Hai Ngoc Nguyen v The Queen; Xuan Binh Tran v The Queen; Thanh Chi Nguyen v The Queen

[2022] SASCA 25

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

HAI NGOC NGUYEN v THE QUEEN; XUAN BINH TRAN v THE QUEEN; THANH CHI NGUYEN v THE QUEEN

[2022] SASCA 25

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Stanley)

24 March 2022

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PROCEDURE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - MANUFACTURING, PRODUCING OR CULTIVATING - CANNABIS

These are appeals against sentence.

Each of the appellants entered pleas of guilty to offences contrary to the Controlled Substances Act 1984 (SA) and the Electricity Act 1996 (SA). Two of the three appellants also entered a plea of guilty to an offence contrary to the Summary Offences Act 1953 (SA).

The appellants were engaged in a large-scale cannabis cultivation and trafficking syndicate. They were relatively low-level participants, though aspects of their conduct went beyond merely acting as gardeners. The offences were committed at various 'grow houses' located in suburban Adelaide.

Hai Ngoc Nguyen was sentenced to imprisonment for 10 years, 9 months, and 19 days with a non-parole period of 8 years, 7 months, and 22 days. He appeals against sentence on the following grounds:

1.      The sentence was manifestly excessive (Ground 1).

2.      The sentencing judge erred in failing to separately identify the notional head sentences for each of the Linden Park offences (Ground 3).

3.      The sentencing judge erred in failing to identify the factual basis upon which the appellant was sentenced for each of the Linden Park offences (Ground 4).

Xuan Binh Tran was sentenced to imprisonment for 9 years, 2 months, and 13 days with a non-parole period of 7 years, 4 months, and 13 days. He appeals against sentence on the following grounds:

1.      The sentence was manifestly excessive (Ground 1).

2.      The sentencing judge erred in sentencing the appellant on the basis that the available guilty plea discount was 20 per cent in circumstances where a greater discount was available (Ground 2).

Thanh Chi Nguyen was sentenced to imprisonment for 5 years, 7 months, and 26 days with a non-parole period of 4 years, 6 months, and 9 days. He appeals against sentence on the following grounds:

1.      The sentence was manifestly excessive (Ground 1).

2.      The sentencing judge erred in applying a guilty plea discount of only 20 per cent for the Gulfview Heights and Modbury Heights offending (Ground 2).

Held, per Livesey P and Stanley AJA (Doyle JA agreeing generally as to Ground 3 and Ground 4) in relation to Hai Ngoc Nguyen:

1.      The appeal on Ground 1 is allowed. The sentence imposed was manifestly excessive. The sentence is set aside, and in lieu, the appellant is sentenced to imprisonment for 9 years with a non-parole period of 7 years, 2 months, and 12 days.

2.      Permission to appeal on Ground 3 is granted but Ground 3 is dismissed.  An extrapolation of the likely notional head sentences utilised for the cultivation and trafficking offences in Linden Park can be undertaken. There is no basis to consider that the appellant received a manifestly excessive sentence for the trafficking offence at Linden Park.

3.      Ground 4 is dismissed. The sentencing judge was entitled to sentence on the basis that the appellant was involved in the financial aspects of the harvested cannabis. The factual delineation between the cultivation offence and the trafficking offence at Linden Park was clear. In the circumstances there was no risk of overlap, and no overlap is evident.

Held, per Livesey P and Stanley AJA (Doyle JA agreeing generally as to Ground 2) in relation to Xuan Binh Tran:

1.      The appeal on Ground 1 is allowed. The sentence imposed was manifestly excessive. The sentence is set aside and, in lieu, the appellant is sentenced to imprisonment for 8 years with a non-parole period of 6 years, 4 months, 3 weeks and 3 days.

2. Ground 2 is dismissed. A textual analysis of the Criminal Procedure Act 1921 (SA) and the Sentencing Act 2017 (SA) supports the conclusion that there is to be only one committal appearance. The sentencing judge was correct in concluding that the appellant was entitled by reason of his guilty pleas to a reduction in sentence of no more than 20 per cent.

Held, per Livesey P and Stanley AJA (Doyle JA agreeing generally as to Ground 1 and Ground 2) in relation to Thanh Chi Nguyen:

1.      Permission to appeal on Ground 1 is revoked. The sentence imposed for the Renown Park offence was to be served concurrently with the sentence for the Beulah Park offences. There is no utility in the appeal because even if the sentence for the Renown Park offence was to be reduced, it would make no difference to the head sentence.

2. Ground 2 is dismissed. A textual analysis of the Criminal Procedure Act 1921 (SA) and the Sentencing Act 2017 (SA) supports the conclusion that there is to be only one committal appearance. The sentencing judge was correct in concluding that the appellant was entitled by reason of his guilty pleas to a reduction in sentence of no more than 20 per cent for the Gulfview Heights and Modbury Heights offending.

Held, per Doyle JA (dissenting), in relation to Hai Ngoc Nguyen (Ground 1) and Xuan Binh Tran (Ground 1):

1.      The appeals on the grounds of manifest excess should be dismissed.  The appellants' involvement went beyond that of gardener and included organisational aspects of multiple properties, such that it could not be described as "low level" involvement in the syndicate.  Their culpability needed to be assessed by reference to their preparedness to involve themselves in a large-scale and sophisticated harvesting and trafficking syndicate, and their motivation of financial gain.  The individual head sentences each received for each offence were appropriate and the sentencing judge made significant reductions for concurrency to ensure proportionality.  While their overall sentences were heavy, they were not manifestly excessive. 

Controlled Substances Act 1984 (SA) 4, 32, 33B, 33LA, 44; Criminal Assets Confiscation Act 2005 (SA) 56B; Criminal Law (Sentencing) Act 1988 (SA) 18A; Criminal Procedure Act 1921 (SA) 4, 104, 105, 106, 109, 110, 111, 113, 115, 116; Electricity Act 1996 (SA) 85; Sentencing Act 2017 (SA) 26, 40; Summary Offences Act 1953 (SA) 41, referred to.
Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; Cuong v The Queen [2021] SASCA 89; Dinsdale v The Queen (2000) 202 CLR 321; House v The King (1936) 55 CLR 499; Kroni v The Queen (2021) 138 SASR 37; Markarian v The Queen (2005) 228 CLR 357; Ndreka v The Queen [2021] SASCA 11; Pearce v The Queen (1998) 194 CLR 610; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v Arnold [2015] SASCFC 23; R v Bahrami (2020) 137 SASR 327; R v Donald (2016) 126 SASR 276; R v Faehrmann (2014) 118 SASR 549; R v Fati [2021] SASCA 99; R v Jongewaard [2009] SASC 346; R v Kong (2013) 115 SASR 425; R v Lyberopoulos [2017] SASCFC 139; R v McPhee [2014] SASCFC 107; R v Millard (2008) 103 SASR 1; R v Nemer (2003) 87 SASR 168; R v Tassone [2011] SASCFC 7; R v Yavuz (2018) 130 SASR 231; Sabato v The Queen [2021] SASCA 65, considered.

HAI NGOC NGUYEN v THE QUEEN; XUAN BINH TRAN v THE QUEEN; THANH CHI NGUYEN v THE QUEEN
[2022] SASCA 25

Court of Appeal – Criminal:  Livesey P, Doyle JA and Stanley AJA

LIVESEY P and STANLEY AJA:

Introduction

1. These are appeals against sentence.  Each of the appellants pleaded guilty to various offences against the Controlled Substances Act 1984 (SA) (CSA). The appellants also pleaded guilty to offences against the Electricity Act 1996 (SA). The appellants, Xuan Binh Tran (Xuan) and Thanh Chi Nguyen (Thanh) also pleaded guilty to an offence against the Summary Offences Act 1953 (SA). Each of the appellants was engaged in a large-scale cannabis cultivation and trafficking syndicate. They were relatively low-level participants, though aspects of their conduct went beyond merely acting as gardeners. The offences were committed at various “grow houses” located in suburban Adelaide.

2. The following table sets out the offences and the sentences imposed by the sentencing judge in respect of each appellant. 

Hai Ngoc Nguyen	Xuan Binh Tran	Thanh Chi Nguyen
MODBURY HEIGHTS (counts 10, 11, 12) 10.    Cultivate Comm Qty of Cannabis for Sale (90 plants) 11.    Possess Prescribed Equipment 12.    Divert Electricity	NS 3 y, 6 m reduced to 2 y, 9 m, 19 d (20% reduction)	NS 3 y, 6 m reduced to 2 y, 9 m, 19 d (20% reduction)
GULFVIEW HEIGHTS (counts 13, 14, 15) 13.    Cultivate Large Comm Qty of Cannabis for Sale (100 plants) 14.    Possess Prescribed Equipment 15.    Divert Electricity	NS 4 y reduced to 3 y, 2 m, 13 d (20% reduction)
BEULAH PARK (counts 16, 17, 18) 16.    Cultivate Comm Qty of Cannabis for Sale (80 plants) 17.    Possess Prescribed Equipment 18.    Divert Electricity	NS 3 y, 6 m reduced to 2 y, 5 m, 13 d (30% reduction)	NS 3 y, 6 m reduced to 2 y, 5 m, 13 d (30% reduction)

LINDEN PARK (counts 19, 20, 21) 19.    Cultivate Large Comm Qty of Cannabis for Sale (152 plants) 20.    Traffic in Large Comm Qty of Cannabis (44.55 kg) 21.    Possess Prescribed Equipment	NS 8 y, 6 m reduced to 6 y, 9 m 19 d (20% reduction)
SALISBURY HEIGHTS (counts 22, 23, 24) 22.    Cultivate Large Comm Qty of Cannabis for Sale (109 plants) 23.    Possess Prescribed Equipment 24.    Divert Electricity	NS 4 y reduced to 2 y, 9 m, 19 d (30% reduction)
FLINDERS PARK (counts 25, 26, 27) 25.    Cultivate Large Comm Qty of Cannabis for Sale (268 plants) 26.    Possess Prescribed Equipment 27.    Divert Electricity	NS 5 y reduced to 4 y (20% reduction)	NS 5 y reduced to 4 y (20% reduction)
WATERLOO CORNER (counts 28, 29, 30) 28.    Cultivate Large Comm Qty of Cannabis for Sale (346 plants) 29.    Possess Prescribed Equipment 30.    Divert Electricity	NS 5 y reduced to 4 y (20% reduction)
ANGLE PARK (counts 31, 32) 31.    Traffic in Large Comm Qty of Cannabis (26.5 kg) 32.    Unlawful Possession ($27, 365)	NS 6 y, 6 m reduced to 5 y, 2 m, 13 d (20% reduction)
RENOWN PARK (count 36) 36.    Unlawful possession ($20,000)	NS 12 m reduced to 8 m, 13 d (30% reduction)
TOTAL SENTENCE	NS 16 y, 2 m, 9 d	NS 16 y, 2 d	NS 9 y, 1 m, 28 d
HS 10 y, 9 m 19 d NPP 8 y, 7 m, 22 d	HS 9 y, 2 m, 13 d NPP 7 y, 4 m, 13 d	HS 5 y, 7 m 26 d NPP 4 y, 6 m, 9 d

1. The prosecution filed a prosecution factual summary in the District Court.  The prosecution factual summary dated 25 March 2021 summarised the evidence implicating the appellants and outlined the prosecution’s case as to the nature of the role each offender played in the commission of the relevant offences.  The prosecution factual summary formed the basis of the prosecution’s sentencing submissions before the sentencing judge and was supplemented by only brief oral submissions.

