Davidson v The Queen - [2021] SASCA 130

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
DAVIDSON v THE QUEEN
[2021] SASCA 130
Judgment of the Court of Appeal
(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice Stanley)
4 November 2021
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 - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING METHYLAMPHETAMINE
Application for permission to appeal against sentence and appeal against sentence.
The appellant pleaded guilty to one count of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA), and was sentenced to three years imprisonment (reduced from four years imprisonment on account of the appellant’s plea) with a non-parole period of 18 months.
The appellant was a passenger in a motor vehicle which was pulled over by police on suspicion of the commission of an offence. Police searched the vehicle and its occupants, and located drug paraphernalia and 0.89 grams of methylamphetamine. Upon seizure of the appellant’s phone, the police found text messages indicating that the appellant was engaged in the sale of methylamphetamine.
The appellant appeals against his sentence on the grounds that, first, the sentence was manifestly excessive in that the sentencing Judge failed to consider whether he should exercise his discretion to set a starting point below the lower level of the range recommended in R v Young (2016) 126 SASR 41, and secondly, that the sentencing Judge erred in failing to give adequate reasons for not suspending the appellant's sentence or ordering that it be served on home detention. The appellant was granted leave to appeal on the second ground by a single judge.
Held, per the Court, refusing permission to appeal on Ground 1 and dismissing the appeal:
1. The sentencing Judge did not err in adopting a starting point of four years imprisonment. The circumstances of the case did not require a starting point below that level.
2. The sentencing Judge’s reasons for declining to suspend the appellant’s sentence or ordering that it be served on home detention were adequate, and his Honour did not otherwise err in his exercise of these discretions.
Controlled Substances Act 1984 (SA) s 32(3), referred to.
R v Young (2016) 126 SASR 41; Ndreka v The Queen [2021] SASCA 11; Dinsdale v The Queen (2000) 202 CLR 321; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; R v Morse (1979) 23 SASR 98; R v Kong (2013) 115 SASR 425; R v Yavuz (2018) 130 SASR 231; R v Mangelsdorf (1995) 66 SASR 60; R v Levy (2015) 122 SASR 445; R v Rombola [2020] SASCFC 76; R v Payne (2004) 89 SASR 49; R v Rocco (1985) 37 SASR 515; R v Hevko [2018] SASCFC 22; R v Hibeljic [2018] SASCFC 35; GAS v The Queen (2004) 217 CLR 198; Barbaro v The Queen (2014) 253 CLR 58, considered.

DAVIDSON v THE QUEEN
[2021] SASCA 130
Court of Appeal – Criminal: Doyle JA, Bleby JA and Stanley AJA

THE COURT: Following his plea of guilty, the appellant was convicted of one count of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The maximum penalty for this offence is 10 years imprisonment, a fine of $50,000 or both.
From a starting point of four years imprisonment, and after making the maximum available reduction of 25 per cent on account of the appellant’s plea, the sentencing Judge imposed a head sentence of three years imprisonment with a non-parole period of 18 months. His Honour declined to suspend the sentence of imprisonment, or to make an order that it be served on home detention.
In this appeal against sentence, the appellant relies upon two grounds.
The first involves a complaint of manifest excess. In particular, the appellant contends that the sentencing Judge “failed to consider whether he should exercise his discretion to set a sentence starting point below the lower level of the range recommended in R v Young.[1]”
[1] R v Young (2016) 126 SASR 41.
The second involves a complaint that the sentencing Judge erred in not imposing a suspended sentence or, in the alternative, a home detention sentence. The particulars in support of this ground of appeal are that the sentencing Judge (a) “failed to consider whether good reason existed to suspend or, alternatively, erred in failing to provide adequate reason why the sentence should not be suspended”; and (b) “failed to adequately explain his reasons for declining to order a home detention sentence”.
A single judge of this Court granted permission to appeal on the second of these grounds, and referred the first ground for hearing and determination in conjunction with the appeal.
For the reasons which follow, we do not think either ground of appeal has been made out. We thus refuse permission to appeal on the first ground, and otherwise dismiss the appeal.
