Liddicoat v The Queen - [2021] SASCA 18

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
LIDDICOAT v THE QUEEN
[2021] SASCA 18
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Bleby)
25 March 2021

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - MANUFACTURING, PRODUCING OR CULTIVATING - CANNABIS
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
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
Application for permission to appeal against sentence.
The applicant pleaded guilty to one count of cultivating a commercial quantity of controlled plants for sale and one count of possessing prescribed equipment contrary to ss 33B(2) and 33LA(a) respectively of the Controlled Substances Act 1984 (SA). In addition, he pleaded guilty to three counts of abstracting or diverting electricity contrary to s 85(1)(a) of the Electricity Act 1996 (SA). He was sentenced by a Magistrate to one year and eight months imprisonment with a non-parole period of 10 months.
The applicant seeks permission to appeal, pursuant to s 42 of the Magistrates Court Act 1991 (SA), on the grounds that the Magistrate erred in failing to suspend the sentence or to order the sentence to be served by way of home detention, and that the sentence was manifestly excessive in the circumstances.
Held, per Bleby JA (Kelly P and Lovell JA agreeing), granting permission to appeal and dismissing the appeal:
1. It was clearly open to the Magistrate not to suspend the sentence and not to order that the sentence be served on home detention.
Controlled Substances Act 1984 (SA) ss 33B(2), 33LA(a); Electricity Act 1996 (SA) s 85(1)(a); Magistrates Court Act 1991 (SA) s 42(2)(ab); Sentencing Act 2017 (SA) ss 69(2), 71(1), 96, Sch 1 cl 1; Criminal Law (Sentencing) Act 1988 (SA) s 33BB(1), referred to.
R v Best [2017] SASCFC 55; House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321; R v Skinner (2016) 126 SASR 120; R v Tsonis (2018) 131 SASR 416; R v Yavuz, Soyler and Bayraktar (2018) 130 SASR 231; R v Filipponi (2016) 126 SASR 464; R v Dell & Dell (2016) 126 SASR 571, considered.

LIDDICOAT v THE QUEEN
[2021] SASCA 18

Court of Appeal – Criminal: Kelly P, Lovell and Bleby JJA

KELLY P: I agree with Bleby JA.
LOVELL JA: I agree with the reasons of Bleby JA and the orders he proposes.
BLEBY JA: This is an application for permission to appeal against sentence.
The applicant pleaded guilty to the following offences:
·Count 2: cultivating a commercial quantity of controlled plants for sale contrary to s 33B(2) of the Controlled Substances Act 1984 (SA) (CSA). The maximum penalty for this offence is imprisonment for 25 years or a fine of $200,000, or both. This is therefore a major indictable offence;
·Count 3: possessing prescribed equipment contrary to s 33LA(a) of the CSA. The maximum penalty for this offence is imprisonment for two years or a fine of $10,000, or both. This is a summary offence;
·Count 4: abstracting or diverting electricity contrary to s 85(1)(a) of the Electricity Act 1996 (SA). The maximum penalty for this offence is imprisonment for two years or $20,000. This is a summary offence; and
·Counts 1 and 5: two further counts of abstracting or diverting electricity contrary to s 85(1)(a) of the Electricity Act 1996 (SA).
The circumstances of the offending the subject of Counts 2, 3 and 4 were as follows. Police received anonymous information about the cultivation of cannabis at an address at Aldinga Beach, being a house owned by the applicant. Police searched the premises and found that rooms inside had been modified for the purpose of growing cannabis. Police located a total of 34 plants across three grow rooms. These comprised six flowering female adult plants in one grow room, a further six, smaller adult plants in another grow room and 22 juvenile female cannabis cuttings in a ‘grow tent’. These plants form the subject of Count 2.
Police located prescribed equipment, being two ballast boxes, two light globes and two light shades in the grow tent, 15 shades and 15 hydroponic globes in one grow room, and 18 hydroponic light shades and 15 hydroponic globes in the other grow room. They further located an automated watering system comprised of four barrels in the bedroom. This fed water and nutrients to the plants in each grow room by means of hoses affixed to each plant pot and connected with an electronic timer. Police located in the roof cavity a further 30 ballast boxes. This equipment constitutes Count 3.
Count 4 concerned the installation of an electrical bypass connection into the incoming consumer mains behind a patched section of the wall in the main bedroom of the property. The consequence of this installation was that the meter did not register the power consumption.
Police located a toothbrush and a razor in an en suite bathroom by the main bedroom. DNA sampling matched these items to the applicant.