   Hai

2. The appellant Hai Ngoc Nguyen (Hai) pleaded guilty in the Magistrates Court and was committed to the District Court for sentence in relation to 12 offences committed at four premises or grow houses located at Beulah Park, Linden Park, Salisbury Heights and Flinders Park. 

3. The offences comprised three counts of cultivating a large commercial quantity of cannabis for sale;[1] one count of cultivating a commercial quantity of cannabis for sale;[2] one count of trafficking in a large commercial quantity of cannabis;[3] four counts of possessing prescribed equipment;[4] and three counts of diverting electricity.[5]

   [1]     CSA s 33B(1) – Maximum penalty of $1,000,000 or imprisonment for life or both.

   [2]     CSA s 33B(2) – Maximum penalty of $200,000 or imprisonment for 25 years or both.

   [3]     CSA s 32(1) – Maximum penalty of $1,000,000 or imprisonment for life or both.

   [4]     CSA s 33LA – Maximum penalty of $10,000 or imprisonment for two years or both.

   [5]     Electricity Act 1996 (SA) s 85(1)(a) – Maximum penalty of $20,000 or imprisonment for two years.

4. Hai was sentenced to a total head sentence of imprisonment for 10 years, nine months and 19 days with a non-parole period of eight years, seven months and 22 days. 

5. Hai was sentenced for four sets of offences. Each set was identified by the locality of the offending. In relation to each set of offences, the sentencing judge imposed a single sentence pursuant to s 26 of the Sentencing Act 2017 (SA) (the Sentencing Act).

6. In relation to the offences at Beulah Park of cultivating a commercial quantity of cannabis namely 80 plants (count 16), possessing prescribed equipment (count 17), and diverting electricity (count 18), the sentencing judge imposed a head sentence of imprisonment for two years, five months and 13 days reduced from a starting point of three years and six months after a 30 per cent reduction for the guilty pleas.

7. In relation to the offences at Linden Park of cultivating a large commercial quantity of cannabis namely 152 plants (count 19), trafficking in a large commercial quantity of cannabis weighing 44.5 kg (count 20), and possessing prescribed equipment (count 21), the sentencing judge imposed a head sentence of imprisonment for six years, nine months and 19 days reduced from a starting point of eight years and six months after a 20 per cent reduction for the guilty pleas.

8. In relation to the offences at Salisbury Heights of cultivating a large commercial quantity of cannabis namely 109 plants (count 22), possessing prescribed equipment (count 23), and diverting electricity (count 24), the sentencing judge imposed a head sentence of imprisonment for two years, nine months and 19 days reduced from a starting point of four years after a 30 per cent reduction for the guilty pleas.

9. In relation to the offences at Flinders Park of cultivating a large commercial quantity of cannabis namely 268 plants (count 25), possessing prescribed equipment (count 26), and diverting electricity (count 27), the sentencing judge imposed a head sentence of imprisonment for four years reduced from a starting point of five years after a 30 per cent reduction for the guilty pleas.

10. The sentencing judge arrived at the final sentence of imprisonment for 10 years, nine months and 19 days by making the sentences for the offences committed at Beulah Park, Salisbury Heights, and Flinders Park concurrent but cumulative on the sentence imposed for the Linden Park offences.  The sentencing judge imposed a non‑parole period of eight years, seven months, and 22 days.

11. Three issues arise on Hai’s appeal:

    ·Whether the sentencing judge erred in failing to identify notional head sentences for each of the Linden Park offences;

    ·Whether the sentencing judge erred in failing to identify the factual basis upon which Hai was sentenced for each of the Linden Park offences; and

    ·Whether the total sentence imposed for the 12 offences was manifestly excessive. 

    Xuan

12. The appellant Xuan pleaded guilty to one count of cultivating a commercial quantity of cannabis for sale[6]; two counts of cultivating a large commercial quantity of cannabis for sale[7]; one count of trafficking in a large commercial quantity of cannabis[8]; three counts of possessing prescribed equipment[9]; three counts of diverting electricity;[10] and one count of unlawful possession of $27,365.[11] 

    [6]     CSA s 33B(2) – Maximum penalty of $200,000 or imprisonment for 25 years or both.

    [7]     CSA s 33B(1) – Maximum penalty of $1,000,000 or imprisonment for life or both.

    [8]     CSA s 32(1) – Maximum penalty of $1,000,000 or imprisonment for life or both.

    [9]     CSA s 33LA – Maximum penalty of $10,000 or imprisonment for two years or both.

    [10]   Electricity Act 1996 (SA) s 85(1)(A) – Maximum penalty of $20,000 or imprisonment for two years.

    [11]   Summary Offences Act 1953 (SA) s 41(1) – Maximum penalty of $10,000 or imprisonment for two years.

13. From what the sentencing judge identified as a notional sentence of 16 years and two days, Xuan was sentenced to imprisonment for nine years, two months and 13 days after allowance for concurrency with a non‑parole period fixed at seven years, four months and 13 days.

14. Xuan’s offending relates to a number of cannabis crops involving, in total, just over 700 plants and, in one instance, dried cannabis material weighing 26.5 kg, detected at four residential properties at Flinders Park, Modbury Heights, Angle Park and Waterloo Corner. 

15. In relation to the offences at Modbury Heights of cultivating a commercial quantity of cannabis namely 90 plants (count 10), possessing prescribed equipment (count 11), and diverting electricity (count 12), the sentencing judge imposed a notional head sentence of imprisonment for three years and six months which was reduced to two years, nine months and 19 days after a 20 per cent reduction for the guilty pleas. 

16. In relation to the offences at Flinders Park of cultivating a large commercial quantity of cannabis namely 268 plants (count 25), possessing prescribed equipment (count 26), and diverting electricity (count 27), the sentencing judge imposed a notional head sentence of imprisonment for five years which was reduced to four years after a 20 per cent reduction for the guilty pleas.

17. In relation to the offences at Waterloo Corner of cultivating a large commercial quantity of cannabis namely 346 plants (count 28), possessing prescribed equipment (count 29), and diverting electricity (count 30), the sentencing judge imposed a notional head sentence of imprisonment for five years which was reduced to four years after a 20 per cent reduction for the guilty pleas.

18. In relation to the offences at Angle Park of trafficking in a large commercial quantity of cannabis for sale weighing 26.5 kg (count 31), and unlawful possession of $27,365 (count 32), the sentencing judge imposed a notional head sentence of imprisonment for 6 years and 6 months which was reduced to 5 years, 2 months and 13 days after a 20 per cent reduction for the guilty pleas.

19. Xuan was sentenced on the basis that he was a gardener in the enterprise and his conduct also involved leasing several properties, being paid to transport prescribed equipment to the properties knowing the properties were being used to grow cannabis, and taking part in the sale and financial aspects of the harvest of cannabis products.[12]  Xuan received money over a period of five to six months.  He was paid $5,000 per month for his services. 

    [12]   Sentencing remarks p7.

20. At the Modbury Heights property his involvement with leasing the property extended to correspondence with the landlord and a photograph of the deposit with the landlord’s bank account which was located on his phone.  He was further involved in paying utilities. 

21. In relation to Xuan’s involvement with the Flinders Park property, he admitted to police that he watered the plants for several months and would receive $5,000 a month for his involvement to a total of $25,000 to $30,000.  He was also involved in delivering prescribed equipment to the properties, knowing that it would be used for cultivation for which he would receive $100 per delivery. 

22. As will be seen, relevant to the second ground of appeal is the procedural history of this matter.  Between September 2019 and May 2020, Xuan was presented on five separate informations in the Magistrates Court, charging offences relating to various properties.  Xuan came before the Magistrates Court on 8 May 2020.  The proceedings were adjourned until 31 July 2020.  The Certificate of Record shows that a charge determination had been made and Xuan was to answer the charge on the adjourned date.  The prosecution filed a new information in the Magistrates Court dated 21 July 2020 that, for the first time, jointly charged the four accused including Mr Hoang Tran with various offences (the combined information).  The offences with which Xuan was charged on the combined information were substantially the same offences previously the subject of the five separate informations.  On 24 July 2020, Xuan’s solicitors wrote to the prosecution indicating that Xuan would plead guilty to the charges relating to the four properties.  On 30 July 2020 the prosecutor wrote to Xuan’s solicitors indicating that further material was outstanding and once that material had been received, the prosecution would be in a position to consider Xuan’s proposal.  The prosecutor foreshadowed that he would be seeking a 10-week adjournment on 31 July 2020 for the outstanding material to be provided and to allow negotiations to continue.  On 31 July 2020, the combined information came before the Magistrates Court for the first time.  The Certificate of Record notes that:

    DPP SEEKS ADJ’T TO OCTOBER IN ORDER TO FINALISE NEGOTIATIONS WHICH HAVE COMMENCED; THERE IS STILL A SUBSTANTIAL VOLUME OF MATERIAL OUTSTANDING, INCLUDING E‑CRIME ANALYSIS.

1. The matter was adjourned to 29 October 2020.  On 8 October 2020, the prosecutor wrote to solicitors for all accused advising that their proposals were being considered “and is pending consultation with the investigating officer, who is currently on leave”.  On 22 October 2020 the prosecutor wrote to the solicitors for Xuan advising that the prosecution would accept pleas to the charges relating to the Flinders Park, Modbury Heights, Angle Park, Waterloo Corner and Rostrevor properties in satisfaction of the information.  By letter of the same date, Xuan’s solicitors sought clarification on a number of factual and other issues and indicated that they would obtain final instructions.  On 27 October 2020 Xuan’s solicitors wrote to the prosecutor questioning the basis of the Rostrevor charges as against Xuan and confirming that Xuan was prepared to plead guilty to the charges relating to the other four properties.  On 28 October 2020 the prosecutor wrote to Xuan’s solicitors and set out the prosecution case as to the Rostrevor charges.  On 29 October 2020, Xuan’s solicitors advised the prosecution that Xuan would enter pleas to the Flinders Park, Modbury Heights, Angle Park and Waterloo Corner charges but would contest the Rostrevor charges.  Also on 29 October 2020, the prosecutor responded to the above correspondence, noting that Xuan could enter pleas to those four properties to “preserve his discount” and the prosecution would otherwise seek an adjournment to finalise its position in relation to the contested charges.  Xuan entered pleas on 29 October 2020.  On 21 December 2020, the prosecutor advised Xuan’s solicitors that the balance of charges against Xuan would be withdrawn.  On 25 January 2021, Xuan was committed for sentence.

2. Xuan appeals his sentence on two grounds which raise the following issues:

   ·Whether the sentence was manifestly excessive, having regard to both the notional sentence post reductions for guilty pleas and the head sentence ultimately imposed after allowance for concurrency.