Circumstances of the offending
Early in the morning on 13 January 2020, police observed a vehicle parked outside an address in Whyalla. The police had information leading them to suspect the occupants of those premises of involvement in drug offending. While they were observing the vehicle, a male (the appellant) got into the front passenger seat of the vehicle and it drove away. Police suspected the commission of an offence and so followed and pulled over the vehicle.
The appellant was seated in the front passenger seat. The driver was John Greenwood, the partner of the appellant’s sister.
Police searched Mr Greenwood and located in his sock a small resealable bag containing 0.72 grams (mixed) of a crystalline substance containing methylamphetamine.
Upon searching the vehicle, police located a black money tin under the front passenger seat. It contained a glass pipe, a set of pocket scales, numerous empty plastic resealable bags and 0.17 grams (mixed) of a crystalline substance containing methylamphetamine.
Police seized the appellant’s phone. The appellant provided his PIN, and upon accessing the phone, police found messages which indicated that the appellant had been engaged in the sale of methylamphetamine. Those messages spanned a period of one week and included communications with at least 17 different people.
When interviewed by the police, the appellant admitted ownership of the methylamphetamine located on Mr Greenwood, saying that he had asked Mr Greenwood to hide it when he saw police following them. The appellant also admitted ownership of the tin, but denied knowledge of the quantity of the drug in that tin.
The appellant asserted that the seized methylamphetamine was for his personal use. He acknowledged that he would purchase drugs for other people if they paid him upfront, but said that he did so without any profit. The sentencing Judge accepted that the appellant was addicted to methylamphetamine, but did not accept the appellant’s denial that he was trading for profit. The sentencing Judge concluded that the telephone messages found on the appellant’s mobile phone demonstrated that he was in fact “a busy street-level dealer of illicit drugs”. While explaining that the appellant was not to be sentenced for past trafficking, the sentencing Judge sentenced the appellant on the basis that this conclusion prevented any reliance upon a submission that the offence was isolated or not part of a busy street-level drug trafficking business. The sentencing Judge said:
The phone messages indicated that [the appellant’s assertions about his trading] were untrue, in that those phone messages indicate street-level trafficking sales ostensibly for profit, and occasionally on credit.
The court does accept that you were addicted to the drug yourself and as discussed with your counsel during submissions, finds that you were trafficking for profit primarily to support your own drug use and support yourself. The court accepts there were no trappings of wealth located.
It was accepted on appeal that the appellant fell to be sentenced on the basis that his trafficking, while motivated by profit, was intended primarily to enable him to support this own addiction and to meet his (apparently modest) living expenses. There was no evidence of any trappings of wealth or an extravagant lifestyle.
Personal circumstances
When sentenced, the appellant was 33 years of age. He completed school through to year 10. He then undertook an apprenticeship as a boilermaker. He spent most of his subsequent working life in that type of work. At the date of sentencing he was in a full-time job which he had commenced in November 2020.
The sentencing Judge was provided with two letters from the appellant’s employers, confirming his employment. As the sentencing Judge noted, one was from the appellant’s branch manager, who described the appellant as a conscientious and diligent worker. The other was from the appellant’s direct supervisor, who echoed those comments and said that the appellant had turned his life around, and had the support of his colleagues.
In around mid-2019, the appellant had suffered a relationship breakdown, and had lost his then job. His counsel submitted that this had left him feeling hopeless, and resulted in him starting to take methylamphetamine. He soon found himself addicted. During his police interview, the appellant said that he had been using between about 0.2 and 0.5 grams per day for approximately a year.
Since his arrest, the appellant had undertaken drug and alcohol counselling, consisting of two phone consultations in February and May 2021. He also completed the Making Changes program. His counsel informed the sentencing Judge that the appellant had ceased using methylamphetamine.
The sentencing Judge noted that the appellant had a history of other criminal offending dating back to 2006. In October 2006, he was convicted of five counts of serious criminal trespass and four counts of dishonestly taking property without consent, for which he received an eight-month suspended sentence of imprisonment. In 2015, he was convicted of basic assault, for which he received a 21-day suspended sentence of imprisonment. In March 2020, he was convicted of driving a motor vehicle with methylamphetamine in his oral fluid or blood.
