Ilich v The Queen - [2021] SASCA 45

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
ILICH v THE QUEEN
[2021] SASCA 45
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Livesey)
26 May 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING METHYLAMPHETAMINE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION
On 20 August 2019, police attended the appellant’s home and detected “a number of carefully hidden items” including mixed methylamphetamine of nearly 1.2 kg in two bags and a Glock self-loading handgun. The Glock was fully operational and there was a large amount of ammunition, together with shotgun cartridges and a firearm handgrip.
Police also located $21,400.00 in cash in a black toiletries bag. Police had previously seized $20,400.00 in cash from the appellant on 21 March 2019, and a further $11,655.00 on 31 May 2019.
The appellant was charged with trafficking in a large commercial quantity of methylamphetamine contrary to s 32(1) of the Controlled Substances Act 1984 (SA), aggravated possession of a category H firearm whilst not holding a licence authorising possession of that firearm, contrary to s 9(1) of the Firearms Act 2015 (SA), possessing a firearm whilst a firearms prohibition order was in force, contrary to s 45(2) of the Firearms Act 2015 (SA) and money laundering contrary to s 138(2) of the Criminal Law Consolidation Act 1935 (SA).
Pursuant to s 26 of the Sentencing Act 2017 (SA), the sentencing Judge imposed one sentence of 15 years imprisonment. This sentence was reduced by 20 per cent on account of the appellant’s guilty pleas, resulting in a sentence of 12 years imprisonment. A non-parole period of at least four-fifths of the head sentence was required to be fixed pursuant to s 53 of the Sentencing Act 2017 (SA).
The appellant appealed on eight grounds. At an earlier hearing before two Judges of the Court of Appeal, he was granted permission to appeal on the ground of manifest excess. Permission to appeal other grounds was either refused or referred to this Court for argument as on appeal:
1.      The appellant contended that there had been no charge determination or committal    appearance, and that his former solicitors and senior counsel had erred in conceding that he     was entitled to a plea reduction of up to 20 per cent rather than 30 per cent.
2.      The appellant contended that he should have been permitted to withdraw his plea of guilty to        the trafficking charge and that the prosecution should not have been permitted to amend to      plead that the nearly 1.2 kg substance was “mixed”.
3.      The appellant contended that the characterisation of his offending was erroneous and that the        head sentence was manifestly excessive.
Held (by the Court), refusing permission to appeal and dismissing the appeal:
1.      Counsel for the appellant attempted to press arguments concerning the grounds on which     permission had been refused. Where the Court of Appeal has refused permission to appeal      certain appeal grounds those grounds cannot be resurrected under the umbrella of a broader     argument for which permission has been granted.
2.      The appellant did not enter guilty pleas until the answer charge hearing in the Magistrates    Court during August 2020, more than four weeks after the committal appearance in April    2020. The attempt to seek a reduction of up to 30 per cent is without merit and the suggestion     that errors were made and wrong advice was given by the appellant’s former solicitors and     senior counsel is, likewise, without merit and should not have been made.
3. The sentencing Judge did not err in refusing the appellant permission to withdraw his guilty plea and in allowing the prosecution to amend the Information. By this strategy the appellant cannot obtain a reduction higher than 20 per cent. The Judge merely ensured that the charge reflected the substance of the appellant’s offending. Sections 128 and 181 of the Criminal Procedure Act 1921 (SA) are capable of applying at any stage of criminal proceedings, subject to there being no prejudice or injustice.
4.      Observations made regarding the significance to be given to the absence of the allocutus      when determining whether to allow a guilty plea to be withdrawn or whether a charge may       be amended.
5.      Given the need to reflect the distinction between the three tiers in the hierarchy of trafficking        offences in s 32 of the Controlled Substances Act 1985 (SA), it cannot be said that the starting    point of 12 years was manifestly excessive for trafficking a large commercial quantity of a        mixed substance containing around 60 per cent pure methylamphetamine.
6.      The appellant’s offending required a strong response from the sentencing court given the     evident need for personal and general deterrence, as well as punishment.
Controlled Substances Act 1984 (SA) s 32(1); Criminal Law Consolidation Act 1935 (SA) s 138(2); Criminal Procedure Act 1921 (SA) s 109, s 110, s 119, s 128, s 181; Firearms Act 2015 (SA) s 9(1), s 45(3); Sentencing Act 2017 (SA) s 26, s 40(3)(b), s 53, referred to.
R v Elrayes (2012) 112 SASR 260; R v Pali (2018) 132 SASR 201; R v Willingham (2012) 112 SASR 278, discussed.
Ayles v The Queen (2008) 232 CLR 410; Director of Public Prosecutions v Nguyen (2008) 19 VR 662; Elliott v Harris (No 2) (1976) 13 SASR 516; Griffiths v The Queen (1977) 137 CLR 293; Ireland v Police [2005] SASC 202; Maguire v Modra (2010) 107 SASR 198; Maxwell v The Queen (1996) 184 CLR 501; Miles v Police (2009) 104 SASR 127; Pascoe v The Queen [2020] SASCFC 113; R v Abdulla (2010) 200 A Crim R 365; R v Allen (2002) 81 SASR 434; R v Ayles (2007) 97 SASR 78; R v B [1999] SASC 403; R v Bahrami [2020] SASCFC 111; R v Bridgland (2016) 258 A Crim R 149; R v Brooks and Childs (2006) 95 SASR 369; R v Camarinha [2018] SASCFC 118; R v Collins (1994) 76 A Crim R 204; R v Cullen [2015] SASCFC 44; R v Donovan (1928) 21 Crim App R 21; R v Gombos [1965] 1 WLR 575; R v Hibeljic [2018] SASCFC 35; R v HJS [2020] SASC 142; R v Malakouti [2018] SASCFC 115; R v McIntosh [2017] SASCFC 87; R v Nguyen [2018] SASCFC 65; R v O’Loughlin [2008] SADC 76; R v Pugh (2005) 158 A Crim R 302; R v Rear [1965] 2 QB 290; R v Selita (2004) 149 A Crim R 243; R v Shillingsworth (1985) 15 A Crim R 453; R v Yavuz, Soyler and Bayraktar (2018) 130 SASR 231; R v Young (2016) 126 SASR 41; Robey v SA Police (1993) 18 MVR 121; Surman v Police (1996) 65 SASR 421; Wright v Police [2008] SASC 216, considered.