   ·Whether the sentencing judge erred in holding that the maximum reduction available to Xuan pursuant to s 40 of the Sentencing Act on account of his pleas was 20 percent.

   Thanh

3. The appellant Thanh pleaded guilty to one count of cultivating a large commercial quantity of cannabis for sale;[13] two counts of cultivating a commercial quantity of cannabis for sale;[14] one count of unlawful possession;[15] three counts of possessing prescribed equipment;[16] and three counts of diverting electricity.[17] 

   [13]   CSA s 33B(1) – Maximum penalty of $1,000,000 or imprisonment for life or both.

   [14]   CSA s 33B(2) – Maximum penalty of $200,000 or imprisonment for 25 years or both.

   [15]   Summary Offences Act 1953 (SA) s 41(1) – Maximum penalty of $10,000 or imprisonment for two years.

   [16]   CSA s 33LA – Maximum penalty of $10,000 or imprisonment for two years or both.

   [17]   Electricity Act 1996 (SA) s 85(1)(a) – Maximum penalty of $20,000 or imprisonment for two years.

4. Those offences were committed at four premises at Beulah Park, Gulfview Heights, Modbury Heights and Renown Park.  Thanh was sentenced to a total head sentence of imprisonment for five years, seven months and 26 days with a non-parole period of four years, six months and nine days by reason of Thanh being a serious repeat offender.

5. In relation to the offences at Gulfview Heights of cultivating a large commercial quantity of cannabis namely 100 plants (count 13), possessing prescribed equipment (count 14) and diverting electricity (count 15), the sentencing judge imposed a notional head sentence of imprisonment for four years which was reduced to three years, two months and 13 days after a 20 per cent reduction for the guilty pleas. 

6. In relation to the offences at Modbury Heights of cultivating a commercial quantity of cannabis namely 90 plants (count 10), possessing prescribed equipment (count 11) and diverting electricity (count 12), the sentencing judge imposed a notional head sentence of imprisonment for three years and six months which was reduced to two years, nine months and 19 days after a 20 per cent reduction for the guilty pleas. 

7. In relation to the Beulah Park offences of cultivating a commercial quantity of cannabis namely 80 plants (count 16), possessing prescribed equipment (count 17) and diverting electricity (count 18), the sentencing judge started with a notional head sentence of imprisonment for three years and six months which was reduced to two years, five months and 13 days after a 30 per cent reduction for the guilty pleas. 

8. In relation to the Renown Park offending which consisted of unlawful possession of $20,000 (count 36), the sentencing judge started with a notional head sentence of imprisonment for 12 months which was reduced to eight months and 13 days after a 30 per cent reduction for the guilty plea.

9. The sentencing judge fixed sentence by making orders in relation to concurrency.  The sentencing judge made the sentences for the Beulah Park and the Renown Park offences wholly concurrent.  In her sentencing remarks the sentencing judge purported to make the sentences for the Modbury Heights and Beulah Park offences wholly concurrent, however, an analysis of the ultimate head sentence of imprisonment for five years, seven months and 26 days suggests that, in fact, the sentencing judge made the sentences for the Gulfview Heights offences wholly concurrent with the Modbury Heights offences. 

10. Thanh was sentenced on the basis that his role in the syndicate was that of a gardener who leased several properties and had some involvement in the sale and financial aspects of the syndicate. 

11. Relevant to the second ground of appeal is the procedural history of this matter.  On 7 May 2020, Thanh’s solicitors advised the prosecution of initial instructions to enter some guilty pleas but that an opportunity was needed to take instructions to “open the door to negotiations” and Thanh wished to preserve the discount of 30 per cent.  On 8 May 2020, the matter was called on in the Magistrates Court.  The Court was informed that instructions to enter pleas to some offences had been given and he wished to “open the door” to negotiations.  But there were no negotiations.  Thanh was remanded to 31 July 2020 with an endorsement on the Certificate of Record that he was to answer the charge on that date.  On 31 July 2020, a fresh information dated 21 July 2020 was filed jointly charging Thanh with the other appellants and Mr Hoang Tran.  This fresh information laid the additional charge count 36 against Thanh namely the Renown Park offence.  The Certificate of Record states that guilty pleas were intimated to counts 16 to 18 (the Beulah Park offences) and count 36 (the Renown Park offence), and if the matter resolved on that basis, the discount was to extend until the next occasion.  On 7 September 2020, Thanh’s solicitors wrote to the prosecution inquiring about evidence relating to charged offences at Linden Park (these matters were subsequently withdrawn).  Thanh’s counsel spoke to the prosecution and indicated that Thanh would likely plead guilty to the Modbury Heights, Gulfview Heights, Beulah Park and Renown Park offences.  On 22 October 2020 the prosecution advised that Thanh’s offer to plead guilty was accepted.  On 29 October 2020 guilty pleas were entered to the Modbury Heights, Gulfview Heights, Beulah Park and Renown Park offences, and the Linden Park charges were withdrawn.  On 25 January 2021, Thanh was committed for sentence. 

12. Two issues arise on Thanh’s appeal:

    ·Whether the notional head sentence for the unlawful possession charge at Renown Park was manifestly excessive with the result that the overall head sentence was manifestly excessive; and

    ·Whether the sentencing judge erred in holding that the maximum reduction available to Thanh pursuant to s 40 of the Sentencing Act on account of his pleas to the Gulfview Heights and Modbury Heights offending was 20 per cent.

    Sentence appeals

13. The principles governing when an appellate court will interfere with a decision on sentence were set out in R v Jongewaard[18] where Doyle CJ, with whom Layton and Kourakis JJ agreed, said:[19]

    The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence.  This Court does not substitute its opinion as to an appropriate sentence.  The Court will intervene only if error is established.  As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen at [25]:

    As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".

    [citations omitted].

    [18] [2009] SASC 346.

    [19] [2009] SASC 346 at [40].

14. It is not sufficient that the Court considers that, if it had been in the position of the sentencing judge, it would have imposed a different sentence.  The Court can interfere with a sentence only if it is infected by error, whether patent or latent.[20]  If specific error cannot be shown, the appellant must demonstrate that the sentence imposed was plainly unreasonable or unjust.[21] 

    [20]   R v Nemer (2003) 87 SASR 168 at [10].

    [21]   Markarian v The Queen (2005) 228 CLR 357 at [25].

    The sentencing legislation and the applicable discounts for guilty pleas

15. The appellants Xuan and Thanh contend that the sentencing judge erred in rejecting their submission that they were entitled to up to a 30 per cent reduction on account of their guilty pleas.  Permission to appeal was granted on this ground.  They submit that the sentencing judge erred in reducing the notional sentence for various offences by only 20 per cent for their guilty pleas.[22] This submission turned on when their committal appearance occurred. They contend that there can be more than one committal appearance. They contend that the hearing of 31 July 2020 was “a” or “the” “committal appearance” within the meaning of s 109(1)(a) and s 110 of the Criminal Procedure Act 1921 (SA) (CPA) and s 40(3)(b) of the Sentencing Act as it then was. They submit they were entitled to up to a 30 per cent reduction by virtue of s 40(4)(b)(v) of the Sentencing Act on the basis that negotiations over their pleas had commenced prior to the committal appearance on 31 July 2020. Those negotiations were not finalised because the prosecution was awaiting the receipt of further material from the police. The exception to this is the charge of unlawful possession at Renown Park against Thanh which was only charged on the joint information laid on 21 July 2020. As it was, the sentencing judge reduced the notional sentence for that offence by 30 per cent.[23]  

    [22]   In the case of Xuan, these offences were two counts of cultivating a large commercial quantity of cannabis for sale, one count of cultivating a commercial quantity of cannabis for sale, one count of trafficking in a large commercial quantity of cannabis, three counts of possessing prescribed equipment, three counts of diverting electricity and one count of unlawful possession.  In the case of Thanh, these offences were one count of cultivating a large commercial quantity of cannabis for sale, one count of cultivating a commercial quantity of cannabis for sale, two counts of possessing prescribed equipment and two counts of diverting electricity.

    [23]   The sentencing judge also reduced Thanh’s notional head sentence for the Beulah Park offences by 30 per cent.  The sentencing judge erred in doing so.  It appears from the sentencing judge’s sentencing remarks that she did so on the basis that at the hearing of 31 July 2020, an intimation was given to the magistrate by Thanh’s counsel that he intended to enter a guilty plea for this offending.  The prosecution sought an adjournment to finalise negotiations.  The magistrate endorsed the file that if a guilty plea was entered on the next occasion the discount was to be preserved.  Thanh entered a guilty plea to these offences on that next occasion.  However, as there is no Crown appeal against that sentencing error, there is no basis to interfere for the purposes of increasing the sentence. 

16. In contrast, the Director contends that the committal appearance was 8 May 2020.[24]  That hearing followed the procedural requirements being satisfied for a charge determination to be made.  There is no issue that if that was the committal appearance, there was no error in the sentencing judge’s approach. [25] At issue is the nature of the hearings on 8 May 2020 and 31 July 2020. The question is whether the CPA provides for more than one committal appearance. If so, was the 31 July 2020 hearing a committal appearance? This involves a constructional choice and requires a consideration of the relevant provisions of the CPA and the Sentencing Act and their text, context and purpose.

    [24]  For all charges except the Renown Park offending.

    [25]   On appeal this was conceded by counsel for Xuan (T 32) and counsel for Thanh (T 60).

17. Section 105 of the CPA provides:

    (1)A defendant charged with an indictable offence must be given the following documents at or before the defendant's first appearance in the Magistrates Court in relation to the charge (in accordance with any requirements imposed by the rules):

    (a)     a notice, in a form prescribed by the regulations, containing the matters specified in subsection (2) and such other matters as may be prescribed;

    (b)     a copy of the information;

    (c)     a brief description of the alleged offending (whether in the form of an extract from a police report relating to the alleged offence or otherwise);

    (d)     if the defendant is charged with a minor indictable offence—the appropriate form for electing for trial in a superior court.

    (2) A notice referred to in subsection (1)(a) must provide the defendant with information about—

    (a)     sentencing reductions available under the sentencing laws in relation to guilty pleas; and

    (b)     the process for having the matter called on in a court for the purpose of entering a guilty plea.

    (3) A document required to be given to the defendant under subsection (1) may be given to a person who is acting on behalf of the defendant.

    (4) Failure to comply with subsection (1) does not affect any proceedings relating to the offence or offences.

    (5) The Magistrates Court must, on adjourning the defendant's first appearance before the Court in relation to the charge, appoint a time and place for the defendant's second appearance before the Court in relation to the charge, having regard to any information provided by the prosecution as to the likely length of time the prosecution requires in order to obtain witness statements and other material prior to the next appearance (subject to any requirements applying under section 106).

