Hilfy v The Queen - [2020] SASCFC 72

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
HILFY v THE QUEEN
[2020] SASCFC 72
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Nicholson)
31 July 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - PRODUCING OR CULTIVATING - CANNABIS
Appeal against sentence.
The appellant pleaded guilty to one count of trafficking in a controlled drug and one count of cultivating a commercial quantity of controlled plants contrary to subsections 32(3) and 33B(2) of the Controlled Substances Act 1984 (SA) respectively. On 17 January 2018, police located a cannabis hydroponic grow operation in the appellant’s premises, consisting of 21 plants of varying stages of maturity, along with 16.63 grams of methylamphetamine. The appellant, after initially stating the cannabis operation was her own, later told police that her then partner, RM, whom she believed to be a senior member in Adelaide of an outlaw motorcycle gang, had set up the cannabis operation. Upon RM leaving the country in 2017, the appellant claimed that she continued to conduct the operation out of fear and hope that RM would return. The appellant was sentenced to a single penalty of four years and 10 months imprisonment with a non-parole period of two years and five months.
The three grounds of appeal were: (1) the sentence is manifestly excessive; (2) the Judge erred in not suspending the term of imprisonment; (3) the Judge erred in not imposing a home detention sentence. The appellant raised four additional complaints as both individual process errors and as contributors to ground 1: (4) the Judge erred in not sentencing on the basis that the applicant had little choice but to go along with the set up and maintenance of the cannabis cultivation; (5) the Judge erred in rejecting that the cannabis cultivation was established in a house where both the appellant and RM resided and that there was a marked power disparity between the two; (6) the Judge failed to take into account the appellant’s youth, disadvantaged background, minimal antecedents and prospects of rehabilitation; and (7) the Judge erred in not making the sentences wholly concurrent.
Held per Nicholson J (Peek J and Stanley J agreeing) dismissing the appeal:
1. The Judge did not err in his decision to apply partial concurrency.
2. The single penalty for the two offences imposed was not unreasonable or plainly unjust.
3. The Judge’s decision not to suspend was not unreasonable or plainly unjust, nor was any process error identified in the Judge’s exercise of the discretion not to suspend.
4. The Judge was not bound by the prosecution’s concession to grant home detention. In the absence of any specific error having been shown, it cannot be said that the decision not to permit home detention was unreasonable or plainly unjust such that it must have been affected by undisclosed error.
5. Permission to appeal allowed but the appeal dismissed.
Controlled Substances Act 1984 (SA) s 32, s 33B; Sentencing Act 2017 (SA) s 26, referred to.
Palaj v The Queen [2020] SASCFC 8; R v Olbrich (1999) 199 CLR 270; R v Haydon (2001) 80 SASR 560; R v Lobban (2001) 80 SASR 550; House v The King (1936) 55 CLR 499; R v Lutze (2014) 121 SASR 144; R v Copeland (No 2) (2010) 108 SASR 398; R v Belczacki (2012) 112 SASR 95; R v Bagnato (2011) 112 SASR 39; R v Kartinyeri [2016] SASCFC 20; Markarian v The Queen (2005) 228 CLR 357; R v Scarpantoni [2013] SASCFC 120; R v Morse (1979) 23 SASR 98; Hili v The Queen (2010) 242 CLR 520; R v Young (2016) 126 SASR 41; DL v The Queen (2018) 265 CLR 215; Phillipou v The Queen [2020] SASCFC 21; R v Filipponi (2016) 126 SASR 464; R v Horstman (2010) 269 LSJS 42; Attorney-General v Tichy (1982) 30 SASR 84, discussed.

HILFY v THE QUEEN
[2020] SASCFC 72
Court of Criminal Appeal: Peek, Stanley and Nicholson JJ

PEEK J: I agree with the orders proposed by Nicholson J and with his reasons.
STANLEY J: I agree with the orders proposed by Nicholson J and with his reasons.
NICHOLSON J.
Introduction
On 9 August 2019, the day before a trial was due to commence in the District Court, Sabreen Hilfy pleaded guilty to one count of trafficking in a controlled drug[1] (methylamphetamine) and one count of cultivating a commercial quantity of controlled plants for sale[2] (21 cannabis plants). On 29 January 2020, the sentencing Judge imposed a single penalty for both offences[3] of imprisonment for four years and 10 months with a moderate non-parole period of two years and five months to commence on the day of sentencing, 29 January 2020.
[1] Contrary to subsection 32(3) of the Controlled Substances Act 1984 (SA), with respect to which the maximum penalty in the circumstances of this matter is a fine of $50,000 or imprisonment for 10 years or both.
