Nguyen v The Queen - [2022] SASCA 23

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
NGUYEN v THE QUEEN
[2022] SASCA 23
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Bleby)
24 March 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - OF EQUIPMENT AND IMPLEMENTS
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
Appeal against sentence.
The appellant pleaded guilty to one count of trafficking in a large commercial quantity of a controlled drug, two counts of possessing a controlled drug, and one count of possessing prescribed equipment, contrary to ss 32(1), 33L and 33LA of the Controlled Substances Act 1984 (SA) respectively.
The sentencing judge fixed a starting point of four years’ imprisonment for the first count. He reduced that by 20 per cent on account of the appellant’s guilty plea, resulting in a sentence of three years, two months and 13 days. He imposed a single sentence of five months for the remaining counts. He reduced that by 30 per cent on account of the appellant’s guilty plea, resulting in a sentence of three months and 16 days.
The judge ordered the two sentences to be served wholly concurrently. After taking into account time spent in prison, this resulted in a head sentence of three years, two months and five days. He set a non-parole period of two years, six months and 17 days. This was four-fifths of the head sentence, the appellant being a serious repeat offender.
The appellant was diagnosed as both illiterate and innumerate. He was placed in the ‘Intellectual Disability’ (i.e. IQ>70) range of ‘intelligence’, and fell within 0.01 percentile of the age equivalent of population. In the opinion of his psychologist, the appellant represented one of the most extreme cases of poor cognitive ability that he had ever assessed. The appellant was also diagnosed with multiple mental health disorders, including PTSD, and a mixed personality disorder.
The issues on appeal are whether:
•the sentencing judge erred in applying the sentencing principles relevant to the appellant’s intellectual disability and mental impairment (Grounds 1 and 2);
•the sentencing judge erred in applying s 54(2) of the Sentencing Act 2017 (SA) (Ground 3); and

• the sentence imposed is manifestly excessive (Ground 4).
Held, per Bleby JA (Livesey P and Lovell JA agreeing), granting permission to appeal and allowing the appeal:
1.The judge did not appear to grapple with how the appellant’s intellectual disability and mental impairments may affect personal and general deterrence, or how the sentence might weigh more heavily on the appellant when compared with a person without his mental impairments. It cannot be inferred safely that the sentencing judge gave effect to the principles applicable on sentencing an offender with an intellectual disability or mental illness.
2.In describing the appellant’s personal circumstances as ‘regularly, routinely or commonly encountered by the courts’, the judge erroneously foreclosed an inquiry into whether the appellant’s personal circumstances, which were identified by his psychologist as exceptional, were so exceptional as to meet the statutory description in s 54(2).
3.The appellant is resentenced to a head sentence of two years, four months and 16 days, with a non-parole period of one year and six months.

Sentencing Act 2017 (SA) ss 3, 53, 54; Controlled Substances Act 1984 (SA) s 32(1), 33L, 33LA, referred to.
Knight v The Queen (2021) 138 SASR 156, applied.
R v Karnage [2019] SASCFC 82; Knight v The Queen (2021) 138 SASR 156; R v Kelly [2000] 1 QB 198; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v Reiner (1974) 8 SASR 102; Veen v The Queen (No. 2) (1988) 164 CLR 465; R v Guode (2020) 267 CLR 141; R v Verdins (2007) 16 VR 269; Muldrock v The Queen (2011) 244 CLR 120; R v Mooney (unreported, Court of Criminal Appeal (Vic), 21 June 1978); R v Anderson [1981] VR 155; R v Scognamiglio (1991) 56 A Crim R 81; R v Letteri (unreported, Court of Criminal Appeal (NSW), No 60407 of 1991, 18 March 1992); R v Engert (1995) 84 A Crim R 67; R v Wright (1997) 93 A Crim R 48, considered.

NGUYEN v THE QUEEN
[2022] SASCA 23
Court of Appeal – Criminal: Livesey P, Lovell and Bleby JJA

LIVESEY P: I agree with Bleby JA and with the orders proposed.
LOVELL JA: I would allow the appeal for the reasons given by Bleby JA. I agree with the orders proposed.