18. Section 106 of the CPA provides:

    (1) The following provisions apply in relation to an information charging an indictable offence where SA Police have been the investigating authority and the offence is to be subsequently prosecuted by the Director of Public Prosecutions (a State criminal offence):

    (a)     SA Police must provide the Director of Public Prosecutions with information in relation to the matter (the preliminary brief) that is, in the opinion of the Director of Public Prosecutions, sufficient for the Director of Public Prosecutions to make a determination (the charge determination) as to the appropriate charge or charges to be proceeded with;

    (b)     unless the Director of Public Prosecutions determines otherwise, SA Police will appear before the Magistrates Court on behalf of the prosecution until—

    (i) the Director of Public Prosecutions considers the preliminary brief and makes the charge determination; or

    (ii)the defendant elects to have the relevant offence or offences called on in the Magistrates Court for the purpose of entering a guilty plea,

    whichever occurs first;

    (c)     SA Police must, as soon as practicable after providing the preliminary brief to the Director of Public Prosecutions—

    (i) give a copy of the preliminary brief to the defendant or a legal practitioner representing the defendant; and

    (ii) file a copy of the preliminary brief in the Magistrates Court;

    (d)     the Magistrates Court must, in adjourning the proceedings under section 105(5)—

    (i) have regard to information provided by the prosecution as to the witness statements and other material to be obtained for the purposes of completion of the preliminary brief and the time within which it is expected that the preliminary brief can be completed; and

    (ii) ensure that the adjournment is for a period that—

    (A) allows sufficient time for the completion of the preliminary brief; and

    (B) allows an additional period of not less than 4 weeks for the Director of Public Prosecutions to consider the preliminary brief and make a charge determination;

    (e) the Magistrates Court must not commence committal proceedings under Division 3 unless the Court has been advised by the prosecution that the Director of Public Prosecutions has made the charge determination.

    (2) If the Director of Public Prosecutions has not made the charge determination by the time of the defendant's second appearance before the Magistrates Court in relation to the charge, the prosecution may apply to the Court for an adjournment of the matter to enable that to occur.

    (3) On an application under subsection (2), the Magistrates Court—

    (a)     must have regard to information provided by the prosecution as to the witness statements and other material to be obtained for the purposes of completion of the preliminary brief and the time within which it is expected that the preliminary brief can be completed and the charge determination made; and

    (b)     having regard to that information, may grant the adjournment of the matter or may dismiss the charge,

    (and, if the proceedings are adjourned and at any subsequent appearance the Court is advised that the Director of Public Prosecutions has still not made the charge determination, subsection (2) and this subsection also apply to the Court in relation to that appearance).

    (4) The fact that a charge has been dismissed by the Magistrates Court under this section does not prevent the charge from being subsequently laid again.

    (5) If an information to which this section applies also includes charges of offences other than State criminal offences, the Magistrates Court may make such orders varying the operation of this section as it thinks necessary in the circumstances.

19. Section 109(1) of the CPA provides:

    (1) The committal proceedings for an indictable offence will consist of—

    (a)     an appearance (the committal appearance) in the Magistrates Court conducted in accordance with section 110; and

    (b)     a hearing (the answer charge hearing) in the Magistrates Court at which—

    (i)      the defendant will be asked to formally answer the charge in accordance with section 113; and

    (ii)     if the defendant does not plead guilty—the Court will go on to take evidence in accordance with section 114 and evaluate that evidence in accordance with section 115.

20. Section 110 of the CPA provides:

    (1) If the defendant pleads guilty at the committal appearance, an answer charge hearing will not be required and the Magistrates Court may (subject to section 116(1))—

    (a)     determine and impose sentence on the defendant; or

    (b)     commit the defendant to a superior court for sentence.

    (2) If the defendant does not plead guilty—

    (a)     the prosecution must provide the Court with information as to the witness statements and other material to be obtained for the purposes of completion of the committal brief in accordance with the requirements of section 111 and the time within which it is expected that the committal brief can be completed; and

    (b)     the defendant must be given an opportunity to respond to the information provided by the prosecution and to advise the Court whether any negotiations are taking place with the prosecution or provide the Court with information as to any other relevant matter; and

    (c)     the Court must adjourn the proceedings and appoint a time and place for the answer charge hearing, ensuring that sufficient time is allowed for the completion of the committal brief in accordance with the requirements of section 111.

    (3) If the defendant advises the Court that negotiations are taking place with the prosecution, the defendant may, at any time within the period of 4 weeks after the committal appearance, have the matter called on in the Magistrates Court for the purpose of entering a guilty plea in relation to the charge (and in such a case the defendant will, for the purposes of this Act and the sentencing law, be treated as if the defendant had pleaded guilty at the committal appearance).

1. Section 111 of the CPA provides:

   (1) Where a charge of an indictable offence is to proceed to an answer charge hearing, the prosecutor must, at least 4 weeks before the date appointed for that hearing, file in the Magistrates Court a brief (the committal brief) containing—

   (a)     statements of witnesses for the prosecution on which the prosecutor relies as tending to establish the guilt of the defendant; and

   (b)     copies of any documents on which the prosecutor relies as tending to establish the guilt of the defendant (other than sensitive material or documents that are of only peripheral relevance to the subject matter of the charge); and

   (c)     a document describing any other evidentiary material (including sensitive material and documents that are of only peripheral relevance to the subject matter of the charge) on which the prosecutor relies as tending to establish the guilt of the defendant together with a statement of the significance the material is alleged to have; and

   (d)     all other material relevant to the charge (whether relevant to the case for the prosecution or the case for the defence) that is available to the prosecution except material exempt from production because of privilege or for some other reason,

   provided that any such material that has already been included in the preliminary brief (filed in the Magistrates Court and given to the defendant or a legal practitioner representing the defendant under section 106) need not be included in the committal brief.

   (2) If material of the kind required to be included in the committal brief comes into the prosecutor's possession after the filing of the committal brief, the prosecutor must file the new material in the Magistrates Court as soon as practicable after it comes into the prosecutor's possession (and on so doing it will be taken to form part of the committal brief for the purposes of this Act).

   (3) If material is filed in the Court in accordance with subsection (1) or (2), a copy of that material must be given to the defendant or a legal practitioner representing the defendant as soon as practicable after it is so filed.

   (4) A witness statement included in a committal brief—

   (a)     must be in the form of an affidavit; and

   (b)     if—

   (i) the statement is tendered for the prosecution and relates to an interview between an investigating officer and the defendant; and

   (ii) an audio visual record or audio record of the interview, or the reading over of a written record of the interview, was made under the Summary Offences Act 1953,

   must be accompanied by a copy of the audio visual record or audio record.

   (5) However, if the witness is a witness to whom this subsection applies, the following provisions apply:

   (a)     the witness's statement may be—

   (i) in the form of a written statement taken down by an investigating officer at an interview with the witness and verified by the officer as an accurate record of the witness's oral statements at the interview so far as they are relevant to the subject matter of the charge; or

   (ii) in the form of an audio visual record or audio record of an interview with the witness that is accompanied by a written transcript verified by an investigating officer or person of a prescribed class who was present at the interview as a complete record of the interview;

   (b)     if a recording referred to in paragraph (a)(ii) is filed in the Court, the prosecutor must—

   (i) provide the defendant with a copy of the verified written transcript of the recording at least 4 weeks before the date appointed for the answer charge hearing or, if the recording comes into the prosecutor's possession on a later date, as soon as practicable after the recording comes into the prosecutor's possession; and

   (ii) inform the defendant that the defendant is entitled to have the recording played over to the defendant or his or her legal representative (or both) and propose a time and place for the playing over of the recording;

   (c)     the time proposed for playing the recording must be at least 2 weeks before the date appointed for the answer charge hearing or, if the recording comes into the prosecutor's possession at a later date, as soon as practicable after the recording comes into the prosecutor's possession (but the time and place may be modified by agreement).

   (6) Subsection (5) applies to a witness who is—

   (a)     illiterate; or

   (b)     a child of or under the age of 14 years; or

   (c)     a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions.

   (7) If the prosecutor relies on evidence that is sensitive material as tending to establish the guilt of the defendant, the prosecutor must, at least 4 weeks before the date appointed for the answer charge hearing—

   (a)     give the defendant copies of the sensitive material; or

   (b)     give the defendant a sensitive material notice in relation to the material.

2. At the relevant time s 40 of the Sentencing Act provided:

   (1) This section applies to a court sentencing a defendant for an offence other than an offence described in section 39(1).

   (2) If—

   (a)     a defendant in any proceedings is pleading guilty to more than 1 offence; and

   (b)     this section applies to at least 1 of the offences, this section will be taken to apply to all of the offences (despite section 39(1)).

   (3) If a defendant has pleaded guilty to an offence or offences—

   (a)     not more than 4 weeks after the defendant's first court appearance in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;

   (b)     more than 4 weeks after the defendant's first court appearance in relation to the relevant offence or offences but on the day of, or before, the defendant's committal appearance in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;

   (c)     during the period commencing on the day after the defendant's committal appearance in relation to the relevant offence or offences and ending immediately before the defendant is committed for trial for the offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 20%;

   Note— See also section 110(3) of the Criminal Procedure Act 1921.

   (d)     during the period commencing immediately after the defendant is committed for trial for the relevant offence or offences and ending immediately after the first date fixed for the arraignment of the defendant in a superior court—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 15%;

   (e)     during the period commencing immediately after the first date fixed for the arraignment of the defendant in a superior court in relation to the relevant offence or offences and ending at the commencement of the defendant's trial for the relevant offence or offences—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 10%.

   (4) If—

   (a)     a maximum reduction available under subsection (3) does not apply in relation to a defendant's plea of guilty because the defendant did not plead guilty within the relevant period; and

   (b)     the court is satisfied that the only reason that the defendant did not plead guilty within the relevant period was because—

   (i) the court did not sit during that period; or

   (ii) the court did not sit during that period at a place where the defendant could reasonably have been expected to attend; or

   (iii) the court did not list the defendant's matter for hearing during that period; or

   (iv) the court was, for any other reason outside of the control of the defendant, unable to hear the defendant's matter during that period; or

   (v) after the making of the charge determination (within the meaning of section 106 of the Criminal Procedure Act 1921)—the prosecution was, for any reason outside of the control of the defendant, unable to finalise negotiations with the defendant in relation to the plea during that period,

   the court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the relevant period.

   (5) In determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea made within a particular period, a court must have regard to such of the following as may be relevant:

   (a)     whether the reduction of the defendant's sentence by the percentage contemplated would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of that particular defendant, that it would, or may, affect public confidence in the administration of justice;

   (b)     the stage in the proceedings for the offence at which the defendant indicated an intention to plead guilty (including whether it would, in the opinion of the court, have been reasonable to expect the defendant to have done so at an earlier stage in the proceedings);

   (c)     whether the defendant was initially charged with a different offence in respect of the same conduct and whether (and at what stage in the proceedings) negotiations occurred with the prosecution in relation to the offence charged;

   (d)     in the case where the defendant has been charged with more than 1 offence—whether the defendant pleaded guilty to all of the offences;

   (e)     if the defendant satisfies the court that the defendant could not reasonably have been expected to plead guilty at an earlier stage in the proceedings because of circumstances outside of the defendant's control—that fact;

   (f)      whether or not the defendant was made aware of any relevant matter that would have enabled the defendant to plead guilty at an earlier stage in the proceedings,

   and may have regard to any other factor or principle the court thinks relevant.

