] (Kourakis CJ, Peek and Hughes JJ).
Instead, no doubt relying on the submissions made, the sentencing Judge ordered that the new head sentence be served cumulatively upon the existing head sentence, resulting in a new head sentence of 12 years, nine months and 18 days. It was to that new head sentence that the s 54 “four-fifths rule” was erroneously applied, resulting in a manifestly excessive new non-parole period of 10 years and two months, backdated to commence from 14 September 2016, and due to expire during late 2026.
The overall effect was to extend the existing non-parole period by five years and five months, a period longer than the new head sentence imposed of five years, four months and 24 days’ imprisonment. That is, the extended non-parole period exceeded the new head sentence, contrary to s 47(1)(b):
if the person is subject to an existing non-parole period—review the non-parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court) …
Whilst the Crown conceded the need to re-determine the non-parole period, emphasising that it, like a head sentence, must reflect that the “punishment should fit the crime”,[36] it was suggested that there was no need to revisit the overall head sentence of 12 years, nine months and 18 days and that the non-parole period could, under s 47, exceed the four years, three months and 26 days required by s 54.
[36] R v Creed (1985) 37 SASR 566, 568 (King CJ, with whom Cox and Olsson JJ agreed) and R v Monks (2019) 133 SASR 182, [91] (Doyle J, with whom Peek and Parker JJ agreed).
The invitation to review the non-parole period but not the head sentence should be rejected. Whatever the limitations associated with the concepts of “proportionality”[37] and “instinctive synthesis”,[38] the considerations bearing on the fixing of an appropriate non-parole period closely follow those relevant to the determination of an appropriate head sentence:[39]
… the considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function.
[37] Hoare v The Queen (1989) 167 CLR 348, 354 (the Court) and Veen v The Queen (No 2) (1988) 164 CLR 465, 472 (Mason CJ, Brennan, Dawson and Toohey JJ).
[38] Markarian v The Queen (2005) 228 CLR 357, [139] (Kirby J).
[39] Bugmy v The Queen (1990) 169 CLR 525, 531 (Mason CJ and McHugh J, in dissent as to the result).

In R v Robinson King CJ, with whom Walters and White JJ agreed, adopted the following statement of principle regarding the exercise of the sentencing discretion:[40]
… the courts are faced with the task, where imprisonment must be imposed, not just of fixing a proper term, but of considering and resolving the question whether a non-parole period should or should not be imposed, and of formulating a duly proportioned and properly balanced sentence that is appropriate to meet all the circumstances of the case. In arriving at such a sentence the judge must bear steadily in mind the length of any non-parole period he is contemplating …
[40] R v Robinson (1979) 22 SASR 367, 369 citing R v Eckardt (1971) 1 SASR 347, 351 (Bray CJ, Mitchell and Wells JJ).
This recognised connection between the setting of a head sentence and the fixing of a non-parole period in the appropriate discharge of the sentencing discretion will usually require that appellate review of a flawed non-parole period encompass a reappraisal of both the head sentence and the non-parole period. 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”.[41]
[41] R v Robinson (1979) 22 SASR 367, 369 (King CJ with whom Walters and White JJ agreed).
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.
Conclusion
No submission was made against the grant of an extension of time.
For these reasons, an extension of time should be granted, the appeal allowed and the sentence quashed. The matter should be remitted to the District Court so that the sentencing discretion can be exercised afresh, both as to the head sentence and the non-parole period, by a different Judge.