Knight v The Queen - [2021] SASCFC 12

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
KNIGHT v THE QUEEN
[2021] SASCFC 12
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, the Honourable Justice Livesey and the Honourable Justice Bleby)
19 February 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING METHYLAMPHETAMINE
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
The appellant pleaded guilty to three counts of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The charges related to two separate periods of offending. The first period of offending occurred in April 2018, when the police found the appellant in possession of two small bags of methamphetamine, containing 3.54g and 1.14 grams of methamphetamine respectively. This was street-level trafficking to fund the appellant’s methamphetamine habit.
In August 2018, the appellant was again arrested, this time for more serious offending relating to a total of 336 grams of methamphetamine which, if sold as individual doses, had a potential street value of $168,000. The sentencing Judge described the quantities trafficked in August 2018 as akin to that of a mid-range wholesaler, rather than a street-level dealer.
On 21 May 2020, the appellant was sentenced to a term of six years and eight months imprisonment, and fixed a non-parole period of five years and four months. The non-parole period was fixed at four-fifths of the head sentence because the appellant was sentenced as a “serious repeat offender” pursuant to s 54 of the Sentencing Act 2017 (SA).
Held, per Livesey J, and Kelly and Bleby JJ agreeing, allowing the appeal in part:
1. The appellant was appropriately sentenced in respect of her offending in April 2018 as a “street- level trafficker” and, in relation to her August 2018 offending, as a “mid-level wholesaler”. The sentence of six years and eight months was not manifestly excessive.
2. The appellant’s personal circumstances were “exceptional” within the meaning of s 54(2) of the Sentencing Act 2017 (SA). Accordingly, it was open to the sentencing Judge to fix a non-parole period of less than fourth-fifths of the head sentence. Observations made about s 54 and prior provisions concerning "serious repeat offenders" and about "exceptional circumstances".
3. Whilst the error made in connection with the determination of the non-parole period enlivens this Court’s discretion to resentence generally, the head sentences were appropriate, as was the imposition of partial concurrency. On resentence, a non-parole period of three years is fixed, to commence from 21 May 2020.
Controlled Substances Act 1984 (SA) S 32(3); Sentencing Act 2017 (SA) S 54, S 53, S 52, S 51, S 3, S 4, S 93; Criminal Law (Sentencing) Act 1988 (SA) S 20BA, S 10, referred to.
R v Young (2016) 126 SASR 41; R v McIntosh [2017] SASCFC 87; R v Camarinha [2018] SASCFC 118; R v Karnage [2019] SASCFC 82; R v Manglesdorf (1995) 66 SASR 60; R v Kelly [2000] 1 QB 198, discussed.
Attorney-General v Tichy (1982) 30 SASR 84; Beneficial Finance v Price Waterhouse (1996) 68 SASR 19; Copping v ANZ McCaughan Ltd (1997) 67 SASR 525; Craig, Williamson Pty Ltd v Barrowcliff [1915] VLR 450; Da Silva v The Queen [2020] SASCFC 66; Devlin v Collins (1984) 37 SASR 98; Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2015) 254 CLR 489; Hoare v The Queen (1989) 167 CLR 348; Moran v The Queen [2020] SASCFC 30; Nguyen v Nguyen (1990) 169 CLR 245; Pascoe v The Queen [2020] SASCFC 113; Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1; Pooraka Holdings v Participation Nominees (1989) 52 SASR 148; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v Arnold [2015] SASCFC 23; R v CAB [2020] SASCFC 33; R v Duncan (2015) 34 NTLR 201; R v Fowler [2006] SASC 18; R v Gjoka (Supreme Court of South Australia, Doyle J, 1 July 1997); R v Hibeljoc [2018] SASCFC 35; R v Ironside (2009) 104 SASR 54; R v Kong (2013) 115 SASR 425; R v Lucky (1974) 12 SASR 136; R v MAC (2012) 34 VR 193; R v Morse (1979) 23 SASR 98; R v Rombola [2020] SASCFC 76; R v Spiero (1981) 26 SASR 577; R v Stokes [2020] SASCFC 9; R v Tootell; ex parte Attorney-General (Qld) [2012] QCA 273; R v Willett (2017) 128 SASR 57; R v Yavuz (2018) 130 SASR 231; Stokes v The Queen [2020] SASCFC 9; Webb v The State of South Australia (2003) 87 SASR 17; Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290, considered.

KNIGHT v THE QUEEN
[2021] SASCFC 12

Court of Criminal Appeal: Kelly, Livesey and Bleby JJ

KELLY J: I agree with the orders proposed by Livesey J. I note his Honour’s observations in relation to R v Karnage[1] and the potential problem with respect to the reasoning in Karnage as to s 54(2)(a) of the Sentencing Act 2017 (SA). That issue was not argued before us and it is inappropriate to attempt to resolve it without considered argument.
[1] [2019] SASCFC 82.
LIVESEY J: This is an appeal against a sentence imposed on 21 May 2020 following pleas of guilty to three counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA).
The maximum penalty for each count is imprisonment for 10 years or a fine of $50,000, or both.
The sentencing Judge imposed a head sentence of six years and eight months, and fixed a non-parole period of five years and four months. The non-parole period was fixed at four-fifths of the head sentence because the appellant was sentenced as a “serious repeat offender” pursuant to s 54 of the Sentencing Act 2017 (SA) (the Act).
Two appeal grounds
This appeal is concerned with two grounds, namely, that the sentence was manifestly excessive and, in any event, the sentencing Judge erred in failing to find that the appellant’s “personal circumstances” were “so exceptional as to outweigh the paramount consideration of protecting the safety of the community … and personal and general deterrence”, with the result that it was “not appropriate” that the appellant be “sentenced as a serious repeat offender” in accordance with s 54(1) of the Act.
