Evdochim v The King - [2022] SASCA 140

Supreme Court of South Australia
(Court of Appeal: Criminal)
EVDOCHIM v THE KING
[2022] SASCA 140
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
23 December 2022
CRIMINAL LAW - PROCEDURE - CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS - FORFEITURE OR CONFISCATION
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - MANUFACTURING, PRODUCING OR CULTIVATING - CANNABIS
The appellant was convicted of two counts of cultivating a controlled substance for sale, contrary to s 33B(3) of the Controlled Substances Act 1984 (SA).
The circumstances of the offending were that throughout 2014 and 2015, the appellant had secured and maintained two properties using false names, to facilitate the cultivation at each property of 18 cannabis plants that had been growing for periods of between two weeks and three months. The likely value of the crops at each property, on the assumption that the smaller plants reached maturity, was between $6,000 and $12,000. Whilst it was found that the appellant was involved in securing and maintaining the two properties from 2014, and 2015 respectively, there was no evidence of any previous cannabis crops. It was accepted that the appellant’s involvement in the cultivation was confined to a period of approximately three months between June and September of 2016.
Whilst it was accepted that the appellant was not to be the primary financial beneficiary of the operation, considering the commercial nature of the operation, the sentencing judge held that it could be inferred that she stood to make some financial benefit, even where this could not be precisely quantified.
The sentencing judge imposed a single sentence for both counts of 18 months imprisonment and fixed a non-parole period of 11 months. The judge suspended this sentence upon the appellant entering into a bond to be of good behaviour for two years.
The appellant appeals her sentence on two grounds, namely that the sentence was manifestly excessive, and that the sentencing judge erred in failing to afford appropriate weight to the appellant’s cooperation in the proceedings against her under the Criminal Assets Confiscation Act 2005 (SA).
Held, (per the Court), granting permission to appeal but dismissing the appeal:
1.The sentencing judge made no error in his consideration of the appellant’s cooperation in the confiscation proceedings under s 224(a) of the Criminal Assets Confiscation Act;
2.Despite the sentencing judge’s apparent error, the head sentence and non-parole period were not, in the circumstances, manifestly excessive.
3.To the extent that the sentencing judge erred in failing to consider the forfeiture that was made by the appellant as required by s 224(c) of the Criminal Assets Confiscation Act, the appeal should nevertheless be dismissed on the basis that this Court would not impose any lesser sentence.

Criminal Assets Confiscation Act 2005 (SA) ss 24, 47, 74, 219, 221, 224; Controlled Substances Act 1984 (SA) s 33B(3); Migration Act 1958 (Cth) s 501; Sentencing Act 2017 (SA) s 26, referred to.
Kentwell v R (2014) 252 CLR 601; Ndreka v The Queen [2021] SASCA 11; Police v Chilton [2014] SASCFC 76; R v Carpenteri (2001) 81 SASR 164; R v Errigo (2005) 92 SASR 562; R v Ford (2008) 100 SASR 94; R v Lutze (2014) 121 SASR 144; R v Yavuz (2018) 130 SASR 231, considered.

EVDOCHIM v THE KING
[2022] SASCA 140
Court of Appeal – Criminal: Livesey P, Doyle and David JJA

THE COURT: The appellant was charged with two counts of cultivating a controlled plant for sale, contrary to s 33B(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.
The appellant pleaded not guilty and, following a trial before a jury, was convicted of both counts.
On 18 March 2022, pursuant to s 26 of the Sentencing Act 2017 (SA), the sentencing judge imposed a single sentence for both offences of 18 months imprisonment, and fixed a non-parole period of 11 months. His Honour suspended the sentence upon the appellant entering into a bond to be of good behaviour for two years.
The appellant appeals her sentence on two grounds. Ground 1 involves a complaint that the sentence imposed was manifestly excessive. Ground 2 involves a complaint that the sentencing judge erred in failing to afford appropriate weight to the appellant’s cooperation in the proceedings against her under the Criminal Assets Confiscation Act 2005 (SA).
Leave to appeal was granted on Ground 2, with Ground 1 referred for hearing as on appeal. For the reasons that follow, we would also grant leave to appeal on Ground 1, but dismiss the appeal on both grounds.
Circumstances of the offending
The offending related to cannabis plants that were being grown hydroponically at residential properties located in Lockleys and Kidman Park. Each property contained nine mature cannabis plants that had been growing for approximately three months, and nine smaller plants that had been growing for approximately two weeks. The likely value of the crops at each property, on the assumption that the smaller plants reached maturity, was between $6,000 and $12,000.