[2] Contrary to subsection 33B(2) of the Controlled Substances Act 1984 (SA), with respect to which the maximum penalty in the circumstances of this matter is a fine of $200,000 or imprisonment for 25 years.
[3] Pursuant to section 26 of the Sentencing Act 2017 (SA).
The Judge explained how he had arrived at the single penalty. His Honour indicated notional starting sentences of imprisonment for four years for each offence and then reduced each starting point to three years, seven months and six days by applying discounts of 10 per cent for the late pleas. The Judge then indicated that partial concurrency was notionally warranted to the extent that the single penalty imposed was a sentence of imprisonment for four years and 10 months.
The applicant has raised the following grounds of appeal against sentence.
1.The sentence is, in all the circumstances, manifestly excessive.
2.The learned sentencing Judge erred in not suspending the sentence.
3.In the alternative, the learned sentencing Judge erred in not imposing a home detention sentence.
During argument, counsel for the applicant identified four other specific complaints about the Judge’s reasons that were not referred to in the notice of appeal. It was contended that these were reasons why the Judge arrived at a sentence that was manifestly excessive but also constituted separate errors of reasoning each of which should lead to the sentence being set aside and the applicant resentenced. Those four complaints are as follows.
4.The Judge failed to sentence on the basis that the applicant had little choice but to go along with the set up and maintenance of the cannabis cultivation in circumstances that were not contested by the prosecution.
5.The Judge sentenced on the basis that, “It obviously could not have occurred without your provision of the premises and your residential cover for its operation”, when there was no basis for rejecting the submission that the cannabis cultivation was established in a house where both she and her then partner, RM, resided; and there was a marked disparity between the two parties to the relationship.
6.The Judge failed to take into account the applicant’s youth, disadvantaged background, minimal antecedents and prospects of rehabilitation.
7.The Judge erred in not making the sentence for the two lots of offending wholly concurrent.
The approach to be observed by an appellate court on an appeal against sentence was explained by Kourakis J (as he then was) in R v Horstmann.[4]
On an appeal against sentence, the Court of Criminal Appeal has no power to set aside or vary that sentence unless it is satisfied that the sentence is affected by an error of the type identified in House v The King: a failure to take into account relevant matters; having regard to irrelevant matters; or unreasonableness (manifest excess or inadequacy). I shall refer to the first two errors as process errors and the last as an outcome error. Where either a process error or an outcome error has been made, the Court of Criminal Appeal may interfere.
Plainly enough, in the case of an outcome error it is implicit in a finding of manifest excess or inadequacy that the Court of Criminal Appeal has formed the view that a different sentence should have been passed and it will vary the sentence accordingly.
In the case of a process error, the Court of Criminal Appeal may yet refrain from interfering with the sentence if it thinks that the resulting penalty was appropriate notwithstanding the demonstrated error. In such a case, the Court of Criminal Appeal will not vary the sentence if it thinks that the same or a higher sentence would be passed if it were to exercise the discretion itself. However, where a process error is demonstrated, the Court of Criminal Appeal may reduce the sentence if in the exercise of its own discretion it considers that a lesser sentence is appropriate, even though the sentence under appeal is not manifestly excessive.
(Emphasis in original)
(Footnotes omitted)
Appeal grounds 1 to 3 assert “outcome” errors and complaints 4 to 7 assert “process” errors.
[4] [2010] SASC 103; (2010) 269 LSJS 42 at [36]-[38].
The factual basis of the offending
On 17 January 2018, police searched the house which the applicant was renting and where she was living. They found what the Judge accurately described as a “well-organised” and “fully professional” cannabis grow house. The Judge described the operation in these terms.
Entire rooms were lined with plastic sheeting and there was dedicated electricity that had been installed in each room with its own junction box and multiple transformers. There was dedicated lighting, hydroponic irrigation and a lot of equipment dedicated to the cultivation of the plants in question.[5]
[5] Initially the applicant also had been charged with diverting electricity and possessing prescribed equipment but nolle prosequies were entered when she pleaded guilty to the two drug offences. The Judge made it clear that whilst these matters were indicative of the sophistication of the venture, the applicant was not to be punished for these offences.
The grow house contained 21 plants: three large healthy plants, approximately 1.5 metres to 1.8 metres tall, although not ready for harvesting, in bedroom 2; and six healthy plants of similar size, also not ready for harvesting, and 12 small plants in bedroom 3. The 12 small plants were in good condition and, as the Judge observed, were intended to produce a second crop some time after maturation and harvesting of the nine large plants.