Disposition of the appeal
In my opinion, the sentence imposed was not manifestly excessive. The appellant was appropriately sentenced in respect of her offending in April 2018 as a “street-level” trafficker and, following the significant escalation in her trafficking, in respect of her August 2018 offending as a “mid-level wholesaler” within the admittedly imprecise terms used in R v Young.[2]
[2] R v Young (2016) 126 SASR 41, [65]-[68] (Kourakis CJ, with whom Vanstone and Stanley JJ agreed).
However, with respect, the appellant’s personal circumstances were indeed “exceptional” and enlivened the discretion of the Court to sentence the appellant on the basis that, pursuant to s 54(2) of the Act, it was open to fix a non-parole period of less than fourth‑fifths of the head sentence.
Whilst the error made in connection with the determination of the non‑parole period enlivens this Court’s discretion to intervene and resentence generally,[3] the head sentences were appropriate, as was the imposition of partial concurrency.
[3] Da Silva v The Queen [2020] SASCFC 66.
In my opinion, it is appropriate to fix a non-parole period of three years, backdated to commence from when the appellant was first taken into custody, on 21 May 2020. My reasons follow.
The circumstances of the offending
The appellant’s offending in this case essentially fell into two very different categories.
The appellant’s methamphetamine use over a decade had, by 2018, developed into an entrenched addiction. By April 2018, the appellant was trafficking to support her addiction. It was in the course of trafficking relatively small quantities of methamphetamine that the appellant was first detected and reported for trafficking.
However, the marked escalation in trafficking by August 2018 was, on the finding of the sentencing Judge, associated with a combination of drug and gambling addictions. Following a disputed facts hearing, the finding by the sentencing Judge was that the appellant derived “no significant profit beyond those two uses of the funds”.
It might well be said that for the April 2018 offending, the starting point of three years and four months, reduced by 30 per cent on account of the guilty plea to two years and four months, was high in respect of 4.7 grams of methamphetamine.[4] Nonetheless, that is counterbalanced by two matters. The first is that the offending was not isolated. Second, and perhaps more importantly, the sentencing Judge ordered that the sentences be partially concurrent, effectively reducing the sentence by one year and three months. On one view of it, this was indeed generous to the appellant given the absence of any obvious connection between the April and August 2018 offending. The April offending was quite separate and distinct from the August offending.[5]
[4] For example, in R v Rombola [2020] SASCFC 76, a successful Crown appeal against sentence, a head sentence of four years and three months was reduced to three years and 10 months due to a 10 per cent reduction for the guilty plea, was imposed for trafficking 15.47 grams of crystals containing 12.73 grams of methylamphetamine, with a purity exceeding 76 per cent.
[5] Attorney-General v Tichy (1982) 30 SASR 84; R v Spiero (1981) 26 SASR 577; R v Lucky (1974) 12 SASR 136; R v Arnold [2015] SASCFC 23. Cf R v Belczacki (2012) 112 SASR 95; R v C, M [2014] SASCFC 62.
So far as the August offending is concerned, this was correctly recognised as “serious” by the sentencing Judge because it involved a total of 336 grams in a period of around three weeks which, if sold as in the “common ‘point’ deals” (or 3,360 “doses” at $50 each), was potentially worth $168,000 “on the street”. In R v Yavuz, this Court cited with approval observations made in R v Young regarding the sentencing of an offender on trafficking offences:[6]
The features relevant to assessing the seriousness of a defendant’s trafficking offending and the extent of proportionate punishment include the quantity, purity and varieties of the drug or drugs involved; the defendant’s position in the drug trafficking hierarchy; the defendant’s role in the trafficking (eg principal/sole trader, courier, handler, assistant, etc); the level of reward the defendant may be expected to have received as a result of the trafficking; whether the trafficking was undertaken solely for profit or solely to support a drug addiction or a combination; whether the offending was an isolated transaction or part of a course of conduct and in the latter case the period over which the defendant undertook the trafficking. The relevance of these features follow from a legislatures prescription of relevant factors in section 44 of the [Controlled Substances Act 1984 (SA)].
[6] R v Yavuz (2018) 130 SASR 231, [67] (Kourakis CJ, Blue and Hinton JJ), citing R v Young (2016) 126 SASR 41, [216] (Blue J).
Whilst the categorisation of offenders in R v Young is necessarily “imprecise”, it is difficult indeed to place the August 2018 offending into anything other than that of the “middle order” dealer for whom Kourakis CJ suggested a sentence “approaching the 10 year maximum” was appropriate.[7] Subsequently, this Court has drawn a distinction between the culpability of a “supplier” as compared with an “ordinary street level dealer”:[8]
As a supplier his culpability is greater, and in my view considerably so, than that of the street level dealer who sells drugs to support his own addiction. As a corollary of this, his contribution to the harm methamphetamine causes to individuals and the community is greater. The sentence imposed on him must deter others who would do the same in addition to adequately punishing the respondent for what he has done.
[7] R v Young (2016) 126 SASR 41, [68] (Kourakis CJ).
[8] R v McIntosh [2017] SASCFC 87, [67] (Hinton J).
In R v McIntosh, a Crown appeal against sentence, the respondent had trafficked 135 grams of methamphetamine over a 56-day period. He pleaded guilty to 32 counts of trafficking, each representing one sale. He typically sold in amounts ranging from 0.1 grams to 28 grams of methamphetamine. The sentencing Judge had started at a sentence of six years imprisonment. This was regarded as too low. Though Hinton J did not describe the defendant as a mid-level dealer, because the quantities in which the trading occurred did not permit that taxonomy, he referred to the defendant’s role within an ongoing network in which he typically sold methamphetamine in “street deal quantities”, but he nonetheless had the capacity to supply, and did so, in much larger amounts when requested:[9]
In my view a starting point of eight years imprisonment is in keeping with what fell from the Chief Justice in R v Young – “[s]entences approaching the ten year maximum for the base trafficking offence must be reserved for … persistent or recidivous street dealers”. Put slightly differently, the starting point nominated by the Judge in this case is not in keeping with the standard as expressed in R v Young.