BLEBY JA: This appeal against sentence raises the following issues:
·whether the sentencing judge erred in applying the sentencing principles relevant to the appellant’s intellectual disability and mental impairment (Grounds 1 and 2);
·whether the sentencing judge erred in applying s 54(2) of the Sentencing Act 2017 (SA) (Ground 3); and
·whether the sentence imposed is manifestly excessive (Ground 4).
On 20 December 2021, Livesey P and David JA referred the question of permission to the Court of Appeal to be heard together with the appeal hearing.
Background
The appellant pleaded guilty to the following offences, contrary to the Controlled Substances Act 1984 (SA):
·one count of trafficking in a large commercial quantity of a controlled drug, contrary to s 32(1) of the Act;
·two counts of possessing a controlled drug, contrary to s 33L of the Act; and
·one count of possessing prescribed equipment, contrary to s 33LA of the Act.
The judge fixed a starting point of four years’ imprisonment for the first count. He reduced that by 20 per cent on account of the appellant’s guilty plea, resulting in a sentence of three years, two months and 13 days. He imposed a single sentence of five months for the remaining counts. He reduced that by 30 per cent on account of the appellant’s guilty plea, resulting in a sentence of three months and 16 days.
The judge ordered the two sentences to be served wholly concurrently, leaving a sentence of three years, two months and 13 days. He reduced that by eight days for time spent in custody, resulting in a head sentence of three years, two months and five days. He set a non-parole period of two years, six months and 17 days. This was four-fifths of the head sentence, the appellant being a serious repeat offender.
Circumstances of the offending
The essential facts of the offending are as follows. On 20 March 2020, at approximately 2:30 pm, following a report of an unknown vehicle in a driveway, police attended an unoccupied residence in Blair Athol. They located a white Mazda 3 sedan in which the appellant was the sole occupant. He was found sitting unconscious in the driver’s seat. On being woken, he told the police that the vehicle belonged to a friend. Police described him as being dazed and disoriented when raised. They also reported a strong smell of cannabis emanating from the vehicle.
Police located a total of 40.90 kg of damp cannabis plant in large plastic bags in the boot of the vehicle and in a zip lock bag in the cabin. The appellant was sentenced on the basis that this constituted no less than 8.08 kg of dry, female flowering head. Police further located in the vehicle an ice pipe, two digital scales, and two mobile phones. They found on the appellant’s person a small quantity of methylamphetamine totalling 1 gram, and heroin totalling 2 grams.
Police also retrieved dashcam footage. The footage shows the car being delivered by the rental company to the appellant’s residential address on the night of 18 March 2020. The appellant was seen in the footage taking possession of the vehicle and sitting in the driver's seat on two occasions. Later that evening, the appellant placed a large tarpaulin-like item in the boot of the car. Early the next day, he was seen sitting in the driver’s seat, exiting the vehicle and returning with two plastic bags. He placed them in the vehicle and drove to an address at Para Hills. He then disconnected the dashcam.
The appellant’s personal circumstances
The judge received two expert reports of a psychologist, Dr Jack White. The reports set out, in detail, the appellant’s upbringing, his involvement with drugs and alcohol and, importantly for the purposes of this appeal, Dr White’s opinion with respect to his mental state and his intellectual disability.
The appellant was 39 years old at the time of sentencing. He had a difficult childhood. His father died suddenly when he was five years old and he remained in the care of his grandmother until the age of 11, when he migrated to Australia with his mother and two siblings.
The appellant has been addicted to drugs for over 20 years. He has only ever had sporadic employment as a kitchen hand or a farm-based labourer. He became involved in juvenile crime, which was associated with his drug use.
The appellant’s antecedent report is lengthy. It shows a history of property offences, minor offences of violence and drug possession over the first decade of his adult life from 2001. He has continued to offend in this manner. In 2012, at the age of 30, his offending escalated. He was convicted and imprisoned in respect of a much more serious trafficking offence. He was imprisoned again in 2015 for offences of serious criminal trespass and aggravated assault. He has continued to commit driving and drug possession offences, and to fail to comply with a bail agreement. In 2019, he was sentenced to a period of imprisonment for offences of possess or use a dangerous article, have possession of a knife in a school or public place and unlawful possession. That sentence was suspended on his entering into a bond to be of good behaviour for 12 months, with conditions and supervision. The offending the subject of the present appeal is his most serious trafficking offending to date.