On 25 June 2014, the appellant and her then partner, Mr Ligor Gjergji, met the owner of the Lockleys property and signed a tenancy application for the property under false names. Upon the application succeeding, the appellant and Mr Gjergji completed and signed a lease for the property, again using their false names. The lease commenced on 30 June 2014. After securing the lease, the appellant also established an account with Origin Energy for the Lockleys property using her false name. On 19 August 2016, the appellant was captured on CCTV footage at the Woodville branch of the ANZ Bank depositing cash into an account belonging to the landlord of the Lockleys property.
In June 2015, the appellant and Mr Gjergji met with the owner of the Kidman Park property. On 19 June 2015, they signed a lease for that property, again under false names. The rent for the Kidman Park property was paid monthly, via a cash deposit at the Torrensville branch of the Commonwealth Bank into an account belonging to the landlord of the property. There was no evidence to indicate who made these rental payments.
The police conducted searches of the Lockleys premises on 29 August 2016, and the Kidman Park premises on 20 September 2016. The police searches revealed that the properties had been turned over to cannabis operations. At each property the police located and seized not only the cannabis plants mentioned earlier, but also a large number of transformers, light shades and light globes. At each property, the police also located and forensically examined various documents. The examination revealed the appellant’s fingerprints on the documents located at both properties. Mr Gjergji’s fingerprints were also found on documents seized from the Lockleys property. The documents seized from the Lockleys property were dated between 2014 and 2016, and those seized from the Kidman Park property were dated between 2015 and 2016.
The appellant was arrested on 18 December 2016 at another premises that she rented with Mr Gjergji. The police seized $5,555 in cash from that premises.
In sentencing the appellant, the sentencing judge found that the appellant and Mr Gjergji had used false names to secure and maintain both properties to facilitate the cultivation of cannabis for sale. Whilst the sentencing judge found that the appellant was involved in securing and maintaining the Lockleys property from 2014, and the Kidman Park property from 2015, there was no evidence of any previous cannabis crops located at either premises. His Honour accepted that the evidence of the appellant’s involvement in the cultivation of the cannabis at these properties was confined to a period of approximately three months between June and September of 2016. The appellant fell to be sentenced on that basis.
Personal Circumstances
At the date of sentencing, the appellant was 37 years of age. She was born in Romania. Her parents separated when she was of a young age. She was raised by her mother and last saw her father when she was about five years old.
The appellant was subjected to domestic violence and was sexually abused at age eight by her then stepfather. She reported that abuse to her mother who did not believe her account. At age eleven, the appellant returned home to find that her mother had attempted to commit suicide by taking an overdose of medication. The appellant suffers from flashbacks relating to this event.
At age 13, the appellant fell pregnant to her then boyfriend. As a result, her mother required that she leave the home. After giving birth, the appellant and her child went to live in an orphanage for a period. At age 15, the appellant again fell pregnant to her then boyfriend. After giving birth for the second time, the appellant and her children moved in with the boyfriend’s mother. Shortly after this, one of the appellant’s children died of meningitis.
At age 18, the appellant moved to Spain, leaving her other child in Romania. She subsequently moved to Italy. During this time, the appellant held various jobs and continued to send money back to Romania to support her child.
Whilst in Italy, the appellant commenced a relationship with Mr Gjergji. In 2013, they both moved to Australia. Upon arriving in Australia, the appellant maintained various forms of employment, including operating a beautician business from her home.
The appellant had no history of offending. She was granted bail upon her arrest and so had not spent any time in custody in respect of her cultivation offending.
At the time of sentencing, the appellant was being treated for various mental health issues. The sentencing judge had regard to a report dated 19 January 2022, in which Dr Tina Fitzgerald said that the appellant suffered from depression, anxiety and PTSD. She said that the appellant’s mental health issues related, amongst other things, to the traumatic childhood that she had endured. She also expressed the opinion that the appellant’s unresolved PTSD may have contributed to the appellant trusting people who did not have regard for her well-being, and hence may have contributed to her offending. The appellant also reported experiencing symptoms of PTSD related to her arrest. Dr Fitzgerald’s report indicated that the appellant was responding well to therapy, and had taken steps to treat her various mental health issues.
At the time of sentencing, the appellant was in a supportive relationship. The sentencing judge had regard to various character references, including a letter from her partner which attested to the strong bond that the two shared, a reference from her partner’s sister, and a letter from her landlord.
The appellant is not an Australian citizen but held a bridging visa which was valid to 21 March 2022. At the time of sentencing, the appellant had applied for a visa on the basis that she had been in a relationship with her partner, who is an Australian citizen, for five years. The sentencing judge noted that, having regard to a report from the appellant’s migration agent dated 18 February 2022, a sentence of imprisonment in excess of 12 months would cause the appellant to fail the good character test set out in s 501 of the Migration Act 1958 (Cth), and would likely result in her deportation. Were this to occur, any offshore visa application was likely to be unsuccessful.
