Moran v The Queen - [2020] SASCFC 30

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
MORAN v THE QUEEN
[2020] SASCFC 30
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bampton, The Honourable Justice Parker and The Honourable Justice Doyle)
30 April 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence imposed by a Judge – where the appellant pleaded guilty to participating in a criminal organisation – whether the appellant was a repeat serious offender.
Held (per Bampton J, Parker and Doyle JJ agreeing): Appeal allowed – the appellant was not a repeat serious offender – the appellant is resentenced to a head sentence of six years, two months, and 19 days and a non-parole period of three years and eight months.
Criminal Law Consolidation Act 1935 (SA) s 83D; Sentencing Act 2017 (SA) s 47, s 52, s 53, s 54, s 25(4), s 94, s 96; Criminal Code Act 1989 (Qld) s 69, s 320; Penalties and Sentences Act 1992 (Qld) s 144; Drugs Misuse Act 1986 (Qld); Criminal Law (Sentencing) Act 1988 (SA), referred to.
R v Culley [2019] SASCFC 143; R v Harradine [2019] SASCFC 144; X7 v Australian Crime Commission & Anor (2013) 248 CLR 92; Veen v The Queen (No 2) (1988) 164 CLR 465; Potter v Minahan (1908) 7 CLR 277; Coco v The Queen (1994) 179 CLR 427; R v Phanos (2015) 122 SASR 129; Stenecker v Police (2014) 120 SASR 18; Harmer v Police (2017) 127 SASR 320; R v Karnage [2019] SASCFC 82, considered.

MORAN v THE QUEEN
[2020] SASCFC 30
Court of Criminal Appeal: Bampton, Parker and Doyle JJ

BAMPTON J: Ramon Moran was charged with the offence of participating in a criminal organisation contrary to s 83E of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) between 1 August 2015 and 28 May 2016 (“the participation offence”). He pleaded guilty to the participation offence on 25 July 2019, shortly before his trial in the District Court.
Mr Moran and Christopher Khoury, who was also charged with the offence of participating in a criminal organisation and had pleaded guilty at committal, were sentenced by Judge in the District Court on 7 November 2019.
A criminal organisation is defined by s 83D of the CLCA to mean (a) a criminal group or (b) a declared organisation. Mr Moran and Mr Khoury participated in a criminal group as defined by s 83D to be a group consisting of two or more persons (“the criminal group”), whose aim includes engaging in conduct, or facilitating engagement in conduct, constituting a serious offence that is intended to benefit the group, persons who participate in the group, or their associates.
By their pleas, Mr Moran and Mr Khoury acknowledged that they occupied positions of leadership in the criminal group, the aims or activities of which were:
(1)the trafficking of controlled drugs including methylamphetamine, MDMA, and cannabis within South Australia and also to/from New South Wales and Queensland;
(2)the cultivation of cannabis at Croydon Park with the intention of selling cannabis in Queensland; and
(3)to financially benefit the criminal group, persons participating in the criminal group and/or their associates. In particular, Mr Moran and Mr Khoury were making significant amounts of money from the trafficking of controlled drugs.
Mr Moran was sentenced on the basis that the leadership position he occupied included directing and arranging the supply of encrypted mobile phone devices for use of the members of the criminal group and committing offences on behalf of the criminal group which involved trafficking in controlled drugs (selling MDMA tablets and methylamphetamine in South Australia and Queensland) and taking part in the cultivation of cannabis for sale at Croydon Park.[1]
[1] Section 83D of the Criminal Law Consolidation Act 1935 (SA) provides:
participating in a criminal organisation includes (without limitation)—
(a)     recruiting others to participate in the organisation; and
(b)     supporting the organisation; and
(c)    committing an offence for the benefit of, or at the direction of, the organisation; and
(d)     occupying a leadership or management position in the organisation or otherwise directing any acts of the organisation;
Mr Moran was sentenced to a head sentence of seven years, reduced by 10 per cent on account of his guilty plea to six years, three months, and two weeks. One month was deducted from the head sentence for time in custody and an allowance for home detention, leaving a head sentence of six years, two months, and two weeks.