   (6) For the purposes of this section, a reference to a defendant appearing in a court will be taken to include a reference to a person appearing in a court on behalf of the defendant.

   (7) Where proceedings have been instituted in a superior court by the DPP laying an information ex officio in accordance with section 103 of the Criminal Procedure Act 1921, this section applies in relation to those proceedings with the modifications prescribed by the regulations.

   (8) In this section—

   committal appearance has the same meaning as in section 109 of the Criminal Procedure Act 1921.

3. The task of statutory construction begins and ends with the text.[26]  The text must be considered in its context which includes the statutory purpose and policy of the provision.[27]

   [26]   Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39].

   [27]   Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378 at [23]-[26].

4. The scheme of the CPA distinguishes between pre-committal and committal proceedings. The CPA prescribes the procedures for pre-committal hearings in Division 2 of Part 5 (ss 104-107) and the procedures for committal proceedings in Division 3 of Part 5 (ss 108-115). The committal appearance is part of the scheme of committal proceedings established by Division 3.

5. The CPA does not expressly provide that there can only be one appearance in the course of committal proceedings that is a committal appearance.  However, for the reasons that follow, we consider that is the correct construction of the applicable provisions.  As will be seen, there is some scope for flexibility when identifying the committal appearance.

6. There are a number of features of the statutory text which indicate that there is to be only one committal appearance. 

7. The CPA provides that where a defendant has been charged with an indictable offence on an information filed in the Magistrates Court, the defendant must appear before the Court.[28]  By the time of their first appearance in the Magistrates Court the defendant must be given prescribed documents including a copy of the information and a brief description of the alleged offending as well as a notice providing the defendant with information about sentencing reductions available under the sentencing laws in relation to guilty pleas and the process of having the matter called on in Court for the purposes of entering a guilty plea.[29]

   [28]   CPA s 104.

   [29]   CPA s 105(1) and (2).

8. Section 105(5) provides that the Magistrates Court must, on adjourning the defendant’s first appearance before the Court in relation to the charge, appoint a time and place for the defendant’s second appearance before the Court in relation to the charge, having regard to any information provided by the prosecution as to the likely length of time that the prosecution requires in order to obtain witness statements and other material, subject to any requirements applying under s 106. Section 106(1)(a) provides that the Police must provide the Director with a preliminary brief containing information in relation to the matter that is, in the opinion of the Director, sufficient to make a charge determination as to the appropriate charge or charges to be proceeded with. The Magistrates Court must, in adjourning the proceedings under s 105(5), ensure the adjournment is for a period that allows sufficient time for the completion of the preliminary brief and allows an additional period of not less than four weeks for the Director to consider the preliminary brief and make a charge determination.[30] 

   [30] CPA s 106(1)(d)(ii).

9. The Magistrates Court must not commence committal proceedings unless the Court has been advised that the Director has made the charge determination.[31]  If the Director has not made the charge determination by the time of the defendant’s second appearance before the Magistrates Court in relation to the charge, the prosecution may apply to the Court for an adjournment of the matter to enable that to occur.[32]  If a charge determination is not made by or following the second appearance, the Court may dismiss the charge.[33] 

   [31] CPA s 106(1)(e).

   [32] CPA s 106(2).

   [33] CPA s 106(3)(b).

10. Once a charge determination has been made, the statutory scheme for committal proceedings established by the CPA in respect of indictable offences identifies a two-step process, being the committal appearance and the answer charge hearing. Section 109(1) provides that committal proceedings for an indictable offence will consist of “the committal appearance” in the Magistrates Court conducted in accordance with s 110 and, in addition, “the answer charge hearing” in the Magistrates Court at which the defendant is asked to formally answer the charge in accordance with s 113. If the defendant does not plead guilty, the Court will proceed to take evidence in accordance with s 114 and evaluate that evidence in accordance with s 115.

11. Section 110(1) provides that if the defendant pleads guilty at the committal appearance, an answer charge hearing will not be required. In those circumstances the Magistrates Court may, subject to s 116(1), determine and impose sentence or commit the defendant to a superior court for sentencing.

12. Section 110(2) provides that if the defendant does not plead guilty at the committal appearance the prosecution must provide the Magistrates Court with information as to the witness statements and other material to be obtained for the purposes of completion of the committal brief and the time within which it is expected that the committal brief can be completed.[34]  The defendant must be given an opportunity to respond to the information provided by the prosecution and to advise the Court whether any negotiations are taking place or provide the Court with information as to any other relevant matter.  The Court must adjourn the proceedings and appoint a time and place for the answer charge hearing, ensuring that sufficient time is allowed for the completion of the committal brief.[35] 

    [34] In accordance with the requirements of CPA s 111.

    [35] In accordance with the requirements of CPA s 111

13. Pursuant to s 110(3) if the defendant advises the Magistrates Court that negotiations are taking place with the prosecution, the defendant may, at any time within the period of four weeks after the committal appearance, have the matter called on in the Magistrates Court for the purpose of entering a guilty plea. In such a case the defendant will, for the purposes of the CPA and the sentencing law, be treated as if they had pleaded guilty at the committal appearance.

14. It can be seen that s 110(3) creates the statutory fiction that a plea entered within four weeks after the committal appearance is treated as if it was entered at the committal appearance. It expressly applies for the purpose of the Sentencing Act.[36]  This emphasises the importance of the committal appearance being easily and readily identifiable.  It contraindicates the effect of the appellants’ submission that a committal appearance is an ambulatory concept that postulates more than one committal appearance.  The statutory scheme assumes a single committal appearance. 

    [36] See the definition of “sentencing law” in CPA s 4(1).

15. Further, the legislature has used the definite article in s 110(1) and (3) when referring to “the” committal appearance. In contrast, the legislature has used the indefinite article in referring to the answer charge hearing in s 110(1). Contrary to the appellants’ submission, these are cogent indicia that the statutory scheme contemplates only one committal appearance. That is reinforced by the operation of ss 110 and 111 in the statutory scheme.

16. Section 111 addresses what must occur before a charge of an indictable offence is to proceed to an answer charge hearing. It applies where the defendant has not pleaded guilty at the committal appearance. It prescribes the steps that the prosecutor must take to file the committal brief in the Magistrates Court, which is to occur at least four weeks before the date appointed for the answer charge hearing.

17. Accordingly, it can be seen that a charge determination is a necessary pre-condition to the commencement of committal proceedings. It follows that, insofar as s 110 contemplates the defendant entering a guilty plea at the committal appearance, the statutory scheme requires that the Director has made the charge determination and the defendant has been provided with a copy of the preliminary brief. Further, the preliminary brief required by s 106 must be distinguished from the committal brief required by s 111 which must be filed in the Magistrates Court at least four weeks before the answer charge hearing. Clearly the statutory scheme contemplates that a defendant may enter a guilty plea at the committal appearance or, in the circumstances prescribed in s 110(3), within four weeks after the committal appearance. That will necessarily be at a time when the defendant has not been provided with the committal brief containing all the material relevant to the charge.

18. It can be seen that the committal appearance occurs after the Magistrates Court has been advised by the prosecution that the charge determination has been made.  It must occur before the answer charge hearing unless the defendant pleads guilty at the committal appearance, in which case there will be no answer charge hearing.  If there is no guilty plea at the committal appearance the matter will proceed to an answer charge hearing and the prosecution must file a committal brief in the Magistrates Court at least four weeks before the date appointed for the answer charge hearing. 

1. However, a defendant can enter a plea within four weeks of the committal appearance and that plea will be treated as having been entered at the committal appearance for the purposes of the Sentencing Act. The committal appearance is the pivot on which a number of events turn. It is evident from this analysis that the statutory scheme contemplates that a defendant may enter a guilty plea at the committal appearance or within four weeks of the committal appearance when knowledge of the strength of the prosecution case is limited. This contraindicates a constructional choice in favour of recognising a number of committal appearances, with the Court adjourning the committal appearance so the defendant can obtain further information relevant to the charge or continue to negotiate with the prosecution.

2. This construction is supported by the fiction in s 110(3). A guilty plea entered in the four weeks after the committal appearance is treated as if it was entered at the committal appearance. If there could be more than one committal appearance, being regularly adjourned, there would be no need for the fiction.

3. This textual analysis strongly supports a construction of s 109(1) that recognises that there is only one committal appearance.

4. Some support for this construction is also to be derived from the incorporation of the concept of the “committal appearance” in s 40(3)(c) of the Sentencing Act which refers to “the defendant’s committal appearance”. As has been seen, s 110(3) refers to the four week period in which a plea will “for the purposes of this Act and the sentencing law” be treated as if it was entered at the committal appearance. The term “sentencing law” is defined in a way that includes the Sentencing Act.

5. The scheme of allowable reductions in a sentence following a guilty plea as set out in s 40 of the Sentencing Act depends upon the stage at which a guilty plea is entered. The earlier the plea the greater the reduction. Under the terms of the former s 40(3) of the Sentencing Act that reduction could be up to 40 per cent if entered not more than four weeks after the defendant’s first appearance. A reduction of up to 30 per cent was available on a guilty plea being entered more than four weeks after the defendant’s first court appearance but on the day of, or before, “the defendant’s committal appearance”. The need for certainty in identifying precisely when potential sentencing reductions are available is a cogent factor to consider when construing the statutory scheme of sentencing reductions.

6. This contextual feature strongly supports what is otherwise apparent from the text of the Sentencing Act: there is to be only one committal appearance.

7. The structure of s 40 of the Sentencing Act with its five consecutive time bands prescribing the maximum reductions available for a guilty plea is intended to encourage early pleas. In enacting this scheme the legislature recognised that the maximum reductions would become available at a time when the defendant might have little knowledge or understanding of the strength of the prosecution case.

8. This construction is consistent with the utilitarian purposes of s 40 of the Sentencing Act. Those purposes are to encourage the timely entry of guilty pleas; to reduce court delays; to avoid the expense and inconvenience of a trial; to minimise the stress on victims and other witnesses; and to save the time and resources of police and prosecutors in preparing matters for trial. Those purposes emphasise the need for certainty so that defence lawyers are able to advise their clients with confidence about the potential extent of any reduction that may be available, depending on the stage at which a plea is entered.[37] 

   [37]   R v McPhee [2014] SASCFC 107 at [46]; R v Bahrami (2020) 137 SASR 327.

9. Both the CPA and the Sentencing Act assume that there is to be one, readily identifiable committal appearance. As both the CPA and the Sentencing Act are intended to operate at the same time on the same facts, there is no reason to approach the meaning of what comprises “the committal appearance” differently in each Act. This analysis reveals the coherence of the scheme enacted in the Sentencing Act and the CPA.

10. However, we consider that there is necessarily some degree of flexibility associated with identifying exactly what comprises the committal appearance, accepting that there is usually only one committal appearance.  That flexibility concerns whether one or more adjournments are required so as to ensure that the statutory requirements and purpose of the committal appearance have been met. 