In reliance on the expert evidence provided, the Judge estimated the value of the crops from the 21 plants if they remained healthy and were harvested at maturation to be of the order of $126,000 “at street level” (3 gram money bags). On the evidence, the commercial return to those involved in the enterprise would be considerably less if sold in one pound lots but still very substantial. His Honour noted that there remained a number of variables which could affect the final yields and profit available to those involved.
At some undetermined time prior to the police attendance, the applicant had commenced to trade in methylamphetamine. The Judge was told that she had been doing so for about two weeks and this was not challenged by the prosecution and does not appear to have been rejected by the Judge. The applicant was found in possession of 16.63 grams of substances, being three amounts of 5.49, 2.76 and 8.38 grams respectively, which in total contained 9.12 grams of methylamphetamine, that is approximately 55 per cent purity. On the available expert evidence, the Judge assessed the value of the methylamphetamine, if sold as street deals (0.1 grams), to be as high as $8,000.
The Judge accepted the applicant’s submission that she sold in single gram amounts which his Honour inferred would have been to either street level dealers or direct to “users and addicts”. As such, his Honour characterised the applicant as a “standard street-level dealer trafficking for profit and to get drugs for [herself]”. The Judge made the following findings to which there has been no objection.
[The applicant was] selling the drug on an ongoing basis for both profit and to support [her] own drug use. There is no suggestion that [she was] under any pressure or even encouragement to undertake that conduct. It was done solely for personal gain, both in terms of money and drugs.
The Judge also went on to observe as follows:
Further, you are only to be penalised for the conduct for which you have been charged, but in each case the offending was part of an ongoing course of conduct rendering unavailable any submission that it was isolated or out of character.
As far as the trafficking charge is concerned, the fact that the possession of the 16.63 grams for sale was not an isolated infraction was admitted. As far as the cultivation offence is concerned, the fact that the plants were at different stages of maturity such there would be at least two crops separated by time did not render the cultivation of the 21 plants as other than an isolated offence of its kind. Further, the fact that the sophistication of the enterprise strongly suggested future plantings were intended also cannot support a finding that the actual offending committed was not isolated.[6] Nevertheless, in an affidavit affirmed by the applicant on 19 January 2020 and read as her evidence before the sentencing Judge, the applicant made a number of admissions from which a course of conduct was to be inferred, including:
(i)that prior to her then partner, RM, going overseas “around the middle of 2017” he set up the marijuana operation in the applicant’s house;
(ii)that when he went overseas the applicant was told to look after the operation;
(iii)that as at or about late 2017 (some two months or so before the police raid) and even though RM had become involved with another woman, she decided to “keep looking after the marijuana …”;
(iv)that whilst she did not get money from the “marijuana operation”, she did get “free marijuana for [her] to use”; and
(v)that friends of RM would visit the house relatively regularly to plant more plants and harvest marijuana.
[6] See the discussion in Palaj v The Queen [2020] SASCFC 8 at [17]-[20].
The factual basis on which the applicant was sentenced for trafficking in methylamphetamine was relatively straightforward. However, the factual basis on which she came to be sentenced for the cultivation offence is a little more complex. When first apprehended and for some time thereafter, the applicant expressed sole responsibility for the cannabis operation found in her rental house and for the methylamphetamine trafficking. The applicant did not depart from this position as far as the methylamphetamine is concerned. However, after pleading guilty to the two offences on the day before her trial was listed to commence, the applicant changed her position with respect to the cannabis cultivation and through her counsel told the Judge that she had made her house available to and was looking after the operation at the request of and on behalf of her then domestic partner, RM.
The Judge indicated that he was not prepared to accept the applicant’s counsel’s submissions in a number of respects but that it was a matter for the applicant as to whether or not she might wish to give evidence. The applicant thereupon affirmed and read the affidavit earlier referred to without objection from the prosecutor. She was not cross-examined on the affidavit. In addition, an affidavit from a police officer was read by the prosecution. The police officer had investigated and verified some of the matters deposed to by the applicant including the existence of RM and that he was a senior member of the Comancheros in Adelaide. During sentencing submissions, the prosecutor advised the Judge as follows.
I’m not sure there is more I can add other than to confirm that prosecution are [sic] not disputing the affidavit that has been filed by [the applicant]. So we are content for your Honour to sentence on the factual basis as she asserts.
In her affidavit, the applicant deposed to, inter alia, the following matters.
(i)The applicant was living in the property by herself on the day of the offending.
(ii)Prior to the establishment of the cannabis operation, the applicant began a romantic relationship with RM whom she met whilst he was in gaol.
(iii)The applicant believed that RM was a member of the Comancheros outlaw motorcycle gang in Adelaide; RM had told the applicant he was the president.