The Magistrate summarised the evidence of yield and potential return on the cannabis as follows:[1]
As concerns the yield, Forensic Scientist Ms McKew estimated that the 6 adult plants in grow room one was between 1 and 1 ½ metres tall and could yield 550-650g of useable dry material per plant giving a total of therefore of [sic] usable material of between 3.3 – 3.9 kgs. She estimated the 6 plants in grow room 2 were between 80 to 100cms tall and could yield 300 to 400 grams of useable dry material per plant for a total 1.8 to 2.4kgs. She was unable to estimate the yield from the 22 juvenile cuttings because of their size. She notes that generally such plant can produce as little as 20 grams or as much as 3 ½kgs on average between 200 to 600 per mature plant of 1 to 1 ½ meters in height.
At the time of production, the dried cannabis if sold at the following price points would have yielded the following; for a 2-3 gram J-bag, $25-$50. For an Ounce (28g) $200-$250. For a Pound (454g) $2,600-$3,000. A conservative yield available by way of the 6 adult cannabis plants of 3.3kgs in grow room 1 showed that conservatively this would have yielded a return of between $18,898 and $27,500. The highest crop would be worth up to $97,500 if sold in 2g J-bags of $50 per bag. The conservative yield by way of the 6 adult plants in grow room 2 of 1.8kgs showed that that would have yielded between $10,308 and $15,000 at its highest. The crop in grow room 2 could be worth up to $60,000 if sold by way of 2g J-Bags.
[1] Sentencing Remarks at 2-3.
Counts 1 and 5, abstracting or diverting electricity, related to the applicant’s residence at Glenelg East and his workshop at Lonsdale. The applicant had submitted that these were done to save money.
The applicant’s antecedent report shows a history of some offending in the 1990s. This offending includes dishonesty offences, driving offences (including driving under disqualification or suspension) and assault occasioning actual bodily harm. He has served short periods of imprisonment. In respect of the 1998 offence of assault occasioning actual bodily harm, he received a sentence of 8 months’ imprisonment, suspended on a bond to be of good behaviour for 12 months. This followed a suspended sentence of six months’ imprisonment in 1995 for the offences of create false belief that life has been endangered and false pretences. His most recent offending, being offences of disorderly behaviour and resisting police, occurred in March 2002 when he was 28 years old. He has no history of drug offending.
The applicant was 45 years old in 2019 at the time of the offending now under consideration. He had been a long-standing user of cannabis. He used cannabis for pain relief following a series of motorcycle accidents. He obtained the prescribed equipment from a friend in circumstances that his counsel in sentencing submissions had described as a ‘fire sale’. He supplied the cannabis to a friend so that they could produce cannabis oil for his own medicinal purposes. However, he also intended that some of the cannabis would be sold. He owned the house at Aldinga Beach but had moved to Glenelg East to be closer to his children’s school. He then used the vacant premises at Aldinga Beach to grow cannabis.
The applicant is married and has two children aged seven and 10. He worked at Mitsubishi until the mid-1990s and then began a car restoration business in 2008, from which he has drawn a wage of between $60,000 and $70,000 per annum.
The applicant has now stopped using cannabis.
The Magistrate concluded that the cannabis growing set up had been performed competently, that it would have involved considerable effort, planning and co-ordination. It was not an impromptu venture. It was carefully conceived and executed.
With respect to Counts 2, 3 and 4, the Magistrate concluded that due to the gravity of the circumstance of the applicant’s conduct, a sentence other than a term of imprisonment would be inappropriate. He recorded convictions and indicated that but for the applicant’s plea of guilty, he would have imposed one term of imprisonment of two years and one month. He reduced that to a term of imprisonment of one year and eight months and fixed a non-parole period of 10 months.
With respect to Counts 1 and 5, the Magistrate recorded convictions and imposed a single fine with respect to both matters in the amount of $700 which he indicated would have been $1000, but for the pleas of guilty.
The Magistrate then turned to the questions of suspension and home detention. He had regard to the submissions regarding the applicant’s personal circumstances, including the fact that he is in employment, that he has been supportive of his wife and children and that they remain supportive of him, and the fact that his last encounters with the criminal justice system occurred some considerable time ago. Against that, he placed the objective seriousness of the offending which involved a number of deliberate offences. He noted that in respect of the applicant’s past offending, he had received both immediate and suspended jail terms and observed that notwithstanding those experiences, he had now committed these serious offences. He concluded that he was not persuaded that good reason existed to suspend the jail term.
