Jones v The King - [2022] SASCA 115

Supreme Court of South Australia
(Court of Appeal: Criminal)
JONES v THE KING
[2022] SASCA 115
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
3 November 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - MENTAL DISORDER
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CUMULATIVE SENTENCES - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING METHYLAMPHETAMINE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING CANNABIS, INDIAN HEMP OR HASHISH
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - PROCEEDS OF CRIME, MONEY LAUNDERING AND RELATED OFFENCES
The appellant pleaded guilty to four counts of trafficking in a controlled drug, namely methylamphetamine and cannabis, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (Counts 1 to 4), and one count of money laundering, contrary to s 138(2) of the Criminal Law Consolidation Act 1935 (SA) (Count 5).
As to Counts 1 and 2, the sentencing Judge fixed a single penalty and commenced with a starting point of five years imprisonment. This was reduced by 25 per cent for the appellant’s guilty pleas to imprisonment for three years and nine months. As to Counts 3 to 5, the sentencing Judge again imposed a single penalty and adopted a starting point of eight years imprisonment. This was reduced by 15 per cent on account of the appellant's guilty pleas to imprisonment for six years, nine months, and 18 days.
The sentencing Judge ordered that the sentences be served wholly cumulatively, resulting in a head sentence of 10 years, six months, and 18 days imprisonment. A non-parole period of five years was fixed.
The appellant complains that the sentence imposed is manifestly excessive. The appellant also contends that the sentencing Judge erroneously characterised the appellant as a ‘recidivist’ offender; erred in failing to order the sentences for the two sets of offending be served wholly or partially concurrently; and did not have adequate regard to the appellant’s mental health in imposing the head sentence.
Held, per the Court, granting permission to appeal and allowing the appeal on Ground 1:
1.The sentence for Counts 1 and 2, while at the upper end of the permissible range, was not manifestly excessive.

2. The sentence for Counts 3 to 5 was manifestly excessive.
3.The accumulated head sentence for all offences was disproportionate to the offending and the appellant’s personal circumstances, including his compromised mental health.
4.The appellant is resentenced. In relation to Counts 1 and 2, the Court imposes one penalty of imprisonment for five years reduced by 25 percent to three years and nine months for the appellant's guilty pleas. As to Counts 3, 4 and 5 the Court imposes one penalty of imprisonment for six years and six months reduced by 15 percent pleas to five years, six months and 10 days for the appellant’s guilty pleas. The sentences are to be served partially concurrently. The Court imposes a head sentence of imprisonment for eight years with a non-parole period of four years. The sentence is to commence on 22 September 2020 when the appellant was taken into custody.

Controlled Substances Act 1984 (SA) s 32; Criminal Law Consolidation Act 1935 (SA) s 138; Sentencing Act 2017 (SA) s 26, referred to.
Cuong v The Queen [2021] SASCA 89; Kuchar v The Queen (2019) 135 SASR 185; Ndreka v The Queen [2021] SASCA 11; Nguyen v The Queen (2016) 256 CLR 656; Nguyen v The Queen [2022] SASCA 23; Police v Cadd (1997) 69 SASR 150; R v Cleaver [2016] SASCFC 43; R v Hronopoulos (2017) 269 A Crim R 551; R v King (1988) 48 SASR 555; R v Lutze (2014) 121 SASR 144; R v Monks (2019) 133 SASR 182; R v Place (2002) 81 SASR 395; R v Taddeo (1993) 67 A Crim R 338; R v Tomlinson [2007] SASC 222; R v Tsiaris [1996] 1 VR 398; R v Young (2016) 126 SASR 41, considered.

JONES v THE KING
[2022] SASCA 115
Court of Appeal – Criminal: Livesey P, Bleby and David JJA
THE COURT:

The appellant, Mr Adam David Ostermann Jones, pleaded guilty to four counts of trafficking in a controlled drug, namely methylamphetamine and cannabis, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (Counts 1 to 4), and one count of money laundering, contrary to s 138(2) of the Criminal Law Consolidation Act 1935 (SA) (Count 5). The maximum penalty for Counts 1 to 4 is $50,000 or imprisonment for 10 years, or both.[1] The maximum penalty for Count 5 is imprisonment for four years.[2]
[1] Controlled Substances Act 1984 (SA) s 32(3)(a)(ii).