(iv)After RM’s release on parole, they continued their romantic relationship but he started to become controlling of and violent towards the applicant.
(v)The applicant became scared for her safety; she understood that RM had been in gaol for threatening to shoot someone.[7]
(vi)The applicant allowed RM to establish the grow house because she was scared of him and that he would hurt her.
(vii)Friends of RM would come and take the marijuana and plant more plants.
(viii)Around the middle of 2017, RM went overseas to visit relatives; the applicant expected him to return.
(ix)The applicant continued to look after the marijuana as directed by RM because she was scared of him for herself and her family.
(x)Shortly after RM went overseas, the applicant received information that caused her to believe that he had married overseas and that his wife was pregnant.
(xi)The applicant was “heartbroken”. However, she continued to “keep looking after the marijuana to show RM that [she] was dedicated to him and still loved him”.
(xii)The applicant hoped RM would divorce his wife and come back to the applicant.
(xiii)RM’s friends kept coming to the house to plant and harvest. She was scared of his friends.
[7] Exhibited to the affidavit were sentencing remarks concerning when RM was imprisoned in 2010 for trafficking in methylamphetamine and in 2013 for aggravated threatening life.
Notwithstanding the prosecution concession concerning this evidence, the Judge formed a preliminary view as to aspects of the applicant’s evidence that he was disinclined to accept or to place much weight on, as his Honour was entitled to do, and advised counsel for the applicant, accordingly, during submissions.
Well, [counsel for the applicant], the impression is that I'm getting which I mention to you now in case you want to put further submissions or say anything further in response to it, is that I am likely to accept on balance that the cultivation was being conducted primarily by other people who had come to the house. It's likely that it was primarily set up through the electricity by others and those associated with [RM]. It's likely that she was the willing participant in that, given that she has, to all intents and purposes, rented the house and is solely responsible for that. Whatever fear or concern she may have had of [RM] on what is available in the evidence, to me, seems minor if at all. Firstly, there's no evidence of that. Secondly, there's the fact that she is devoted to him, not apparently scared of him, and is wanting to maintain a relationship with him despite lies, being cheated on, having someone go behind her back and marry someone else, have a child with them and indicate no likelihood of returning and she's still keen to assist [RM’s] associates to maintain this ongoing criminal enterprise solely for the purposes of maybe impressing him when he comes back so that he'll dump the new wife, dump the new child and come back to her. They are not the actions of a person who is scared or worried about or wanting to have nothing to do with [RM]. They're somebody who is completely deludedly devoted to him. So on balance I can accept that she was certainly not the prime mover in the cannabis but that she was a willing participant in renting the house and allowing it to be used for that. I am prepared to accept the submission that her role really was to provide the house, be there as the occupant of the house as a cover, if you will, but not take any other role in necessarily growing, harvesting or selling that drug. In relation to the methamphetamine, well, that's an enterprise entirely conducted by her for drugs and profit. So they're my thoughts … at this stage, still provisional because I'm just mentioning my provisional thinking for you so that if there's anything further you want to put you are most welcome to do so.
.. . .
I am prepared to accept that she knew about him and, therefore, knew of his potential to behave like that but her subsequent behaviour shows she was devoted to him. So I don't accept that she was scared of him in an active ongoing way, unless you want to call more evidence. I'm not suggesting you do or you don't, I'm just indicating that's my provisional position.

His Honour reiterated that view in his sentencing remarks.
When the matter came to submissions it became apparent that you were now claiming that your then partner and others with whom he was associated were primarily responsible for the cannabis operation. To a degree that was resolved between counsel after further investigations by SAPOL revealed that your partner was a member of a notorious motorcycle group and it was ultimately not contested by the prosecution that the cannabis operation, whilst facilitated by you in the provision of your house and in you residing and maintaining the house as a residential property while it was conducted, whilst receiving cannabis and the gratitude of your partner in return, you were not the sole operator or sole prime mover of the commercial cannabis operation. Rather, you were an integral part of the operation in providing your premises and the ostensible residential cover for the operation.
Submissions were made that you were aware of your partner's role as the president of a motorcycle group and that you felt a level of pressure to be involved in the matter and that you had been the victim of some domestic violence. You also said words to that effect in your tendered affidavit. You say in your affidavit you were scared for your safety and that if you did not let him cultivate cannabis at your address, he would hurt you.
There is no suggestion that he made any specific threat to you, there is no evidence gathered by police of any threats or duress, and indeed, your conduct both during his presence and subsequently when he left the country well prior to your apprehension, was to remain devoted and supportive of him.