The confiscation proceedings
Following the appellant’s arrest, the Director of Public Prosecutions issued proceedings against the appellant and Mr Gjergji under the Criminal Assets Confiscation Act (the confiscation proceedings). On 1 September 2017, an order was made by a Magistrate restraining the appellant’s use or exercise of her interest in:
·    the sum of $24,665.38 seized from an account in the joint names of the appellant and Mr Gjergji held with the Commonwealth Bank;
·    the sum of $11,641.83 seized from an account in the joint names of the appellant and Mr Gergji held with the ANZ Bank; and
·    the sum of $5,555 in cash seized by the Police.
Neither the application for the restraining order, nor the order itself, state the particular provision under which the order was sought or made. However, this Court was informed, and it seems likely from the terms of the affidavit filed in support of the application, that it was made pursuant to s 24(1)(c) of the Criminal Assets Confiscation Act, on the basis that the specified property was reasonably suspected to be the proceeds of a serious offence.
The confiscation proceedings were then adjourned on several occasions, apparently awaiting the outcome of the criminal proceedings against the appellant and Mr Gjergji.
On 13 December 2021, the appellant was convicted of the cultivation offences with which she was charged. Sentencing submissions in the appellant’s criminal proceedings were heard on 21 February 2022. The matter was then adjourned on the basis that the appellant would be sentenced on 15 March 2022.
There was no reference made to the confiscation proceedings during the course of the appellant’s sentencing submissions. It would appear that the prosecutor and defence counsel had not been made aware of those proceedings.
By email dated 11 March 2022, the sentencing judge was alerted to the existence of the confiscation proceedings. The email confirmed that the appellant had recently signed consent orders intended to resolve the confiscation proceedings. It emphasised that there had been delays in resolving these proceedings, as the prosecution were having difficulty contacting and obtaining the consent of Mr Gjergji (who was a necessary party to the proposed orders given his potential interest in the funds to be forfeited). However, it was acknowledged that the delay was not the fault of the appellant.
The 11 March 2022 email included a request by the prosecution, pursuant to s 221 of the Criminal Assets Confiscation Act, that the sentencing judge deal with the application for a forfeiture order. Noting that a forfeiture order was able to be made by consent under s 219 of that Act, it was suggested that the finalisation of the appellant’s sentence might be delayed pending confirmation of Mr Gjergji’s consent to the proposed order.
The email also noted the relevance to the appellant’s sentence, under s 224(a) of the Criminal Assets Confiscation Act, of the appellant’s cooperation in resolving the confiscation proceedings. It added confirmation that s 224(b) was not relevant.
It will be necessary to consider the terms of ss 224(a) and (b), and indeed (c), in more detail later in these reasons. For present purposes, it is sufficient to note that s 224 addresses the relevance of confiscation proceedings to the sentencing of a person convicted of a serious offence. In essence, it relevantly provides that the sentencing court may have regard to the person’s cooperation in resolving confiscation proceedings (s 224(a)); must not have regard to any forfeiture that relates to the offence, or that might result from conviction for the offence, to the extent that it applies to the proceeds of the offence (s 224(b)); but must have regard to any forfeiture that relates to the offence, or that might result from conviction for the offence, to the extent that the forfeiture applies to any other property (s 224(c)).
The email attached draft forfeiture orders in the following terms:
UPON THE COURT NOTING that:
A.On 1 September 2017, an order was made by the Adelaide Magistrates Court restraining the interests of the first and second respondent in:
(1)     the sum of $24,665.38 seized from the Commonwealth Bank of Australia …;
(2)     the sum of $11,641.83 seized from the Australian and New Zealand Banking Group Limited …; and
(3)     the sum of $5,555.00 seized … (‘the Cash’).
(together, ‘the Property’)
B.The parties have reached agreement whereby the first respondent is to forfeit the Cash and $18,000, which is to be paid by a combination of the property described in paragraph A.(1) and A.(2), with the balance of the funds then remaining, to be paid to the second respondent via his solicitor.
C.The first respondent is before the District Court of South Australia (‘the Court’) for sentence to be imposed on 15 March 2022. Pursuant to section 221 of the Criminal Assets Confiscation Act 2005 (SA) (‘the Act’), the applicant requests that the Court deals with the order for forfeiture.
D.Pursuant to section 224 of the Act, the Court may have regard to the co-operation of the first respondent in resolving the proceedings.
IT IS ORDERED by consent, in full and final settlement of the within proceedings, and pursuant to section 219 of the Act that:
1.The first respondent forfeit to the Crown the sum of $23,555.00 pursuant to section 47 of the Act.