The sentencing Judge determined that Mr Moran was, by force of s 53 of the Sentencing Act 2017 (SA) (“the Act”), a repeat serious offender. The Judge determined that it was not necessary to impose a penalty that was disproportionate to the offence and, as mandated by s 54 of the Act, imposed a non-parole period four-fifths the length of the head sentence of four years, 11 months, and 18 days.
Mr Moran appeals the sentence with permission on three grounds. The first ground asserts that the Judge erred in sentencing him as a serious repeat offender. The second ground asserts that, as a consequence of the error in finding that he was a serious repeat offender, the non-parole period imposed was manifestly excessive. The third ground asserts that the starting point adopted by the Judge of seven years was manifestly excessive.
I would allow the appeal on ground 1 and resentence Mr Moran. My reasons follow.
Background
Mr Moran and Mr Khoury, were sentenced based on the prosecution’s factual allegations as set out in the recommendation as to category and the prosecution’s outline of submissions as summarised in the Judge’s sentencing remarks.
The Judge referred to the size and complexity of the criminal group Mr Moran and Mr Khoury participated in. Her Honour referred to a conversation captured on a listening device wherein Mr Moran admitted to dealing in significant quantities of methylamphetamine. Her Honour also referred to intercepted conversations involving Mr Moran and Mr Khoury, concerning hundreds of thousands of dollars in expenses being paid over the charged period. The offending was characterised as “a perceived business opportunity to make a lot of money very quickly, avoiding tax and other duties that may have been applied”. The Judge said that the offending put Mr Moran and Mr Khoury in a category of the most serious criminal offenders and that the offences they engaged in demonstrated the position that they held in the criminal group.
Mr Moran’s antecedent history
Mr Moran’s criminal history includes minor motor vehicle and dishonesty offending which did not result in the recording of convictions. He was also convicted and sentenced in Queensland for offending committed in 2008 and 2012 as follows.
Sentence imposed on 23 July 2009
On 23 July 2009, Mr Moran pleaded guilty to offending committed on 22 March 2008 comprising the offence of going armed so as to cause fear contrary to s 69 of the Criminal Code Act 1989 (Qld) and the offence of causing grievous bodily harm contrary to s 320 of the Criminal Code Act 1989 (Qld). Mr Moran was sentenced to concurrent sentences of four months imprisonment for going armed so as to cause fear and three years and six months imprisonment for causing grievous bodily harm (“the 2008 GBH offence”). He was subject to an order pursuant to s 144 of the Penalties and Sentences Act 1992 (Qld) suspending the sentence after he had served 10 months imprisonment (“the partially suspended sentence”).
Sentence imposed on 21 October 2016
On 20 February 2012, whilst serving the partially suspended sentence, Mr Moran committed the offence of trafficking in dangerous drugs (methylamphetamine) contrary to the Drugs Misuse Act 1986 (Qld) (“the 2012 trafficking offence”).
Mr Moran was arrested in South Australia and charged with the participation offence on 25 May 2016. He was detained in custody until 2 June 2016 when he was granted home detention bail. He remained on home detention bail for 10 days until 12 October 2016 when he was granted permission to travel to Queensland to appear in the Supreme Court of Queensland in relation to the 2012 trafficking offence.
Mr Moran pleaded guilty to the 2012 trafficking offence on 21 October 2016. The partially suspended sentence was revoked by the Supreme Court of Queensland and he was sentenced to six years imprisonment for the 2012 trafficking offence. The sentence was ordered to be served concurrently with the balance of the revoked partially suspended sentence, with a recommendation for release on parole after serving two years.
Mr Moran was released on parole on 23 October 2018 and extradited from Queensland to South Australia in relation to the participation offence. He remained in custody for seven days following his extradition, until 30 October 2018 when he was granted home detention bail. He pleaded guilty to the participation offence on 25 July 2019 and remained on bail until it was revoked on 5 August 2019.
The appeal
The question on appeal is whether the partially suspended sentence imposed on 23 July 2009 is “a sentence of imprisonment (other than a suspended sentence)” for the purposes of s 52(3)(a) of the Act. At the outset, it is to be noted that there is no definition of “partially suspended sentence” in the Act. The only definition of “suspended sentence” is found in s 25(4) which provides that for the purposes of s 25 and not otherwise a suspended sentence means a sentence that is suspended in accordance with the provisions of Part 4 Division 2 of the Act. Pursuant to s 94 of the Act, the purpose of Part 4 “is to provide the Court with an option to impose a non-custodial community based sentence on a defendant”. Section 96 in Division 2 of Part 4 prescribes the power for suspension of imprisonment wholly or partially on a defendant entering into a bond to be of good behaviour.