That that is the case is particularly supported by the fact that after he left country to return to Iran, or somewhere similar, ultimately seemingly never to return, you became aware that he became engaged to and married another woman and commenced having children with her whilst all the while lying to you on an ongoing basis that that was not the case. Although you were soon aware they were lies, and there is no evidence that he had any plans to return to Australia, you continued to allow your property to be used in the absence of any threats and in his absence.
The applicant’s personal circumstances
The Judge outlined the applicant’s personal circumstances in some detail. His Honour had the benefit of a comprehensive psychological report prepared by Dr Lorraine Lim dated 20 October 2019. The applicant is very young; she was born in May 1997 and was 21 in August 2018 when she was arrested. She emigrated from Iran when she was four and had a very unhappy and emotionally and psychologically harmful upbringing and adolescence. During her early years this was largely because of her father’s drug addiction and violence towards her mother. However, after the applicant’s parents separated when she was 11, her mother did not cope well and the applicant continued to experience a very difficult and disrupted upbringing such that she was placed under the guardianship of the Minister for a time.
At 17, the applicant gave birth to a child. She was quite unprepared for motherhood and gave the child up for adoption. The applicant met the child and the foster mother in 2018 and has expressed the desire to have an increased level of involvement with the child in the future. The applicant left school in year 10 when she fell pregnant. She was never in a relationship with the father and her first serious relationship was with RM and started when she was 18. Since 2018, she has been in a relationship with her now fiancé who is helping the applicant with her drug abuse. According to the applicant, she has been abstinent since December 2018.
The applicant does have a prior criminal record which includes two minor dishonesty offences (when she was 17 and 18) and some driving offences but no prior drug offending.
The Judge summarised Dr Lim’s opinions as follows.
Dr Lim ascribes your offending in part to naivety and overwhelming infatuation with your ex-partner, although this must be limited to the cannabis offending. For the reasons earlier discussed, the court does not accept that you were in any fear of him. Although Dr Lim does not view drug abuse as the reason for your offending, Dr Lim concludes that you would likely meet the diagnostic criteria of cannabis, alcohol and amphetamine use disorders at the time.
On the basis of your history to her, Dr Lim thinks that among other things you are an immature, emotionally deprived and traumatised young woman in light of a number of factors including your childhood, observing your father's domestic violence and drug use and the subsequent issues with your mother. There is a possibility of PTSD which Dr Lim regards, however, as difficult to substantiate.
Dr Lim notes a range of acting-out behaviour such as extreme party and substance abuse, translating into an apparently blasé demeanour and attitude of false bravado. Dr Lim says you have an underdeveloped sense of self and low sense of self-esteem.
Dr Lim concludes that if you abstain from drug use and refrain from socialising with your past antisocial peers, you are at a low risk of reoffending. However, she also says it's difficult to gauge your prospects of rehabilitation given you have never engaged in psychological treatment in the past.
The above is just a summary. It does not fully explain the difficult and damaging childhood and adolescent years experienced by the applicant. That she ended up becoming involved with people like RM and his associates at such a young and impressionable age, sadly, is not at all surprising. The following paragraphs taken from Dr Lim’s report provide a broader context for the applicant’s offending and prospects for rehabilitation.
My clinical impressions of [the applicant] are that she remains an immature, emotionally deprived, and traumatised young woman, on the basis of her difficult and dysfunctional childhood, whereby she was repeatedly exposed to emotional neglect, domestic violence perpetrated by her father, his illicit drug use, and her mother's subsequent development of a severe mental illness with associated suicidal attempts. It is in this context that she had learnt to repress her negative emotions as her primary coping mechanism, whilst compensating for her psycho-emotional difficulties through a range of acting-out behaviours such as extreme partying and substance abuse. In turn, this often translates into an apparently blasé demeanour and/or an attitude of false bravado whenever she is faced with a situation that she finds confronting and anxiety-provoking. I believe [the applicant] has an underdeveloped sense of self and in turn, a low sense of self-esteem. She is also likely to be suffering from Posttraumatic Stress Disorder (PTSD). However, it is difficult to substantiate this diagnosis from a single assessment in this particular case, on account of her poor emotional literacy, which is defined by her lack of ability to recognise, verbalise, and manage a wide range of emotions constructively.
In my opinion, [the applicant] is currently at low risk of re-offending in a similar manner and will remain so as long as she continues to abstain from illicit drug use and refrains from socialising with her past antisocial peers. I do not believe that she is in possession of a severely dysfunctional personality structure but, there are some dominant borderline personality traits in her presentation which appear to predispose her to a fear of abandonment, especially by men. She does have a number of protective factors at present which are likely to militate against an elevation in her risk of recidivism in the foreseeable future. These include: her supportive relationships with members of her immediate family, her stable relationship with her current fiancé, her desire to be fully reunified in the longer-term with the son she gave up for adoption as a 17 year old, and her ongoing employment in her mother's shisha lounge, which is keeping her constructively employed.