[9] R v McIntosh [2017] SASCFC 87, [80] (Hinton J). Though the finding was that the sentence was manifestly inadequate, Hinton J refused permission to appeal because he was not persuaded that there were “strong reasons of public policy outweighing the public interest against the respondent not being twice vexed”: see [86].
In R v Camarinha, this Court again considered a Crown appeal against sentence concerning what was described as a “middle order dealer”.[10] It was again recognised that “middle order dealers”, and those who may be regarded as “persistent or recidivist street level dealers”, will ordinarily receive a head sentence higher than the typical starting point for a “street level dealer” of four to seven years.[11] In R v Camarihna, the defendant pleaded guilty to eight counts of trafficking involving 2,033 ecstasy pills and 80.7 grams of methamphetamine over a two month period. A further 83.7 grams of methamphetamine was discovered in the defendant’s home. Given the existence of a sophisticated telecommunications network, and the capacity to source substantial quantities at short notice, the Court found that the starting point of six years’ imprisonment was manifestly inadequate and held that a starting point of eight years was appropriate.
[10] R v Camarinha [2018] SASCFC 118 (Kourakis CJ, Blue and Lovell JJ).
[11] Citing R v Young (2016) 126 SASR 41, [65]-[66] (Kourakis CJ).
If one only considered the broad outline of the appellant’s August 2018 offending, it is difficult to regard this as a case where the starting point could be less than eight years. However, and as the sentencing Judge correctly recognised, the appellant’s motivation was not to profit “to fund a comfortable, usually hedonistic, lifestyle”,[12] but to meet the significant outlay required by her twin addictions of drug use and gambling.
[12] R v Young (2016) 126 SASR 41, [65]-[66] (Kourakis CJ).
In these circumstances, the starting point of seven years, reduced by 20 per cent on account of the pleas of guilty to five years and seven months, was well within the appropriate range, particularly in circumstances where the appellant knew the seriousness of her offending as she had been reported by police in connection with her April 2018 offending.
After allowing for partial concurrency, the sentencing Judge imposed a term of imprisonment of six years and eight months.
Bearing in mind the profound social harm caused by drug trafficking of this kind,[13] there can be no complaint that this head sentence was manifestly excessive.[14] I would dismiss the first ground of appeal.
[13] R v Kong (2013) 115 SASR 425, [90]-[92]; R v Young (2016) 126 SASR 41, [40] (Kourakis CJ).
[14] R v Morse (1979) 23 SASR 98, 99 (King CJ); R v Hibeljoc [2018] SASCFC 35, [43] (Doyle J).
The circumstances of the offender
The appellant was 25 years old at the time of her offending and 27 years when sentenced.
She had had limited parental support during her formative years. Her mother abused alcohol, suffered from mental illness and, in consequence, the appellant felt neglected and rejected by her mother. She left home at age 13 and has not since had contact with her mother. As for her father, he had no contact with the appellant at all during her formative years. When the appellant attempted to make contact during her teenage years, her father rejected her.
The appellant was diagnosed with ADHD when she was young. She was prescribed Ritalin in November 2019, but in February 2020, the prescription was varied to dexamphetamine. The appellant began using amphetamines in her early teenage years. Her schooling was disrupted by her mother’s frequent moves and the need to change schools. She was twice expelled from school and generally struggled with her school work.
The appellant received no formal treatment for her ADHD until after the subject offending. In addition, the appellant has long suffered from Type 1 diabetes. This complicated her later attempts to withdraw from drugs.
The appellant’s methamphetamine addiction lasted from her teenage years until relatively recently. I shall return to the appellant’s rehabilitation from drug‑taking.
After the appellant ceased using methamphetamine her ADHD became problematic. Eventually she was prescribed dexamphetamine.
Notwithstanding these various difficulties, the appellant obtained a Diploma in Business Administration and a Certificate IV in Administration. During 2016 she started working for a consulting firm as a financial controller and administration manager. She remained gainfully employed by that firm until she was incarcerated on 21 May 2020. She retains the support of her employer.
Exceptional circumstances
The question whether “exceptional circumstances” exist arises in connection with s 54 which is located in Part 3, Division 4 of the Sentencing Act 2017 (SA):
54—Sentencing of serious repeat offenders
(1) The following provisions apply in relation to the sentencing of a person who is a serious repeat offender for an offence (including an offence that resulted in the person being a serious repeat offender):
(a)the court sentencing the person is not bound to ensure that the sentence it imposes for the offence is proportional to the offence;
(b)any non‑parole period fixed in relation to the sentence must be at least four‑fifths the length of the sentence.
(2) However, a court that is sentencing a person who is a serious repeat offender for an offence may declare that subsection (1) does not apply if the person satisfies the court, by evidence given on oath, that—
(a)the person's personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence; and
(b)it is, in all the circumstances, not appropriate that the person be sentenced as a serious repeat offender.
The definition of a “serious repeat offender”, as at the time of the appeal, is provided by s 53 as follows:
53—Serious repeat offenders
(1)     A person will, by force of this subsection, be taken to be a serious repeat offender if—
(a)     the person (whether as an adult or as a youth)—
(i)has committed on at least 3 separate occasions a category A serious offence to which this Division applies (whether or not the same offence on each occasion); and
(ii)     has been convicted of those offences; or
(b)     the person (whether as an adult or as a youth)—
(i)has committed on at least 3 separate occasions an   offence to which this Division applies (whether or not the same offence on each occasion); and
(ii)     has been convicted of those offences; or
(c)     the person (whether as an adult or as a youth)—
(i)has committed on at least 2 separate occasions a serious sexual offence against a person or persons under the age of 14 years (whether or not the same offence on each occasion); and
(ii)     has been convicted of those offences; or
(d)     the person (whether as an adult or as a youth)—
(i)has committed on at least 2 separate occasions a category A offence (whether or not the same offence on each occasion); and
(ii)     has been convicted of those offences.