ILICH v THE QUEEN
[2021] SASCA 45

Court of Appeal – Criminal: Kelly P, Lovell and Livesey JJA
THE COURT:
Introduction

The appellant appeals and seeks permission to appeal against a head sentence of 12 years imprisonment.
There was an initial hearing before two Judges of the Court of Appeal on 3 March 2021 when the appellant was granted permission to appeal on the ground of manifest excess. Permission to appeal certain other grounds was refused and the balance were referred to the Court of Appeal for argument as on appeal.[1]
[1] A bench of two Judges may be convened pursuant to s 19C of the Supreme Court Act 1935 (SA) and r 106A(c) of the Supreme Court Criminal Rules 2014 (SA), where the Chief Justice or the President so determine. On 3 March 2021, Kelly P and Doyle JA comprised the Court.
In overview, the appellant’s complaints concern whether there was any error made in the determination of the potential reduction of up to 20 per cent available to the appellant under s 40 of the Sentencing Act 2017 (SA) (the Sentencing Act) following pleas of guilty in the Magistrates Court in August 2020; whether the appellant should have been permitted to withdraw his plea of guilty; whether the sentencing Judge in the District Court should have amended the Information; and finally, whether there was any error made in the proper characterisation of his offending with the result that the sentence was manifestly excessive.
For the reasons that follow, we refuse permission to appeal and otherwise dismiss the appeal.
The subject offences and the sentence imposed
The appellant pleaded guilty to, and was sentenced for, the following offences:
1.Trafficking in a large commercial quantity of a controlled drug, namely methylamphetamine, contrary to s 32(1) of the Controlled Substances Act 1984 (SA), for which the maximum penalty is life imprisonment or $1 million, or both;
2.Aggravated possession of a category H firearm whilst not holding a firearms licence authorising possession of that firearm, contrary to s 9(1) of the Firearms Act 2015 (SA), for which the maximum penalty is imprisonment for seven years or $35,000.00. The circumstances of aggravation were that the firearm was loaded at the time of the offence and the offence was committed in connection with, or at the same time as, an act that would, if proved, constitute a prescribed offence against the Controlled Substances Act 1984 (SA) namely, trafficking in a large commercial quantity of a controlled drug;[2]
3.Possessing a firearm whilst a firearms prohibition order was in force, contrary to s 45(2) of the Firearms Act 2015 (SA), for which the maximum penalty is imprisonment for 15 years or $75,000.00; and
4.Money laundering, contrary to s 138(2) of the Criminal Law Consolidation Act 1935 (SA), for which the maximum penalty is imprisonment for four years.
[2] See s 9(7)(c) of the Firearms Act 2015 (SA). Under Schedule 2, Part 2 of the Firearms Regulations 2017 (SA) there are set out the offences against the Controlled Substances Act 1984 (SA) which are relevant for the purposes of s 9(7)(c) of the Firearms Act 2015 (SA). These relevantly include an offence against s 32, as in this case.
Following submissions in mitigation, on 23 December 2020, the sentencing Judge imposed one sentence pursuant to s 26 of the Sentencing Act, that being 15 years imprisonment, reduced by 20 per cent on account of the guilty pleas, resulting in a sentence of 12 years imprisonment. Because the appellant is a “serious repeat offender”, as defined by s 53 of the Sentencing Act, a non-parole period of at least four-fifths of the head sentence was fixed at nine years, seven months and six days.
The sentencing Judge found that there was no “good reason” to suspend the sentence, nor to order that it be served on home detention. Indeed, these orders had not been sought by the appellant.
The weapon, ammunition, drugs, firearm parts and all money seized by police were forfeited. The head sentence and the non-parole period were backdated to commence from the date the appellant was taken into custody on 30 August 2019.
The existing firearms prohibition order remained in effect.
Although the sentencing Judge proceeded under s 26, he identified his notional starting points for the four offences as follows:
1.For the offence of trafficking in a large commercial quantity of methylamphetamine, a starting point of 12 years imprisonment;
2.For the offence of aggravated possessing a category H firearm whilst not holding a firearms licence, a starting point of four years imprisonment; [3]
3.For the offence of possessing a firearm whilst a firearms prohibition order was in force, a starting point of five years imprisonment; and
4.For the offence of money laundering, a starting point of 12 months imprisonment.
[3] The sentencing Judge found that there was substantial overlap between the two firearms offences because they related to the same firearm, and so an overall notional term of six years imprisonment was determined for the second and third offences.
The sentencing Judge was satisfied that the offending conduct formed part of a larger criminal enterprise which involved the appellant trafficking in methylamphetamine and laundering money whilst in possession of a firearm. Accordingly, after allowing for partial concurrency between each of the four offences, the head sentence of 15 years imprisonment was determined as a starting point before considering the reduction to be made on account of the guilty pleas.
The circumstances of the offending
On 30 August 2019, police attended at the appellant’s home and detected what the sentencing Judge described as “a number of carefully hidden items”. These included two bags of mixed methylamphetamine of 211 grams and 987 grams respectively, and a Glock self-loading handgun which had three separate serial numbers, indicating that it had been put together from different weapons. The Glock was fully operational and there was a large amount of ammunition, together with shotgun cartridges and a firearm handgrip. The Glock was vacuum-sealed. The police located a vacuum-seal machine.
Police also located $21,400.00 in cash in a black toiletries bag. Earlier, police had seized from the appellant $20,500.00 in cash on 21 March 2019, and $11,655.00 in cash on 31 May 2019.