[2] Criminal Law Consolidation Act 1935 (SA) s 138(2).
As to Counts 1 and 2, the sentencing Judge fixed a single penalty and commenced with a starting point of five years imprisonment. This was reduced by 25 per cent for the appellant’s guilty pleas to imprisonment for three years and nine months. As to Counts 3 to 5, the sentencing Judge again imposed a single penalty and fixed a starting point of eight years imprisonment. This was reduced by 15 per cent on account of the appellant’s guilty pleas to imprisonment for six years, nine months, and 18 days.
The sentencing Judge ordered that the sentences be served wholly cumulatively, resulting in a head sentence of 10 years, six months, and 18 days imprisonment. A non-parole period of five years was imposed.
The appellant complains that the sentence imposed is manifestly excessive (Ground 1). The appellant also contends that the sentencing Judge erred in proceeding on the basis that the appellant was characterised as a ‘recidivist’ in relation to the offending the subject of Counts 3 and 4 (Ground 2) and that the sentencing Judge erred in failing to allow for concurrency or partial concurrency of the sentences imposed (Ground 3). Lastly, the appellant contends that the sentencing Judge erred by failing to have adequate regard to the appellant’s mental health in fixing the head sentence (Ground 4).
The question of permission to appeal was referred to this Court for consideration.
For the reasons that follow, permission to appeal should be granted and the appeal allowed on Appeal Ground 1.
Circumstances of the offending
Counts 1 and 2 were committed on 13 May 2020. On that day, police stopped a vehicle being driven by the appellant. He submitted to a roadside drug screening, which returned a positive result for methylamphetamine and cannabis.
The police conducted a search of the vehicle. In the glovebox, police located 1.96 g of cannabis and a set of digital scales. They also located a mobile telephone on the dashboard, which the appellant identified as his own. On the mobile telephone there were approximately 5,000 drug related text messages.
Police also located a clear press seal bag containing 13.6 g of crystals, of which 4.3 g was pure methylamphetamine, hidden inside the gear shift cowling in the centre console of the vehicle (Count 1).
The appellant was arrested and conveyed to his home address. Police conducted a search of the premises and located a total of 308.3 g of cannabis in the kitchen (Count 2). Police also located two boxes containing a total of 2,000 empty plastic resealable bags, six cannabis bongs, and four ice pipes. In the appellant’s bedroom, police located two packs of empty plastic resealable bags, 2.4 g of cannabis, $4,540 cash inside a safe, 16 unused ‘MYOB’ payment cards with a total value of $15,984, and two cannabis bongs.
The appellant was interviewed by police and later charged and released on bail.
Approximately four months later, on 22 September 2020, police attended the appellant’s home to conduct a bail check on him. On arrival, police observed a taxi in the parking area. The driver of the taxi informed police that his passenger said he would be at the premises for one or two minutes. Police then saw a male exit the premises and walk towards the taxi. He appeared to be under the influence of an unknown substance. He told police that he had visited the appellant. The police arrested the male and upon searching him, located $2,350 cash in $50 denominations and a clear plastic resealable bag containing 4 g of methylamphetamine.
Later that day, police searched the appellant’s premises. In the kitchen, police located two plastic resealable bags containing 1.08 g of methylamphetamine (Count 3) and three plastic resealable bags containing 84.1 g of cannabis

(Count 4). Police also located $450 cash, three sets of digital scales, one glass ice pipe, a blister pack of 10 quetiapine tablets, six glass bongs, and a large number of plastic resealable bags. Swabs were taken of the digital scales and cannabis (THC) and methylamphetamine were detected on each.
Police also located two satchels containing $12,415 in the appellant’s bedroom (Count 5).
Police seized a mobile telephone from the appellant and observed several messages which appeared to relate to drug trafficking.