(2)     For the purpose of this section, when determining the number of occasions on which a person has committed a particular kind of offence, the offence for which the person is being sentenced is to be included is it is of the relevant kind.

To these must be added the definitions of a “serious drug offence” and a “serious repeat offender” contained in s 52(1) of the Act:
52—Interpretation and application
(1) In this Division—
…
serious drug offence means—
(a)an offence under Part 5 Division 2 or 3 of the Controlled Substances Act 1984 or a substantially similar offence under a corresponding previous enactment; or
(b)a conspiracy to commit, or an attempt to commit, such an offence;
…
serious repeat offender means—
(a) a person who is a serious repeat offender under section 53(1); or
(b)a person declared to be a serious repeat offender under section 20B of the Criminal Law (Sentencing) Act 1988 as in force immediately before the commencement of section 17 of the Statutes Amendment (Serious Firearm Offences) Act 2012; or
(c)a person declared to be a serious repeat offender under section 20B of the Criminal Law (Sentencing) Act 1988 as in force immediately before the repeal of that Act;
Sub-section 52(1) defines a “serious offence” as, relevantly, “a serious drug offence”. Moreover, by ss 52(2) and 52(3):
(2) For the purposes of this Division, an offence (other than a serious firearm offence) will not be regarded as a serious offence unless the maximum penalty prescribed for the offence is, or includes, imprisonment for at least 5 years.
(3) An offence is one to which this Division applies if the offence is a serious offence and—
(a)a sentence of imprisonment (other than a suspended sentence) has been imposed for the offence; or
(b)if a penalty is yet to be imposed—a sentence of imprisonment (other than a suspended sentence) is, in the circumstances, the appropriate penalty.
The appellant has, on three separate occasions, been convicted of committing an offence against s 32(3) of Part 5, Division 2 of the Controlled Substances Act 1984 (SA). This carries a maximum penalty of imprisonment for 15 years. As these three offences are offences under s 32 of the Controlled Substances Act 1984 (SA), each offence also constitutes a “serious drug offence” for the purposes of the Sentencing Act 2017 (SA).[15] Each offence also constitutes a “serious offence” for the purposes of Division 4 of the Sentencing Act 2017 (SA), as each is an offence under Part 5, Division 2 of the Controlled Substances Act 1984 (SA),[16] and each carries a maximum penalty of 15 years imprisonment.[17] Accordingly, the appellant meets the definition of a “serious repeat offender” within s 53(1)(b) of the Sentencing Act 2017 (SA).
[15] Sentencing Act 2017 (SA), s 49(1).
[16] Sentencing Act 2017 (SA).
[17] This exceeds the minimum five year maximum imprisonment requirement in s52 of the Sentencing Act 2017 (SA).
In Stokes v The Queen, this Court recognised that “[t]he intent and operation of s 54 of the Act requires a sentencing court to approach sentencing a serious repeat offender differently to an offender not captured by the criteria in s 53 of the Act”.[18] By virtue of s 54(1)(a), the court is free to deviate from the fundamental tenet of sentencing law that the sentence must be proportionate to the gravity of the crime.[19] The provision of a mandatory minimum non-parole period requires an approach different to that which governs the fixing of a non-parole period in circumstances where no mandatory minimum is imposed.[20]
[18] R v Stokes [2020] SASCFC 9, [84] (Lovell J, with whom Peek J agreed).
[19] Hoare v The Queen (1989) 167 CLR 348, 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).
[20] R v Ironside (2009) 104 SASR 54, [26]-[28] (Doyle CJ, with whom Kourakis J agreed).
Nevertheless, s 54(1) may be declared not to apply if the two requirements set out in s 54(2) are satisfied. The first requirement is that the offender’s “personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence”.[21] The second is that “it is, in all the circumstances, not appropriate that the person be sentenced as a serious repeat offender”.[22]
[21] Sentencing Act 2017 (SA), s 54(2)(a).
[22] Sentencing Act 2017 (SA), s 54(2)(b).
The chapeau to subsections (2)(a) and (b) is also important. It indicates that only evidence on oath, whether given orally or in writing, may satisfy the sentencing court of both requirements.
The concept of a “serious repeat offender”
The concept of a “serious repeat offender” was first introduced into the Criminal Law (Sentencing) Act 1988 (SA) in s 20BA during 2012.[23] As introduced, s 20BA originally provided:
[23] Statutes Amendment (Serious Firearm Offences) Act 2012 (SA).
20BA—Sentencing of serious repeat offenders
(1) The following provisions apply in relation to the sentencing of a person who is a serious repeat offender for an offence (including an offence that resulted in the person being a serious repeat offender):
(a)the court sentencing the person is not bound to ensure that the sentence it imposes for the offence is proportional to the offence;
(b)any non‑parole period fixed in relation to the sentence must be at least four‑fifths the length of the sentence.
(2) However, a court that is sentencing a person who is a serious repeat offender for an offence may declare that subsection (1) does not apply if the person satisfies the court, by evidence given on oath, that—
(a)his or her personal circumstances are so exceptional as to outweigh the primary policy of the criminal law of emphasising public safety; and
(b)it is, in all the circumstances, not appropriate that he or she be sentenced as a serious repeat offender.
In the course of her Second Reading Speech, the Minister explained:[24]
[24] South Australia, Parliamentary Debates, Legislative Council, 17 July 2012, pp 1725-1728 (Gail Gago).