Dr White’s reports indicate that the appellant’s childhood and youth were particularly traumatic. This period saw him being racially abused at school, and physically and sexually abused while in youth detention. He has a history of self‑harm and an inability to resolve his previous traumas. That inability is likely to have been the trigger for his drug-taking. Dr White diagnosed the appellant with numerous mental health disorders, including Polysubstance Use Disorder, PTSD, Adjustment Disorder with mixed Anxiety and Depressed Mood, and Mixed (Antisocial/Borderline) Personality Disorder.
There was also strong evidence to indicate that the appellant is both illiterate and innumerate. He was placed in the ‘Intellectual Disability’ (i.e. IQ>70) range of ‘intelligence’, and fell within 0.01 percentile of the age equivalent of population. Dr White said that in his experience of assessing cognitive ability of thousands of clients over 30 years, the appellant represents one of the most extreme. He said:
The combination of extremely low intelligence, impaired mental health and substance abuse would exacerbate his poor decision-making. He is a person who would likely do whatever he was told, and would lack foresight or awareness of the consequences.
He has the gullibility of a young child, and the understanding of an infant.
The sentencing remarks
The judge’s sentencing remarks set out in full the above conclusions of Dr White. In approaching the head sentence, he then said:
I now turn to sentencing. Your counsel submits the report of Dr White goes some way towards explaining your current and prior offending. He particularly drew my attention to the physical, sexual and emotional trauma that you experienced as a youth. He submitted also that your low intelligence and problem-solving skills and that you are easily influenced both diminishes your culpability and calls for merciful sentencing in respect of this offending. It was put on your behalf this offending is a watershed moment in your life where your future can either continue on a path of re-offending and continued drug use or you can build better relationships and find employment.
While your history and personal circumstances are deserving of sympathy your antecedents and your failure to take advantage of the leniency shown to you in the past means there is less scope for a merciful approach in respect of this offending than has previously been available. I do not consider that the mercy of the courts is exhausted but it is greatly diminished because you have had the benefit of suspensions of sentence and the imposition of bonds and you have not taken up the opportunity that such merciful approaches provided. You also have previous offences involving the possession of or trafficking in controlled drugs and the sentences imposed in the past have not provided a person deterrence.
(Emphasis added)
These passages of the sentencing remarks form the basis of the complaint in Grounds 1 and 2 of the Amended Notice Appeal against sentence.
Whether the judge erred in applying the sentencing principles relevant to the appellant’s intellectual disability and mental impairment (Grounds 1 and 2)
The appellant submitted that the two paragraphs of the judge’s sentencing remarks made in the context of considering the head sentence, extracted above, indicate that the judge failed to apply principles relevant to sentencing him on account of his intellectual disability, or to have regard to the relevance of his mental health to sentencing.
Considerations of mental impairment and intellectual disability are distinct. They attract common principles of sentencing. In Muldrock v The Queen,[1] the High Court approved the following statement by Young CJ of the Victorian Court of Criminal appeal:[2]
General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.
[1] (2011) 244 CLR 120.
[2] R v Mooney (unreported, Court of Criminal Appeal (Vic), 21 June 1978) at 5, cited in R v Anderson [1981] VR 155 at 160; see Muldrock v The Queen (2011) 244 CLR 120 at [53].
The High Court developed its acceptance of this reasoning:
The principle is well recognised[3]. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence[4]. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.
(Footnotes in original)
[3] Veen v The Queen [No 2] (1988) 164 CLR 465 at 476-477. See also R v Anderson [1981] VR 155; R v Scognamiglio (1991) 56 A Crim R 81; R v Letteri (unreported, Court of Criminal Appeal (NSW), No 60407 of 1991, 18 March 1992); RvEngert (1995) 84 A Crim R 67; RvWright (1997) 93 A Crim R 48.
[4] See R vEngert (1995) 84 A Crim R 67 at 71.