The appellant was admitted into the Adelaide Remand Centre on 23 September 2020. A small bag containing 1.17 g of methylamphetamine was seized from the property of the appellant. This was not the subject of any charge.
A review of the appellant’s telephone records for the period 11 to 22 September 2020, prior to the second attendance of police, showed that the appellant made 66 telephone calls, received 995 telephone calls, sent 1,767 text messages, and received 2,684 text messages.
The appellant’s banking records for the period from 1 January to 1 October 2020 showed that there were 431 deposits totalling $75,876.80 from other persons, as well as large cash withdrawals. 67 persons were identified and recorded against those deposits, with 40 of those persons known to police as being connected with drugs. The appellant was in receipt of the Disability Support Pension at all relevant times.
Personal circumstances
As at the time of sentence, the appellant was aged 34. He was born and raised in Adelaide. The appellant’s parents separated when he was 14 years old. The appellant has one sibling, a brother with whom he does not have a close relationship.
The appellant has been involved in one significant relationship. At the time of sentence, he was single. He does not have any children.
The appellant completed schooling to year 7. An early childhood assessment showed him to have ADHD and severe dyslexia. The appellant was expelled after a number of difficulties at school relating to behavioural issues.
The appellant worked successfully at various jobs until 2018, after which time he was in receipt of a Centrelink Disability Support Pension on account of his mental health.
From a young age, the appellant began abusing both alcohol and illicit drugs. He said he was a heavy user of methylamphetamine and, at the time of this offending, was addicted to it. The appellant was also a heavy user of marijuana at the time of his arrest. He had also previously used ecstasy, hallucinogenic drugs, cocaine and Gamma hydroxybutyrate (‘GHB’).
From the age of 18, the appellant began playing poker machines and subsequently developed a gambling addiction.
The appellant has previously participated in rehabilitation programs, including six sessions of one on one counselling at Drug and Alcohol Services Australia in 2017 and ‘Neurone’ drug counselling in group sessions for a six month period in 2018.
In June 2020, the appellant was diagnosed with ‘schizoaffective disorder’.[3] When unwell, he became ‘paranoid with delusional beliefs’ and had assaulted police and threatened to kill people.[4]
[3] Psychological Report of Dr White dated 5 July 2021 at [2.5].
[4] Psychological Report of Dr White dated 5 July 2021 at [2.5].
A SACAT Report to obtain a Community Treatment Order was prepared on 27 July 2020 (in relation to other offending). It stated that the appellant had been diagnosed with a mental illness over the past five years and was being treated for a ‘schizoaffective disorder’. The appellant had previously been detained in 2015, twice in 2017, and in 2020 while exhibiting extreme symptoms of psychosis and grandiose delusions. The report stated that in June 2020, the appellant recorded positive screening tests for ‘marijuana, amphetamine, methamphetamine and benzodiazepines’.[5] A Community Treatment Order was granted for 12 months, expiring on 26 August 2021. The appellant was also previously subject to a Forensic Licence from 2 February 2016 to 23 December 2017.
[5] Psychological Report of Dr White dated 5 July 2021 at [2.5].
In a report prepared on 23 September 2020 (also ordered in relation to other offending), a Forensic Court Clinician indicated that despite the appellant’s diagnostic status for schizoaffective disorder, because of his history of ongoing substance abuse it was ‘difficult to determine that he had no control, or no awareness of the quality or wrongfulness of his conduct’.[6]
[6] Psychological Report of Dr White dated 5 July 2021 at [2.5.1].
Dr White prepared a psychological report dated 5 July 2021, in which he opined that the appellant satisfied a number of diagnoses as at the time of his offending, including:[7]
[7] Psychological Report of Dr White dated 5 July 2021 at [4.3].