Division 4 of Part 3, s 52 to s 55, of the Act governs the sentencing of serious repeat offenders (“the SRO provisions”). The SRO provisions replaced Division 2A of Part 2, s 20A to s 20C, of the Criminal Law (Sentencing) Act 1988 (SA) (“the CLSA”) by Act No 26 of 2017, which were expressed in comparatively identical terms.
The SRO provisions were discussed in recent decisions of this Court in R v Culley[2] and R v Harradine.[3]
[2] [2019] SASCFC 143.
[3] [2019] SASCFC 144.
Section 52 is the interpretation and application section of the SRO provisions. Section 52(1) contains the various categories or classes of offences that may relevantly enliven the SRO provisions, which have come to be known as the “qualifying offences”.[4] Section 52(1)(h) provides that a serious offence includes an “offence under the law of another State or Territory” that would if committed in this State be a serious offence. The maximum penalty for the 2008 GBH offence contrary to s 320 of the Criminal Code 1989 (Qld) is 14 years imprisonment. Schedule 1 of the Penalties and Sentences Act 1992 (Qld) prescribes that an offence against s 320 of the Criminal Code 1989 (Qld) is a serious violent offence.
[4] R v Culley [2019] SASCFC 143 at [35].
Section 52(2) of the Act provides that, for the purposes of the SRO provisions, an offence will not be regarded as a serious offence unless the maximum penalty prescribed for the offence is or includes imprisonment for at least five years. If an offence against s 320 of the Criminal Code 1989 (Qld) were committed in South Australia it would be a serious offence.
Section 52(3) of the Act provides that an offence is one to which the SRO provisions apply if the offence is a serious offence and:[5]
(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.
[5] Sentencing Act 2017 (SA) s 52(3).
As Hughes J explained in Harradine, s 52 prescribes the attributes that an offence must have in order for it to constitute a qualifying offence for the purposes of the SRO provisions:[6]
Section 52(3) does not define the class of offences that attract the operation of the four‑fifths rule. Rather, s 52(3) describes the second of the two attributes that offending must have before it operates as a qualifying offence. First, it must be serious by reference to inclusion of the list of types of offences in s 52(1) under the definition of ‘serious offence’. Second, it must have attracted or be capable of attracting the imposition of a penalty of imprisonment.
I would add to Hughes J’s last sentence the words “other than a suspended sentence”.
[6] [2019] SASCFC 144 at [51].
Relevantly, s 53 provides that a person will by force of s 53(1) be taken to be a repeat serious offender if they have committed on at least three separate occasions an offence to which the SRO provisions apply, and have been convicted of those offences. The Judge found that Mr Moran was a serious repeat offender on the basis that he had committed on three separate occasions a qualifying offence, namely, the 2008 GBH offence, the 2012 trafficking in a dangerous drug offence, and the participation offence.
Pursuant to s 54(1), a court when sentencing a serious repeat offender for an offence (including an offence that resulted in the person being a serious repeat offender) is not bound to ensure that the sentence it imposes for the offence is proportional to the offence and must fix a non-parole period four-fifths the length of the head sentence. However, a court may declare that s 54(1) does not apply if the person satisfies the Court by evidence given on oath that his or her personal circumstances outweigh the considerations of community protection and personal and general deterrence and, in all the circumstances, it is not appropriate to sentence a person as a serious repeat offender.[7]
[7] Sentencing Act 2017 (SA) s 54(2).
In summary, the 2008 GBH offence is, by virtue of s 52(1)(h) and s 52(2) a serious offence. The next issue in dispute is whether the offence has the second attribute referred to in Harradine prescribed by s 52(3), that is, was a sentence of imprisonment (other than a suspended sentence) imposed for the 2008 GBH offence. If a sentence of imprisonment was imposed, then pursuant to s 52(3) the 2008 GBH offence is an offence to which the SRO provisions apply.
Mr Moran’s submissions
Mr Moran argued that a partially suspended sentence is a form of suspended sentence. Therefore, the partially suspended sentence imposed on him for the 2008 GBH offence is a suspended sentence. As a suspended sentence, it is not captured by the definition of a serious offence under s 52(3) and the 2008 GBH offence is not an offence to which the SRO provisions apply.
