Kroon v The Queen

[2022] SASCA 77

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

ROBINSON (A PSEUDONYM) v THE QUEEN

[2022] SASCA 77

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice David)

4 August 2022

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

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

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING CANNABIS, INDIAN HEMP OR HASHISH

The appellant drove the co-accused in his vehicle to collect cannabis from Adelaide. While transporting the drugs back to Whyalla, police stopped and searched the vehicle. 2.578 kilograms of cannabis was located, concealed in sleeping bags on the rear seat.

The appellant pleaded guilty to one count of trafficking in a large commercial quantity of a controlled drug contrary to s 32(1) of the Controlled Substances Act 1984 (SA). He was sentenced to two years, five months and 28 days' imprisonment.

The appellant appeals against his sentence on the ground that the sentence imposed was manifestly excessive. He seeks permission to appeal on the ground that the sentencing Judge erred in failing to find that exceptional circumstances existed that enabled him to suspend the sentence imposed.

Held, per the Court, granting permission to appeal on Ground 1 but dismissing the appeal:

1.   The sentence imposed by the sentencing Judge was within the appropriate range.

2. Whether "exceptional circumstances" exist, for the purposes of s 96(6) of the Sentencing Act 2017 (SA), requires a consideration of both the factual basis of the offending, and the circumstances personal to the defendant.

3.   The sentencing Judge erred in confining his analysis of whether "exceptional circumstances" existed to only those matters related to the offending. His Honour failed to also include in that analysis a consideration of the personal circumstances of the appellant.

4.   Upon a separate and independent application of the sentencing discretion, no exceptional circumstances exist that warrant a suspension of the term of imprisonment imposed.

Sentencing Act 2017 (SA) s 96(6); Criminal Law (Sentencing) Act 1988 (SA) s 38(2ba); Controlled Substances Act 1984 (SA) s 32(1), referred to.
Hackett v the Queen [2021] SASCA 32; R v Bagguley [2015] SADC 137 ; R v Barnett (2009) 198 A Crim R ; R v Kelly [2000] QB 198 at 208; R v Lombardi (2013) 115 SASR 577 ; R v Skinner (2016) 126 SASR 120; R v Yavuz (2018) 130 SASR 231; Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 , considered.

ROBINSON (A PSEUDONYM) v THE QUEEN
[2022] SASCA 77

Court of Appeal – Criminal:    Livesey P, Lovell and David JJA

1. THE COURT: Mr Robinson, the appellant, agreed to drive the co-accused, Mr Henry (a pseudonym), in his vehicle to Adelaide to collect cannabis and transport it back to Whyalla. For his role, the appellant was to receive $50 and half an ounce of cannabis. While returning to Whyalla, their vehicle was stopped and searched by the police. The police located 2.578 kilograms of cannabis, packaged and hidden in sleeping bags in the rear seat; the cannabis was valued in excess of $14,000. The appellant was convicted, following his guilty plea, to one count of trafficking in a large commercial quantity of a controlled drug pursuant to s 32(1).[1]

   [1]     Controlled Substances Act 1984 (SA).

2. But for the appellant’s guilty plea, the sentencing Judge would have imposed a term of imprisonment of three years and four months’ imprisonment. The sentencing Judge reduced the sentence by 25 per cent on account of the appellant’s guilty plea, and, after a further allowance to account for time spent in custody, imposed a sentence of two years, five months and 28 days’ imprisonment. The sentencing Judge imposed a non-parole period of 10 months to reflect the appellant’s rehabilitation and his “change of life”. The sentencing Judge was not satisfied that exceptional circumstances existed and therefore declined to suspend the sentence.

3. On appeal, the appellant initially sought to have his guilty plea set aside but has subsequently abandoned that appeal against conviction.

4. In relation to the appeal against sentence, the appellant relies on two grounds:

   1.The learned sentencing Judge erred in the application of the statutory test of “exceptional circumstances” to suspend the sentence.[2]

   i.His Honour construed the test unduly narrowly, in only applying the test to the circumstances of the offending, and not inclusive of the appellant’s personal circumstances also.

   ii.His Honour misconstrued the statutory test as requiring “special and exceptional circumstances”.