2.     The sum of $23,555.00 referred to in paragraph 1 above, be forfeited as follows:
(a)     the sum of $5,555.00 as seized …;
(b)     as to $18,000.00 thereof, such sum be forfeited from monies held in the Magistrates Court Litigants Fund in these proceedings, to the Director of Public Prosecutions by way of cheque payable to the Attorney-General’s Department.
3.In relation to the balance then remaining in the Magistrates Court Litigant’s Fund in these proceedings, after withdrawal of the $18,000.00 referred to in paragraph 2(b) above (‘the balance’):
(a) the balance be excluded from forfeiture under Division 2 of Part 4 of the Act;
(b) by operation of section 46(3)(a)(iv) of the Act, the restraining order made on 1 September 2017 in these proceedings in respect of the balance, is discharged with effect from the making of these orders; and
(c)     it be returned to the second respondent by way of payment to the trust account of the second respondent’s solicitor or nominated representative.
4.These proceedings be otherwise dismissed.
5.No order as to costs.
As can be seen from the terms of the proposed consent orders, they provided for the appellant to forfeit approximately half ($18,000) of the proceeds from the joint bank accounts that had been restrained, as well as the cash ($5,555) that had been restrained, giving a total of $23,555. The order was expressed to be by consent (and hence invoking s 219 of the Criminal Assets Confiscation Act), and made under s 47 of that Act.
Having received the 11 March 2022 email, the sentencing judge postponed the delivery of sentence, but requested that the hearing listed for 15 March 2022 proceed so as to hear any submissions in relation to the confiscation proceedings.
At the hearing on 15 March 2022, the prosecutor confirmed that Mr Gjergji had been served with consent orders on 12 March 2022 and had by then consented to the proposed orders. The prosecutor explained that whilst Mr Gjergji was not forfeiting any money, his consent had been required because some of the money the subject of the consent orders had been held in joint bank accounts in the names of the appellant and Mr Gjergji.
The sentencing judge then sought confirmation from the prosecutor that it was not being suggested that any of the moneys to be forfeited “related to the actual charges”, and the prosecutor confirmed that this was not being suggested. The judge then asked whether the forfeiture was “by dint of the fact she’s been found guilty of a serious offence?”. The prosecutor answered “yes”, adding that this meant that “s 224 of the Criminal Assets Confiscation Act would now apply where the court may have regard to cooperation by [the appellant] in resolving any action taken under this Act”.

The prosecutor confirmed that the sentencing judge was being asked to make the proposed consent orders, and there was then discussion of the need to call for the Magistrates Court file before his Honour could make an order on that file.
The sentencing judge enquired of counsel for the appellant whether he wished to make any submissions with respect to the issue of cooperation. All that counsel said in response to this was that “you can now have regard, as I understand s 224, in sentencing to the fact of the cooperation in the criminal assets proceeding and you may proceed to sentence on that basis. In terms of the mechanics, it’s really a matter for your Honour as to how you deal with it but if you make those observations in your sentencing remarks, all the rest can flow from there, it seems to me.”
The sentencing judge indicated that he would require further time to consider the materials that had been put before him, before adjourning to 18 March 2022.
On 18 March 2022, the judge delivered his sentencing remarks, as summarised below.
On 21 June 2022, the judge finalised the confiscation proceedings, making forfeiture orders in the terms indicated in the draft orders set out above.
Sentencing remarks
The appellant was sentenced on 18 March 2022.
After setting out the circumstances of the offending and the appellant’s personal circumstances in some detail, the sentencing judge described the offending as serious, and as involving a “reasonably sophisticated purely commercial cannabis operation”. His Honour noted that there were two separate “grow houses”, dedicated to producing a total of 36 cannabis plants, and with the potential for significant financial gain.
As to the nature of the appellant’s involvement in the operation, the sentencing judge found that her assistance was “not trivial or menial”. His Honour found that the appellant had played a central role in obtaining the properties to facilitate the cultivation, without which the cultivations could not have occurred. He noted that it was not put against the appellant that she was the primary financial beneficiary of the operation. However, his Honour found that, considering the commercial nature of the operation, it could be inferred that the appellant stood to make some financial benefit, even though the amount of that benefit could not be precisely quantified.
The sentencing judge went on to discuss the appellant’s state of mind at the time of the offending and found that it was:
…open to infer, on the evidence before me, that at the time of the offending you were vulnerable to influence. Notwithstanding your not guilty plea and that you maintain your innocence, I am prepared to sentence you on the basis that Mr Gjergji had some influence over your decision to become involved, although it is not possible, absent more detail, to quantify the extent of that influence.