Mr Moran argued that he is not by force of s 53 a serious repeat offender and s 54, which mandates the fixing of a non-parole of at least four-fifths the length of the head sentence, was not enlivened.
Mr Moran did not dispute that his commission of participation offence and the 2012 trafficking in dangerous drugs offence are relevant qualifying occasions for the purposes of the SRO provisions. However, he argued that the Judge erred in accepting the Director’s submission that the 2008 GBH offence also constituted a qualifying occasion.
As stated above, Mr Moran was sentenced in relation to the 2008 offences to concurrent sentences of four months imprisonment for the offence of going armed so as to cause fear and three years and six months imprisonment for the 2008 GBH offence, subject to an order suspending the sentence after he had served 10 months imprisonment. The suspension order was made pursuant to s 144 of the Penalties and Sentences Act 1992 (Qld) which states:
Sentence of imprisonment may be suspended
(1)If a court sentences an offender to imprisonment for 5 years or less, it may order that the term of imprisonment be suspended.
(2)An order under subsection (1) may be made only if the court is satisfied that it is appropriate to do so in the circumstances.
(3)An order under subsection (1) may suspend the whole or a part of the term of imprisonment.
Mr Moran submitted that the imposition of a partially suspended sentence does not constitute “a sentence of imprisonment other than a suspended sentence” for the purpose of s 52(3)(a). Rather, a partially suspended sentence should be construed as a suspended sentence for the purposes of s 52(3). In other words, Mr Moran argued that the exemption “other than a suspended sentence” should not be construed as applying only when the sentence of imprisonment has been wholly suspended.
Principle of legality
As Mr Moran argued, the consequences of finding that a person is a serious repeat offender are that the sentencing Court is not constrained by the fundamental common law sentencing principle of proportionality, which precludes the imposition of a sentence beyond what is proportionate to the crime merely to protect society from the offender.[8]
[8] Veen v The Queen (No 2) (1988) 164 CLR 465.
As the SRO provisions exclude the common law principle of proportionality, the scope of the provisions must be construed in accordance with the principle of legality. Pursuant to this principle, statutory provisions are not to be construed as abrogating important common law rights in the absence of clear words of necessary implication.[9]
[9] X7 v Australian Crime Commission & Anor (2013) 248 CLR 92 at [24] (French CJ), [86] (Hayne and Bell JJ).
In X7 v Australian Crime Commission & Anor, Keifel J (as she then was) said:[10]
The requirement of the principle of legality is that a statutory intention to abrogate or restrict a fundamental freedom or principle or to depart from the general system of law must be expressed with irresistible clearness[11]. That is not a low standard. It will usually require that it be manifest from the statute in question that the legislature has directed its attention to the question whether to so abrogate or restrict and has determined to do so[12].
(Footnotes in original)
[10] (2013) 248 CLR 92 at [158].
[11] Potter v Minahan (1908) 7 CLR 277 at 304.
[12] Coco v The Queen (1994) 179 CLR 427 at 437.
The application of the principle of legality to the construction of the SRO provisions was emphasised by this Court in R v Phanos,[13] which dealt with the scope of 20B and s 20BA of the CLSA, the predecessors to s 53 and s 54 of the Act. In Phanos, Kourakis CJ (with whom Peek, Blue and Nicholson JJ agreed) said:[14]
This appeal raises questions of the construction and application of the judicial power to declare persons to be serious repeat offenders. Two fundamental principles must inform the answers to those questions. First, the common law sentencing principle of proportionality is a critical safeguard of the liberty of the individual. It follows that legislative encroachment on the principle should be read strictly on the basis that departure from the principle is intended only when and to the extent expressly and clearly declared.
Secondly, Parliament’s choice to decree legislatively that a class of offenders be denied the protection of the proportionality principle is no reason for the courts to construe more widely the judicial power to declare offenders to be serious repeat offenders. Parliament in a representative democracy is responsible to its electors for its legislative policy. The judiciary is bound by the principle of legality to construe statutes in accordance with common law protections unless the statutory language demands otherwise.
[13] (2015) 122 SASR 129.