It was submitted by the prosecution, and not disputed by the appellant, that these sums were the proceeds of drug trafficking. Nonetheless, the sentencing Judge emphasised that he was not penalising the appellant for previous drug trafficking. The earlier sums were, however, relevant because they precluded any submission that the drug trafficking associated with the seizures on 30 August 2019 comprised isolated offending.
Senior counsel for the appellant had submitted to the sentencing Judge that the methylamphetamine, the Glock and the money were merely being held “for others”. The sentencing Judge said that he would not accept that assertion without hearing evidence on oath. The appellant did not give evidence on oath.
The sentencing Judge noted that, if the methylamphetamine was sold as 0.1 gram amounts, it could have been worth up to $599,000.00, though there were “of course contingencies and variables present in such calculations and the Court does not assume you would have personally received all or even most of that money”. The sentencing Judge then explained:
In the context of the case of R v Young, the Chief Justice indicated that in the case of base level trafficking, a category of offence far less serious than your offence of trafficking a large commercial quantity, sentences approaching 10 years are appropriate for middle‑order dealers or persistent or recidivist street dealers.
You are plainly not a street level dealer. There were no indicia of street level dealing whatsoever such as numerous small plastic bags or tick lists with small amounts of money on them. Rather, the inescapable conclusion, which the court finds proven beyond reasonable doubt, is that you were a significant wholesaler of these drugs probably to middle level dealers who would likely, in turn, then distribute to street level dealers.
In so far as the Glock was concerned, the sentencing Judge found that there was “no conceivable legitimate purpose” in the appellant possessing the Glock and that it was therefore proven beyond a reasonable doubt that he possessed it for “criminal purposes”:
In the totality of the circumstances, as discussed with your counsel, the court finds proven beyond reasonable doubt that you possessed that gun for criminal purposes. It is not possible to conclude exactly in what way you contemplated or intended the gun would or may be used.
Unsurprisingly, the sentencing Judge regarded general and personal deterrence as of particular significance.
The circumstances of the offender
The appellant wrote to the Court expressing regret, accepting responsibility and making an apology. Whilst the sentencing Judge hoped that these sentiments were sincere, he observed that the appellant had previously expressed sentiments of that kind.
The appellant had a long criminal record.
At the time of sentence, the appellant was 42 years of age but his offending commenced at 17 years when he was found guilty of carrying an offensive weapon. Six months later, he committed a serious armed robbery and was dealt with as a child, receiving a sentence of imprisonment of one year and eight months, which was suspended. A significant period of community service was ordered.
The appellant committed further offences, including assaults which were dealt with by way of suspended sentences. There were then further suspended sentences before a conviction for escaping from custody. The suspended sentence associated with the armed robbery was then carried into effect.
The appellant was convicted of possessing a firearm without a licence which was dealt with in the Adelaide Magistrates Court on 3 May 1999 by way of another suspended sentence. In May 2000, the appellant committed an armed robbery at the Pizza Haven store at O’Halloran Hill. His use of a sawn-off shotgun terrified staff. He was convicted following a trial by a jury. Judge Vanstone, as she was, sentenced the appellant to six years imprisonment and fixed a “merciful” non‑parole period of three years.
In 2006, the appellant was detected and convicted for taking part in the production of cannabis together with 11 counts of possessing firearms without a licence. One of these was a loaded revolver in the pocket of the driver’s door of the car which the appellant was driving when apprehended. Judge Rice found that the appellant was prepared to use at least three of the weapons (being a rifle, a shotgun and a revolver) in an illegal manner should the need arise and he sentenced the appellant to three years imprisonment.
In January 2011, the appellant, with others, drove to a house. There, the appellant fired 17 shots from a pistol through the closed front door. One shot hit one of three people inside the house, shattering a foot bone. The appellant was convicted of the offences of aggravated endangering life as well as aggravated possession of a firearm without a licence. The police discovered that the appellant was involved in cultivating a commercial quantity of cannabis, comprising 46 plants grown in a sophisticated hydroponic “grow house”.
When the appellant was discovered by police a few days later, they also found a loaded pistol with a round of ammunition in the breach and the hammer pulled back. The pistol was within the appellant’s reach. Judge Millsteed rejected the claim that the appellant did not know or believe that there was anyone inside the house when he fired the shots. Judge Millsteed expressed reservations about the appellant’s letter of remorse and imposed a sentence of eight years imprisonment with a non-parole period of five years.
At the time of the subject sentence, the appellant was described as a committed father of four children. References from relatives and a family friend demonstrated that the appellant was well-regarded.
Though the appellant had had a good relationship with his parents, his father’s death from lung cancer when the appellant was 12 had a “devastating effect”. Senior counsel explained to the sentencing Judge that the appellant had thereafter got involved with “the wrong type of people”. Though he completed year 11 at Smithfield High, he had a patchy work record and last worked at a Gepps Cross laundry in 2018 when he suffered pancreatitis and was placed on benefits under the Return to Work Act 2014 (SA).

Submissions were made to the effect that the appellant had, however, reached a stage in his life when he was starting to slow down, mature and make “different choices”, evidenced by his pleas of guilty and a desire to take part in his family’s future.
The amended grounds of appeal against sentence
As pursued in this Court, the appellant’s grounds of appeal were as follows:
1. The sentence was, in all the circumstances, manifestly excessive.
2.The Learned Sentencing Judge erred in refusing the applicant’s application to withdraw his plea of guilty to the charge of trafficking in a large commercial quantity of controlled substance.
3.The Learned Sentencing Judge erred in taking a mathematical approach to the sentencing process in circumstances where the four offences on the Information were that closely linked that they amounted to one course of conduct and the Learned Sentencing Judge did not need to employ differing discount amounts.