Sentencing remarks
After describing the offending and the appellant’s personal circumstances in terms similar to the above, the sentencing Judge described the appellant’s offending as very serious, noting that methylamphetamine is a very harmful drug that causes great destruction within the community. His Honour said that the serious nature of the offending was reflected in both the penalties prescribed in the Controlled Substances Act and in decisions of the Supreme Court. His Honour made express reference to R v Young[2] as indicating “that for a street-level dealer such as yourself trafficking for profit in the sense of to fund their own addiction and living expenses, the starting point should be between four and seven years imprisonment.”
[2] R v Young (2016) 126 SASR 41.
The sentencing Judge then announced the appellant’s sentence:
The court has regard to everything tendered and put, in particular the matters emphasised by your counsel. From a starting point of four years imprisonment, that will be discounted by the full 25% on account of your early plea of guilty to three years imprisonment. Your offending is too serious for there to be good reason to suspend it.
As to home detention, the first stage of the test is satisfied in that there are suitable premises and you are a suitable person in terms of being suitable for supervision. The second stage is regrettably not satisfied. You were a busy street-level dealer of ice methamphetamine and whilst the court has full regard to the matters submitted by your counsel, a sentence on home detention simply would not provide adequate personal or general deterrence or punishment. Accordingly, it’s not appropriate that the sentence be served on home detention.
There is scope however in light of the matters raised by your counsel, for the imposition of a slightly shorter than usual non-parole period, which will be 18 months.
The sentence of the court is three years imprisonment, with a non-parole period of 18 months, commencing today.
Ground 1: manifest excess in the head sentence
There is no dispute as to the principles governing consideration of a complaint of manifest excess. As recently summarised by this Court in Ndreka v The Queen:[3]
The principles governing the Court’s consideration of a submission of manifest excess are well-known. They were summarised by the High Court in Dinsdale v The Queen[4] and Hili v The Queen.[5] They require satisfaction by the appellate court that the impugned sentence is unreasonably high, or plainly unjust, in the sense required by House v The King.[6] It is not enough that the sentence is higher than what the appellate court, or some other sentencing judge, might have imposed. The appellate court will only interfere if the sentence is outside the range of sentences that might reasonably have been imposed. Whether this is so requires consideration of the range of matters relevant to the sentencing task, including the maximum penalty for the relevant offending, where the circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.[7] But ultimately there is a limit to the amount of analysis that may be brought to bear. Often the existence or otherwise of manifest excess will be a conclusion that does not admit of lengthy exposition.[8]
[3]     Ndreka v The Queen [2021] SASCA 11 at [28] (Doyle JA, Kelly P and Bleby JA agreeing).
[4]     Dinsdale v The Queen (2000) 202 CLR 321 at [6] (Gleeson CJ and Hayne J).
[5]     Hili v The Queen (2010) 242 CLR 520 at [59]-[60] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[6]     House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ).
[7]     R v Morse (1979) 23 SASR 98 at 99 (King CJ, White and Mohr JJ agreeing).
[8]     Dinsdale v The Queen (2000) 202 CLR 321 at [6] (Gleeson CJ and Hayne J); Hili v The Queen (2010) 242 CLR 520 at [59]-[60] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
In the context of a drug trafficking offence, it is important always to bear in mind the social harm it causes. As the Court said in R v Kong:[9]
There continues to be concern about the prevalence of drug abuse in our community. Since Mangelsdorf, the variety of illicit drugs available has increased. Twenty years ago, heroin was a primary concern and was considered to be the most harmful of illicit drugs. The position has changed with the promotion of methylamphetamine and the availability of a variety of illicit drugs, all of which are addictive and have very harmful effects. Research and knowledge about the effects of drugs known as ‘speed’ and ‘ice’ has developed. The so-called party drugs are readily available. The manufacture and importation of drugs is prevalent. The abuse of illicit drugs causes great social harm. The treatment and the management of drug addiction places a substantial financial burden on the health budgets of this State and the Commonwealth. The crimes committed by addicts to support their habits cause much loss and suffering to the community. Those who organise and participate in the distribution of illicit drugs create a serious risk of collateral injury to innocent members of the public. It is, therefore, nor surprising that in an effort to tackle the social harm caused by the abuse of illicit drugs, Parliament has imposed substantial penalties for dealing in commercial drugs to both punish and deter those who are attracted by the large profits that dealing can generate. For those reasons, general deterrence must be given great weight in the balancing of the competing sentencing objectives in the case of commercial drug dealers.