[14] (2015) 122 SASR 129 at [5]-[6].

Mr Moran submitted that the application of these principles to the construction of the SRO provisions was affirmed in R v Harradine,[15] in which Hughes J (with whom Kourakis CJ and Peek J agreed) cited with approval the above passage from Phanos.
[15] [2019] SASCFC 144.
Power to partially suspend a sentence of imprisonment
Mr Moran submitted that the Director’s argument that a partially suspended sentence may attract the operation of the SRO provisions is predicated on the applicability of the provisions to a partially suspended sentence. If a partially suspended sentence offence constitutes a qualifying offence under s 52(3), then such an offence will – if it triggers the operation of s 54 – enliven the discretion to impose a head sentence disproportional to the offence and mandate the imposition of a non-parole period four-fifths the length of the head sentence unless s 54(2) applies.
Mr Moran argued that it is evident from the statutory power to grant a partially suspended sentence in this State that there is a clear inconsistency between the exercise of that power and the application of s 54.
Section 96(1) gives a court power to suspend a sentence of imprisonment upon the defendant entering into a bond subject to conditions specified in that subsection and s 96(2). The power is subject to s 96(3), which provides that sentences of imprisonment cannot be suspended where, inter alia, the defendant is being sentenced to “a term of imprisonment that is to be served cumulatively on another term of imprisonment, or concurrently with another term of imprisonment then being served, or about to be served, by the defendant”.[16]
[16] Sentencing Act 2017 (SA) s 96(3)(a).
The power to grant a partial suspended sentence is contained in s 96(4) of the Act, which provides:
(4)Despite subsection (3)(a), if the period of imprisonment to which a defendant is liable under 1 or more sentences is more than 3 months but less than 12 months, the sentencing court may, by order—
(a) direct that the defendant serve a specified period (being not less than 1 month) of the imprisonment in prison; and
(b) suspend the remainder of the sentence on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant's release from prison.
Mr Moran pointed out that s 96(4) provides that a partially suspended sentence can only be ordered where the sentence or sentences are more than three months but less than 12 months. It provides for the suspension of a sentence after a person has served a period of imprisonment specified by the sentencing court. As the terms of s 96(4) do not permit the fixing of a non-parole period and s 47(5) does not permit a court to fix a non-parole period in respect of a person liable to serve a total period of imprisonment of less than 12 months, a non‑parole period cannot be fixed when s 96(4) is utilised.
As Mr Moran contended, the SRO provisions must be construed in their legislative context. He argued that the inapplicability of the SRO provisions to partially suspended sentences imposed under s 96(4) demonstrates that the legislature did not intend that partially suspended sentence offences should fall within the scope of those provisions.
The Director’s submissions
The Director argued that Mr Moran was properly sentenced as a serious repeat offender and that the fixing of a four-fifths non-parole period and the starting point of seven years was an appropriate, if not modest, starting point for the participation offence.
The Director made two arguments regarding the interpretation of s 52(3). The first was that the interpretation of the phrase “other than a suspended sentence” should be interpreted as meaning “other than a wholly suspended sentence”. The second argument focused on the substance and operation of a suspended sentence and whether such a sentence remains suspended as at the time the SRO provisions are potentially enlivened.
The Director submitted that the language of s 52(3) can be traced back to s 20B(2)(b) of the Criminal Law (Sentencing) (Serious Repeat Offenders) Amendment Act 2003 (SA), which came into operation on the day of its assent on 24 July 2003. The underlying “policy question” of this legislation was introduced in terms of “whether the State can and should be in the business of preventative detention”.[17] It was pointed out that in setting the key elements of this new legislation, the Attorney‑General outlined the “trigger” for a person to be declared a serious repeat offender, highlighting the requirement for the imposition of relevant sentences of actual imprisonment:[18]
The trigger for the declaration of a serious repeat offender is conviction for at least three offences punishable by a maximum of five years or more (that is the indictable offences listed) and that either a sentence of actual imprisonment has been imposed for each of these offences or, if sentence has yet to be imposed, actual imprisonment would be imposed for each of those offences. The offences must have been committed on at least three separate occasions or in the course of at least three separate courses of conduct.
(Emphasis added)
[17] South Australia, Parliamentary Debates, House of Assembly, Wednesday 19 February 2003, p2322 (The Hon. M. J. Atkinson).