Most recently, the High Court in R v Guode[5] approved a summary of the principles given by the Victorian Court of Appeal in R v Verdins:[6]
1.    The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2.    The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3.    Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4.    Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5.    The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.    Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.
(Footnote omitted)
[5] (2020) 267 CLR 141 at [8] Kiefel CJ, Gageler and Nettle JJ).
[6] (2007) 16 VR 269 at 276.
The appellant’s submissions in support of Grounds 1 and 2 focused on the second of the paragraphs extracted from the sentencing remarks, above, relevant to head sentence. He complained that the judge did not engage with the established principles, specifically in that:
·his intellectual disability means that he is not a good candidate for the expression of deterrence;
·general deterrence is a lesser consideration on account of his intellectual disability; and
·his mental health is a factor that was causally related to the offending and relevant to the sentencing process. Its relevance is not eroded over time, and it was necessary for the sentencing judge to give consideration to its continued relevance.
The respondent contended that in circumstances where the judge set out Dr White’s conclusions as to the effects of both his mental impairment and his intellectual disability, it can be taken that he was cognisant of the reports and factored these into the formulation of the sentence. The context of the comment that the appellant’s ‘history and personal circumstances are deserving of sympathy’ shows that the complaint can only be one of weight; the balance of the paragraph sets out the matters that nonetheless weigh against these matters as ameliorating considerations.
The difficulty with the identified paragraphs in the sentencing remarks is that while they do show that the matters the subject of Dr White’s reports were taken into account, they do not appear to grapple with how these conditions may affect personal and general deterrence, nor with how the sentence might weigh more heavily on the appellant when compared with a person without mental impairments. The judge did not refer to general deterrence. The second paragraph engages with the failure of past sentences to have given effect to personal deterrence. However, that is not the same thing as giving consideration to whether personal deterrence is, in the circumstances, of diminished importance.
The other aspect to this is the judge’s comment that the appellant’s ‘history and personal circumstances are deserving of sympathy’, which was juxtaposed against his ‘antecedents and … failure to take advantage of the leniency shown … in the past’. This led the judge to the conclusion that there was ‘less scope for a merciful approach in respect of this offending than has previously been available’. The appellant submitted that this apparent reduction of the question to one of ‘sympathy’ or ‘mercy’ misapprehended the approach to be taken to questions of mental impairment and intellectual disability.

The respondent identified that, whether intended or not, this statement echoed the language of the High Court in Veen v The Queen (No. 2):[7]
The tragedy of Veen’s life, which appears from the moving testimony of his foster sister, Brother Loth and Ms. Fitzwalker and which must excite sympathy for him, has to be balanced against the exigencies of the criminal law especially the protection of society.
[7] (1988) 164 CLR 465 at 478.
The respondent submitted that while the language of the courts has moved away from the terms ‘sympathy’ and ‘mercy’ in the present context, it is not inappropriate to use them; their use here sufficiently identified the necessary principles. Further, Dr White’s report was expressed in the abstract as to the likely effect of his intellectual disability and mental impairment on his ability to comprehend the moral culpability of his actions.
Sentencing remarks do not purport to be an ‘exhaustive inventory’ of facts and matters taken into account.[8] The conclusion of the judge was expressed as a response to submissions drawing his attention to:
the physical, sexual and emotional trauma that you experienced as a youth. [Counsel] submitted also that your low intelligence and problem-solving skills and that you are easily influenced both diminishes your culpability and calls for merciful sentencing in respect of this offending. …
[8] R v Reiner (1974) 8 SASR 102 at 114.
The judge’s response to this compendium of issues, which he framed in terms of leniency and mercy against a background of prior offending, is reduced, in its effect, to noting that the appellant did not learn from the responses to his past offending. It does not place that failure into the context of the matters in evidence before him that are directly relevant to the appellant’s moral culpability. Specifically, it is not apparent that the judge, in expressing his conclusion in this compendious manner, factored in that the appellant’s failure to respond in the past may now be understood by reference to the explanation provided by Dr White. If the judge was not prepared to accept a material part of Dr White’s evidence, he could be expected to explain why that was so.