There is a recognition that, in addition to penal penalties, it is necessary to assist addicts and to provide rehabilitation programs. Rehabilitation is an important part of the sentencing process.
The range of penalties for drug offences must recognise that there is a concern in the community about the effect of illicit drug consumption, particularly upon the younger generation. Further, many of those who are involved at the higher end of drug trafficking are also involved in other criminal conduct. Many crimes of violence are committed in a background of drug offending. …
[9] R v Kong (2013) 115 SASR 425 at [90]-[92] (Kourakis CJ, Sulan and David JJ), cited with approval in R v Young (2016) 126 SASR 41 at [40] (Kourakis CJ, Vanstone and Stanley JJ agreeing).
Some of the more particular, case-specific matters relevant to an evaluation of the seriousness of a drug trafficking offence, and hence the extent of proportionate punishment, were summarised in R v Young:[10]
The features relevant to assessing the seriousness of a defendant’s trafficking offending and the extent of proportionate punishment include 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 (e.g. principal / sole trader, courier, handler, assistant, etc); 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 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 these features follow from the legislature’s prescription of relevant factors in s 44 of the [Controlled Substances Act].
[10] R v Young (2016) 126 SASR 41 at [216] (Blue J, Doyle J agreeing), cited with approval in R v Yavuz (2018) 130 SASR 231 at [67]-[68] (Kourakis CJ, Blue and Hinton JJ).
Also relevant in this context is the sentencing standard set in R v Mangelsdorf,[11] and confirmed in cases such as R v Kong[12], R v Levy[13] and, more recently, R v Young; namely, that sentences in the range of four to seven years are appropriate for street-level offenders who are motivated to a greater or lesser extent by profit.[14] The continued applicability of the standard in R v Young has been affirmed by recent decisions of this Court.[15]
[11] R v Mangelsdorf (1995) 66 SASR 60 at 66 (Doyle CJ, Prior and Williams JJ agreeing).
[12] R v Kong (2013) 115 SASR 425.
[13] R v Levy (2015) 122 SASR 445.
[14] R v Young (2016) 126 SASR 41 at [41], [66] (Kourakis CJ, Vanstone and Stanley JJ agreeing).
[15] See, for example, R v Rombola [2020] SASCFC 76 at [46] (Bleby J, Blue and Stanley JJ agreeing).
While this sentencing standard provides sentencing judges with important guidance in arriving at an appropriate sentence, it is not to be applied in a rigid fashion and does not represent a ‘tariff’ that is applicable in all trafficking cases. Determination of an appropriate sentence remains an exercise of the sentencing Judge’s discretion having regard to all of the circumstances bearing upon the seriousness of the offending and the personal circumstances of the offender.[16]
[16] R v Payne (2004) 89 SASR 49 at [15] (Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ).

This scope for flexibility was recognised in R v Young. In the paragraph immediately following reference to the range of four to seven years mentioned above, Kourakis CJ said:[17]
There will be 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 upon a course of withdrawing from the use of the drug. A sentence of less than four years imprisonment may be appropriate for offenders of that kind. However, that level of leniency cannot continue to be extended in the face of persistent offending either whilst on bail, or after sentence on earlier offending. 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 the profit driven offenders.
[17] R v Young (2016) 126 SASR 41 at [67] (Kourakis CJ, Vanstone and Stanley JJ agreeing).
In both R v Mangelsdorf and R v Kong, the Court recognised that this flexibility included scope for leniency in the exercise of the sentencing judge’s discretion.[18] But, as explained in R v Mangelsdorf, this flexibility does not deprive the standard of its importance:[19]
But in the end the standards which this Court determines must be given appropriate weight. Departure from them must be justified by some aspect of the particular case. The standards are not, and are not intended to be, precise. But they do provide clear guidance.