[18] South Australia, Parliamentary Debates, House of Assembly, Wednesday 19 February 2003, p2323 (The Hon. M. J. Atkinson).
It was submitted that based on setting the benchmark standard in terms of sentences for at least three offences, where a sentence of actual imprisonment has been imposed, that the Court should interpret the phrase in s 52(3) “other than a suspended sentence” as meaning “other than a wholly suspended sentence”. The Director argued that the basis for such an interpretation turns on the fact that an order that a sentence be partially suspended necessarily involves part of such a sentence imposed having to be actually served. It was submitted that there is nothing in s 52 or any of the other SRO provisions that precludes such an interpretation.
The Director submitted that there is a further aspect arising out of the statutory benchmark of the SRO provisions with its focus on relevant periods of imprisonment that have actually been served. That is the SRO provisions are not confined to relevant offences committed in the State of South Australia. On the contrary, a serious offence is defined as including an offence under the law of another State or Territory that would, if committed in this State, be a serious offence. It is this provision that renders the 2008 GBH offence as relevant.
It was argued that the possibility of relevant qualifying offences committed interstate calls into focus the different bases upon which partially suspended sentences may be imposed. In South Australia, s 96(4) of the Act has a fairly confined operation that turns on a sentence that is greater than three months but less than 12 months. The Director contended that this is a provision confined to offending at the lower end of the scale of criminality and whose “obvious utility” applies to “relatively young offenders who have not been imprisoned or subjected to a suspended sentence”.[19]
[19] Stenecker v Police (2014) 120 SASR 18 at [15] (Kourakis CJ).
By contrast, the power to order a partially suspended sentence in Queensland is defined in broader terms, which gives it a greater scope of application. A Queensland sentence of imprisonment may be suspended in relation to a sentence of up to five years[20] and such an order of suspension may relate to “whole or part of the term of imprisonment”.[21]
[20] Penalties and Sentences Act 1992 (Qld) s 144(1).
[21] Penalties and Sentences Act 1992 (Qld) s 144(3).
The Director contended that the use of a s 96(4) partially suspended sentence for a qualifying occasion under s 53 of the Act is unlikely. On the other hand, as the partially suspended sentence imposed pursuant to the Penalties and Sentences Act 1992 (Qld) demonstrates, a partially suspended sentence could be utilised in other jurisdictions in relation to an (equivalent) offence that is captured by the SRO provisions. Accordingly, it was submitted, it is this real scenario and the fact than an offender may have actually served a period of imprisonment, albeit partially suspended, that the Court should treat the sentence for such an offence as one that falls within the definition of s 52(3). It was submitted that to hold otherwise would be to ignore the fact that a person has served actual prison time for a relevant qualifying offence.
The Director referred to the decision of Kelly J in Harmer v Police, where her Honour held:[22]
A decision to make an order under s 38(2a) is a decision to suspend a term of imprisonment, albeit partially, under Pt 5.
The Director submitted that that observation was made in the context of an appeal concerning whether a sentencing magistrate failed to consider the use of a home detention order for the custodial part of the partially suspended sentence imposed. It was submitted that, significantly, the appeal did not deal with the relationship between a partially suspended sentence and the SRO provisions. That being the case, the Director submitted that there are two courses open to this Court in considering the decision in Harmer:
(a)if this Court is prepared to accept the submissions in relation to the significance of prison time actually served, and acknowledge that Harmer obviously did not deal with or contemplate the SRO provisions, then this may afford a proper basis upon which to confine Kelly J’s characterisation of a suspended sentence to the facts and issue arising in Harmer; but on the other hand;
(b)if this Court treats Kelly J’s characterisation of a partially suspended sentence as an absolute one, such that it must necessarily inform the concept of a “suspended sentence” in s 52(3), then it would appear Mr Moran’s submission has some merit in that the partially suspended sentence imposed in Queensland in 2009 would, by definition, amount to a “suspended sentence”. The Director submitted that this conclusion, however, would not be determinative of Mr Moran’s complaint and would require the Court to consider his second argument about the legal operation of a suspended sentence in s 52(3).
[22] (2017) 127 SASR 320 at [32].