However, [the applicant’s] psychological functioning remains a significant area of concern as I believe that it has the potential to exacerbate her risk of recidivism, if it remains unaddressed. Specifically, a deterioration in her mental state in the future may lead to a relapse onto substance abuse as an emotional coping strategy, and consequently, increase the likelihood of her making poor decisions, acting recklessly, and attract the attention of law enforcement authorities as a result.
It is difficult to gauge her prospects of rehabilitation given that [the applicant] has never engaged in psychological treatment in the past. She will need to learn to overcome her shame and embarrassment at discussing her difficulties openly with a mental health professional and accept their support, in order to prevent any further deterioration of her mental state and her general well-being.
Complaints 4 to 7 on appeal
I will consider the complaints in 4 to 7 identified in paragraph [6] above both as standalone errors of process and as contributors to the outcome error of manifest excess, as contended by the applicant.
The complaint in 4 is that the Judge should have, but did not, sentence on the basis that the applicant had little choice but to manage the cannabis operation in circumstances that were not contested by the prosecution. The contention is one of mitigation supporting leniency and had to be proved by the complainant on the balance of probabilities. The contention was not adopted by the Judge. It was open to his Honour to proceed in this way. The applicant’s own evidence demonstrated that she had a choice. Whilst her expressed fear of RM may have been a factor, it is clear from her evidence that her involvement both before and after RM left Australia was a direct result of their consensual relationship and that she wanted to please RM. The Judge was not persuaded that fear of RM and his associates was particularly influential in the applicant’s agreement to participate. It was open to his Honour to take this view on the evidence before him, notwithstanding that the prosecution did not challenge the affidavit evidence put forward by the applicant. The Judge provided the applicant fair notice of his concerns; he was not bound to adopt the prosecution stance.[8]
[8] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, R v Haydon [2001] SASC 407; (2001) 80 SASR 560 and R v Lobban [2001] SASC 392; (2001) 80 SASR 550.
The complaint in 5 appears to be a version or amplification of the complaint in 4. The Judge’s statement that “it [the cannabis cultivation] obviously could not have occurred without [the applicant’s] provision of the premises and [her] residential cover for its operation” is a correct statement. Further, the Judge’s finding that, at the time of her arrest, the applicant was the sole resident in the house was also open on the evidence. But whether or not this was the correct position is of little moment. The Judge was satisfied that RM was primarily responsible for the operation although the applicant performed an integral role and that she was a willing participant notwithstanding any power disparity in the relationship. His Honour had regard to the nature of the relationship between the complainant and RM. At best, the applicant has raised a complaint that the Judge placed insufficient weight on this factor (see the next paragraph).
The complaint in 6 is that the Judge failed to take into account the applicant’s youth, disadvantaged background, minimal antecedents and prospects of rehabilitation. This complaint is not supported by the terms of the Judge’s sentencing remarks. Each of the matters identified was referred to in the remarks. There was no failure to consider any of these matters. Again, like the complaint in 5, the applicant’s concern is really to the effect that the Judge placed insufficient weight on each of the matters in 6. A failure to place sufficient weight on a relevant matter is not a process error as recognised in House v The King.[9] At best, whether sufficient weight has been accorded to a relevant consideration might explain or contribute to a conclusion of manifest excess.
[9] [1936] HCA 40; (1936) 55 CLR 499, R v Lutze [2014] SASCFC 134; (2014) 121 SASR 144.
The complaint in 7 is that the Judge erred in not making the sentences for the two offences wholly concurrent. The Judge imposed a single penalty for the two offences pursuant to subsection 26(1) of the Sentencing Act 2017 (SA).[10] It is not an error of law for a sentencing Judge not to state notional sentences for each offence, provided the remarks adequately explain how the single penalty was arrived at.[11] However, in this case, the Judge identified notional sentences for each offence, and indicated the discounts for the pleas to be allowed and a level of concurrency to be allowed in order to arrive at the final single penalty.
[10] Subsection 26(1) provides:
If a person is to be sentenced by a court for a number of offences, the court may sentence the person to the 1 penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.
Subsection (2) provides for a qualification but one not material to this case.
[11] R v Copeland (No 2) [2010] SASCFC 61; (2010) 108 SASR 398.
Where individual sentences are stated, proper allowance for concurrency should be made.[12] Furthermore, the overall or final sentence must be within proper bounds.[13] Importantly, any appeal can only be against the single penalty imposed and not against any of the individual components.[14] However, and notwithstanding this, where a sentencing judicial officer exposes his or her reasoning in arriving at a single penalty, that reasoning is exposed to being critiqued.