…
In my opinion, a lesser sentence than the standards of punishment established by the cases referred to will be justified only by circumstances which are out of the ordinary. In the case of street trading offences, it is clear that matters such as previous good character, addiction and detection with relatively small quantities of the drugs are not matters out of the ordinary. It is also necessary to bear in mind that the importance of deterrence in such cases will often lead to less weight being given to circumstances personal to the offender than might otherwise be given.
[18] R v Mangelsdorf (1995) 66 SASR 60 at 66 (Doyle CJ, Prior and Williams JJ agreeing); R v Kong (2013) 115 SASR 425 at [79] (Kourakis CJ, Sulan and David JJ).
[19] R v Mangelsdorf (1995) 66 SASR 60 at 66 (Doyle CJ, Prior and Williams JJ agreeing).
In developing a submission of manifest excess in respect of the sentence imposed in the present case, counsel for the appellant contended that the sentencing Judge erred in applying the sentencing standard too rigidly; that his Honour failed to consider whether he should exercise his discretion to use a starting point below the range recommended in R v Young.
We reject this contention. As mentioned earlier, in the course of his sentencing remarks, the sentencing Judge referred to R v Young as indicating that “the starting point should be between four and seven years imprisonment”. Taken literally, his Honour’s observation may be read as suggesting a rigid range. But on a fair reading of his Honour’s remarks, it is apparent that his Honour was merely referring, in a shorthand way, to the sentencing standard reaffirmed in R v Young. There is no reason to think that in so doing his Honour overlooked the flexibility that is inherent in the application of such sentencing standards. Indeed, the balance of his Honour’s sentencing remarks, through their consideration of the range of relevant considerations, and balancing of competing considerations, makes it plain that his Honour appreciated the nature and breadth of the discretion available to him. The fact that he ultimately adopted a starting point within the range is not a basis for concluding that his Honour failed to appreciate the ability, in an appropriate case, to adopt a starting point outside of this range.
The real issue under Ground 1 is whether the matters relied upon by the appellant as calling for a starting point of less than four years were such as to have required that a reasonable sentencing judge adopt a starting point which was below the bottom end of the range indicated in R v Young.
Before addressing the matters relied upon by the appellant, we mention the sentencing Judge’s reference to the appellant as a busy street-level dealer of illicit drugs. While not directly challenging this characterisation of his conduct, and accepting that he could not be sentenced upon the basis that this was isolated offending given the text messages found on his mobile phone, the appellant emphasised his status as a low-level street dealer and the limited evidence as to the extent of his activities as a dealer. While his phone indicated that he had been engaged in a number of sales to multiple people, the appellant emphasised that this activity all related to a relatively short period of time of only one week.
The other matters relied upon by the appellant in support of a starting point of less than four years were the small quantity of the methylamphetamine, the limited extent of his profit motive (given his personal addiction to methylamphetamine and the absence of any trappings of wealth or an extravagant lifestyle), the fact that he had not previously been involved in any drug offending, his cooperation with authorities including through his plea of guilty, and the fact that he had taken some steps towards rehabilitation.
It is true that the quantity in the present case was modest. While this was a relevant consideration, it must also be remembered that the quantity of the drug involved in a particular charge of trafficking may be a matter of happenstance, affected by how far into a trading venture or cycle the offender is apprehended.[20] That said, the sentencing Judge should not, of course, make any positive assumption to the effect that the offending did involve some greater quantity of the drug than has been proven.
[20] R v Rocco (1985) 37 SASR 515 at 517 (White J); R v Kong (2013) 115 SASR 425 at [87] (Kourakis CJ, Sulan and David JJ); R v Young (2016) 126 SASR 41 at [64] (Kourakis CJ, Vanstone and Stanley JJ agreeing).
The appellant’s lack of prior drug offending, and his steps towards rehabilitation were also relevant considerations. But they fell to be considered in a context where the appellant had engaged in other offending, and had twice previously been given the opportunity of suspended sentences. The appellant’s counsel submitted that the successful completion of these two earlier suspended sentences suggested that the appellant was a good candidate for a (further) suspended sentence. In response to the obvious riposte that the appellant had returned to criminality (including a relatively recent conviction for driving with methylamphetamine in his blood) despite these opportunities for rehabilitation, the appellant’s counsel said that the significance of this consideration must be seen in the context that his trafficking was a product of him having developed a drug addiction following a relationship breakdown and loss of employment.