11. Three examples of that flexibility may be given.  The first concerns the commencement of committal proceedings and the second concerns what is required to constitute the committal appearance.  The third example recognises the capacity of the parties to agree, and the Court to order, that there be an adjournment of what might ostensibly be the committal appearance to a hearing which is to be regarded as the committal appearance. 

12. First, whilst s 106(1)(d) assumes that committal proceedings ought not commence until the preliminary brief and charge determination have been completed, s 106(2) and (3) recognises that there may be adjournments until these steps have been completed. Strictly, the committal appearance is not made until they have been completed, see for example s 106(1)(e). That is, whilst what is ostensibly the committal appearance has occurred, it should not be regarded as the committal appearance because the preliminary brief and charge determination have not both been completed as the statute requires.

13. Second, at what is intended to be the committal appearance, s 110(2)(a) imposes statutory obligations on the prosecution to provide the Magistrates Court with prescribed information. Section 110(2)(b) then requires that the defendant must be given an opportunity to respond to that prescribed information and to advise the Court whether any negotiations are taking place with the prosecution or to provide the Court with information as to any other relevant matter. The obligations in s 110(2)(a) are imposed on the prosecution while s 110(2)(b), like s 110(2)(c), imposes a requirement that must be satisfied by the Court, not the defendant.

14. We accept that if the prosecution fails to fulfil the statutory obligations imposed by s 110(2)(a), not only may that result in unfairness to a defendant, but importantly, the committal appearance would not have fulfilled its statutory purpose. A further appearance will be required so that the statutory requirements for what constitutes the committal appearance have been satisfied. This should occur rarely. We say that it should occur rarely for two reasons. First, the obligation imposed by s 110(2)(a) is imposed upon the prosecution. Second, the obligation is mandatory.

15. The legislature may be taken to expect that the prosecution will in most instances comply with the mandatory statutory obligation in s 110(2)(a). In that regard it is important to recognise the nature of the obligation. The obligation is not to have provided the Magistrates Court, by the committal appearance, with witness statements and other material for the purposes of completing the committal brief, but rather it is an obligation to provide the Court with information as to witness statements and other material to be obtained for the purposes of completion of the committal brief, together with information as to the time within which it is expected that the committal brief can be completed.  The obligation imposed on the prosecution to provide that information should ordinarily be fulfilled.  However, if the prosecution fails to fulfil that obligation, it is within the Court’s discretion to adjourn the committal appearance to a later time to permit the prosecution to provide the prescribed information. 

16. The position is a little different in relation to the opportunity required to be given by s 110(2)(b). It is the Court who gives the defendant the opportunity required by s 110(2)(b). Once the prosecution has fulfilled the statutory obligation imposed by s 110(2)(a), there will usually be no reason why the Court would not promptly give the opportunity to the defendant contemplated by s 110(2)(b). Even in circumstances where the prosecution has failed to fulfil its statutory obligation, it is to be expected that the Court, in adjourning the committal appearance, will afford the defendant the opportunity contemplated by s 110(2)(b) once the prosecution has provided the Court with the information required by s 110(2)(a). Accordingly, it will be a rare case where the adjournment of the committal appearance might be necessitated by the Court’s failure to comply with the statutory requirement imposed by s 110(2)(b).

17. The third and final example is that the parties may agree, or the Court may order, that the committal appearance should be adjourned.  Whether these examples result in two or more committal appearances, or are better understood as the deferral of the matter to what must be regarded as the committal appearance is not a matter that need now be decided; probably it is the latter. 

18. At all events, the Court should formally record what has occurred and, if necessary, make findings so that the position is not left uncertain.  The determination of what comprises the committal appearance must be made by reference to each count.  That is particularly important, as this case demonstrates, where there are a number of counts and negotiations proceed at different times on different counts.

19. For these reasons we construe the expression “committal appearance” in s 109 as referring to one appearance. The legislature intended that once committal proceedings have commenced under Division 3 of Part 5 of the CPA, the first appearance will usually be the committal appearance. It follows from the examples earlier given, however, that though the statutory scheme recognises that there will usually be only one committal appearance, that may not necessarily be the first appearance once committal proceedings commence under Division 3 of Part 5 of the CPA.

20. We observe that this approach to the CPA is consistent with the references made in s 40 of the Sentencing Act to “the defendant’s committal appearance”. In addition, this approach is consistent with what occurred, as revealed in the evidence of the Certificate of Record in the appellants’ matters.

21. Accordingly, in the case of these appellants, the committal appearance occurred on 8 May 2020. By that date, the preliminary brief had been provided and the charge determination had been made. The prosecution provided the information prescribed by s 110(2)(a) and the appellants were given the opportunities described by s 110(2)(b). On that date the proceedings were adjourned to the answer charge hearing. There was no scope for any flexibility in determining what comprised the committal appearance, and no basis to adjourn that hearing to anything other than an answer charge hearing.

22. But for the appellants’ alternative submission, addressed below, the appellants’ contention that they were entitled to up to a 30 per cent reduction in sentence for the guilty pleas must fail. The appellants’ guilty pleas were not made on the day of, or before, their committal appearance on 8 May 2020 in accordance with s 40(3)(b) of the Sentencing Act, or within four weeks after that date in accordance with s 110(3). Further, the appellants do not fall within the exception in s 40(4)(b)(v) of the Sentencing Act. The sentencing judge could not be satisfied that the only reason that the appellants did not plead guilty within the period prescribed in s 40(3)(b) of the Sentencing Act was because the prosecution was, for any reason outside the control of the appellants, unable to finalise negotiations with the appellants in relation to the pleas during that period. That period ended on 8 May 2020. Section 40(4)(b)(v) of the Sentencing Act is predicated on negotiations having commenced, at the latest in this case, by the committal appearance. Negotiations had not commenced by 8 May 2020. Notwithstanding that the solicitor for Thanh wrote to the prosecution on 7 May 2020 “opening the door to negotiations” in order to preserve the discount, this did not constitute negotiations commencing prior to the committal appearance the following day. On the contrary, it was a transparent device adopted by Thanh’s solicitor designed to circumvent the statutory scheme.

23. The appellants put an alternative submission that by reason of the laying of a fresh information dated 21 July 2020 the appearance on 31 July 2020 constituted a new committal appearance.  We do not accept this submission.  Acceptance of this submission would constitute the triumph of form over substance.  The fresh information dated 21 July 2020 consolidated the existing charges the subject of the committal appearance on 8 May 2020 (with the exception of the fresh charge concerning the Renown Park offence laid against Thanh, for which he received a 30 per cent discount).  The laying of the fresh information did not ‘restart the clock’.

24. The availability of a reduction greater than 20 per cent depended on whether guilty pleas had been entered within four weeks after 8 May 2020, or negotiations had been commenced prior to the committal appearance and, if so, whether the only reason the appellants did not plead at the committal appearance was that, for any reason outside of their control, the prosecution were unable to finalise those negotiations prior to the committal appearance.  As a matter of fact, negotiations had not commenced by 8 May 2020 and no plea was entered during the following four weeks.  Accordingly, the sentencing judge was correct in concluding that the appellants’ entitlement, by reason of their guilty pleas, to a reduction in sentence was no more than 20 per cent. 

25. However, the reasons of the sentencing judge for reaching this conclusion discloses error.  The sentencing judge appears to have considered that the entitlement to a reduction of up to 30 per cent in the sentence to be imposed required the defendant to have conveyed the intention to plead guilty to the magistrate.  That misapprehends the operation of the statutory scheme.  The entitlement to a reduction of up to 30 per cent did not depend upon an intimation of an intention to enter guilty pleas being given to the magistrate.  Rather, it required the defendant to have intimated to the prosecution an intention to enter a guilty plea.  Notwithstanding that error, this Court is concerned to correct orders not reasons.[38]  That error did not affect the reduction correctly made by the sentencing judge and it provides no scope for appellate intervention. 

    [38]   Pearce v The Queen (1998) 194 CLR 610 at [134].

26. We would dismiss the appeal on this ground. 

    Hai

27. The appellant Hai appeals on two grounds that are not raised by the other appellants.  They are complaints that the sentencing judge’s sentencing discretion miscarried because of a failure to identify firstly, the notional head sentences for each of the Linden Park offences and secondly, the factual basis for sentencing for those offences.  Permission to appeal was granted in relation to the latter ground and the application for permission to appeal on the former ground was referred to this Court for argument as on appeal.

28. Hai contends that the sentencing judge erred in failing to separately identify the notional sentences for the offences of cultivating a large commercial quantity of cannabis, trafficking in a large commercial quantity of cannabis, and possessing prescribed equipment, in arriving at a notional head sentence of imprisonment for eight years and six months for the Linden Park offences.  He submits that the sentencing judge did not indicate whether she had determined a starting head sentence for each individual offence committed at Linden Park and, if she did, how much of the notional head sentence was attributable to each offence. 

29. In our view the approach taken by the sentencing judge does not disclose error.

30. In R v Donald[39] Lovell J, as he then was, with whom Nicholson and Parker JJ agreed, considered the operation of the predecessor provision to s 26 of the Sentencing Act, namely, s 18A of the Criminal Law (Sentencing) Act 1988 (SA). He set out the approach to sentencing a prisoner for multiple offending by the application of s 18A in the following terms:[40]

    [39] (2016) 126 SASR 276.

    [40] (2016) 126 SASR 276 at [31].

    Against that background the approach to sentencing a prisoner for multiple offending appears to be governed by the following principles:

    1. It is always necessary to identify the applicable sentencing principles and standards for the particular offences charged.

    2. In applying s 18A of the Act, the sentencing judge should, as a general rule, first determine what sentence each separate offence would attract and then consider whether the sentences should be served concurrently or cumulatively. In considering the question of whether a sentence should be served concurrently or cumulatively the general criminal law sentencing principles apply. This approach has the benefit of transparency.

    3. In some cases the matter may be so straightforward that the separate consideration of the individual sentences is unnecessary.

    4. In some cases the approach in paragraph two may be unnecessary because the totality principle will so obviously operate that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. In such cases to accumulate the sentences will lead to an “air of unreality” in the sentencing process.

    5. If a sentencing court wishes only to use s 18A once for multiple offences, and differing statutory discounts apply, the Court must explain how it has arrived at the single sentence imposed after application of the differential discounts. This requires identification of the notional starting head sentences for the individual offences and the notional discounts applied. If the offending can be grouped, such that a common discount applies across particular offences, and s 18A applied to the various groupings independently, then notional sentences will not be necessary.

    6. As to when such an “air of unreality” arises in any particular case will depend on the facts and circumstances of each case.

    7. Failure to adopt any particular approach will of itself not amount to an error of law.

    8. The sentencing judge should provide sufficient reasons for the approach adopted.

31. Hai’s submission focused on the fact that the offences committed at Linden Park comprise not only an offence of cultivating a large commercial quantity of cannabis for sale, as well as the ancillary offence of possessing prescribed equipment, but also a major indictable offence of trafficking in a large commercial quantity of cannabis.  The failure to separately identify the notional head sentence in particular for the cultivating and trafficking offences results in the sentencing process miscarrying because it is unclear how much of the notional starting point of eight years and six months is attributable to the trafficking offence and how much is attributable to the cultivating offence.  Hai submits that this has resulted in a lack of transparency and compromises the ability of this Court to properly scrutinise the sentences imposed for the individual offences.  It gives rise to a real risk that Hai received a manifestly excessive sentence for the trafficking offence. 