[12] R v Belczacki [2012] SASCFC 4; (2012) 112 SASR 95.
[13] R v Bagnato [2011] SASCFC 161; (2011) 112 SASR 39.
[14] R v Kartinyeri [2016] SASCFC 20.
The matters to consider when deciding whether or not individual sentences should be served partially or wholly concurrently have been explored in the authorities many times. It is sufficient in this matter to refer only to the well known and accepted statement by Wells J in Attorney-General v Tichy.[15]
It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct … The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.
[15] (1982) 30 SASR 84 at 92-93.
Had the Judge ordered the two notional sentences of three years, seven months and six days to be served consecutively, the total period of imprisonment would have been seven years, two months and 12 days. However, his Honour reduced that to four years and 10 months. In effect, only one year, two months and 24 days of the second notional sentence of three years, seven months and six days (that is, 34 per cent) was to form part of the single penalty imposed.
When considering the question of concurrency with the assistance of the general observations of Wells J in Tichy, the starting point is that, as the Judge observed, the two offences were quite separate incursions into serious criminal conduct. This is so notwithstanding that both were drug related and commercially motivated in part. This lends support to accumulation or partial concurrency at best. On the assumption that each of the notional sentences was appropriate[16] an order for total concurrency almost certainly would have resulted in “the primary term … not adequately [reflecting] the aggravated nature of each important feature of the criminal conduct [as a whole]”.
[16] That is, that neither was itself manifestly excessive or too high because of some process error.
Of course, there were factors other than the notion of “separate incursions” which the Judge was required to take into account – including that both offences occurred at, and to a degree were a product of, broadly the same stage of life and circumstances for the applicant, including her very young age, her naivety, her involvement with RM and her drug dependency.
It would not have been appropriate for the Judge to reason on the basis of total concurrency. It was entirely open to his Honour to notionally apply partial concurrency. To allow concurrency as to two thirds of one of two equally large notional sentences, can be considered lenient.
None of the complaints in 4 to 7 are made out as process errors. I turn to the question whether the resultant sentence was, in all the circumstances, manifestly excessive.
Ground 1 – manifest excess
The question of whether or not a sentence is manifestly excessive is to be determined by asking whether, after considering all the circumstances relevant to sentencing, and notwithstanding that no specific error of reasoning may be apparent, the sentence imposed was unreasonable or plainly unjust.[17]
[17] House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505 and Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25].
Ordinarily, an appellate court when deciding the question of manifest excess will include in the factors to be considered: the maximum penalty for the relevant offence; the range of sentences customarily observed for the type of offence; the seriousness of the offence committed; and the personal circumstances of the offender.[18] The task for an appellate court (in the context of a consideration of the cognate notion of manifest inadequacy) was explained in more detail by the High Court in Hili v The Queen.[19]
As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.
(Footnotes omitted)
[18] R v Scarpantoni [2013] SASCFC 120 at [81], R v Morse (1979) 23 SASR 98 at 99.
[19] [2010] HCA 45; (2010) 242 CLR 520 at [59].

The applicant contends that each of the starting points of four years was significantly too high and that this together with the failure to apply full concurrency resulted in a sentence that was manifestly excessive.
I have already decided that it was open to the Judge to apply partial concurrency. In my view, the proportion allowed was appropriate and, if anything, lenient.
I am also satisfied that the starting point of four years for the trafficking offence was well within the range available to the Judge for this offence, as committed by this offender. The Judge correctly characterised the applicant as a “standard street-level dealer trafficking for profit and to get drugs for [herself]”. The applicant’s personal circumstances call for sympathy and some leniency. However, whilst another Judge may have started at a little less than four years it cannot be said that the Judge has started outside the guidance given by the Full Court in R v Young[20] for a street dealer motivated at least in part by profit, being imprisonment for four to seven years.
[20] [2016] SASCFC 102; (2016) 126 SASR 41 at [66].
I take a different view with respect to the starting point of four years for the cultivation offence. Here, the personal circumstances (principally the nature of the relationship with RM and his associates) are a little more compelling. This, together with the subservient role played by the applicant in the enterprise, the reward she expected – maintenance of her relationship with RM and her cannabis needs supplied – and her reasonable prospects for rehabilitation, in combination, mean that a starting point of four years was too high. A consideration of other sentences that have been passed for cultivating a prescribed quantity of plants, and bearing in mind the relatively low number (21) here and the applicant’s personal circumstances, suggests an appropriate starting point for an offence of this nature, committed in isolation, to be between two and three years. Of course, the cultivation offence committed by the applicant was not isolated but part of a course of conduct.