Notwithstanding this, his Honour found that the appellant had knowingly involved herself in the operation, explaining that “[t]his preparedness to involve yourself in a venture of that nature is relevant to assessing your culpability and the deterrent and retributive purposes of the sentence I must impose.”
In elaborating upon these sentencing purposes, the sentencing judge noted that although the appellant was a “subordinate player within the overall cultivation operation”, it remained vitally important to ensure others were deterred from involving themselves in commercial cannabis enterprises of this nature. His Honour also noted the need for personal deterrence.
In considering the appellant’s personal circumstances, his Honour specifically noted the lack of any other offending or convictions, both prior to and since the offending for which he was to sentence the appellant. He also noted the appellant’s extensive work history, her troubled background, and the steps that she had taken in dealing with her past trauma. In doing so, he took into account the contents of the report provided by Dr Fitzgerald, and the character references that had been provided in support of the appellant’s character.
The sentencing judge then addressed the delay in sentencing, noting that this was partly due to circumstances outside of the control of the appellant, and partly due to her pleas of not guilty. He noted that this period had allowed the appellant to demonstrate her ability to “lead a law-abiding productive life”.
In announcing the sentence to be imposed, the sentencing judge commenced by noting that a sentence of less than 12 months would not, in his view, be appropriate in light of the seriousness of the circumstances surrounding the offending. This observation related to the appellant’s visa status, and consequential risk of deportation, discussed earlier in these reasons. His Honour made it plain that whilst the potential hardship associated with these matters were relevant to the appellant’s personal circumstances, he was required to consider them against the need to maintain appropriate sentencing standards regardless of the defendant’s citizenship status. Accordingly, they were not determinative of the sentence ultimately imposed.
Invoking s 26 of the Sentencing Act, the sentencing judge imposed a single sentence for both offences of 18 months imprisonment, and fixed a non-parole period of 11 months.
The sentencing judge did not, prior to announcing this head sentence and non-parole period, make any express reference in his sentencing remarks to either the appellant’s cooperation in the confiscation proceedings, or to the forfeiture to which she consented.
His Honour proceeded to find that there was good reason to suspend the sentence of imprisonment upon the appellant’s entry into a bond to be of good behaviour for two years, having express regard to the appellant’s “cooperation” in the forfeiture proceedings:
Taking into account the combination of your lack of prior convictions, your work history, your troubled background, the steps you have taken to deal with your past trauma, the delay between the offence and sentence, your role in the offending, your cooperation with respect to the confiscation proceedings, your community supports and your good prospects of rehabilitation, I find there is good reason to suspend the sentence of imprisonment upon you entering into a bond to be of good behaviour for two years.
However, his Honour again did not make any express reference to the forfeiture to which the appellant consented.
The appeal
Counsel for the appellant submitted, both in writing and orally, that although there were two grounds of appeal, Ground 2 was in substance a particular of the allegation in Ground 1 that the head sentence was manifestly excessive. Put simply, the appellant’s complaint was that, in failing to give appropriate weight to the appellant’s cooperation in the forfeiture proceedings (as contemplated by s 224(a) of the Criminal Assets Confiscation Act), the sentencing judge erred in imposing a sentence that was manifestly excessive in all of the circumstances.
Given the terms in which Ground 2 was framed, this was an appropriate characterisation of the appeal. It is well recognised that a complaint about the weight given to a particular consideration does not, except perhaps in an extreme case, enliven the appeal court’s authority to intervene.[1] A complaint in these terms is not a species of process error; its relevance lies only in a potential explanation for, and hence submission that might be put in support of, a complaint of outcome error.
[1] Police v Chilton [2014] SASCFC 76 at [17]-[18] (Kourakis CJ, David J agreeing); R v Lutze (2014) 121 SASR 144 at [47] (Vanstone and Parker JJ); see also Lee v The State of Western Australia [2022] WASCA 137 at [72]-[75] (Buss P, Mitchell JA and Livesey AJA).
However, as the hearing of the appeal developed, the argument at times shifted to encompass what might be seen as two species of contended process error. The first involved an argument that, whilst the sentencing judge had regard to the appellant’s cooperation in the confiscation proceedings in deciding to suspend the appellant’s sentence, he did not do so when considering the appropriate head sentence and non-parole period. The second involved an argument that the judge failed to have regard at all to the forfeiture itself (as required by s 224(c)) at any stage in the sentencing process.
Whilst the appellant did not ever seek to amend her grounds of appeal, it is appropriate to address these suggestions of process error, before returning to the overarching complaint of manifest excess.