The Director’s second submission regarding the interpretation of s 52(3) relates to the substance and operation of a suspended sentence at the time the SRO provisions are potentially enlivened. The Director stated that a suspended sentence is, by its very nature, a dynamic sentence that is subject to ongoing review and revocation over time. It involves a defendant entering into an agreement with a court to be of good behaviour and to comply with both mandatory conditions and other specific conditions imposed by a court. A suspended sentence remains effective for the term that specified in the bond.
The Director pointed out that when a suspended sentence imposed pursuant to the Act is breached and there is no basis for the Court to refrain from revoking it, the Court must, in compliance with s 114(1)(d) of the Act, revoke the suspension and order that the sentence be carried into effect. The Director referred to the Queensland courts having the power to order that the whole or part of a suspended sentence be served where a suspended sentence is breached by the commission of other offending.[23] It was pointed out that for the purposes of fixing non-parole periods, s 47(12)(a) of the Act makes it clear that:
(a)a court that orders a suspended sentence of imprisonment to be carried into effect will be taken to have sentenced the person to whom the order relates to imprisonment.
(Emphasis added)
[23] Penalties and Sentences Act 1992 (Qld) s 144 to s 148.
The Director therefore submitted that when regard is had to:
(a)the nature and operation of a suspended sentence, together with
(b)the effect of s 114(1)(d) of the Act; and
(c)the effect of s 47(12)(a) of the Act,
the question as to whether a relevant sentence for a serious offence is a suspended sentence for the purpose of the SRO provisions is dependent upon whether or not a relevant suspended sentence remained suspended for the term of a bond. That is, whether or not the sentence was actually served. The Director contended that regard must be had to a person’s compliance with the suspended sentence bond for the term of the bond, not merely the initial imposition of the suspended sentence. To have regard only the initial imposition would be to ignore the true nature and operative effect of a suspended sentence.
In summary, the Director submitted that Mr Moran committed a significant drug trafficking offence during the term of the bond imposed by the Queensland Court in July 2009, which resulted in the Queensland Supreme Court ordering that he serve the balance of the 2009 partially suspended sentence. The Director submitted that the Judge was, therefore, correct in treating the partially suspended sentence as a qualifying occasion falling within the criteria of s 53(1)(b) given the fact that Mr Moran ended up serving that sentence in custody. To suggest otherwise, it was submitted, would be to effectively ignore the fact that the suspended sentence bond had been breached and the remainder of the sentence was served in custody. To ignore these fundamental sentencing implications for a relevant qualifying offence, it was submitted, is entirely contrary to the legislative policy of the SRO provisions, which are concerned with “protecting the safety of the public and personal and general deterrence [being] the paramount consideration”.[24]
[24] R v Karnage [2019] SASCFC 82 at [70] (Nicholson J).
Consideration
As stated in Phanos, the legislative encroachment on the common law sentencing principle of proportionality should be read strictly on the basis that departure from it is intended only when and to the extent expressly and clearly declared.[25] Further, the fact that the Legislature has decreed that a category of offenders be denied the protection of the principle is not a reason “to construe more widely the judicial power to declare offenders to be serious repeat offenders”.[26]
[25] (2015) 122 SASR 129 at [5].
[26] R v Phanos (2015) 122 SASR 129 at [6].
If the SRO provisions were intended to apply to partially suspended sentences it must “be expressed with irresistible clearness”.[27] Put another way, the words “other than a suspended sentence” in s 52(3) do not express with irresistible clearness an intention on the part of the Legislature to apply the SRO provisions to partially suspended sentences.[28]
[27] X7 v Australian Crime Commission & Anor (2013) 248 CLR 92 at [158] (Keifel J).
[28] R v Phanos (2015) 122 SASR 129.
It must be obvious from the Act that the Legislature directed its attention to the exclusion of partially suspended sentences from the phrase “(other than a suspended sentence)” in s 52(3). The Director argued that the phrase should be interpreted as meaning “other than a wholly suspended sentence”. This interpretation is not obvious and it is certainly not expressed with irresistible clearness.