As for the absence of any trappings of wealth, and the appellant’s drug addiction, it may be accepted that they were consistent with the appellant’s trafficking not having a significant commercial or profit element to it. At the same time, the sentencing Judge was entitled to conclude, as he did, that the appellant was nevertheless, at least to some extent, motivated by profit.
In summary, while all of the matters relied upon by the appellant were relevant considerations, they were all matters taken into account by the sentencing Judge and did not require a starting point of less than four years. In the language used by Doyle CJ in the passage extracted above from his reasons in R v Mangelsdorf,[21] they were not circumstances which were out of the ordinary that would require a sentence less than the standard. While it might be said that they reasonably required a starting point at or about the low end of the range indicated in R v Young, and might have led some judges to adopt a starting point slightly below that range, we do not accept that they reasonably required a starting point below this level.
[21] R v Mangelsdorf (1995) 66 SASR 60 at 66 (Doyle CJ, Prior and Williams JJ agreeing).
We refuse permission to appeal on Ground 1.
Ground 2: failure to suspend or order home detention
The appellant complains that the sentencing Judge erred in failing to suspend the appellant’s sentence of imprisonment, or to order that it be served on home detention.
In relation to the failure to suspend, the appellant complains that the sentencing Judge failed to consider whether good reason existed to suspend, or alternatively to provide adequate reasons why the sentence should not be suspended.
The first limb of this complaint is untenable. The sentencing Judge said that the appellant’s “offending is too serious for there to be good reason to suspend it”. In the face of this express reference to the exercise of the discretion, and the criterion by which it is to be exercised (‘good reason’), there is no basis for the submission that the sentencing Judge failed to consider whether good reason to suspend existed. While the only consideration expressly mentioned in the relevant passage of his Honour’s remarks was the seriousness of the offending, we do not accept that it can be inferred that his Honour did not have regard to the full range of considerations relevant to the issue of whether to suspend the appellant’s sentence of imprisonment, or otherwise misunderstood the proper approach to that issue.
The focus of the appellant’s submissions was the second limb of the complaint; namely, that the sentencing Judge failed to provide adequate reasons for declining to exercise his discretion to suspend. As mentioned, the only reason given by the sentencing Judge for declining to suspend the appellant’s sentence of imprisonment was that the offending was too serious.
The appellant’s submissions in this respect were essentially the same as those put in support of the appellant’s complaint that the sentencing Judge also erred in failing to adequately explain his reasons for declining to order that the appellant’s sentence be served on home detention. As set out earlier, his Honour’s remarks in this respect were a little more detailed than his remarks in relation to his refusal to suspend the appellant’s sentence of imprisonment. His Honour acknowledged that the first stage of the test for suitability for home detention had been satisfied, but held that the second stage was not satisfied. His Honour said in this context that he had had “full regard to the matters submitted by [the appellant’s counsel]”. This was plainly a reference back to what the sentencing Judge had earlier summarised as a submission from the appellant’s counsel; namely, that the appellant was “back to being a positive and contributing member of the community and that in light of [his] age, ongoing employment, initial steps towards rehabilitation and the low amount of methamphetamine located, there are reasons to suspend any term of imprisonment or order it to be served on home detention.” However, the sentencing Judge took the view that as the appellant was a busy street-level dealer of ice methylamphetamine, “a sentence on home detention simply would not provide adequate personal or general deterrence or punishment.” His Honour concluded that it was therefore not appropriate that the sentence be served on home detention.
The proper approach, and considerations relevant, to the issues of suspension and home detention are not in issue. They are well known, and need not be repeated.
In challenging the adequacy of the sentencing Judge’s reasons for failing to suspend or order home detention, the appellant’s counsel relied upon the decision of the Full Court in R v Hevko.[22] In that case, the Court allowed an appeal from the sentencing Judge’s refusal to order home detention. The Court held that the sentencing Judge’s reasons (which were confined to a reference to the seriousness of the offending, the importance of deterrence and the appellant’s previous drug offending) were inadequate.[23] However, in so holding, their Honours made it plain that in circumstances where all of the relevant considerations have been canvassed earlier in the sentencing remarks, it will often be appropriate to be very brief in setting out the reasons for not suspending or ordering home detention.[24] The difficulty in that case was that the sentencing remarks had not resolved or addressed some matters which were critical to the finely balanced issue of whether or not it was appropriate to order that the sentence be served on home detention.