Relevance of the confiscation proceedings
Section 224 Criminal Assets Confiscation Act is in the following terms:
224—Effect of confiscation scheme on sentencing
Despite any provision of the Sentencing Act 2017, in determining sentence in respect of a person’s conviction of a serious offence, a court—
(a)may have regard to any cooperation by the person in resolving any action taken against the person under this Act; and
(b)must not have regard to any forfeiture (whether under this Act or a corresponding law), pecuniary penalty order or recognised Australian pecuniary penalty order that relates to the offence or that might result from conviction for the offence, to the extent that the forfeiture or order applies to—
(i)proceeds of the offence; or
(ii)if the conviction has resulted in the person becoming a prescribed drug offender—property that was owned by or subject to the effective control of the person on the conviction day for the offence; and
(c)must have regard to any forfeiture (whether under this Act or a corresponding law), pecuniary penalty order or recognised Australian pecuniary penalty order that relates to the offence or that might result from the conviction for the offence, to the extent that the forfeiture or order applies to any other property; and
(d)…
It is to be observed that s 224 draws a distinction between the relevance of a defendant’s cooperation in resolving confiscation proceedings, and the relevance of any forfeiture of property. As summarised earlier in these reasons, s 224 relevantly provides that the sentencing court may have regard to the person’s cooperation in resolving confiscation proceedings (s 224(a)); must not have regard to any forfeiture that relates to the offence, or that might result from conviction for the offence, to the extent that it applies to the proceeds of the offence (s 224(b)); but must have regard to any forfeiture that relates to the offence, or that might result from conviction for the offence, to the extent that the forfeiture applies to any other property (s 224(c)).
Focusing first on s 224(a), it was common ground that the appellant cooperated in the resolution of the confiscation proceedings, and that this was a matter that was relevant to the sentence to be imposed, and hence to which the sentencing judge ought to have had regard.
As explained, the judge had express regard to the appellant’s cooperation in his consideration of whether there was good reason to suspend the appellant’s sentence of imprisonment. Counsel for the appellant submitted, however, that the judge ought to have, but failed to, also have regard to the appellant’s cooperation in determining the appropriate head sentence and non-parole period.
We accept the essential premise of this submission, namely that the appellant’s cooperation was a matter that was relevant in determining the appropriate head sentence and non-parole period. The appellant’s cooperation was of some relevance in assessing her contrition and remorse, and in particular, in assessing her need for personal deterrence and prospects for rehabilitation. It is not a matter that would have weighed heavily in setting the appellant’s head sentence, but it was nevertheless relevant. It was a matter that ought to have weighed more heavily in fixing a non-parole period, as well as in deciding whether to suspend the sentence of imprisonment that was imposed.
The respondent emphasised the discretionary nature of s 224(a), and argued that all that it required was that the appellant’s cooperation be taken into account at some point “in determining sentence”; that the judge did so by taking it into account in deciding to suspend the appellant’s sentence; and that it was a matter for the judge whether to do so in respect of the head sentence or non-parole period. We do not accept this contention. Whilst s 224(a) confers a discretion, it must be exercised judicially, and having regard to ordinary sentencing principles. The appellant’s cooperation was a relevant consideration which ought to have been taken into account at each stage of the sentencing exercise, albeit that the judge was entitled to take the view that it weighed more heavily in determining whether to suspend.
Be that as it may, we are not satisfied that the sentencing judge overlooked the relevance of the appellant’s cooperation in the confiscation proceedings to the sentencing process more generally. As explained, his Honour did not mention this consideration until it came to the issue of suspension. It is trite, however, that sentencing remarks are not to be approached on the basis that they are reasons for judgment. They must be understood as being intended to identify for the defendant, and the appeal court, the key considerations that have guided the judge’s exercise of the sentencing discretion. They are not intended to be an exhaustive statement of everything that the judge has taken into account. Brevity is to be encouraged and repetition discouraged.
Bearing in mind the above, and the consequential need for sentencing remarks to be read and understood as a whole, it does not follow from the fact that the appellant’s cooperation was only mentioned at the point of considering suspension that the judge overlooked its relevance in respect of the earlier stages of the sentencing exercise. It would have been preferable had the judge mentioned the confiscation proceedings, and in particular the appellant’s cooperation, earlier in his remarks, so as to dispel any doubt. However, we are satisfied from his Honour’s later reference to this issue that he was cognisant of its relevance throughout the sentencing exercise.
For these reasons, we are not satisfied that any process error has been made out in relation to the judge’s consideration of the appellant’s cooperation in relation to the confiscation proceedings for the purposes of s 224(a) of the Criminal Assets Confiscation Act.
However, as mentioned earlier, s 224 addresses the relevance of not only the appellant’s cooperation in resolving the confiscation proceedings (s 224(a)), but also the relevance of any forfeiture of property by the appellant (ss 224(b) and (c)).