·Polysubstance Use Disorder
oAlcohol Use Disorder
oCannabis Use Disorder
oStimulant Use Disorder
·Substance Induced Psychotic Disorder
·Post-Traumatic Stress Disorder
·Adjustment Disorder with mixed Anxiety & Depressed mood
·Mixed (Antisocial – Borderline) Personality Disorder
·Gambling Disorder
Dr White considered that the appellant’s past hospitalisations ‘were a direct consequence of his substance abuse’.[8] He said it was ‘possible that his substance abuse has caused some level of permanent brain damage, leading to him being more predisposed to having psychotic episodes’.[9] Dr White considered that the appellant was ‘unlikely to receive relevant treatment in custody for his mental health problems and his gambling addiction problems’.[10]
[8] Psychological Report of Dr White dated 5 July 2021 at [4.5].
[9] Psychological Report of Dr White dated 5 July 2021 at [4.5].
[10] Psychological Report of Dr White dated 5 July 2021 at [4.7].
As at the time of Dr Jack White’s psychological assessment, the appellant reported that his mental health was good. While in custody, he was in receipt of a regular depot injection of ‘Aripiprazole’, an antipsychotic medication, which he said stabilises him.[11]
[11] Psychological Report of Dr White dated 5 July 2021 at [2.5.2].
Dr White considered the appellant’s prospects of rehabilitation as poor. Given the appellant’s protracted history of substance abuse and the extent of his perceptual impairment, he strongly recommended that the appellant undergo a full neurological/neuropsychological investigation to determine the extent of any potential brain impairment.
A further report was prepared by Mr Andrew Rothwell, a clinical neuropsychologist, dated 11 January 2022. He considered that the appellant has a mild to moderate impairment in general intellectual functioning, with the most likely cause being his chronic polysubstance abuse in conjunction with his schizoaffective disorder. Mr Rothwell noted Dr White’s psychological diagnoses of the appellant.
Mr Rothwell went on to say:[12]
Being a mild impairment of intellectual functioning there is no sense that Mr Jones does not understand right from wrong. And at this level of impairment it is unlikely that he is experiencing severe levels of impulsivity. Though with some brain impairment against the background of possible ADHD increased levels of impulsivity (acting without fully thinking things through) are possible. My understanding from the charges however suggest that there is a fair level of planning and opportunity for reflection which, in my mind, reduces the likelihood that his brain condition has played any significant part in his offending.
[12] Neuropsychological Report of Mr Rothwell dated 11 January 2022 at 7.
To treat his condition, Mr Rothwell said that the appellant would likely have to remove himself completely from his previous life and environment. He considered the appellant’s prospects of rehabilitation ‘pessimistic’ in light of his history of offending, chronic polysubstance abuse, brain impairment, previously stated position that he does not wish to change his drug use, and failure to learn from previous experiences. [13]
[13] Neuropsychological Report of Mr Rothwell dated 11 January 2022 at 8.
The appellant has criminal antecedents, but none relate to drug offending.
Sentencing remarks
The sentencing Judge began by summarising the appellant’s offending. As to the appellant’s initial offending on 13 May 2020 (the ‘May offending’), his Honour described the offending as follows:
It is clear that as at 13 May 2020, you were a busy street-level and wholesale dealer of methamphetamine for substantial profit. The scale of trafficking far exceeded that required to support any personal drug use and, indeed, there was a substantial amount of cash located at your premises.
As to the appellant’s continued offending on 22 September 2020

(the ‘September offending’), the sentencing Judge found:
The overwhelming inference and the court finds beyond reasonable doubt, is that your trafficking was continuing at least at the scale of your earlier offending, and involved you in possession of substantially more drug profits than the previous occasion.
The sentencing Judge then considered the appellant’s personal circumstances, including the reports of Dr White and Mr Rothwell.
His Honour noted that the appellant had previous offending, ‘however, no prior drug offending’.
His Honour then discussed the seriousness of the appellant’s offending:
To say that your offending on this occasion is serious is an understatement. In the case of methamphetamine your charged offending was part of you trafficking significant quantities of this harmful drug to numerous customers over an extended period. You were also trafficking at a wholesale level as reflected in the phone records and quantities of cash located on you.
…
It is particularly serious that you continued to traffic notwithstanding being arrested and charged and released on bail for trafficking. In those circumstances deterrence and protection of the public must play a significant part in any sentence the court imposes, although the court has regard to your mental health and its relevance to issues of deterrence as submitted by your counsel.