4.The Learned Sentencing Judge erred in sentencing the prisoner on the basis that the available discount was 20 percent in circumstances where a greater discount was available and erred in failing to consider section 40(4)(a)(v) and 40(5)(c) of the Sentencing Act 2007 [sic] as applied at the time.
5.The Learned Sentencing Judge’s extensive remarks regarding the applicant’s prior history, together with the outcome, indicate that His Honour fell into error in sentencing on the basis of prior history.
6.The Learned Sentencing Judge erred in sentencing on the basis that the drugs were worth over half a million dollars.
7. The Learned Sentencing Judge erred in his approach to concurrency.
8.The Learned Judge erred in sentencing on the basis that the applicant was an “upper level whole sale commercial methylamphetamine trafficker”.
As mentioned, permission to appeal was granted in respect of appeal ground 1. Permission to appeal was refused in respect of appeal grounds 3, 5, 6 and 7. Permission to appeal grounds 2, 4 and 8 was referred to this Court for argument as on appeal.
Initially, counsel for the appellant attempted to press arguments concerning the grounds on which permission had been refused. Though it was acknowledged that the ruling by two Judges of this Court was effectively final, it was suggested that the grounds on which permission had been refused remained relevant to the ground concerning manifest excess. The attempt was checked. Where the Court of Appeal has refused permission to appeal certain appeal grounds, those grounds cannot be resurrected under the umbrella of a broader argument for which permission has been granted.
It is appropriate to commence with appeal ground 4.
Appeal ground 4 – the 20 per cent reduction
As ultimately pursued in this Court, the contention was that the court record did not specify any charge determination or committal appearance. Because there was no charge determination or committal appearance, the appellant contended that the period during which he might seek a reduction in sentence of up to 30 per cent pursuant to s 40(3)(b) of the Sentencing Act had not come to an end.
It followed, so the argument went, that the period and potential reduction of up to 20 per cent specified by s 40(3)(c) did not apply, the appellant had been wrongly advised by his then-solicitors and senior counsel, who had made an erroneous concession that a reduction of up to 20 per cent under s 40(3)(c) applied, with the result that the sentencing Judge had proceeded on the wrong basis.
It should be emphasised that this argument was pressed with the benefit of an affidavit from the appellant but no affidavit or concession from his former solicitors and senior counsel.
In so far as is relevant, the then terms of s 40(3)(b) and (c) of the Sentencing Act were as follows:
If a defendant has pleaded guilty to an offence or offences –
…
(b)more than four 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 these relevant offence or offences–the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30 percent;
(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 percent;
Note –
See also s 110(3) of the Criminal Procedure Act1921.
Sections 109 and 110 of the Criminal Procedure Act 1921 (SA) relevantly provided:
109—Committal proceedings generally
(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.
(2) The Magistrates Court may exclude a defendant from any committal proceedings if his or her conduct is disruptive and may excuse a defendant from attendance at the committal appearance for any proper reason.
(3) A defendant who has elected for trial of a minor indictable offence by a superior court may, at any time before the conclusion of the committal proceedings, withdraw the election and in that event—
(a)     the Magistrates Court will not proceed to deal with the charge in accordance with this Division (and the matter will instead be dealt with by trial conducted in the Magistrates Court or by plea entered in the Magistrates Court); and
(b)     if the matter is dealt with by trial conducted in the Magistrates Court, the Magistrates Court may, if the defendant agrees, admit evidence given or tendered at the answer charge hearing.
Note—
In relation to trials and pleas for minor indictable offences conducted in the Magistrates Court see Division 4.
(4) A defendant who has pleaded to a charge at or before committal proceedings may withdraw the plea and substitute some other plea before the conclusion of the committal proceedings.
110—Committal appearance
(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).
The scheme of the Sentencing Act concerning the potential reductions in sentence available following pleas of guilty has been described in a number of decisions of the Court of Criminal Appeal.[4]
[4] See, for example, R v Bridgland (2016) 258 A Crim R 149 (Gray, Peek and Lovell JJ) and R v Bahrami [2020] SASCFC 111 (Kourakis CJ, Livesey and Bleby JJ) and the decisions to which those cases refer.
Whilst s 40(3)(b) of the Sentencing Act specifies a potential reduction of up to 30 per cent in the period ending on the day of the defendant’s committal appearance, s 110(3) of the Criminal Procedure Act 1921 (SA) effectively provides a further four weeks after the committal appearance in the event that “negotiations are taking place”.
The reference in s 40(3)(b) of the Sentencing Act to the “defendant’s committal appearance” is a reference to a question of fact. It is a question of fact whether or not the defendant pleaded guilty on the day of, or before, his committal appearance. There is no room for confusion with the concept of the “court record” in the different context of judicial review proceedings.[5] Whatever the deficiencies in the court record in this case, an inspection of the Magistrates Court file demonstrates that, in fact, the charge determination was made on 7 April 2020, the appellant appeared and the committal proceedings commenced on that day. Whilst there were negotiations, these did not conclude within four weeks.
[5] Craig v State of South Australia (1995) 184 CLR 163.
The four-week period specified by s 110(3) of the Criminal Procedure Act 1921 (SA) following the appellant’s initial committal appearance ended on 5 May 2020.
Pleas were not entered until the answer charge hearing in the Magistrates Court during August 2020.
In the circumstances, the appellant only qualified for a reduction in sentence of up to 20 per cent on account of his guilty pleas. The attempt to seek a reduction of up to 30 per cent must be rejected. Indeed, the attempt is without merit. The suggestion that errors were made and wrong advice was given by the appellant’s then solicitors and senior counsel is, likewise, without any merit and should not have been made.
Permission to appeal ground 4 is refused.
Appeal ground 2 – refusing the appellant’s application to withdraw his plea of guilty
Before the sentencing Judge, it emerged that there may have been some uncertainty associated with the framing of the trafficking charge.
The charge clearly referred to an amount in excess of one kilogram, being nearly 1.2 kilograms, and therefore to a large commercial quantity. The pharmacology evidence demonstrated that the substance for which the appellant was charged contained 729 grams of pure methylamphetamine.