The consequence of falling within the “serious firearm offender” category is that there is a presumption that a sentence of immediate imprisonment will be imposed on conviction. The only reason for not imposing a sentence of immediate imprisonment will be if exceptional circumstances exist – exceptional circumstances cannot be found unless the sentencing court is satisfied by evidence on oath that the personal circumstances of the offender are sufficiently exceptional to outweigh the primacy of public safety and personal and general deterrence.
Some explanation of the general meaning of “exceptional circumstances” may be helpful. In R v Kelly (Edward) [2000] QB 198. Lord Bingham of Cornhill said:
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
In R v Fowler [2006] SASC 18, Gray and Layton JJ had occasion to describe the difference between “exceptional circumstances” and “good reason”:
There is a substantial and important difference between the “exceptional circumstances” test as discussed in Manglesdorf and the “good reason” test to draw from the wording of the statute. The “good reason” test established by the legislature requires the sentencing judge to consider all of the circumstances of the instant case and make an assessment as to whether those circumstances give rise to good reason to suspend the sentence.
On the other hand, the “exceptional circumstances” test implies that a sentencing judge ought to compare the circumstance of the instant case with other cases and determine whether there are aspects of the instant case that set it apart from the other cases and thereby justify an exercise of the discretion to suspend. This may lead the Court to be asked to first consider what the common or typical features of drug trafficking cases are and then compare such features with the case at bar to decide whether such circumstances may be characterised as “exceptional” before considering then whether to suspend. Such an approach would require the fulfillment of conditions which contradict the statutory requirement.
…
18—Insertion of section 20BA
This clause inserts new section 20BA into the Criminal Law (Sentencing) Act 1988 to which replaces current section 20(4) and sets out how a court may sentence a person who is a serious repeat offender.
These amendments were driven by an escalation in gun-related violence in Adelaide and a desire to reduce what was regarded as an intolerable level of serious firearms violence.
Accordingly, s 10 of the 1988 Act was amended so as to emphasise that when sentencing for firearms offences, the primary role of sentence was to emphasise public safety and specific and general deterrence.
Accordingly, if a defendant came within the “serious firearm offender” category there was a presumption of immediate imprisonment unless “exceptional circumstances” were proved to exist. As a corollary, the serious repeat offender provisions were also amended and the requirement for a minimum non-parole period of four-fifths of the head sentence was introduced. The requirement to show “exceptional circumstances” applied not merely to the minimum mandatory non‑parole period, but also to the question of suspension, now under s 51 of the Act.
Section 54(2) is a cognate provision to s 51(2) of the Act which provides that a sentence of imprisonment must not be suspended for a “serious firearm offender”, as legislatively defined, unless the sentencing court is satisfied by evidence given on oath that “the person’s personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence”,[25] and “it is, in all the circumstances, appropriate to suspend the sentence”.[26]
[25] Sentencing Act 2017 (SA), s 51(2)(a).
[26] Sentencing Act 2017 (SA), s 51(2)(b).
The power contained in s 51(2) was previously vested in s 20AAC(2) of the Criminal Law (Sentencing) Act 1988 (SA) in terms that were not materially different. As s 54(2) is expressed in virtually identical terms to s 51(2) of the Act, Parliament may be taken to have understood that the construction to be afforded to s 54(2) will be the same as that which was applied to s 51(2) and its progenitor.[27] It follows that authorities concerning s 51(2) of the Act and its progenitor are pertinent to the construction of s 54(2).
[27] Whether because the same words have been used, Craig, Williamson Pty Ltd v Barrowcliff [1915] VLR 450, 451, or because the same words as construed in the Criminal Law (Sentencing) Act 1988 (SA) have been re-enacted in the Sentencing Act 2017 (SA) (see Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2015) 254 CLR 489, [15]) (French CJ, Hayne, Kiefel, Gageler and Keane JJ). See also R v CAB [2020] SASCFC 33, [75] (Livesey J, with whom Kourakis CJ and Doyle J agreed).
In R v Willett, Kourakis CJ, with whom Nicholson and Parker JJ agreed, considered s 20AAC(2) of the Criminal Law (Sentencing) Act 1988 (SA) and made the following observations:[28]
Section 20AAC(2) of the Act mandates that when sentencing for serious firearms offences personal and general deterrence are the paramount considerations. The effect of that statutory mandate is to tip the scales at the outset on the side of deterrence. Of course, despite the paramountcy accorded to the deterrence consideration, an offender’s personal factual circumstances may be so much more compelling than the circumstances relating to deterrence that the tipping of the scales is countered and a more rehabilitative sentence may be imposed. Section 20AAC(2) of the Act indicates that to have that effect, the personal circumstance must be exceptional.
However, it is a paralogism to speak, as the section does, of factual circumstances displacing the paramountcy accorded to the objective of deterrence. The factual circumstances of this case serve as a good illustration of the point I seek to make. Even though the objective of deterrence is paramount, the factual circumstances relating to that objective in this case are not of great weight. The type of air-gun in question rarely comes before the Courts, could until recently be purchased lawfully and poses a relatively low risk of harm. On the other hand, the respondent’s long period of demonstrated rehabilitation and the medicinal benefits provided to him by cannabis, which in part explains his offending, weigh the balance of the discretion heavily towards pursuing a rehabilitative objective despite the lower order priority of that objective.
I would construe s 20AAC(2) of the Act as conferring a discretion which can be exercised in the way I have described despite the infelicity of expression. The appellant’s circumstances are exceptional enough to outweigh the circumstances calling for deterrence notwithstanding the paramountcy accorded to that objective by the statute.
[28] R v Willett (2017) 128 SASR 57, [2]-[4] (Kourakis CJ, with whom Nicholson and Parker JJ agreed).