   2.The sentence is manifestly excessive.

   [2]     Sentencing Act 2017 (SA) s 96(6).

5. We will commence with a summary of the background to the offending and the circumstances personal to the appellant.

   Background

   Circumstances of the offending

6. In July 2020, the appellant agreed to drive the co-accused from Whyalla to Adelaide and back, for the purpose of collecting cannabis. The appellant was to be paid $50 and half an ounce of cannabis for his role. The appellant and co-accused drove from Whyalla to Adelaide and stayed at the White Horse Inn at Port Wakefield Road Bolivar. Early the next morning, the appellant drove his co-accused to the Cross Keys Hotel. While there, the appellant remained in the vehicle while his co-accused obtained the cannabis. The appellant saw his co-accused return to the car with the vacuum-sealed bags of cannabis. The appellant was not aware of the precise weight of the cannabis but saw the cannabis being placed into sleeping bags which were already inside the car.

7. The appellant then began the return trip to Whyalla with the co-accused. The police conducted a traffic stop on the vehicle after witnessing the appellant overtaking another vehicle in a dangerous manner. Police noted a strong smell of cannabis emanating from the vehicle. Both the appellant and co-accused admitted to consuming cannabis the previous night. The co-accused further admitted that he had a small amount of cannabis in his backpack on the rear seat.

8. Police conducted a search of the vehicle and located two large sleeping bags on the rear seat. Inside the sleeping bags were large black plastic bags, holding smaller bags containing cannabis. The total weight of the cannabis was 2.578 kilograms, which was valued in excess of $14,000. Also located inside the vehicle was a glass bong, a black axe, three small tins containing green vegetable matter and the appellant’s mobile phone. Assessment of the appellant’s phone found messages from the night before the arrest from the co-accused asking if the appellant wanted to stop at Bolivar Caravan Park for the night.

9. The appellant and co-accused were arrested. The appellant admitted to knowing the cannabis was in the vehicle. The appellant accepted, by his plea of guilty, that he knew he was in possession of the cannabis with the intention to sell at least 2 kilograms of that cannabis.

10. No evidence was adduced suggesting the offending was part of a course of conduct.

    Personal circumstances of the appellant

11. At the time of sentence, the appellant was 31 years of age. He was born in Adelaide and raised in New South Wales. He is the youngest of five children. While the appellant was growing up, his father was abusive towards him and his mother. This abuse led him to attempt suicide before his tenth birthday. His father passed away in 2018 following cancer. His mother now lives in Geraldton although he has no contact with her. The appellant’s older siblings have families of their own, but he has little contact with them.

12. The appellant gave evidence that after leaving school he worked at an abattoir until he was 19 years’ old. He did some work as a labourer and concreter. At the time of sentencing, he was engaged with Workskil at Gawler with a view to entering into a horticultural apprenticeship. The appellant had been with his partner for six years.

13. The appellant has three children. At time of sentence, his oldest son was 13 years’ old and in the care of the minister in New South Wales. His second son was 12 years’ old and lived with the appellant and his partner at Middle Beach. The oldest and middle child share the same mother. His third son was six years’ old and lived with his mother. The appellant would visit the younger son every weekend and had an amicable relationship with the mother.

14. The appellant had submitted that he experienced poor mental health, but had never received a formal diagnosis. He had used cannabis throughout his life, starting at an early age. He has a brief antecedent criminal history which includes driving a motor vehicle with cannabis in oral fluid or blood.

15. The appellant lived in a caravan park and was in receipt of Centrelink benefits. His partner earned a modest income and worked approximately 15 hours per week.

    Was the sentence manifestly excessive?

16. It is convenient to deal with this Ground first.

17. The maximum penalty for this offence is life imprisonment, or a fine of up to $1,000,000, or both. The principles to be applied on appeal are well known. In Hackett v the Queen,[3] this Court observed:[4]

    Absent a specific error it is only if the sentence is found to be “unreasonable or plainly unjust” that a challenge of manifest excess will succeed. A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long or too short is a sentence which has not been imposed according to rules of reason and justice. It is not sufficient for this court to conclude that it would have come to a different decision to the one reached by the sentencing judge. The judgment is a discretionary one and what is required is that the sentencing judge must take into account all relevant (and only relevant) considerations in forming the conclusions reached. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. To observe that a sentence is “very heavy” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing judge’s discretion.