The Magistrate further concluded that he was not satisfied that the applicant was a suitable candidate to serve the sentence by way of home detention. He explained this conclusion:[2]
Whilst you have acknowledged your guilt the plain fact of the matter is that you have previously received terms of imprisonment both suspended and immediate albeit dated and that satisfies me that you are not a suitable candidate to serve this sentence by way of home detention. Furthermore, the seriousness of your offending calls for a strong general and personal deterrent. A sentence in particular emphasising general deterrence is required to address the issue of public safety. I am not convinced that a sentence served on home detention satisfies that sentencing purpose. I decline to make such an order.
[2] Sentencing Remarks at 4.
Plainly enough, the Magistrate gave considerable weight to the impact of the applicant’s past offending when considering whether he was a suitable candidate. It is fair to observe that this consideration did not expressly traverse the matters canvassed by this Court in R v Best:[3]
The determination of whether the defendant is a suitable person involves a consideration of matters focussed upon the personal circumstances of the defendant. This involves consideration of matters such as the defendant’s capacity to support himself or herself in private accommodation, whether he or she is likely to comply with the conditions of home detention, and the extent to which the making of an order would support the defendant’s prospects of rehabilitation. In deciding whether the sentence should be suspended and a home detention order made, the court must consider the full range of sentencing considerations which include not only the rehabilitation of the offender but also the objectives of due punishment, denunciation and general deterrence. In deciding this issue, the safety of the community is the paramount consideration.
[3] R v Best [2017] SASCFC 55 at [48] (Stanley J, Parker and Lovell JJ agreeing).
The applicant does not, however, complain of any process error in the Magistrate’s consideration of home detention (or suspension). The Magistrate did otherwise have express regard to the matters personal to the applicant that informed these questions. Rather, the applicant seeks permission to appeal on the grounds that the Magistrate erred in failing to suspend the sentence or to order the sentence to be served by way of home detention, and that the sentence was manifestly excessive in the circumstances.
The appeal
There is a complete overlap of the grounds of appeal, in that the complaints are limited to outcome error in failing to suspend or, alternatively, failing to order that the sentence be served on home detention.
The appeal is brought pursuant to s 42 of the Magistrates Court Act 1991 (SA). Section 42(2)(ab) provides that in the case of a sentence passed on the conviction of a person of offences that include a major indictable offence, the appeal lies to the Court of Appeal with the permission of the Court of Appeal. Consequently, the application has been referred to the Court of Appeal.
The complaint is that the failure to suspend or, alternatively, to order home detention, is unreasonable or plainly unjust in the sense described in House v The King.[4] In Dinsdale v The Queen, the High Court said:[5]
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example custodial or non-custodial) or because the sentence imposed is manifestly too long or too short.
[4] House v The King (1936) 55 CLR 499 at 504-505.
[5] Dinsdale v The Queen (2000) 202 CLR 321 at 325 (Gleeson CJ and Hayne J).
Failure to suspend
The complaint with respect to the failure to suspend the sentence is a complaint that it was an error not to find that there was good reason to do so, within the meaning of s 96 of the Sentencing Act 2017 (SA). Whether good reason exists requires the Court to consider all of the circumstances of the case.[6] Understandably enough, the applicant places great weight on his personal circumstances. In particular, his primary motivation for producing the cannabis was his pain relief, rather than commercial greed. He has an independent income from his business, he has a stable home life and is motivated by his responsibility for two children. These matters are of undoubted importance to the discretion.
[6] R v Skinner (2016) 126 SASR 120 at [5] (Blue J).
On the question of the level of commerciality of the operation, the applicant submitted that it was a necessary consequence of his primary motivation that less cannabis from the operation was being circulated within the community. In R v Tsonis, this Court observed:[7]
[W]hen determining the seriousness of a particular cultivation offence within the range of cultivation offences attracting a particular maximum penalty, it remains relevant to consider not only the number of plants but also a range of other circumstances, including the potential yield and profit from the cultivation. Consideration of the potential yield and profit will be relevant to an understanding of the significance and extent of the commerciality of the offending, and hence the significance and extent of any financial or profit motive on the part of the offender. It will also give some insight into the amount of cannabis that was to be introduced into the community, and hence the potential for harm to the community by reason of the offending.
[7] R v Tsonis (2018) 131 SASR 416 at [32] (The Court). See further R v Yavuz, Soyler and Bayraktar (2018) 130 SASR 231 at [77] (The Court).