[22] R v Hevko [2018] SASCFC 22.
[23] R v Hevko [2018] SASCFC 22 at [5]-[13] (Kourakis CJ), [16] (Kelly J) and [62]-[69] (Nicholson J).
[24] R v Hevko [2018] SASCFC 22 at [5] (Kourakis CJ), [16] (Kelly J) and [62] (Nicholson J).
There is no equivalent difficulty in the present case. In the present case, the sentencing Judge had adequately set out his findings in relation to all of the relevant considerations earlier in his sentencing remarks. In those circumstances, his reasons for refusing to suspend or order home detention, while very brief, were adequate.
A similar submission to the one made by the appellant in the present case was put by the appellant in R v Hibjelic.[25] While that case involved very different offending, the reasons given in that case for rejecting the submission are apposite in the present case. Rather than paraphrase, it is convenient to simply repeat the relevant section of the reasons of Doyle J (with whom Peek and Blue JJ agreed) in that case:[26]
[25] R v Hibeljic [2018] SASCFC 35.
[26] R v Hibeljic [2018] SASCFC 35 at [71]-[79] (Doyle J, Peek and Blue JJ agreeing).
The sentencing judge’s reasons for declining to order home detention are set out earlier in these reasons. As to the first stage of the inquiry, the sentencing judge was satisfied that the appellant was a suitable person for home detention, that his proposed residence was suitable, and that there was no reason to consider it unlikely that he comply with a home detention order. However, it was at the second stage of the inquiry that the sentencing judge was not persuaded that it was appropriate to make the order sought. In this respect, her Honour said that she did not consider it appropriate to order that the appellant serve his sentence on home detention “because of the seriousness of this offending and the need for principles of general deterrence and punishment to prevail.”
The appellant did not go so far as to submit that the sentencing judge overlooked the circumstances personal to the appellant that ought to have weighed in favour of an order of home detention. Such a submission would have been unmeritorious for it is trite that a judge’s sentencing remarks must be read as a whole, and not treated like reasons for judgment. They need not be exhaustive at every stage. It can be safely assumed that despite her Honour only making express reference to the seriousness of the offending and the need for general deterrence and punishment, her Honour nevertheless took into account all of the usual sentencing considerations at this stage of the sentencing exercise. Her Honour had earlier set out all of those considerations in some detail, and had indeed summarised the key matters in the preceding paragraph of her remarks when addressing the issue of whether to suspend the appellant’s sentence of imprisonment.
Rather, the appellant’s submission was a more nuanced submission that the brevity of her Honour’s (express) treatment of the issue of home detention was indicative of a failure to appreciate the full significance of the matters personal to the appellant at this stage of the sentencing exercise. Support for this submission was sought to be drawn from the recent decision of this Court in R v Hevko.[27] This decision was said to be authority for the proposition that in circumstances where the issue of whether to order home detention is finely balanced, then something more than a sentence of reasoning would ordinarily be required in order to demonstrate that the sentencing judge had properly considered the issue of home detention, and was properly satisfied that it was appropriate to decline to make an order.
It is true that R v Hevko emphasises the need to ensure that proper attention is paid to the particular nature of the discretion to order that a sentence of imprisonment be served on home detention. While the range of considerations relevant to that discretion reflects the same matters relevant to the earlier exercises of discretion in arriving at an appropriate head sentence, in fixing a non-parole period and in determining whether to suspend the sentence of imprisonment, nevertheless the issues at each stage are different, and require a separate and distinct weighing and synthesis of those factors.
At the same time, where the circumstances of the offending and of the offender have been essayed in the sentencing remarks, it will not generally be necessary to repeat these matters at each stage of the sentencing process. While the issues differ at each stage, there is often little different that can usefully be said at each stage. Having at some point in the sentencing remarks set out all relevant considerations, the conclusion at each stage (including in relation to home detention) often admits of little by way of analysis, let alone by way of detailed exposition of that analysis. While this Court needs to ensure that adequate regard has been had to the differing discretions at each stage of the sentencing exercise, it at the same time needs to be wary of mandating an approach that would require that sentencing remarks include a detailed or exhaustive explication of every step in the process. To do so would result in sentencing remarks becoming unnecessarily, and indeed undesirably and artificially, long and would risk the resort to formulaic repetition in an attempt to articulate what is, after all, meant to be the product of an instinctive synthesis that is often not readily susceptible of detailed articulation.