The appellant attempted to withdraw his plea. The argument was that the charge, erroneously, referred to nearly 1.2 kilograms of methylamphetamine. That is, because the charge did not specify whether the substance was “mixed” or whether it was “pure”, it could only mean “pure”. As a corollary, the contention was that a new Information had to be laid, to which the appellant had to be given an opportunity to again plead guilty.
This was opposed and the prosecution applied to amend the Information pursuant to ss 128 and 181 of the Criminal Procedure Act 1921 (SA) to describe the substance the subject of the charge as “mixed”.
The Director submitted that the charging of an offence contrary to s 32(1) of the Controlled Substances Act 1984 (SA), the particularisation of an amount approaching 1.2 kilograms, and the pharmacology evidence demonstrating only 729 grams of pure methylamphetamine, taken in combination, demonstrated that any amendment to particularise the controlled drug as “mixed” was a mere matter of form rather than substance.
The sentencing Judge refused permission to withdraw the plea and amended the charge so that it referred to a “mixed” substance. It is now said that this involved error.
Lest it be overlooked, it is worth emphasising that the purpose of this argument, at least as developed on appeal, appeared to be directed to the potential sentencing reduction of up to 40 per cent formerly available under s 40(3)(a) of the Sentencing Act where a plea is made “not more than 4 weeks after the defendant’s first court appearance in relation to the relevant offence”. That is to say, the appellant’s object in attempting to withdraw his earlier plea and pleading afresh on a new Information was to furnish a basis for an argument that the maximum potential reduction for his plea of guilty had to be higher than 20 per cent.
In the circumstances of this case, the lack of any apparent merit in this strategy, whether before the sentencing court or this Court, is obvious.
Neither party considered the criteria for permitting the withdrawal of a plea of guilty before conviction pursuant to s 119(1) of the Criminal Procedure Act 1921 (SA) which, in its current form, provides that, where a defendant “has been committed to a superior court for sentence in relation to a charge of an offence may only enter a change of plea in the superior court in relation to that charge with the permission of the court”.
Although it was suggested in argument that the appellant understood that he was pleading guilty only to that portion of the substance which was pure methylamphetamine, rather than the entirety of the substance, that assertion cannot stand with the plea of guilty or the submissions made to the sentencing Judge, in writing, that the appellant accepted that he intended to traffic approximately 1.2 kilograms of “mixed methylamphetamine”.
The appellant was represented by senior counsel and an experienced solicitor. By his plea of guilty to the trafficking charge, the appellant was solemnly confessing and acknowledging his guilt in relation to each element of that charge, particularly the amount of nearly 1.2 kilograms which placed the case into the category of a large commercial quantity. Whether the amount was pure or mixed was, strictly, irrelevant to guilt, though it potentially had some bearing on sentence.
The common law criteria for granting permission to withdraw a plea of guilty have been reviewed in many cases.[6] Those criteria were recently reviewed in R v HJS.[7] Although those criteria were not addressed by the parties, we are satisfied that there was no miscarriage of justice associated with refusing permission to withdraw the plea of guilty to the trafficking charge.
[6] See R v Brooks and Childs (2006) 95 SASR 369, [41]-[45] (Bleby J), essentially, “whether a miscarriage of justice would occur if the application were not granted”. As for appeals, see R v Pugh (2005) 158 A Crim R 302 (Doyle CJ, Bleby and Gray JJ).
[7] R v HJS [2020] SASC 142 (Doyle J), case involving a charge of murder and the alternative of manslaughter.
As for the amendment, the parties to this appeal accepted that the power to amend is conferred by ss 128 and 181 of the Criminal Procedure Act 1921 (SA). Those provisions provide:
128—Objections to informations in superior court, amendments and postponement of trial
(1) An application to quash an information on the basis of a formal defect apparent on the face of the information must be made before the jury is empanelled and not afterwards.
(2) Subject to subsection (3), the court may before trial, or at any stage of a trial, make an order to amend an information as the court thinks necessary if—
(a)     the information is defective; or
(b)     there is a variation between a particular stated in the information and the evidence offered in proof of that particular.
(3) An order should not be made under subsection (2) if, having regard to the merits of the case, the proposed amendment to the information cannot be made without causing injustice.
(4)If the court makes an order to amend an information under subsection (2)—
(a)     the order must be noted and endorsed on the information; and
(b)     the information will be treated, for the purposes of the trial and all connected proceedings, as having been presented in the amended form.
(5) If before trial, or at any stage of a trial the court forms the opinion that as a result of exercising a power under this Act to—
(a)     amend an information; or
(b)     order a separate trial of a count,
it is expedient to postpone the trial, the court may make such an order.
(6) If an order of the court is made for a separate trial or for the postponement of a trial—
(a)     in the case of an order made during a trial—the court may order that the jury be discharged from giving a verdict on the count or counts the trial of which is postponed or on the whole information, as the case may be; and
(b)     the procedure on the separate trial of a count will be the same in all respects as if the count had been presented as a separate information and the procedure on the postponed trial will be the same in all respects (if the jury has been discharged) as if the trial had not commenced; and
(c)     the court may make such other orders as the court thinks fit, including as to admitting the accused person to bail and the enlargement of recognizances.
(7) Any power of the court under this section is in addition to and does not limit any other power of the court for the same or similar purposes.
…
181—Charges
(1) An information is not invalid because of a defect of substance or of form.
(2) A court may—
(a)     amend an information to cure a defect of substance or form (but if the defendant has been substantially prejudiced by the defect, no amendment may be made); or
(b)     dismiss an information if the defect cannot appropriately be cured by amendment.
The Information or committal papers upon which the appellant was committed formed the Information for the purposes of the proceedings before the sentencing Judge.[8]
[8] R v Allen (2002) 81 SASR 434, [57]-[60] (Lander J, with whom Martin J agreed).