As set out earlier, for Counts 1 and 2 (the May offending), the sentencing Judge imposed a single sentence of five years imprisonment, reduced by 25 per cent on account of the appellant’s guilty pleas to three years and nine months imprisonment.
In relation to Counts 3, 4 and 5 (the September offending), the sentencing Judge considered that it fell within the category described by Kourakis CJ in R v Young (‘Young’) as a ‘middle order dealer, or a persistent or recidivist street-dealer’.[14] His Honour considered that a starting point approaching the 10 year maximum was appropriate. For Counts 3 to 5, the sentencing Judge adopted a starting point of eight years imprisonment. This was reduced by 15 per cent on account of the appellant’s guilty pleas to six years, nine months, and 18 days imprisonment.
[14] See R v Young (2016) 126 SASR 41.

The sentencing Judge considered that the sentences should be served wholly cumulatively ‘[a]s the two groups of offending were entirely separate with the second group committed whilst on bail for the first’. This resulted in a total head sentence of 10 years, six months, and 18 days imprisonment.
In fixing the non-parole period, the sentencing Judge considered that in light of the appellant’s mental health issues and the importance of a long period of supervision upon his release, there was scope for leniency. His Honour fixed a non-parole period of five years.
Grounds of Appeal
The appellant complains of the following ‘process’ errors by the sentencing Judge. In relation to Ground 2, the appellant contends that by adopting a starting point of eight years for the September offending on the basis that he was a ‘persistent or recidivist’ dealer, the sentencing Judge fell into error. As to

Ground 4, the appellant contends that the sentencing Judge gave inadequate weight to his compromised mental health. While the appellant submits these are ‘process’ errors, it became apparent during the appeal hearing that those contentions are, in effect, components or particulars of the complaint that the sentence is manifestly excessive.
As Vanstone and Parker JJ said in R v Lutze:[15]
A submission that the sentencing judge did not give adequate weight to a factor is not, of itself, capable of enlivening the appeal court’s authority to intervene. Such a submission falls short of an assertion that no account was taken of a material consideration. It is not a complaint of specific error. At most, it can form part of a submission that there was manifest error; that is, that only by failing to give adequate weight to the material consideration could the judge have reached a sentence which is so unreasonable or plainly unjust, or, as the High Court recently put it, “outside the permissible range of sentences for the offender and the offence”.
(citation omitted)
[15] (2014) 121 SASR 144 at [47].
In Ground 3, the appellant contends that the sentencing Judge, by ordering that the sentences for both sets of offences be served cumulatively, imposed a head sentence that was manifestly excessive. While the appellant originally alleged a separate process error, that contention also became subsumed as part of his complaint that the sentence was manifestly excessive.
Thus, it is convenient to begin with a consideration of Appeal Ground 1, the complaint of manifest excess.
Ground 1 – Manifest excess
The principles governing a complaint of manifest excess are well settled. As Doyle JA said in Ndreka v The Queen:[16]
The principles governing the Court’s consideration of a submission of manifest excess are well-known. They were summarised by the High Court in Dinsdale v The Queen and Hili v The Queen. They require satisfaction by the appellate court that the impugned sentence is unreasonably high, or plainly unjust, in the sense required by House v The King. It is not enough that the sentence is higher than what the appellate court, or some other sentencing judge, might have imposed. The appellate court will only interfere if the sentence is outside the range of sentences that might reasonably have been imposed. Whether this is so requires consideration of the range of matters relevant to the sentencing task, including the maximum penalty for the relevant offending, where the circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. But ultimately there is a limit to the amount of analysis that may be brought to bear. Often the existence or otherwise of manifest excess will be a conclusion that does not admit of lengthy exposition.
(citations omitted)
[16] [2021] SASCA 11 at [28] (with whom Kelly P and Bleby JA agreed).
In support of the appellant’s complaint that the sentence is manifestly excessive, the appellant’s primary contention is that the sentencing Judge gave inadequate weight to his compromised mental health and personal circumstances.