It is also significant when considering R v Hevko that the Court held that the sentencing judge in that case had failed in his sentencing remarks to identify a salient feature of the offending, namely that it may have been an isolated incident and the defendant’s first incursion into heroin trading.[28] It was in this context that it was insufficient (and involved a failure to address the home detention discretion against a critical factual feature of the offence[29]) for the sentencing judge to rely upon a reference to the importance of deterrence in relation to “this category of offending generally” when declining to order home detention.
There was no equivalent failure in this case to identify the relevant features of the offending. To the contrary, the sentencing judge did so in detail and with clarity.
The Court in R v Hevko also criticised the sentencing judge’s remarks as failing to make it plain that his Honour had appreciated the differences between the issues of suspension and home detention. Indeed, the Court inferred from the similarities in the expression of the judge’s reasoning in respect of each that he had, in effect, applied the same test to both issues.[30]
While the remarks of the sentencing judge in this case in relation to the issues of suspension and home detention were brief, there is nothing in those remarks that suggests any confusion between, or elision of, the differing issues relevant to suspension and home detention. Both options were the subject of different paragraphs and distinct (albeit succinct and similar) reasons. There is no basis to infer such confusion or elision.
[27] R v Hevko [2018] SASCFC 22.
[28] R v Hevko [2018] SASCFC 22 at [5], [9], [60]-[61].
[29] R v Hevko [2018] SASCFC 22 at [10].
[30] R v Hevko [2018] SASCFC 22 at [67].

To the extent that the appellant otherwise challenges the sentencing Judge’s exercise of his discretions to suspend or order home detention, we do not think there is any merit in that challenge.
It is noteworthy that the prosecutor accepted during the course of submissions before the sentencing Judge that it might have been open to his Honour to have suspended the appellant’s sentence of imprisonment, or in the alternative to order that it be served on home detention. At the same time, it is trite that the prosecutor’s attitude cannot of itself circumscribe the exercise of the sentencing Judge’s discretion, let alone dictate the manner in which it is to be exercised.[31] It remained for the sentencing Judge to form his own view as to the appropriateness of suspension or home detention in light of the full range of the circumstances relevant to each.
[31] GAS v The Queen (2004) 217 CLR 198 at [30] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ); Barbaro v The Queen (2014) 253 CLR 58 at [47] (French CJ, Hayne, Kiefel and Bell JJ).
In our view, while the matters relied upon by the appellant might have permitted a sentencing Judge to suspend the appellant’s sentence, or at least order that it be served on home detention, they did not require a favourable exercise of the Judge’s discretion.
As the Judge explained, despite the matters in the appellant’s favour emphasised by his counsel – in particular the limited quantity of the drug, the limited extent of the profits to be made, the significance of the appellant’s addiction, the steps the appellant had taken towards rehabilitation, and the absence of any prior drug offending – the offending was nevertheless serious. It was not isolated; it was motivated in part by profit; and the appellant did not have an unblemished record. While there was room for some optimism as to the appellant’s rehabilitation given that the appellant had ceased using methylamphetamine, had resumed employment, had commenced a new relationship, and had taken some steps towards rehabilitation, there nevertheless remained a need to ensure a level of punishment and personal deterrence that reflected the seriousness of the offending. Further, the offending was of a kind that contributed to the great harm caused to society by the trade in methylamphetamine, and in respect of which general deterrence was a very significant consideration.
In the circumstances, it was open to the sentencing Judge to decline to suspend the appellant’s sentence, and to decline to order that he serve his sentence of imprisonment on home detention. No outcome error has been established.
The appeal in relation to the second ground of appeal should be dismissed.
Conclusion
For the reasons set out, neither ground of appeal has been made out. We refuse permission to appeal on the first ground, and dismiss the appeal.