The Chief Justice’s observations in R v Willett are apposite to the construction of s 54(2)(a) of the Sentencing Act.
Personal circumstances are to be considered, as Nicholson J put it in R v Karnage, “in the context of all of the factors ordinarily relevant to sentence, including the nature and seriousness of the offence committed, the risks of re‑offending, the need to protect the public and the prospects for rehabilitation”.[29]
[29] R v Karnage [2019] SASCFC 82, [70] (Nicholson J, with whom Kelly and Hinton JJ agreed).
The observation in R v Karnage regarding s 54(2)(a)
In R v Karnage the Court noted that, when sentencing a person who is not a serious repeat offender, the paramount consideration is the protection of the safety of the community, whether in general or as individuals.[30] That is because s 3 of the Act provides:
[30] R v Karnage [2019] SASCFC 82, [70].
3—Primary sentencing purpose
The primary purpose for sentencing a defendant for an offence is to protect the safety of the community (whether as individuals or in general).
And, in addition s 9 states:
9—Primary purpose to be considered
For the avoidance of doubt, the primary purpose for sentencing a defendant for an offence must be the paramount consideration when a court is determining and imposing the sentence.
By virtue of s 4, deterrence, whether in the general or specific sense, is a secondary purpose.
However, when sentencing a serious repeat offender, it was also observed in R v Karnage that the paramount consideration becomes “protecting the safety of the community (whether as individuals or in general) and personal and general deterrence”.[31] The effect of this construction is that, for serious repeat offenders, the Act elevates personal and general deterrence to be paramount considerations, and not merely secondary purposes as s 4 otherwise suggests.[32] As it was explained in R v Karnage:[33]
… for the purpose of the subsection 54(2) enquiry, the legislature has elevated the collective to a paramount consideration and notwithstanding that personal and general deterrence is by section 4 otherwise to be regarded as a secondary sentencing purpose. In this respect, ordinary rules of syntax and grammar indicate that the descriptor “paramount consideration” refers to the collective not just the first part of the collective (“protecting the safety …”).
There is an element of the tautological in the language of the collective consideration. A consideration of each component naturally embraces a consideration of the other. Nevertheless, the notion of the collective consideration being paramount when engaging with subsection 54(2) is critical to an understanding of that engagement.
The legislature has characterised the appellant as a serious repeat offender and, as such, he is to be sentenced in accordance with the subsection 54(1) parameters. Underlying, this is the legislature’s determination that, for such an offender, protecting the safety of the public and personal and general deterrence is the paramount consideration …
[31] Sentencing Act 2017 (SA), s 54(2)(a) (emphasis added).
[32] Stokes v The Queen [2020] SASCFC 9, [87] (Lovell J, with whom Peek J agreed).
[33] R v Karnage [2019] SASCFC 82, [68]-[70] (Nicholson J, with whom Kelly and Hinton JJ agreed).
Thus, according to R v Karnage, in addition to the question of proportionality and the approach to be taken to the imposition of a non-parole period, s 54 alters the weight to be given to the various factors relevant to the exercise of the sentencing discretion.[34]
[34] Stokes v The Queen [2020] SASCFC 9, [86]-[87] (Lovell J, with whom Peek J agreed), “s 54 of the Act elevates personal and general deterrence to being part of the paramount consideration rather than “secondary” purposes”, citing R v Karnage [2019] SASCFC 82.
With respect, this view of the operation of s 54(2)(a) depends on a consideration of the text of s 54(2)(a) alone, without explicit regard to the context provided by the Act which, naturally, must be read as a whole.[35] It could be said that there is nothing in s 54(2)(a) which, whether expressly or by necessary implication, alters the clear words and effect of ss 3, 4 and particularly, s 9 of the Act. In my view, it is significant that these earlier provisions are intended as general statements about the purposes and considerations relevant to sentencing generally under the Act.
[35] Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1, [173] (Hayne J).
It might be said that the preferable way to read s 54(2)(a) is that it is merely referring to three sentencing purposes otherwise addressed earlier in the Act, one of which is the paramount purpose (community safety, the paramount consideration) with the other two remaining secondary purposes (personal and general deterrence). In most cases, the defendant’s task will be to demonstrate why personal circumstances outweigh the paramount and secondary purposes specified in s 54(2)(a) and otherwise addressed by ss 3, 4 and 9 of the Act. The primary difference is one of emphasis. That is, if neither personal and general deterrence are “paramount”, but secondary, they are not to be accorded the same weight as the need to consider public safety.
Whilst the contrary view is to be accorded respect and weight, it was obiter dicta and not binding.[36] Absent a binding ruling, it is strictly unnecessary to consider whether the observation made in R v Karnage is plainly wrong.[37] As well, in this case neither party challenged this aspect of R v Karnage. Indeed, the sentencing Judge held that the appellant’s personal circumstances were not so exceptional as to outweigh the consideration described in s 54(2)(a) as “personal and general deterrence”. The appellant, understandably, attacked the sentence on the basis that the sentencing Judge had applied this aspect of R v Karnage, and that this was the correct approach. Given the premise on which this matter was argued, it is not appropriate to consider whether to depart from the approach preferred by this Court in R v Karnage.[38] I have in any event reached the view that the appellant succeeds, even on the Court’s approach in R v Karnage.
[36] That this observation was by way of obiter dicta is clear from Nicholson J’s findings which precede the discussion of this aspect of the case: “Given that I would dismiss appeal ground 5 in limine, I turn to consider [s 54(2)] according to its terms only briefly…”: R v Karnage [2019] SASCFC 82, [64].