In any event, it is the single penalty of four years and 10 months which is to be reviewed for manifest excess. When regard is had to the 10 per cent discount, the effective single starting point was around five years and four months. Given that the trafficking offence justified a four year starting point it cannot be said that a total starting point of five years and four months for the two separate incursions into serious drug offending was outside the available range. As it happens, the leniency afforded the applicant on the issue of concurrency has neutralised the severity of the starting point for the cultivation offence.
Each of the offences was serious and attracted a very substantial maximum penalty. Trafficking in methylamphetamine is a scourge on society and occurs all too frequently. The hydroponic cultivation of relatively small numbers of cannabis plants in private houses is a common mode of operation by drug syndicates. The issue of general deterrence was a very significant consideration in this matter.
The single penalty for the two offences ultimately imposed was not unreasonable or plainly unjust. I would reject appeal ground 1.
Ground 2 – failure to suspend
The Judge refused to suspend the prison sentence imposed. His Honour said this:
The court turns to the issue of whether there is good reason to suspend that sentence. Unfortunately, your offending is too serious, involving as it does ongoing involvement in both a commercial cannabis operation and separate methamphetamine trafficking, the latter of which was conducted entirely by you such that notwithstanding the matters put on your behalf, there is not good reason to suspend that sentence. Accordingly, it will not be suspended.
The Judge adopted the correct (discretionary) test – was there “good reason” to suspend. His Honour referred to and weighed the undoubted seriousness of the offending as against the applicant’s personal circumstances and matters put in mitigation of the offending (“the matters put on your behalf”). It cannot be said that the decision not to suspend was unreasonable or plainly unjust[21] nor has the applicant pointed to any process error committed by the Judge in exercising the available discretion against suspension. Of significance was the fact that the applicant committed two separate incursions into drug offending, one that provided a direct commercial benefit to her and the other in which she was involved as an important participant in a commercial operation. Deterrence, particularly general deterrence is also an important consideration when considering suspension.
[21] House v The King [1936] HCA 40; (1936) 55 CLR 499.
Grounds 3 – failure to order home detention
The applicant received a favourable home detention report and home detention was not opposed by the prosecution. However, whether or not to make such an order remained within the discretion of the Judge. The Judge was not bound by the prosecution concession.[22] His Honour explained his decision to refuse to make such an order as follows.
The court turns to the issue of whether there are grounds to serve the sentence on home detention. The court has regard to everything put and tendered on your behalf and all the submissions of counsel on the issue of home detention, together with the home detention suitability report. The three preconditions for the availability of the discretion to make an order are satisfied.
In approaching the exercise of the discretion, the court has regard to the recent Supreme Court authorities on the topic, in particular, observations by Doyle J and the Chief Justice in a series of cases, which for brevity I do not set out.
At the end of the day, in the court's view, a home detention sentence would not provide sufficient either general or personal deterrence, nor would it represent adequate punishment for your offending. Accordingly, it's not appropriate to make an order that it be served on home detention. You have not spent any time in custody or on home detention. Accordingly, the sentence of the court, which is four years and 10 months imprisonment with a non-parole period of two years and five months, is to commence from today.
[22] DL v The Queen [2018] HCA 32; (2018) 265 CLR 215.
Again, no process error has been identified. Further, it is unusual and rarely warranted for a sentence of the duration in question to be served on home detention. In this respect, the applicant drew the Court’s attention to Phillipou v The Queen[23] where a sentence of two years and 10 months with a non-parole period of two years, three months and one week was allowed to be served on home detention. However, in Phillipou the offending was far less serious – one count of trafficking in a little over 3 grams of methylamphetamine. Again, in the present case, proper weight had to be placed on the fact of two serious and separate incursions.
[23] [2020] SASCFC 21.
Of more direct relevance are the observations of the Full Court in R v Filipponi.[24]
In the case of serious drug trafficking the demands of general deterrence and punishment are such that if these considerations have operated to preclude a suspended sentence then, in the ordinary case, it is unlikely that the purposes of sentencing will be met by imposing a home detention order.
On the other hand cases of trafficking which fall at the very lower end of the range of objective seriousness when combined with strong prospects of rehabilitation may attract a favourable exercise of the discretion.
[24] [2016] SASCFC 148; (2016) 126 SASR 464 at [37]-[38].
In the absence of specific error having been shown, it cannot be said that the decision not to permit home detention was unreasonable or plainly unjust such that it must have been affected by undisclosed error.
Conclusion
I would allow permission to appeal but dismiss the appeal.