    (citations omitted)

    [3] [2021] SASCA 32.

    [4] [2021] SASCA 32 at [8].

18. The appellant did not suggest that the sentencing Judge made a process error. However, the appellant submitted that the minor role played by the appellant in the offending was not given sufficient weight and the sentence was manifestly excessive.

19. We reject that submission. The sentencing Judge had regard to the facts and the personal circumstances of the appellant. He referred to several recent authorities, in particular relating to the role played by couriers. It cannot be said that the sentencing Judge did not have regard to the appropriate factual circumstances. Indeed, the non-parole period fixed by the sentencing Judge demonstrates his careful consideration of the appellant’s personal circumstances. As the sentencing Judge pointed out in his remarks, while the appellant received little reward for his actions, the actual role he played in the offending was serious. In our view, the sentence imposed was within the appropriate range.

20. We would dismiss this ground of appeal.

    Exceptional circumstances

21. This was the main ground of appeal.

22. The appellant complains that the sentencing Judge erred in failing to find that exceptional circumstances existed enabling him to suspend the term of imprisonment imposed.

23. Section 96(6) of the Sentencing Act 2017 (SA) (“the Act”) provides that the court may, “if satisfied that exceptional circumstances exist for doing so”, suspend a sentence of imprisonment imposed on a defendant for a serious and organised crime offence.[5] This offending was a serious and organised crime offence for the purpose of the section.

    [5] Previously s 38(2ba) of the Criminal Law (Sentencing) Act 1988 (SA).

24. In R v Skinner (“Skinner”),[6] Doyle J (Kelly and Blue JJ agreeing) discussed the nature of the test for suspension under s 38(2ba) of the Criminal Law (Sentencing) Act 1988 (SA) (now s 96(6) of the Act). He observed: [7]

    [6] (2016) 126 SASR 120.

    [7] (2016) 126 SASR 120 at [91]–[97].

    A number of decisions have considered the concept of “exceptional circumstances” in different legislative contexts. Some of those authorities were conveniently collected and summarised by Muscat DCJ in R v Bagguley,[8] a decision referred to by the Judge in this case.

    For example, in R v Kelly,[9] Lord Bingham said:

    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 our view, this elaboration upon the meaning of exceptional circumstances is apposite in the present context.

    I also consider that some assistance can be derived from this Court’s consideration of “special reasons” in the context of minimum non-parole periods under s 32A of the Sentencing Act, and “special circumstances” in the context of s 10A of the Bail Act 1985 (SA). In those contexts, while emphasising the wide and flexible content of those terms, it has been held that their content is to be informed by the relevant statutory context, and in particular the objects of the provision in question and the mischief to which it was directed. It has been held that special reasons or circumstances connote reasons or circumstances which take the particular case out of the contemplated scope of the statutory provision, or outside of the circumstances contemplated by Parliament.[10]

    While “exceptional circumstances” does connote circumstances outside of the range of circumstances ordinarily or normally encountered, the Court must be careful not to set the test so high that it becomes near impossible to satisfy. As Lord Bingham cautioned, in the passage extracted above, the circumstances need not be unprecedented or very rare.

    The exceptional nature of the circumstances may emerge from consideration of a single circumstance or a combination of circumstances. It may emerge from consideration of the circumstances of the offending, the circumstances personal to the offender or some combination of both. It may emerge from qualitative considerations (in the sense of circumstances of a type that do not commonly arise) or quantitative considerations (in the sense of circumstances arising to an uncommon extent or degree).[11]

    Beyond these very general observations, it is neither possible nor desirable to be more prescriptive as to what will be required to establish “exceptional circumstances” sufficient to warrant suspension of a sentence of imprisonment under s 38(2ba). It will depend upon the facts of the particular case.

    [8] [2015] SADC 137 at [65]–[70].

    [9] [2000] QB 198 at 208.

    [10]   R v Lombardi (2013) 115 SASR 577 at [20]–[23]; R v Barnett (2009) 198 A Crim R 251 at [75]–[85].