We may commence with the statutory requirements concerning the content of an Information charging an indictable offence under s 100 of the Criminal Procedure Act 1921 (SA). By that section, an Information must contain a statement of the specific offence or offences charged, together with such particulars as are necessary for giving reasonable information about the nature of the charge. There is no basis to suggest that the charge was defective.
The appellant relied on two decisions in support of the contention that the charge had to be read as relating to “pure” methylamphetamine. The first of these was R v Pali.[9] The second decision relied upon was R v Elrayes.[10]
[9] R v Pali (2018) 132 SASR 201.
[10] R v Elrayes (2012) 112 SASR 260.
In Pali, the complaint was made for the first time on appeal that the prosecution had failed to particularise whether the cannabis the subject of the charge was pure or mixed. A reading of the reasons of Peek J demonstrates that, in the context of that case, there could be no dispute that the charge related to pure cannabis.[11] Elrayes concerned the issue whether a salt or an isomer of a controlled drug was itself a controlled drug. Nothing in Pali or Elrayes supports a proposition that, absent particularisation, there is any rule of law or practice that a charge relating to a controlled drug must be read as referring to its “pure” form.
[11] R v Pali (2018) 132 SASR 201, [42]-[43] (Peek J).
The Director submitted that Elrayes had to be read together with R v Willingham.[12] In Willingham, the issue was whether the salt of a controlled drug was itself a controlled drug. The prosecution had alleged that the substance the subject of one count was MDMA. The substance was actually the salt of MDMA. The charge did not particularise the substance as a salt. Nonetheless, Doyle CJ reasoned that the charge was not defective and was correctly particularised, even if to particularise the substance as a “salt” was not “inappropriate”. The former Chief Justice found, however, that this was “not necessary, unless in the particular case there is an issue between the prosecution and the defence as to the identity of the substance in question which makes complete specificity desirable”.[13]
[12] R v Willingham (2012) 112 SASR 278.
[13] R v Willingham (2012) 112 SASR 278, [19] (Doyle CJ).

As mentioned, the statutory powers to amend the Information are contained in ss 128 and 181 of the Criminal Procedure Act 1921 (SA). Section 128 confers a discretionary power to amend as the Court thinks necessary if the Information is defective or there is some variation between a particular and the evidence offered in proof of that particular. The power may be exercised before trial or at any stage of a trial, and is conditioned upon the absence of injustice.
Sub-section 181(1) provides that an Information is not invalid because of a defect of substance or of form and ss 181(2) confers various powers including, by ss 181(2)(a), a power to amend to cure any defect of substance or form. Again, the power is conditioned on the absence of substantial prejudice. By ss 181(2)(b), an Information may be dismissed if the defect cannot be cured.
On the face of it, these provisions gave the sentencing Judge ample power to address the issue that arose before him.
Nonetheless, the appellant contended that these provisions either did not apply or should not have been applied. The appellant contended that s 128 referred to a “trial” and so therefore had no application in a case where there was no prospect of a trial because the matter was “always” going to be resolved by pleas of guilty.
We reject the attempt to constrain the breadth of this provision.
A number of authorities demonstrate that, notwithstanding the criminal context, a broad interpretation has been given to this provision. Amendments have been permitted after a trial. For example, in R v Ayles, the trial judge amended a charge on an Information in her reasons for verdict so as to plead a different section of the Criminal Law Consolidation Act 1935 (SA), as well as a longer period during which the offending occurred. Doyle CJ held that the trial judge had the power to amend.[14] Doyle CJ recognised that the “new and substituted charge” did not raise “the determination of any new issue” because the “substance of the case” had not changed. Importantly, the findings required by the prosecution to secure a conviction had not changed and, in the circumstances of that case, there was no basis for any submission that there was any resulting injustice.[15]
[14] R v Ayles (2007) 97 SASR 78, [62]-[64] (Doyle CJ, with whom Gray and David JJ agreed), affirmed in Ayles v The Queen (2008) 232 CLR 410. Kiefel J (as she was) observed that the amendments made by the trial judge do not breach the demarcation between prosecution and trial judge.
[15] R v Ayles (2007) 97 SASR 78, [63] (Doyle CJ, with whom Gray and David JJ agreed). See, similarly, R v B [1999] SASC 403, [119]‑[123] (Lander J, with whom Millhouse and Duggan JJ agreed); R v Abdulla (2010) 200 A Crim R 365 and R v Willingham (2012) 112 SASR 278, [36] (Doyle CJ) (albeit that Doyle CJ considered that the trial judge made no error by refusing to allow an amendment in the circumstances of that particular case).
Earlier authorities had recognised what may be described as a “pith and substance” test in connection with amendments.[16]
[16] Elliott v Harris (No 2) (1976) 13 SASR 516, 522 (Bray CJ); Maguire v Modra (2010) 107 SASR 198, [19] (Vanstone J). Alternatively, where the “pith and substance” of an offence was materially altered, see Surman v Police (1996) 65 SASR 421, 424, 427 (Bollen J).
Section 181 does not refer to the “trial”. Nonetheless, we do not find that is of any particular moment. On the face of it, and as with s 128, it is capable of applying at any stage of criminal proceedings, subject of course to there being no substantial prejudice caused. That is consistent with authorities such as Wright v Police, where the Court recognised that s 181 could be employed to permit an amendment during the course of an appeal in circumstances where there was no prejudice to the appellant.[17]
[17] Wright v Police [2008] SASC 216, [29] (Anderson J), citing Robey v SA Police (1993) 18 MVR 121, 123 and Ireland v Police [2005] SASC 202, [13], [23] (Gray J).
The Director placed particular emphasis upon the fact that, at the stage at which the amendment was made, though pleas had been taken, the allocutus had not yet been administered. As the allocutus had not been administered, the pleas had not yet been accepted by the Court,[18] and the appellant had not yet been convicted on his pleas.[19]
[18] R v Shillingsworth (1985) 15 A Crim R 453, 458 (Williams J, with whom Campbell CJ and Matthews J agreed).