Under s 224(b), the sentencing judge was prohibited from having regard to any forfeiture of the proceeds of the serious offence for which the appellant was being sentenced. The parties were agreed that this provision had no application here. It was common ground that, despite the money in question apparently being restrained on the basis that it was reasonably suspected to be the proceeds of a serious offence, it was not said to be the proceeds of the cultivation offences of which the appellant was convicted.
On the other hand, under s 224(c), the sentencing judge was required to have regard to any forfeiture “that relates to the offence or that might result from the conviction for the offence” to the extent that it applies to any other property (that is, property that is not the proceeds of that offence). At first blush, it would seem obvious that the forfeiture in the present case did “relate to” the cultivation offences of which the appellant was convicted; or was something that “might result” from the conviction for those offences (bearing in mind that the forfeiture order was not finalised until after the appellant was sentenced).
The respondent, however, put two arguments in opposition to this conclusion. The first was an argument to the effect that because the moneys forfeited were not the proceeds of the cultivation offences, the forfeiture could not be said to be related to, or to result from, those offences. We would reject this argument. It involves reading s 224(c) as essentially coextensive with s 224(b), when plainly those two provisions are intended to have separate fields of operation. Section 224(c) plainly contemplates circumstances in which property other than the proceeds of an offence are forfeited, but nevertheless the forfeiture can be said to “relate to” that offence, or be something that might “result from” the conviction for that offence. In our view, the reference to forfeiture that is “related to” an offence, or that might “result from” the conviction for that offence, encompasses a situation in which the forfeiture relates in some other way to the relevant offence or conviction. It encompasses a situation in which the offence or conviction provides the foundation for the forfeiture order, or indeed for the restraining order upon which the forfeiture order is predicated.
The second argument put by the respondent was that, because the forfeiture in the present matter was made by consent under s 219 of the Criminal Assets Confiscation Act, it was not related to, in the sense of having its foundation in, the appellant’s offending or conviction. We would also reject this argument. It ignores the reality of the fact that, despite the orders being made by consent, they were still premised upon an exercise of the Court’s powers under the Criminal Assets Confiscation Act.
During the course of argument on the appeal, it was suggested that the forfeiture orders were made under s 74 of the Act (which relevantly empowers forfeiture, after a period of six months following a person’s conviction of a serious offence, of property that remains the subject of a restraining order). However, it would seem from the terms of the orders themselves that they were made under s 47 of the Act (which empowers the court to make a forfeiture order on the application of the Director of Public Prosecutions in circumstances which include where the property is the proceeds of the offence of which the person has been convicted (s 47(1)(a)), or where the property has been the subject of a restraining order that has been in force for at least six months and otherwise meets the requirements of either s 47(1)(b) or s 47(1)(c)).
We do not think it is necessary to determine the precise source of power for the forfeiture orders made in the present case. Whether it was s 47 or s 74, we are satisfied that the forfeiture either “related to” the appellant’s cultivation offences, or was something that “might result” from her conviction for those offences. In our view, it was sufficient for this purpose that the appellant’s offending was a circumstance that founded not only the restraining order that was made in relation to the relevant property, but also the power to make the orders for the forfeiture of that restrained property.
The respondent conceded during argument that if the appellant had not consented to the forfeiture orders, then the forfeiture might ultimately have been ordered under s 74, and that had this occurred, then the forfeiture would have been “related to” the appellant’s cultivation offences. It is difficult to see why the fact that the appellant in effect anticipated this outcome, and consented to the orders being made, should lead to a different characterisation of what occurred. To permit this to occur would not only represent a triumph of substance over form, but also tend to discourage the cooperation in confiscation proceedings that s 224(a) is plainly intended to encourage.
It follows, in our view, that in sentencing the appellant, the sentencing judge was required to have regard to the forfeiture that was made under s 224(c) of the Criminal Assets Confiscation Act.

The relevance of forfeiture to the sentencing discretion has been addressed in several decisions of this Court.[2] Whilst addressed to earlier versions of the legislation, the observations made in those cases remain apposite. Mirroring the effect of s 224(b) of the Criminal Assets Confiscation Act, those cases commence by emphasising that a forfeiture that merely neutralises a benefit obtained through the commission of the offence (e.g. a forfeiture of the proceeds of the crime) is not a penalty in the relevant sense, and is thus not to be taken into account in determining the appropriate sentence. However, forfeiture of any other property will be relevant. Its relevance stems from its operation as a penalty or imposition upon the defendant, and hence its capacity to assist in achieving the punitive and deterrent objectives of the sentencing exercise.