It follows that I do not think it can be inferred safely that the judge gave effect to the principles applicable on sentencing an offender with an intellectual disability or impaired mental health. I would grant permission to appeal, and allow the appeal, on Grounds 1 and 2 and resentence the appellant.
Whether the judge erred in applying s 54(2) of the Sentencing Act 2017 (SA)
My conclusion on Grounds 1 and 2 renders it unnecessary to consider the application for permission to appeal on Ground 4. As to Ground 3, it remains useful to consider the complaint as to the judge’s approach to s 54(2) of the Sentencing Act when considering the non-parole period.
The appellant was a serious repeat offender as defined in s 53. The judge was required to set a non-parole period of four-fifths the length of the head sentence unless the criteria in s 54(2) of the Sentencing Act were met. These require the Court to be satisfied, 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.
When considering the non-parole period and his obligations under s 54, the judge indicated that he had regard to the guidance provided by the Full Court in Knight v The Queen.[9] He continued:
I have assessed your personal circumstances in that respect as set out on the evidence given on oath by Dr White. Your childhood and youth was traumatic and framed by physical and sexual abuse culminating in self-harm and escalating drug abuse. Your ability [sic ‑ inability] to resolve your previous traumas turned you to crime. You are now left with significant mental health problems and significant drug problems and a lengthy criminal history. Your obviously poor decision-making skills are exacerbated by your low intelligence, impaired mental health and substance abuse. Sadly, I do not consider, in the exercise of my value judgment and discretion in your case, that your personal circumstances are so exceptional such that the paramount consideration of protecting the safety of the community and personal and general deterrence is outweighed. Circumstances such as yours, while individual to each case, are regularly, routinely or commonly encountered by the courts.
(Emphasis added)
[9] (2021) 138 SASR 156.
The difficulty with these remarks, as emphasised, lies in the fact that as set out above, Dr White had assessed the appellant as presenting one of the most extreme cases of poor cognitive ability that he had ever assessed. The sentencing judge was not required to accept Dr White’s evidence. However, where that evidence was unchallenged, the conclusion that circumstances such as those of the appellant were ‘routinely or commonly encountered by the courts’, required explanation. The appellant’s personal circumstances, which include his cognitive ability as evidenced by Dr White, do not fall within that description.
It follows, in my view, that the sentencing judge erroneously foreclosed an inquiry into whether the personal circumstances of the appellant that Dr White identified as exceptional, were so exceptional as to meet the statutory description in s 54(2)(a). I would also grant permission to appeal on Ground 3.
Resentencing
While the appellant’s offender history is long, it is characterised mostly by relatively low-grade offending, with sporadic ventures into more serious offending. That history must be considered against Dr White’s assessment and the revelation of the extreme nature of the appellant’s intellectual and mental burdens. There is nothing to suggest that these issues have been brought to bear in responding to his offending in the past. While protection of the safety of the community remains the primary sentencing purpose,[10] the significance of personal and general deterrence is markedly decreased in the appellant’s circumstances. To repeat Dr White’s expressed opinion:
The combination of extremely low intelligence, impaired mental health and substance abuse would exacerbate his poor decision-making. He is a person who would likely do whatever he was told, and would lack foresight or awareness of the consequences.
[10] Sentencing Act 2017 (SA) s 3.
Further, imprisonment is likely to have a particularly deleterious effect on his mental health, given his many mental health disorders.
Having said that, the first count represents the most serious offending by the appellant to date. Further, the respondent pointed to the evidence that the appellant’s poor decision-making was affected not only by his mental condition, but also by his drug use. Counsel also submitted that the appellant’s conduct in turning off the dashcam indicated he had an awareness of the wrongfulness of his conduct. His prior convictions for drug offences also supported that inference.
Against the background of Dr White’s reports, it is difficult to be definitive about the inferences that can be drawn from these matters. For example, with respect to disconnecting the dashcam, an inference may be equally available that he was simply doing as he was told.
Translating these competing factors into the blunt instrument of a period of imprisonment can only do so much justice to the competing considerations. Doing the best that I can, I would set a starting point of three years’ imprisonment for the first count. I would reduce that by 20 per cent on account of the appellant’s guilty plea, resulting in a sentence of two years, four months and 24 days.