32. Whilst it would have been preferable if the sentencing judge had identified the notional sentences she was utilising for each of the cultivating and trafficking offences at Linden Park, her failure to do so does not amount to an error in the sentencing process.  A consideration of the overall approach taken by the sentencing judge makes it tolerably clear that she grouped the Linden Park offences as a common discount applied to those offences and that she used a starting point for the cultivation offence of something in the vicinity of four and a half years.  This is apparent from the notional sentences for cultivating a large commercial quantity of cannabis for sale at Salisbury Heights and Flinders Park, and the notional sentence for cultivating a commercial quantity of cannabis for sale at Beulah Park.  At Salisbury Heights, the sentencing judge imposed a notional head sentence of imprisonment for four years for offences including cultivating a large commercial quantity of cannabis for sale namely 109 plants), and at Flinders Park the sentencing judge imposed a notional head sentence of imprisonment for five years for offences including cultivating a large commercial quantity of cannabis for sale namely 268 plants.  It can be assumed that the ancillary offences of possessing prescribed equipment and diverting electricity were subsumed within the notional head sentences for the cultivating offences.  In respect of the Beulah Park offending, the sentencing judge imposed a notional head sentence of imprisonment for three years and six months for offences including cultivating a commercial quantity of cannabis for sale namely 80 plants.  Accordingly, we reject Hai’s submission that little assistance can be gained by undertaking this analysis on the basis that the other three groups of offences involved cultivating cannabis crops of varying sizes and condition.  In our view, given the other notional head sentence adopted by the sentencing judge, an extrapolation of the likely head sentence utilised for the cultivation and trafficking offences in Linden Park can be undertaken.  That exercise suggests that the sentencing judge utilised a notional head sentence for the cultivation offence of four and a half years and a notional head sentence for the trafficking offence of four years.  There is no basis to consider that Hai received a manifestly excessive sentence for the trafficking offence in these circumstances. 

1. Lovell and Bleby JJA recently rejected a similar submission in Cuong v The Queen:[75]

   [I]t is not helpful, in our view, to identify a ‘starting point’ of 18 years imprisonment in the present matter with a view to making a comparison with the maximum penalties from which to launch a complaint of manifest excess.  The sentencing judge did not identify 18 years as a starting point.  Neither, in our view, can it be inferred that he did so.  The figure represents the sum of the four individual starting points that the judge identified.  However, as Livesey JA has recounted, the judge imposed a degree of concurrency in respect of the first two trafficking offences, and then in respect of the third trafficking offence and the money laundering offence.  The judge’s methodology never touched on a period of 18 years.

   Insofar as any starting point is relevant to assessing the appropriateness of a sentence structured in this way, that is, as a ‘critical step’ in arriving at the ultimate sentence, in our view the relevant starting points in this case are the separate starting points imposed in respect of each offence.  These provide the points of comparison contemplated by the Court in Camarinha.  By contrast, the period of 18 years in the present case is a construct only, not a starting point adopted by the sentencing judge.  It was open to the judge, as part of the process of instinctive synthesis, to identify the accumulation of 18 years as a reference point.  It would not have been an error to do so.  For the reasons that follow, the utility of that reference point for the purposes of the appeal would depend on the steps he then took.

   The degree of utility in accumulating the sentences and using that accumulation as a starting point in a given case will depend on the role of that consequent starting point in fashioning the ultimate sentence.  A starting point for an offence or group of offences will always provide some insight into the risk of excess or inadequacy on account of the direct comparability with the maximum available penalty, and, to a degree, comparable cases.  However, the acuteness of the comparison may be lessened if that starting point is then compromised by the orders of concurrency with other penalties with other starting points.  That does not mean it becomes irrelevant.  It just means that its impact on the final sentence must be considered in its context.

   [75]   Cuong v The Queen [2021] SASCA 89 at [6]-[8] (Lovell and Bleby JJA).

2. The appellant sought to distinguish Cuong v The Queen on the basis that, unlike the sentencing Judge in that case, the sentencing Judge in the present case made express reference to the aggregate notional sentence.  But I do not accept that this detracts from applicability of the reasoning in Cuong v The Queen.  The 16 years and two days imprisonment mentioned by the sentencing Judge was not a starting point in the relevant sense.  To the extent that it was a reference point in the process utilised by the Judge, the Judge’s decision to allow a significant degree of concurrency rather than accumulating the individual sentences means that it is of limited assistance in considering the appellant’s complaint of manifest excess.

3. In considering the complaint of manifest excess in the present case, the focus must be upon the individual notional head sentences identified by the sentencing Judge, and the proportionality of the ultimate sentence.  While I accept that those individual sentences (including the sentence indicated in respect of the Angle Park trafficking offence), and the ultimate sentence, may be described as heavy, for essentially the same reasons as I have given in relation to the appellant Mr Hai Nguyen’s complaint of manifest excess, I do not accept that the sentence was manifestly excessive. 

4. I would reject the appellant’s complaint of manifest excess.

   Ground 2:   maximum reduction for guilty pleas

5. As reflected in the table of sentences appearing at the outset of the joint reasons of Livesey P and Stanley AJA, the sentencing Judge proceeded on the basis that, in respect of each of his offences, Mr Tran was entitled to a maximum reduction in his sentence for his guilty pleas of 20 per cent. Her Honour held that this was the applicable maximum under the version of s 40 of the Sentencing Act in force at the relevant time (as set out in the joint reasons).

6. The appellant contends that the sentencing Judge erred in not accepting that the applicable maximum reduction was 30 per cent by reason of the combined operation of s 40(3)(b) (which makes that maximum available in respect of pleas entered on the day of, or before, “the defendant’s committal appearance in relation to the relevant offence or offences”) and s 40(4)(b)(v) (which empowers the Court to extend the availability of that maximum in circumstances where “the prosecution was, for any reason outside the control of the defendant, unable to finalise negotiations with the defendant in relation to the plea during that period”).

7. The relevant procedural history in relation to the appellant’s pleas, and key aspects of the legislative regime governing those procedures (ss 106 to 113 of the Criminal Procedure Act 1921 (SA)), are summarised in the joint reasons and need not be repeated.

8. As explained by Livesey P and Stanley AJA, and accepted by the parties, the potential availability of the 30 per cent maximum in the present case turned upon acceptance that the hearing on 31 July 2020 was the appellant’s committal appearance in relation to the relevant offences for the purposes of s 40(3)(b) of the Sentencing Act.[76]  The respondent contends that the 30 per cent maximum was not available because the hearing on 8 May 2020 was the defendant’s committal appearance in relation to those offences.

   [76] Noting that pursuant to s 40(8) of the Sentencing Act, “committal appearance” has the same meaning as in s 109 of the Criminal Procedure Act 1921 (SA).

9. I agree with their Honours’ conclusion that the hearing on 31 July 2020 was not the appellant’s committal appearance in relation to the relevant offences for the purposes of s 109 of the Criminal Procedure Act and s 40(3)(b) of the Sentencing Act.  The committal appearance occurred on 8 May 2020.  My reasons for this conclusion follow.

10. Part 5 (Indictable Offences) of the Criminal Procedure Act draws a clear distinction between the pre-committal hearings (addressed in Division 2 of Part 5) and the committal proceedings (addressed in Division 3 of Part 5).

11. The provisions of Division 2 contemplate that the pre-committal hearings will consist of a first appearance and a second appearance.  They contemplate that, at or before the first appearance, the defendant will be provided with certain material (essentially, a copy of the information setting out the offences with which the defendant has been charged, a brief description of the alleged offending, and notice of certain procedural matters) (ss 105(1) and (2)); and that at the first appearance the matter will then be adjourned to the second appearance, after allowing sufficient time for the prosecution to take the steps necessary prior to that second appearance (including for the SA Police to provide the Director of Public Prosecutions with the preliminary brief and for the Director to make a charge determination) (ss 105(5) and 106(1)).

12. The provisions of Division 2 also contemplate that in circumstances where the Director has not made the charge determination by the time of the defendant’s second appearance, the prosecution may make, and the Court may grant, an application for an adjournment of the matter to permit the prosecution to complete the preliminary brief and make a charge determination (ss 106(2) and (3)). Any subsequent hearing(s) as a result of such an adjournment remain part of the pre-committal hearings. The Magistrates Court must not commence the committal proceedings under Division 3 unless it has been advised by the prosecution that the Director has made the charge determination (s 106(1)(e)).

13. Upon the Magistrates Court being advised of the charge determination, the matter may progress to the committal proceedings. The provisions of Division 3 contemplate that the committal proceedings for an indictable offence will consist of “an appearance (the committal appearance)” and “a hearing (the answer charge hearing)” (s 109(1)).

14. The provisions of Division 3 contemplate that the committal appearance will be conducted in accordance with s 110. If the defendant pleads guilty at the committal appearance, no answer charge hearing will be required, and the Court may[77] either sentence the defendant, or commit the defendant to a superior court for sentence (s 110(1)).  If the defendant does not plead guilty, then: (a) the prosecution must provide the Court with information as to the witness statements and other material to be obtained to complete the committal brief; (b) the defendant must be given an opportunity to respond to the information provided by the prosecution, to advise the Court whether any negotiations are taking place, and to provide the Court with information as to any other relevant matter; and (c) the Court must adjourn the proceedings to an answer charge hearing, ensuring sufficient time for completion of the committal brief (ss 110(2)(a), (b) and (c)).  Importantly, if the defendant advises the Court during the committal appearance that negotiations with the prosecution are taking place, the defendant may, at any time within the period of four weeks after the committal appearance, have the matter called on for the purposes of entering a guilty plea.  In that event, the defendant will, for the purposes of the Criminal Procedure Act and the sentencing law,[78] be treated as if he or she had pleaded guilty at the committal appearance (s 110(3)).

    [77] Subject to s 116(1) of the Criminal Procedure Act.

    [78] Which is defined in s 4 of the Criminal Procedure Act to include the Sentencing Act, and hence would include s 40 of that Act.

15. The conduct of the answer charge hearing is governed by s 113.  In a case where the defendant appears, the charge will be read and the defendant will be asked how he or she pleads to it (s 113(2)).  If the defendant pleads guilty, then the Court may[79] either sentence the defendant or commit the defendant to a superior court for sentence (ss 113(2)(b)(i) and (2)(c)(i)).  If the defendant denies the charge, the Court will consider the evidence for the purposes of determining whether it is sufficient to put the defendant on trial for an offence (ss 113(2)(b)(ii) and (2)(c)(ii)); unless the defendant concedes there is a case to answer, in which case the Court may act on that concession without considering the sufficiency of the evidence for itself (s 113(3)).[80]

    [79] Again, subject to s 116(1) of the Criminal Procedure Act.

    [80]   Section 113 also deals with the circumstances in which a defendant asserts previous conviction or acquittal of the charge, or refuses or fails to plead to the charge.