[2] R v Ford (2008) 100 SASR 94 at [42]-[46] (Gray J, Doyle CJ agreeing); R v Errigo (2005) 92 SASR 562 at [40]-[44] (Doyle CJ, Bleby and Gray JJ agreeing); R v Carpenteri (2001) 81 SASR 164 at [37]-[47] (Doyle CJ, Martin and Besanko JJ agreeing).
As to the weight to be attached to a forfeiture order, the sentencing court undoubtedly has a broad discretion which must be exercised having regard to the particular facts and circumstances of the case before it. There is no precise formula that can be applied. The most that can be said is that the court should have regard to the nature and extent of the property forfeited, and the nature and extent of any detrimental effect of the forfeiture upon the defendant. Whilst having regard to these matters, and their capacity to achieve the objectives of the sentencing exercise, the overall objective remains to arrive at a sentence that is proportionate to the circumstances of the offending and the offender.
Returning to the present case, the sentencing judge did not ever mention the forfeiture of property by the appellant, as opposed to her cooperation in the confiscation proceedings. To be fair to the judge, this was understandable given that the focus of the parties was upon the latter, and neither party made a direct submission to the effect that the forfeiture itself was a relevant consideration.
On appeal, the respondent argued that no weight could be attached to the forfeiture in circumstances where there was no direct, let alone detailed, evidence of the appellant’s financial means, or as to the likely impact of the forfeiture order upon her. We accept that the weight that can be attached to a forfeiture order will be affected by the evidence led, and the submissions made, as to these matters. However, in the present case, given the information before the sentencing judge as to the appellant’s difficult upbringing and work history, we are satisfied that it could be inferred that $23,555 would have been a significant sum of money so far as she was concerned, and hence that the forfeiture of this sum was a material imposition upon her.
In all of the circumstances, we are inclined to think that sentence imposed was affected by error by reason of the failure to take into account the forfeiture order. However, for the reasons that follow, any such error was of no consequence.
Manifest excess
There is no need to recite the principles governing a contention of manifest excess. They are well known and are not in dispute.
The appellant fell to be sentenced for two cultivation offences, each of which attracted a maximum penalty of 10 years imprisonment, a fine of $50,000, or both.
In considering the objective seriousness of a cultivation offence, relevant considerations will include matters such as the motivation and role of the offender; the number, nature and maturity of the plants involved; the nature and scale of the venture (including the extent to which it is a commercial enterprise); and the anticipated yield and street value of the cultivation.[3]
[3] R v Yavuz (2018) 130 SASR 231 at [77] (Kourakis CJ, Blue and Hinton JJ); Ndreka v The Queen [2021] SASCA 11 at [30] (Doyle JA, Kelly P and Bleby J agreeing).
The nature and scale of the cultivations at the Lockleys and Kidman Park properties have been outlined earlier in these reasons. Each involved 18 plants (with a likely value upon maturity of the smaller plants of between about $6,000 and $12,000). Each was accurately described by the sentencing judge as involving a “reasonably sophisticated purely commercial cannabis operation”.
As noted by the sentencing judge, the appellant’s role in the operation was not a trivial or menial one. The judge found that she played a central role in obtaining the properties required for the cultivations. The appellant was not the primary financial beneficiary of the operation. However, the judge was prepared to infer that she stood to make some financial benefit, even though the amount of that benefit could not be precisely quantified.
The appellant’s personal circumstances were deserving of some sympathy. As described earlier in these reasons, she had a difficult upbringing and, as the sentencing judge accepted, it appears that Mr Gjergji exercised some influence over her decision to become involved in the cultivation enterprise. The appellant had no criminal history. The hardship associated with the risk of deportation was a relevant consideration. So too was the appellant’s cooperation in resolving the confiscation proceedings, and the hardship that was likely to be associated with the forfeiture of $23,555.
However, despite the relevance of these matters arising out of the appellant’s personal circumstances, the nature and seriousness of her offending required a strong sentencing response. A significant measure of general deterrence was required.
Having decided to impose a single sentence for both offences under s 26 of the Sentencing Act, we are not persuaded that either the head sentence of 18 months imprisonment, or the non-parole period of 11 months, was manifestly excessive. To the contrary, we consider that the sentence imposed was, if anything, lenient. We would not have imposed any lesser sentence.
Conclusion
Having rejected the contention of manifest excess, we would dismiss the appeal on Grounds 1 and 2. To the extent that the sentence was affected any error arising out of the judge’s treatment of the confiscation proceedings, and in particular the forfeiture order made in those proceedings, we would nevertheless dismiss the appeal on the basis that we would not impose any lesser sentence.[4]
[4] Kentwell v R (2014) 252 CLR 601 at [43] (French CJ, Hayne, Bell and Keane JJ).
The appellant having been granted leave to appeal on Ground 2, we grant leave to appeal on Ground 1, but dismiss the appeal.