The mental condition of an offender at the time of their offending is a relevant factor when considering sentence. As the Victorian Court of Appeal said in

R v Tsiaris
:[17]
Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. First, it may reduce the moral culpability of the offence, as distinct from the prisoner’s legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner’s illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.
[17] [1996] 1 VR 398 at 400 per Charles and Callaway JJA and Vincent AJA, cited in R v Tomlinson [2007] SASC 222 at [43] per Sulan J (with whom Bleby J agreed).
The relevant legal principles have been discussed and considered in recent authorities of this Court including R v Hronopoulos,[18] Kuchar v The Queen,[19] R v Monks,[20] and Nguyen v The Queen.[21]
[18] (2017) 269 A Crim R 551 per Stanley J (with whom Blue J and Hinton J agreed).
[19] (2019) 135 SASR 185 per Stanley J (with whom Kelly J and David AJ agreed).
[20] (2019) 133 SASR 182 per Doyle J (with whom Peek and Parker JJ agreed).
[21] [2022] SASCA 23 per Bleby JA (with whom Livesey P and Lovell JA agreed).
In the present case, the appellant relied on the reports of Dr White and Mr Rothwell, as summarised earlier, to submit that he had a number of mental conditions relevant to sentencing. That was not challenged by the respondent. The appellant submitted both before the sentencing Judge and on appeal that general deterrence should be given less weight due to the appellant’s mental health issues on the basis that he was not an appropriate medium for general deterrence or for making an example to others. The appellant also submitted at first instance and on appeal that he would serve any term of imprisonment more harshly due to the absence of specialised clinical treatment being available to him within a custodial setting.
It is readily apparent from the sentencing Judge’s remarks that he did take into account the appellant’s mental health in imposing sentence. However, the appellant contends that the sentence itself exposed that insufficient regard was given to his compromised mental health.
It is common ground that the appellant’s mental health was relevant to sentence. The appellant’s complex psychological disorders and limited intellectual capacity did require some moderation of the need for general deterrence. However, there was no causal connection between the appellant’s offending and his mental health. He did not suffer from high levels of impulsivity. He was able to run a sustained commercial enterprise trafficking drugs, during which he committed the charged offences. Principles of general deterrence still had a significant role to play in sentence, and the need for general deterrence was not greatly diminished by his mental health.
Further, according to the authors of both psychological reports, the appellant’s mental health combined with his entrenched drug addictions meant that his prospects of rehabilitation were poor and his risk of reoffending significant. Both psychologists were pessimistic as to his prognosis. That in turn made him a significant risk to the safety of the community. This was liable to have an adverse impact on sentence.
In our view, the real relevance of the appellant’s mental health lay in the complex nature of his psychological disorders, which require specialised treatment unavailable to him in custody. In that way, his mental health would result in a term of imprisonment being a greater burden on him than a person without his conditions. That feature of the appellant’s mental health, while relevant to the imposition of the head sentence, had greater application in fixing a non-parole period.
In his remarks, the trial Judge expressly had regard to the appellant’s ‘mental health and its relevance to issues of deterrence’. When fixing the non-parole period, his Honour set it ‘at the lower end of the usual range’ because of the appellant’s mental health issues. There was no other aspect of the sentencing process to which the appellant’s mental health was relevant. In the absence of any nexus between the appellant’s mental health and his offending, it did not reduce his moral culpability. Indeed, the appellant’s mental health lowered his amenability to rehabilitation and increased his risk of reoffending. Thus, there was a greater need to ensure that the sentence imposed protected the safety of the community.
The question remains whether the sentence is outside the permissible range for the offending, having regard to the appellant’s compromised mental health and other personal circumstances.
As to Counts 1 and 2 (the May offending), the appellant fell to be sentenced as a street level dealer motivated in part by profit.
In Young, Kourakis CJ said:[22]
Sentences in the range of four to seven years continue to be appropriate for offenders who are motivated to a greater or lesser extent by profit.