16. The procedure governing the taking and evaluation of evidence at the committal proceedings is governed by ss 114 and 115.  It is not necessary to address the detail of these provisions.

17. As mentioned, the issue raised by the appellant’s submissions is whether the 31 July 2020 hearing was “a” or “the” committal appearance for the purposes of s 109 of the Criminal Procedure Act (and hence s 40(3)(b) of the Sentencing Act). 

18. While the terms of the Magistrates Court record suggest that the hearing on 31 July 2020 was an answer charge hearing, the description of the hearing in that document is not determinative of the issue. Rather, the issue must be determined by reference to the provisions of Division 3 of Part 5 of the Criminal Procedure Act, and the objective characterisation of the hearing in that context.  However, insofar as the Court record casts light on what occurred at the relevant hearing, it may inform the proper characterisation of that hearing.

19. In undertaking the characterisation of a hearing that occurs in the course of committal proceedings, and in particular in determining whether it was a committal appearance, several features of the provisions within Division 3 are noteworthy.

20. First, it is significant that the provisions of Division 3 are directed towards the committal proceedings in relation to individual offences. They are not directed towards a committal proceeding in respect of all of the offences appearing within a particular information, in respect of all of the offences with which the defendant has been charged, or in respect of a matter or defendant more generally. As such, a given hearing may take on a different character in relation to different offences. This may occur where a new charge is added to an information, or a fresh information is laid, during the course of the proceedings

21. Secondly, and as already mentioned, the committal proceedings (and hence the committal appearance) cannot commence until the Court has been advised of the charge determination in respect of the relevant offence(s).  As a corollary of this, it seems to me that the committal proceedings, and in particular the committal appearance, may commence at any point following the Court being advised of that charge determination.

22. Thirdly, the terms of s 110 contemplate that the committal appearance will conclude when proceedings are adjourned to an answer charge hearing. The textual support for this is two-fold. First, the structure and content of ss 110(2)(a), (b) and (c) suggest that the Court will adjourn the matter to the answer charge hearing once the other matters that it is contemplated will occur at the committal appearance (that is, the prosecution providing information as to the steps and timing involved in completing the committal brief, and the defendant having an opportunity to respond and advise the Court as to any negotiations or other relevant matter) have occurred. Secondly, the terms of s 110(3) (which provide for a plea entered up to four weeks after the committal appearance to be treated as if it occurred at the committal appearance) are also premised upon the committal appearance having concluded upon the proceedings being adjourned to an answer charge date, and are intended to address the potential unfairness that this might cause a defendant where that occurs without him or her having had a proper opportunity to pursue negotiations in relation to the relevant charge(s).

23. It seems to me that the provisions of Division 3 contemplate that there will ordinarily be one committal appearance in relation to a particular offence. However, I see no textual difficulty in catering for the possibility of more than one such appearance in the circumstances where an appearance that was intended to be a committal appearance does not fulfil its contemplated function; for example, if it turns out that the anticipated charge determination has not been made by the date upon which the committal appearance is listed, then s 106(1)(e) would prevent the Court embarking upon the committal appearance. Alternatively, if, for whatever other reason, the parties are not ready to proceed with the committal appearance on that date, I see no difficulty with the committal appearance being adjourned to another date. Further, I see no difficulty with that occurring even after the Court has embarked upon a committal appearance. For example, in circumstances where either the prosecution or defendant is not able to provide the Court with the information contemplated by ss 110(2)(a) and (b), the Court might adjourn the matter to a future date for a further or continued committal appearance, rather than adjourning the matter to an answer charge hearing. Whether that might be better described as adjourning the (one) committal appearance for its continuation on the adjourned date, or as adjourning the matter to a second committal appearance, does not much matter. However it might be described, I accept that there may be more than one appearance in respect of a particular offence that may be properly characterised as a committal appearance in respect of that offence.

24. While accepting the possibility of more than one committal appearance in the sense and circumstances mentioned in the preceding paragraph, I would emphasise that this is not to accept the full implications of the approach to the provisions of Division 3 contended for by the appellant in the present matter. I have accepted that a Magistrate might, at the time of a hearing intended to be a committal appearance, adjourn the matter for a further or continued committal appearance at a later date. In other words, I have accepted that a Magistrate might make a contemporaneous decision not to conclude the committal appearance by adjourning the matter to an answer charge hearing. However, my acceptance of this possibility is not intended to cut across my earlier stated view that the committal appearance concludes with the adjournment of the committal proceedings to an answer charge date. If the Magistrate does adjourn the matter an answer charge date, then that brings about the conclusion of the committal appearance. While the defendant might (under s 110(3)) be able to avail himself or herself of the fiction that a later entered plea was entered at the committal appearance, I do not accept that the provisions of Division 3 permit the retrospective characterisation of a subsequent hearing as a committal appearance.

25. To expand upon the point just made, the appellant in the present matter contends that even if a Magistrate were to adjourn the committal proceedings to an answer charge date, the content of what occurs at that adjourned hearing might warrant its characterisation as a further or continued committal appearance.  In particular, if, upon the adjourned date, the committal brief has not been completed, and further information is provided by the prosecution as to when it might be completed, the appellant’s submission is that the hearing is one that conforms to the intended substance of a committal appearance, and hence ought to be characterised as such.  I do not accept this submission.  In my view, even though such a hearing may not achieve what is intended of an answer charge hearing, and the Court may simply adjourn the matter to a further (or continued) answer charge hearing at some future date, that is not a sufficient basis for characterising it as a further or continued committal appearance.

26. Applying my construction of Division 3 in order to characterise the relevant court attendances in the present matter, I am satisfied that the 8 May 2020 hearing was a committal appearance, but that the 31 July 2020 hearing was not a committal appearance.

27. Consistently with the Court record, the parties accept that at the 8 May 2020 hearing the Court was advised that a charge determination had been made.  At that point, the charges against the appellant Mr Tran were spread over five separate informations, but there is no dispute that there had been a charge determination in respect of each of the offences, such that the committal proceedings, and in particular the committal appearance, could commence in respect of each of those offences on 8 May 2020.

28. Further, while the material before this Court does not reveal precisely what occurred at the hearing on 8 May 2020, it is nevertheless apparent that the Court not only embarked upon the committal appearance in respect of each of those offences but also that it concluded the committal appearance.  That follows from the fact that, according to the Court record in respect of each of the informations, the committal proceedings were adjourned to an answer charge hearing.  There is no suggestion, in the Court record or otherwise, that the Magistrate adjourned the proceedings to a further or continued committal appearance.  As such, the committal appearance occurred, and concluded, on 8 May 2020.

29. On 21 July 2020, and hence prior to the hearing on 31 July 2020, the prosecution filed a fresh information that involved a consolidation in the one new information of all of the offences with which the appellant Mr Tran had previously been charged across five informations.  While the new information alleged, for the first time, that these offences had been committed jointly (with various combinations of the appellants in this appeal), there was no change in the substance of the allegations.  They were the same offences in respect of which there had been a committal appearance back on 8 May 2020.  The filing of the new information did not require, or result in, a re-setting of the procedural clock in respect of any of the offences with which Mr Tran was charged.  The filing of the new information was not a necessary barrier to the answer charge hearing occurring, and a fortiori did not provide any basis for retrospectively recharacterising what had occurred on 8 May 2020.

1. The position in relation to the offences charged against Mr Tran may be contrasted with the position in relation to count 36 on the new information. That count involved an entirely new charge, in respect of a new location (Renown Park), against Mr Thanh Nguyen. There not having been a previous committal appearance, or indeed any appearance, in respect of that offence, the next hearing might, at least for the purposes of s 40 of the Sentencing Act, be properly treated as both “the defendant’s first court appearance” (for the purposes of s 40(3)(a) of the Sentencing Act) and “the defendant’s committal appearance” (for the purposes of s 40(3)(b) of the Sentencing Act) in relation to that offence.  While that would produce the potential inconsistency of two different maximum reductions for a guilty plea being available at the same time, I see no difficulty in this being resolved in favour of the availability of the higher of the two available maximum reductions.

2. Returning to the position of the appellant Mr Tran, and the hearing that then occurred on 31 July 2020 in respect of the offences that were by then the subject of the new information, the Court record for that hearing identified the counts relating to Mr Tran, noted that no plea was entered, and then included the following endorsement:

   DPP seeks adj’t to October in order to finalise negotiations which have commenced.
   There is still a substantial volume of material outstanding, including E-crime analysis.
   DPP adj’t application granted.
   To answer the charge.

3. It is apparent from this endorsement that the hearing on 31 July 2020 did not fulfil the objectives of an answer charge hearing.  The committal brief had not been completed, and Mr Tran was thus not read the charges against him and was not asked to enter a plea.  Insofar as the hearing involved consideration of how long might be required to complete the committal brief, and resulted in an adjournment to a further answer charge date, it may be said (as counsel for Mr Tran submitted) that it resembled a committal appearance.  Be that as it may, I do not think that it was in fact the, or a, committal appearance.  Rather, it was simply a failed or incomplete answer charge hearing that resulted in the proceedings being adjourned to a further or continued answer charge hearing.

4. Based upon the above summary of the committal proceedings for the offences to which Mr Tran ultimately pleaded guilty, I do not accept that the sentencing Judge erred in sentencing him on the basis that the maximum reduction available for those guilty pleas was 20 per cent rather than 30 per cent. The committal appearance for the relevant offences occurred and concluded on 8 May 2020. As Mr Tran did not enter his plea by that date, he was not entitled to a maximum reduction of 30 per cent under s 40(3)(b). Further, as there were no negotiations with the Director on foot at that point in time, there was no scope for Mr Tran to avail himself of that maximum reduction through the operation of s 110(3) of the Criminal Procedure Act or s 40(4)(b)(v) of the Sentencing Act.

5. For the reason set out, Ground 2 has not been made out.

   Thanh Chi Nguyen’s appeal

6. Thanh Chi Nguyen relies upon two grounds of appeal, namely:

   ·that his sentence was manifestly excessive (Ground 4); and

   ·that the sentencing Judge erred in holding that the maximum reduction available to the appellant pursuant to s 40 of the Sentencing Act on account of his pleas of guilty in respect of his Modbury Heights and Gulfview Heights offending was 20 per cent (Ground 2).

7. For the reasons given by Livesey P and Stanley AJA, I reject Mr Thanh Nguyen’s complaint of manifest excess.

8. For the reasons I have given in the context of Mr Tran’s equivalent complaint, I reject Mr Thanh Nguyen’s complaint in relation to the reduction he received on account of his pleas of guilty. The committal hearing in respect of Mr Thanh Nguyen’s offending occurred and concluded on 8 May 2020, when the proceedings were adjourned to an answer charge hearing on 31 July 2020.

9. I would thus dismiss Mr Thanh Nguyen’s appeal.

   Conclusion

10. The only ground of appeal in respect of which there has not already been a grant of permission to appeal is Ground 3 of Mr Hai Nguyen’s appeal.  I would grant permission to appeal in respect of that ground.  I would revoke permission to appeal on Ground 1 of Mr Thanh Nguyen’s appeal.

11. I would dismiss the appeals by all three appellants.