The 2008 GBH offence is, pursuant to s 52(1)(h), an offence under the law of Queensland that would, if committed in this State, be a serious offence. It is also, pursuant to s 52(2), regarded as a serious offence as it carries a maximum penalty of at least five years imprisonment. The reference to “a suspended sentence” in s 52(3), in the absence of an irresistibly clear expression to the contrary, should be interpreted as meaning a sentence of imprisonment that if the sentencing court “thinks good reason exists for doing do so”[29] is suspended either wholly or partially. Accordingly, the partially suspended sentence imposed for the 2008 GBH offence is not a sentence of imprisonment for the purposes of s 52(3)(a). As such, the 2008 GBH offence is not an offence to which the SRO provisions apply.
[29] Sentencing Act 2017 (SA) s 96(1).
Accordingly, I would find that Mr Moran is not a repeat serious offender by force of s 53 and s 54 is not enlivened. I would allow the appeal on ground 1, set aside the sentence imposed in the District Court on 7 November 2019, and resentence Mr Moran. As such, it is not necessary to consider the other grounds of appeal.
Resentence
Mr Moran received a partially suspended sentence as detailed above for the offences of going armed as to cause fear and causing grievous bodily harm. Whilst subject to that partially suspended sentence, he committed the drug trafficking offence. When sentenced to six years imprisonment for drug trafficking in Queensland, he was also ordered to serve the balance of the partially suspended sentence.
Mr Moran is 30 years old. He was born in Townsville. He had a traumatic childhood; his father was a gambler who subjected the family to abuse and violent behaviour. His parents divorced when he was five. Following their separation, he and his two brothers lived with their mother, initially in a series of women’s shelters. Mr Moran was later subject to emotional and physical abuse by his mother’s second partner. After leaving school at the age of 15, he worked in Queensland as a mechanic between 2005 and 2010. He moved to Adelaide in 2010 and established his own mechanical business which continued until 2015. He then worked as a car salesperson until his arrest in May 2016.
Mr Moran has an extensive history of abusing alcohol and using illicit drugs. It was submitted that following his arrest for this offending on 25 May 2016 he abstained from illicit drug use.
The psychologist, Dr Jack White, prepared a report following his assessment of Mr Moran which was provided to the Court during sentencing submissions. Dr White considered that Mr Moran suffered poor mental health, post-traumatic stress disorder, adjustment disorder, depressed mood, and mixed personality traits. He also considered he had polysubstance use disorder, which had been in remission since 2016.
At the time Mr Moran was sentenced for the participation offence, he was in a stable, positive, and supportive relationship. Following his extradition to South Australia, he was released on home detention bail and whilst looking for work volunteered in the Red Cross Justice Program counselling and mentoring youths who were at risk of offending or re-offending. He thereafter found full‑time employment. His employer provided a glowing reference detailing that he was the highest performing salesperson during his eight-month tenure. His home detention bail supervisor described that he had been one of the few persons who had complied with conditions of bail to such a high level. It was submitted that Mr Moran had been crime free since his arrest (noting that he was in custody in Queensland for two years following his arrest) and had ceased using drugs.
The maximum penalty for the offence of participating in a criminal organisation contrary to s 83E of the CLCA is 15 years imprisonment. Mr Moran’s leadership of the criminal group and participation in its extensive and complex illegal activities, involving significant quantities of drugs and money, is extremely serious offending.
The sentence imposed must serve as a deterrent to Mr Moran and convey to others that this type of offending will be severely punished. The starting point taken by the Judge of seven years imprisonment is justified when due regard is paid to the gravity of Mr Moran’s offending viewed objectively.
In resentencing, I would start at 7 years imprisonment reduced by 10 per cent on account of the guilty plea to six years, three months, and 19 days.
Having regard to Mr Moran’s positive response to home detention bail, his positive engagement in employment, his abstinence from illicit drugs and positive relationship with his partner I would fix a non-parole period of three years and nine months.

I would reduce the head sentence and non-parole period by one month on account of time in custody and an allowance for home detention bail, leaving a head sentence of six years, two months, and 19 days and a non-parole period of three years and eight months, backdated to the date bail was revoked on 5 August 2019.
Conclusion
I would make the following orders:
(1)Allow the appeal on ground 1.
(2)Set aside the sentence imposed in the District Court on 7 November 2019.
(3)Resentence Mr Moran to a head sentence of six years, two months, and 19 days and a non-parole period of three years and eight months, backdated to 5 August 2019.
PARKER J: I agree with the reasons of Bampton J and the orders she proposes.
DOYLE J: I agree with the reasons of Bampton J and the orders she proposes.