There will be relatively greater scope for rehabilitation in the case of a first offender dealer whose offending arises out of an all-consuming addiction but who has voluntarily embarked on a course of withdrawing from use of the drug. A sentence of less than four years imprisonment may be appropriate for offenders of that kind. However, that level of leniency cannot continue to be extended in the face of persistent offending either whilst on bail, or after sentence on earlier offending. There is much less reason for leniency in the face of persistent and recidivist trafficking even for the heavily addicted street dealer. As the prospects of rehabilitation diminish and the need for personal deterrence increases, the addicted street dealer can expect sentences in the same order as those imposed on the profit driven offenders.
Sentences approaching the 10 year maximum for the base trafficking offence must be reserved for those middle order dealers, and persistent or recidivist street dealers.
[22] R v Young (2016) 126 SASR 41 at [66]–[68] (with whom Vanstone and Stanley JJ agreed).
The May offending had several serious features. The appellant was trafficking two separate types of drug, namely methylamphetamine and cannabis. The offending occurred in the context of an established business of trading in drugs in which the appellant was, on occasion, selling methylamphetamine in wholesale amounts. The profitable nature of the business was apparent from the uncharged offending and the total sum of money deposited into his bank account over the preceding months (that is, from January 2020). The relatively small amounts of drugs in his possession is explained by the fact that the quantity of drug an offender possesses at a particular time will depend on the point in the drug trading cycle at which the offender is apprehended.
The appellant could not be punished for anything but the charged offences. However, those offences take their colour from, and their character is affected by, the context in which they were committed.[23] The offending was committed as part of an established and profitable business of trading in drugs. The appellant was not being sentenced for isolated offences and there was thus less scope to extend leniency in sentence.
[23] R v Taddeo (1993) 67 A Crim R 338 at 339 per King CJ (with whom Duggan and Debelle JJ agreed).
In addition, it could not be ignored that the appellant continued to offend after his arrest in May 2020. That was relevant to his prospects of rehabilitation and underscored the real need to impose a sentence which provided for the protection of the community’s safety.
As discussed earlier, the appellant’s compromised mental health moderated, to some limited extent, the need for general deterrence. An offender with the appellant’s complex psychological disorders and impaired intellectual functioning was not an appropriate vehicle for general deterrence. For the reasons outlined earlier, the appellant would also serve his time more harshly than those without his compromised mental health. However, the appellant at all relevant times knew that his offending was wrong. His offending did not arise out of a disordered mind or impulsive behaviour brought about by poor mental health. It was not spontaneous. Rather, his offending, as informed by the uncharged acts, revealed organisation and planning. The appellant also had poor prospects of rehabilitation and was a greater risk of reoffending by reason of his entrenched drug addiction and psychological disorders. Again, the protection of the safety of the community needed to be emphasised in the sentence.
Notwithstanding the appellant’s compromised mental health, the offending remained serious. We consider a starting point of five years for Counts 1 and 2, while at the upper end of the permissible range, was not manifestly excessive.
As to the September offending, the appellant committed these offences while on bail for the earlier offending. To that extent, he was a ‘recidivist’ offender, albeit he did not have prior convictions for drug trafficking. The uncharged offending appeared to reveal that the appellant never desisted from trafficking drugs after his arrest in May 2020, before he committed the offences in September 2020. This was a serious feature of his offending when considered in its entirety. While to some extent his further offending was explained by his mental health, which reduced his amenability to rehabilitation, it nonetheless underscored the significant risk the appellant posed to the safety of the community. The appellant was also to be sentenced for the money laundering offence involving more than $12,000 (Count 5). The sentencing Judge considered that the appellant fell to be sentenced ‘within the category described by the Chief Justice in R v Young as a middle order dealer, or a persistent or recidivist street-dealer’. For that reason, he adopted a notional starting point ‘approaching the 10 year maximum sentence’, namely eight years imprisonment.
There can be no doubt that the appellant was a persistent and recidivist offender to the extent that he had reoffended whilst on bail for similar offending. However, that does stand in some contrast to a person who has been tried, convicted and punished for an offence by receiving a term of imprisonment and upon release, then reoffends. In this case, there was a relatively short period of four months between the commission of both sets of offending.