[19] Director of Public Prosecutions v Nguyen (2008) 19 VR 662; R v Collins (1994) 76 A Crim R 204, 210 (McPherson JA and Lee J).
We doubt whether anything turns on whether the allocutus was administered in this case. Historically, a prisoner found guilty of treason or a felony was addressed as follows:[20]
Prisoner at the bar, you stand convicted of … Have you anything to say why the court should not give you judgment according to law?
[20] Archbold’s Pleading, Evidence and Practice in Criminal Cases (Sweet & Maxwell, 36^th ed, 1966) 185. See, also, R v O’Loughlin [2008] SADC 76, [27]-[48] (Barrett DCJ).
This “formal demand” had to appear in the record.[21] Its original purpose was to allow the prisoner to “raise any point of law in arrest of judgment”.[22] It may also have been an occasion for a brief speech from the prisoner. In South Australia, it is now common to address the defendant as follows:[23]
You have pleaded guilty/been found guilty of the offence of …, the Court will now hear any evidence and submissions about sentence …
[21]   Miles v Police (2009) 104 SASR 127, [25] (Kourakis J, as he then was).
[22]   R v Donovan (1928) 21 Crim App R 21 (Lord Hewart CJ); R v Gombos [1965] 1 WLR 575; R v Rear [1965] 2 QB 290; R v Selita (2004) 149 A Crim R 243, [72]-[76] (Gray J).
[23]   Miles v Police (2009) 104 SASR 127, [25] (Kourakis J). Some Judges do not routinely administer the allocutus, questioning whether it serves any real purpose: R v Selita (2004) 149 A Crim R 243, [75] (Gray J).
The allocutus now serves a different purpose. Following a plea of guilty, it demonstrates both adherence by the defendant to the plea and an acceptance of that plea by the Court.[24] It tends to mark the end of one stage, and the commencement of another, in the process of adjudication in a criminal proceeding. As a formal indication that the process of considering sentence has commenced, it can assist in determining when a conviction has occurred, including for the purposes of the rules relating to when a plea of autrefois convict is available:[25]
… whilst a plea of guilty is a confession of guilt, it does not of itself amount to a conviction. A conviction does not occur until there is an acceptance of the plea amounting to a determination of guilt by the court. The determination of guilt forms part of the judgment of the court but it can occur otherwise than by the formal entry of the plea upon the record of the court. Of course, the formal entry of the plea upon the record may afford the clearest evidence of a determination of the court, but a determination may otherwise occur when the court acts so as to indicate unequivocally its acceptance of the plea.
…
A matter may be disposed of otherwise than by sentence, but an adjournment of proceedings or the remand of a prisoner for sentence does not ordinarily amount to the disposal of a matter. It is difficult to envisage when either of those courses would constitute a final determination and so amount to a conviction, save in unusual circumstances such as occurred in Griffiths v The Queen where the accused, who pleaded guilty, was remanded for sentence in twelve months on condition that he entered into a good behaviour bond for that period.
[24] R v O’Loughlin [2008] SADC 76, [45] (Barrett DCJ).
[25] Maxwell v The Queen (1996) 184 CLR 501, 508-509 (Dawson and McHugh JJ).
Though administering the allocutus is a well‑recognised and useful means of demonstrating that the defendant adheres to the plea, indicating that the Court accepts the guilty plea and that it is about to embark on the sentencing process, it is not the only way these things might be done.[26]
[26] Griffiths v The Queen (1977) 137 CLR 293, 335-336 (Aickin J): “I can see no reason why a conviction may not occur by indirect words or by conduct. If a trial judge does some act consistent only with there being a conviction, I do not consider that he must utter some formula to make that action effective. If a trial judge imposes a sentence without having uttered some such formula, it would be plain that the accused had been convicted because the pronouncing of the sentence would be inconsistent with any other view. This is entirely consistent with the proposition that conviction is necessarily a further step after a plea of guilty, though it does not appear that any further step is necessary after a finding of guilt by a jury”. As to when the verdict or the plea become a conviction, meaning the adjudication of guilt and sentence, see also Maxwell v The Queen (1996) 184 CLR 501, 509-510 (Dawson and McHugh JJ) and Miles v Police (2009) 104 SASR 127, [26]-[37] (Kourakis J).
Whether a defendant should be given permission to withdraw a plea of guilty, or whether the prosecution should be given permission to amend, does not usually turn on whether the allocutus has been administered. Nonetheless, this may depend on the circumstances. For example, where a defendant claims not to have understood the procedure, or for what it was she or he was being sentenced, the fact that the allocutus was given may be of some relevance. What the allocutus does not do, however, is represent any “bright line”, indicating when applications to withdraw pleas of guilty or to amend charges cannot be entertained as a matter of law.
In this case, the fact that the allocutus had not yet been administered, if anything, might possibly have assisted the appellant in his assertion of uncertainty, though we have found that assertion to be without merit. Whether the allocutus had been administered did not, however, affect the exercise of the discretion to amend. That said, the earlier applications such as these are made, the less scope for arguments about prejudice or injustice.
In the circumstances of this case, it cannot be said that the sentencing Judge erred in refusing the appellant’s application to withdraw his plea of guilty and, instead, allowing the prosecution’s application to amend. In so doing, the sentencing Judge merely ensured that the charge reflected the substance of the appellant’s offending without causing him any prejudice, still less injustice.
In fact, the effect of the amendment was, on the appellant’s case, to his advantage because it thereby pleaded a somewhat less serious “mixed”, rather than “pure”, substance.
Finally, it ought not be overlooked that even if the appellant had succeeded in withdrawing his plea and pleading afresh on a new Information, the prosecution was never likely to accept that a potential reduction of up to 40 per cent should apply in this case. Given the strength of the prosecution case against the appellant, the long period of time that had elapsed following the committal proceedings and associated negotiations, and the comparative lateness of the new plea, the appellant could never confidently contend that a reduction of up to 20 per cent was inappropriate or indicative of any error.