[37] The practice of this Court is not to depart from earlier rulings unless satisfied that the decision is plainly wrong or the interests of justice clearly require a departure: Devlin v Collins (1984) 37 SASR 98; Nguyen v Nguyen (1990) 169 CLR 245, 258-269; Beneficial Finance v Price Waterhouse (1996) 68 SASR 19; Copping v ANZMcCaughan Ltd (1997) 67 SASR 525, 568 (Lander J); Pooraka Holdings v Participation Nominees (1989) 52 SASR 148; Webb v The State of South Australia (2003) 87 SASR 17, [62] (Doyle CJ).
[38] This is particularly so absent considered argument and where the approach in R v Karnage [2019] SASCFC 82 was apparently accepted in Stokes v The Queen [2020] SASCFC 9, [86]-[87] (Lovell J, with whom Peek J agreed), in Moran v The Queen [2020] SASCFC 30, [55] (Bampton J, with whom Parker and Doyle JJ agreed) and in Pascoe v The Queen [2020] SASCFC 113, [12], [17] (Tilmouth AJ, with whom Stanley and Doyle JJ agreed).
The meaning of “exceptional circumstances”

The reference in the Minister’s Second Reading Speech to R v Manglesdorf and “exceptional circumstances” is a reference to the decision of the former Chief Justice in which he explained:[39]
This Court has established standards for the punishment of crimes of the type dealt with by the judges in the cases the subject of the present application. The Court has referred time and again to the severe penalties imposed by s 32 of the Controlled Substances Act, in particular to the severe penalties imposed for commercial activity in relation to the drugs dealt with by s 32; and to the evident expectation of Parliament that the Courts will impose penalties which will deter people from engaging in commercial activity with respect to these drugs. The Court has also made it clear that a suspended sentence will be justified only in truly exceptional circumstances when the offence is one involving, or committed against, a background of involvement in commercial trading or dealing in the drugs dealt with by s 32.
[39] R v Manglesdorf (1995) 66 SASR 60, 63 (Doyle CJ).
Subsequently, in R v Gjoka, Doyle CJ clarified the remarks he had made in R v Manglesdorf:[40]
The remarks of the trial Judge suggest that he thought that it would not be appropriate to suspend unless there were exceptional circumstances. In saying that he may have been echoing my remarks in Manglesdorf. As I have already indicated, those remarks were made with reference to a more serious category of offending.
The power to suspend a sentence is conferred by s 38 of the Sentencing Act. The Court may suspend the sentence “… if it thinks that good reason exists for doing so”. That is the statutory criteria, and that is the test to be applied.
Nevertheless, it is appropriate for this Court in particular cases to determine, as it did in Manglesdorf, that the nature or gravity of an offence is such that suspension would not be appropriate unless exceptional circumstances are present. To do so is not to displace the statutory criterion. It is to do no more than to indicate that because the statutory criterion has to be applied in the light of the circumstances of the case, the seriousness of a certain type of offence and the appropriate approach to punishment for that offence may combine to mean that it would be very difficult to justify suspension.
(Citations omitted)
[40] R v Gjoka (Supreme Court of South Australia, Doyle J, 1 July 1997).
Much later, in R v Fowler, Perry J rejected the proposition that Doyle CJ had in Manglesdorf, suggested a test for suspension other than that which was prescribed by the Act. Importantly:[41]
There is not an “exceptional circumstances” tests “as discussed in Manglesdorf.” There is only one test. But in the case of certain serious categories of offending, its successful application in favour of the defendant will be uncommon. A sentencing Court does not fall into error, if it recognises the practical reality of that observation.
[41] R v Fowler [2006] SASC 18, [36] (Perry J).
In the same case, however, Gray and Layton JJ seemed to think that there had been a test of “exceptional circumstances” laid down in Manglesdorf, and explained their understanding of that test:[42]
… the “exceptional circumstances” test implies that a sentencing judge ought to compare the circumstances of the instant case with other cases and determine whether there are aspects of the instant case that set it apart from the other cases and if thereby justifying exercise of the discretion to suspend. This may lead the Court to be asked to first consider what the common or typical features of drug trafficking cases are and then compare such features with the case at Bar to decide whether such circumstances may be characterised as “exceptional” before considering then whether to suspend …
[42] R v Fowler [2006] SASC 18, [55] (Gray and Layton JJ).
As the decisions of Doyle CJ and Perry J demonstrate, no “exceptional circumstances” test was laid down in Manglesdorf. Nonetheless, the Parliament appears to have drawn from what Gray and Layton JJ said in R v Fowler when introducing the requirement to demonstrate “exceptional circumstances” in connection with what is now s 54(2)(a) of the Act.
The Minister referred to the well-known remarks of Lord Bingham in R v Kelly.[43] These remarks have been referred to on a number of occasions. For example, in Yacoub v Pilkington, Campbell JA considered the term “exceptional circumstances” when used in rules of court:[44]
Another question of construction concerned “exceptional circumstances” in rule 31.18(4).In San v Rumble (No 2) (2007) NSWCA 259 at [59]-[69], I gave consideration to the expression “exceptional circumstances” in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4).
(a)     Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [2000] 1 QB 198 (at 208).
(b)     Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913).
(c)     Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).
(d)     In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912-913).
(e)     Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).
[43] R v Kelly [2000] 1 QB 198, 208 (Lord Bingham).
[44] Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290, [66] (Campbell JA).
A similar approach has been taken to the observations made by Lord Bingham regarding “exceptional circumstances” in Victoria,[45] Queensland[46] and in the Northern Territory.[47]
[45] R v MAC (2012) 34 VR 193.
[46] R v Tootell; ex parte Attorney-General (Qld) [2012] QCA 273.
[47] R v Duncan (2015) 34 NTLR 201.