The applicant was responsible for the cultivation of 34 female cannabis plants. They were grown in a manner designed to extract a high yield. The applicant stood to make a profit; his diversion of electricity necessarily assisted this end. The facts do not identify the proportion of cannabis that was ultimately for his own purpose and the proportion that would make a commercial return, but there was nonetheless to be a commercial return. It was the applicant’s own enterprise. Within the tiered scheme of offences that Parliament has prescribed for cultivation of cannabis, the offending was serious. This was, still, a commercial operation.
There is then the matter of the applicant’s previous offending. These had resulted in short periods of imprisonment, a suspended sentence of eight months’ imprisonment in 1998 for the offence of assault occasioning actual bodily harm and a suspended sentence of six months’ imprisonment in 1995 for the offences of create false belief that life has been endangered and false pretences. This history cuts both ways. The serious offending all occurred over 20 years ago, when the applicant was in his twenties. He clearly has a different life now. The inference is available that when he was given an opportunity to demonstrate his capacity for rehabilitation by the imposition of suspended sentences, he responded well.
On the other side of the coin, the present offences are instances of ongoing criminality, where those of his youth appear on their face to have had a more spontaneous character. His criminal history, long in the past as it is, must have afforded him particular motivation to reflect on the ongoing criminality and potential consequences of his current actions, yet he continued with this course.
Having regard to all of the matters relevant to whether there was good reason to suspend the sentence, I am not persuaded that the Magistrate erred on this account. It was clearly open to him not to do so.
Failure to order that the sentence be served on home detention
The applicant accepted that on one view of matters, home detention might be the more appropriate ameliorating course for this offending. A home detention order may be made under s 71(1) of the Sentencing Act 2017 (SA) if a court has imposed a sentence of imprisonment, it considers that the sentence should not be suspended and considers that the defendant is a suitable person to serve the sentence on home detention.
In R v Filipponi, the Chief Justice said:[8]
In the case of serous drug trafficking the demands of general deterrence and punishment are such that if these considerations have operated to preclude a suspended sentence then, in the ordinary case, it is unlikely that the purposes of sentencing will be met by imposing a home detention order.
[8] R v Filipponi (2016) 126 SASR 464 at [37] (Kourakis CJ, Vanstone and Nicholson JJ agreeing).
This observation appears to be descriptive of the likely outcome of consideration of home detention in such a case. I do not read it as suggesting a prescriptive filter upon the exercise of the discretion, especially given the precondition for ordering home detention in s 71(1)(b).

I have set out, above, this Court’s description in R v Best of the required consideration.[9] In R v Dell & Dell, this Court concluded that whether to order home detention under the former s 33BB(1) of the Criminal Law (Sentencing) Act 1988 (SA) (the predecessor to, and in materially the same terms as, s 71(1) of the Sentencing Act 2017 (SA)) required a two stage process of consideration.[10] It held that this requires first, a narrow inquiry as to the suitability of the defendant for a home detention order, focusing on their personal circumstances. If the Court is satisfied that they are a suitable person, it may then proceed to exercise the broader description encompassed in the words, ‘the court may suspend the sentence under this Division and order that the defendant serve the sentence on home detention’.[11]
[9] R v Best [2017] SASCFC 55 at [48] (Stanley J, Parker and Lovell JJ agreeing).
[10] R v Dell & Dell (2016) 126 SASR 571 at [45]-[48] (Doyle J, Kelly and Parker JJ agreeing).
[11] Criminal Law (Sentencing) Act 1988 (SA) s33BB(1), repealed by Sentencing Act 2017 (SA) Sch 1 cl 1.
The corresponding provision in s 71(1) does not contain the words ‘may suspend the sentence under this Division and’, but that does not, in my view, alter the conclusion that a two-stage process is required.
As the respondent observed, the Magistrate in this case placed considerable weight on the applicant’s antecedent history in concluding that he was not a suitable candidate to be released on home detention. He appears to have resolved the question formally at the first stage of the enquiry. Nevertheless, he also seems to have gone on and at least notionally addressed the second stage, by his conclusion that a sentence emphasising general deterrence was required to address the issue of public safety.
To this end, s 69(2) of the Sentencing Act2017 (SA) provides that the paramount consideration of the court when determining whether to make a home detention order must be to protect the safety of the community. The applicant was supplying cannabis to the community; general deterrence is of importance in this case in giving effect to that paramount consideration.
The decision not to order that the sentence be served on home detention was undoubtedly severe, given the applicant’s personal circumstances. A decision to the contrary would have been within the discretion of the Magistrate. However, having regard to the matters to which the Magistrate was required to take into account, I am not persuaded that the decision is affected by error.
I would grant permission to appeal on both Grounds 1 and 2. I would, however, dismiss the appeal.