The sentencing guidance provided in Young is not to be applied rigidly or mechanically as if it were a tariff or so as to unduly fetter the exercise of discretion.[24] It was not to be ignored that at the time sentence was imposed for the September offending, the sentencing Judge had imposed a significant term of imprisonment for the May offending. That was part of the appellant’s personal circumstances. Bearing that factor in mind, and notwithstanding the seriousness of the second group of offences, we are satisfied that the adoption of a starting point of eight years for Counts 3 to 5 was outside the permissible range for the offences and the offender.
[24] Cuong v The Queen [2021] SASCA 89 at [47] per Livesey JA citing R v King (1988) 48 SASR 555 at 557–8 per Cox J; Police v Cadd (1997) 69 SASR 150 at 165–7 per Doyle CJ; R v Place (2002) 81 SASR 395 at [31]–[33] per Doyle CJ, Prior, Lander and Martin JJ.
The appellant also complains that the sentencing Judge erred in ordering that the sentence imposed for the September offending be served cumulatively on the sentence for the May offending.
It is important to emphasise that there is usually no one way to correctly structure a sentence. The ultimate requirement in a case involving multiple offences is that the accumulated sentence is proportionate to the criminality of the total offending and the personal circumstances of the offender. As was explained by the High Court in Nguyen v The Queen:[25]
Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences. That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case. Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong. Generally speaking, however, the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency.
(citations omitted)
[25] (2016) 256 CLR 656 at [64] per Gageler, Nettle and Gordon JJ.
The same sentence for multiple groups of offences can be imposed using different sentencing structures. These may include concurrency, reducing a sentence for totality, or using s 26 of the Sentencing Act 2017 (SA)

(‘Sentencing Act’).
In the present case, the two sets of offending involved separate incursions into crime, and it was of significance that the September offending was committed while the appellant was on bail for the May offending. This provided a sound basis for the sentences to be served cumulatively.[26] However, there was also some room for partial concurrency in that all of the offending was part of one, ongoing unlawful trafficking business motivated in part by the appellant’s entrenched drug addiction, from which he found it difficult to rehabilitate because of his psychological disorders. Further, the imposition of a term of imprisonment for the May offending reduced what was otherwise necessary to achieve the deterrent and punitive objectives of the sentence for the September offending.
[26] R v Cleaver [2016] SASCFC 43 at [20] per Kourakis CJ (with whom Kelly J and Nicholson J agreed).
The critical consideration remains whether the ultimate sentence was proportionate to the criminality of the offending and the appellant’s personal circumstances. In our view, an accumulated starting point of 13 years imprisonment (reduced to 10 years, six months, and 18 days for the appellant’s guilty pleas) was not proportionate to the charged offending, looked at in its entirety, or, when considering the appellant’s mental health and personal circumstances. In our view, the accumulated head sentence for all offences was manifestly excessive.
We allow the appeal on Ground 1. It is accordingly necessary to resentence the appellant.
Resentence
In relation to the May offending (Counts 1 and 2), we utilise s 26 of the Sentencing Act and impose the same penalty as the sentencing Judge, that is imprisonment for five years.The appellant is entitled to a reduction of up to 25 per cent for his guilty pleas, resulting in a sentence of three years and nine months imprisonment. As to the September offending (Counts 3, 4 and 5), we impose a penalty of six years and six months, reduced by 15 per cent for the appellant’s guilty pleas to five years, six months, and 10 days imprisonment. We order that the sentences be served largely cumulatively but allow for a modest amount of partial concurrency. We impose a head sentence of eight years imprisonment. We adopt the approach taken by the sentencing Judge in imposing a non-parole period of about 50 per cent of the head sentence (to reflect the appellant’s compromised mental health) and fix a non-parole period of four years.
Conclusion

We allow the appeal, quash the sentence imposed in the lower Court, and resentence the appellant to imprisonment for eight years, with a non-parole period of four years. The sentence is to commence on 22 September 2020, when he was last taken into custody.