A defendant must demonstrate that her or his personal circumstances are so exceptional such that the “paramount consideration” of “protecting the safety of the public and personal and general deterrence” is outweighed.[48] The pronoun “so”, which is used to qualify “exceptional” in s 54(2)(a), is also important and effect must be given to it.[49] It operates, I think, to reinforce, as a matter of emphasis, the role of personal circumstances in the evaluation required by the provision. It follows that the proved personal circumstances must permit the conclusion that the paramount consideration of community safety and general deterrence under s 54(2)(a) is outweighed by personal circumstances which are out of the ordinary course, or unusual or uncommon, though they need not be unique, unprecedented or very rare, though they cannot be regularly, routinely or normally encountered.[50]
[48] R v Karnage [2019] SASCFC 82, [70] (Nicholson J, with whom Kelly and Hinton JJ agreed).
[49] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [71] (McHugh, Gummow, Kirby and Hayne JJ).
[50] R v Kelly [2000] 1 QB 198, 208 (Lord Bingham).
Additionally, the appellant must show that “in all of the circumstances” it is “not appropriate [to sentence her] as a serious repeat offender” as mandated by s 54(2)(b). That commands a re‑assessment of all of the circumstances, not merely the appellant’s personal circumstances, before this Court is in a position to conclude whether it is, or is not, appropriate to sentence the defendant as a serious repeat offender. These circumstances will plainly include the circumstances of the offending, as well as the circumstances in which the defendant came to be considered a “serious repeat offender”. That will necessarily direct attention to the seriousness of the individual offences, as well as the circumstances in which they were each committed, together with their overall effect.
The appellant’s personal circumstances
The appellant did not question that there were three offences which brought her within the terms of s 53(1)(b) of the Act. However, the appellant in this case suggested that because there were, essentially, two periods of offending, this was not the usual case in which an offender is typically considered to be a “serious repeat offender” following sentences imposed on discrete, earlier occasions. Respectfully, it is difficult to draw any general conclusion about whether the case of an offender is, or is not, “usual” when the offending brings the case within the definition of a “serious repeat offender”. The fact is that the Parliament has laid down explicit criteria and if those criteria are satisfied, then the designation must follow. True it is, in many cases this Court has considered situations where there have been three bouts of offending separated by separate sentences, if not also separate periods of incarceration.[51] The overall nature of a defendant’s offending, including its relative seriousness and the period over which it has been undertaken, nonetheless remain matters which it is appropriate to consider as part of “all of the circumstances” when considering whether it is “not appropriate” that the defendant be “sentenced as a serious repeat offender”.
[51] Da Silvav The Queen [2020] SASCFC 66 is one recent example.
Whilst the seriousness of the appellant’s offending in this case could not be overlooked, particularly the brazen escalation in offending following April 2018, the sentencing Judge accepted that the appellant was labouring under the effects of two addictions and had, remarkably, managed to seek out psychological and psychiatric treatment with a view to breaking her addiction within a period of less than one year. As counsel for the Director accepted in the course of her submissions, that is something not often encountered in this Court. It is properly described as “rare”.
In my opinion, the appellant’s personal circumstances were “exceptional” and, contrary to the finding made, enlivened the discretion of the Court pursuant to s 54(2) of the Act to fix a non-parole period of less than fourth‑fifths of the head sentence.
Those circumstances included:
1.The offending, whilst serious, occurred within a relatively closed period and the appellant had not previously been charged with, or convicted of, serious drug offending. Though she should have heeded the warning provided by her April 2018 offending, she responded very positively following her August 2018 offending.
2.The appellant’s rehabilitation from drug addiction following her arrest in connection with the August 2018 offending was characterised by insight and a determination to break the addictions under which she had laboured, which is rarely encountered.
3.In addition, the appellant’s capacity to maintain stable employment as a financial controller and administration manager for an engineering firm, and to continue with that employment notwithstanding supervised bail, earning the ongoing support of her employer, suggested that the appellant was a good rehabilitation prospect.
4.In all of the circumstances, the appellant had overcome a difficult early life and the circumstances leading to this offending, to the point where it seemed unlikely that she would again reoffend.
Accordingly, under s 54(2)(a), the appellant’s personal circumstances were sufficiently exceptional to outweigh the paramount consideration of protecting the safety of the community and personal and general deterrence. The appellant’s rehabilitation had significantly ameliorated the risk she formerly posed to the safety of the community. Her insight demonstrated that she appeared to have been deterred from ongoing drug taking and consequential offending. Whilst general deterrence remained important and relevant, it did not mandate the minimum non‑parole period in the circumstances proved.
In addition, under s 54(2)(b), though the circumstances of the appellant’s offending demonstrated that there had been a brazen escalation into serious offending, this had occurred within a relatively short timeframe, in circumstances where the appellant had not previously been sentenced or imprisoned in connection with serious drug offending. The prospect of promoting the appellant’s apparently successful rehabilitation loomed as an important consideration. There was, therefore, good reason to think that it was not appropriate to sentence the appellant as a serious repeat offender.
Conclusion
In all of these circumstances, I would order:
1.That the appeal be allowed.
2.That the sentence imposed by the sentencing Judge be quashed.
3.In its place, the appellant should be resentenced as follows:
(1)For the April 2018 offending, the appellant is sentenced to three years and four months, reduced by 30 per cent on account of the guilty plea, to two years and four months;
(2)In respect of the August 2018 offending, the appellant is sentenced to seven years, reduced by 20 per cent on account of the guilty pleas, to five years and seven months;
(3)After allowance for partial concurrency, the appellant is sentenced to a term of imprisonment of six years and eight months;
(4)In the circumstances proved, the requirements of s 54(2)(a) and s 54(2)(b) were satisfied and it was not appropriate that the appellant be sentenced as a serious repeat offender and, instead, a non‑parole period of three years is fixed;
(5)The sentence and non‑parole period shall commence from 21 May 2020 when the appellant was first taken into custody.
BLEBY J: I agree with the reasons of Livesey J and the orders he proposes.