    [11]   Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66].

25. This approach was adopted in R v Yavuz,[12] where the Court observed that the “norm” for such offenders is that they will serve their sentence.[13] The Court elaborated, stating that “exceptional circumstances are those circumstances which, when present, so markedly change the nature of the particular case that it is no longer within the mischief which the legislature intended to address the specified order generally to be made”.[14] However, the Court also recognised that the offending may be so minor that, when other mitigating circumstances are taken into account, the application of the general rule may become unnecessary and unjust.[15]

    [12] (2018) 130 SASR 231.

    [13] (2018) 130 SASR 231 at [114].

    [14] (2018) 130 SASR 231at [115].

    [15] (2018) 130 SASR 231at [117].

26. The appellant submitted that the sentencing Judge erred by adopting an unduly narrow interpretation of the statutory test. The appellant submitted that his Honour only considered the circumstances of the offending and not also the personal circumstances of the appellant.

27. In the sentencing remarks, the sentencing Judge stated:

    In consideration of your participation you were to be paid $50 and a half an ounce of cannabis. Although I could say much more about this deal, I am not on an inquiry whether that is an appropriate reward for all of your efforts and risks. That is the bargain you made. That is the reason why this matter falls outside of the exceptional circumstances exclusion which would enable me, as would otherwise be my inclination, to suspend your sentence.

    (emphasis added)

28. In the closing remarks, the sentencing Judge further stated:

    However, due to the size of the amount of cannabis seized by police and the factual basis of the offending, your willing participation in this scheme does not mean that there are special and exceptional circumstances to suspend your sentence.

29. In Skinner, Doyle J observed that the nature of the exercise “involves a consideration of the full range of the usual sentencing considerations, with a significant element of personal judgment inherent in the weighing of those various considerations”.[16]

    [16] (2016) 126 SASR 120 at [86].

30. While sentencing remarks are to be read as a whole, it appears that the sentencing Judge confined his analysis of whether exceptional circumstances existed to only those matters related to the offending. That is, the sentencing Judge did not go on to consider whether the factual basis, taken in conjunction with the appellant’s personal circumstances, meant exceptional circumstances were established. We note that the sentencing Judge’s discussion of the appellant’s personal circumstances occurred after he reached the conclusion that exceptional circumstances were not established.

31. In our view, it is likely that the sentencing Judge did confine his analysis to the offending only. This is an error and vitiates the exercise of the sentencing discretion. Accordingly, this Court must exercise the discretion afresh.

    Consideration of whether exceptional circumstances are present

32. We now turn to analyse whether exceptional circumstances exist.

33. The appellant actively participated in the transaction. He provided the vehicle and drove the co-accused to Adelaide while cognisant of the illegal purpose of the trip. The appellant witnessed the transaction and then participated in the trafficking event by allowing the cannabis to be concealed inside his car; he then drove back to Whyalla in fulfilment of his part of the bargain. While he received little reward for his participation, his involvement was an important part of the transaction. There is a need for strong general deterrence against participation in the drug trade. Trafficking is defined widely in the Act to include minor participation in ancillary aspects of the offence.[17]

    [17]   R v Yavus (2018) 130 SASR 231at [117].

34. We have set out the personal circumstances of the appellant earlier in these reasons. We accept that he has a reasonable work history and no relevant prior convictions. While at the time of sentence he was in receipt of Centrelink benefits, he was then engaged with Workskil and hoping to obtain a horticultural apprenticeship. The sentencing Judge noted that the appellant had removed himself “from the temptation of involvement in cannabis” and that he had “stabilised [his] life”.

1. In our view, taking into account all of the circumstances, it cannot be said that they so markedly change the nature of the particular case that it is no longer within the mischief which the legislature intended to address with the specified order generally to be made.[18] We do not consider that exceptional circumstances exist. We would refuse to order the suspension of the sentence.

   [18]   R v Yavus (2018) 130 SASR 231at [115].

2. Accordingly, we are satisfied on a separate and independent exercise of the sentencing discretion that exceptional circumstances do not exist that warrant a suspension of the sentence.

   Orders

3. It follows that while we would grant permission to appeal on Ground 1, we would dismiss the appeal.