Whilst that approach to reductions following pleas of guilty is consistent with the reasoning of the Court of Criminal Appeal in R v Bahrami,[27] it is almost precisely what occurred in R v Bridgland.[28] In that case, the appellant was arrested and charged in June 2014, committed for trial in October 2014 and arraigned in November 2014. The matter was listed for trial commencing in May 2015. Very shortly before trial, following negotiations, the charges were amended and lesser offences charged. The prisoner then pleaded to these new charges. Though the prosecution conceded that the prisoner was potentially entitled to reductions of up to 40 per cent because he had pleaded as soon as reasonably possible to the new charges, the sentencing Judge in that case allowed only a 25 per cent reduction. The Court of Criminal Appeal found that this involved no error.[29]
[27]   R v Bahrami [2020] SASCFC 111.
[28]   R v Bridgland (2016) 258 A Crim R 149.
[29]   R v Bridgland (2016) 258 A Crim R 149, [50] (Peek J), [82] (Lovell J) (Gray J dissenting). In that case, the sentencing Judge declined to reduce the sentence by 40 per cent because to do so would, his Honour found, be so disproportionate to the seriousness of the offences and so inappropriate in this case that it would “shock the public conscience” (to use the terminology of the former s 10C(4)(a) of the Criminal Law (Sentencing) Act 1988 (SA). Though the majority found that the reasons were not adequate, the same sentence was imposed on resentence.
We refuse permission to appeal ground 2.
Appeal grounds 1 and 8: Manifest excess
The appellant criticised the conclusion of the sentencing judge that his offending was properly characterised as that of a “significant wholesaler of … drugs probably to middle level dealers who would likely, in turn, then distribute to street level dealers”.
The appellant relied upon decisions following R v Young such as R v Yavuz,[30] R v McIntosh,[31] R v Camarinha,[32] and Pascoe v The Queen[33] to suggest that the starting point of 12 years imprisonment for trafficking in a large commercial quantity of methylamphetamine was excessive and, therefore, that the overall sentence was manifestly excessive.
[30]   R v Yavuz, Soyler and Bayraktar (2018) 130 SASR 231, [67] (The Court).
[31]   R v McIntosh [2017] SASCFC 87, [66], [79] (Hinton J).
[32]   R v Camarinha [2018] SASCFC 118, [59] (Kourakis CJ, Blue and Lovell JJ).
[33]   Pascoe v The Queen [2020] SASCFC 113, [29], [43] (Tilmouth AJ).
We reject the submission and the approach underlying it.
Although the appellant criticised the characterisation of his offending as described by the sentencing Judge, in argument, counsel ultimately accepted that this offending was properly placed in the upper level of trafficking offences, albeit low within that level.
We start with the proposition that the Controlled Substances Act 1984 (SA) explicitly establishes a hierarchy of drug trafficking offences built on the quantity of illicit drugs trafficked: that is to say, penalties based on basic quantities (s 32(3)), commercial quantities (s 32(2)) and large commercial quantities (s 32(1)) with increasing maximum penalties for each, being imprisonment for 10 years, 25 years and life imprisonment.[34]
[34] R v Nguyen [2018] SASCFC 65, [31] (Kourakis CJ) and R v Young (2016) 126 SASR 41, [219] (Blue J).
Whilst that means that it is necessary to have regard to the quantity involved in the commission of an offence, it is equally necessary to keep in mind that the penalties imposed for each of these trafficking offences must be considered with care: it is inapt, for example, to contrast sentences imposed for basic trafficking with those imposed for commercial quantities, still less large commercial quantities. Whilst it may be appropriate in cases such as this to consider the broad trend of sentences in other categories, so as to ensure due proportionality in sentencing, the sentences imposed for less serious offending provide no direct comparison.
Viewed in this way, the sentences to which the appellant invited our attention are not comparable and are of little assistance.
For example, in R v Young, the Chief Justice explained that a sentence in the range of four to seven years may be appropriate for a commercially motivated street trader convicted of basic trafficking,[35] and that sentences approaching the 10‑year maximum may be appropriate for middle order dealers and persistent or recidivist street dealers convicted of basic trafficking offences.[36] None of those categories could sensibly be applied to the appellant.
[35] R v Young (2016) 126 SASR 41, [65] (Kourakis CJ).
[36] R v Young (2016) 126 SASR 41, [68] (Kourakis CJ).
Given the need to reflect the distinction between the three tiers in the s 32 hierarchy of trafficking offences, it cannot be said that the notional starting point of 12 years was manifestly excessive for trafficking a large commercial quantity of a mixed substance containing around 60 per cent pure methylamphetamine.[37]
[37] R v Hibeljic [2018] SASCFC 35, [43] (Doyle J).
The appellant fell to be sentenced not merely for trafficking a large commercial quantity of methylamphetamine but also for serious firearms offences,[38] and money laundering. Given the appellant’s very poor criminal record, he could not expect leniency,[39] and so the overall head sentence of 15 years (before reduction for the guilty pleas) did not represent any error in the exercise of sentencing discretion.
[38] R v Cullen [2015] SASCFC 44, [22] (Gray J).
[39] R v Malakouti [2018] SASCFC 115, [61]-[63] (Kourakis CJ).
We refuse permission to appeal ground 8 and otherwise dismiss the appeal on ground 1.
Conclusion
The harm wrought by methylamphetamine in our community is widely known and regrettable. The appellant’s offending required a strong response from the sentencing court given the evident need for personal and general deterrence, quite apart from the need for punishment in the particular circumstances of this case.
In all of these circumstances, it cannot be said that the sentencing Judge erred in the exercise of his broad sentencing discretion.
To the extent that permission to appeal is required, it is refused. We dismiss the appeal.