I would impose a single sentence of three months for the remaining counts. Reducing that by 30 per cent on account of the appellant’s guilty plea results in a sentence of two months and three days.
I would order that the two sentences be served wholly concurrently, leaving a head sentence of two years, four months and 24 days. I would reduce that by eight days for time spent in custody, resulting in a sentence of two years, four months and 16 days.
As already discussed, the appellant is a serious repeat offender. The question of the application of s 54(2) requires engaging with the exceptional nature of his cognitive difficulties and mental impairments as identified by Dr White.
In Knight v The Queen,[11] Livesey J reviewed s 54(2). On the application of the ‘exceptional circumstances’ test, his Honour said:[12]
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.[13] The pronoun “so”, which is used to qualify “exceptional” in s 54(2)(a), is also important and effect must be given to it.[14] 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.[15]
(Footnotes in original)
[11] (2021) 138 SASR 156.
[12] Knight v the Queen (2021) 138 SASR 156 at [62] (Livesey J, Kelly and Bleby JJ agreeing).
[13] R v Karnage [2019] SASCFC 82, [70] (Nicholson J, with whom Kelly and Hinton JJ agreed).
[14] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [71] (McHugh, Gummow, Kirby and Hayne JJ).
[15] R v Kelly [2000] 1 QB 198, 208 (Lord Bingham).
In that case, the appellant’s personal circumstances, which were held to outweigh the ‘the paramount consideration of protecting the safety of the community … and personal and general deterrence’, included the closed period of the offending, her demonstrated rehabilitation, her capacity to maintain stable employment and her having since overcome the circumstances that led to her offending.[16]
[16] Knight v the Queen (2021) 138 SASR 156 at [67] (Livesey J, Kelly and Bleby JJ agreeing).
Knight presented a clear case of exceptional circumstances. It does not define the genre. The strength of the appellant’s claim to such consideration in the present case lies in the particular comparisons that the section calls to be made. First, there is a real sense in which the present case represents an escalation of his previous drug offending. The paramount consideration of protecting the safety of the community extends to protection from the ills posed by commercial drug trafficking operations.
The appellant’s personal circumstances, as informed, in particular, by his intellectual disability and mental health, must be weighed against this and the considerations of general and personal deterrence. I have already noted the cases that explain the potential for diminished importance of these considerations in sentencing when an offender’s moral culpability is thereby compromised. For the same reasons as explained in the context of setting the head sentence, these considerations are of diminished importance in this case.
This last observation raises, in a latent fashion, the competing interpretations of s 54(2) raised by R v Karnage[17] and Knight v The Queen,[18] as to whether the phrasing of the section elevates personal and general deterrence to be also ‘paramount considerations’ for the purpose of that section. It is not necessary to resolve that question here. However, where the circumstances of the case render personal and general deterrence of less utility on account of, for example, an offender’s intellectual disability, that fact necessarily informs the comparative exercise performed under s 54(2).
[17] [2019] SASCFC 82 at [68]-[70] (Nicholson J, Kelly and Hinton JJ agreeing).
[18] (2021) 138 SASR 156 at [47]-[54] (Livesey J, Kelly and Bleby JJ agreeing).
Parole provides an opportunity for supervised release. Any period that the appellant may serve on parole will require close supervision. That is not because he is an unmitigated recidivist. It is because his diminished moral capacity requires that he not simply be left to follow whatever malign influences that may turn up. That is the danger to him and to the community that Dr White has identified. In this appellant’s unusual circumstances, the considerations of personal and general deterrence do not only have less weight in the assessment under s 54(2). There is also a real sense in which the protection of the community would be served by a longer period on parole, if it was supervised appropriately closely.
Whether that can be achieved will only be able to be assessed at the expiry of the non-parole period. However, in my view, Dr White’s evidence demonstrates that the appellant’s personal circumstances are such as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence. Further, in all of the circumstances, I consider it is appropriate that the appellant should not be sentenced as a serious repeat offender.
I would impose a non-parole period of one year and six months. In doing so I would emphasise the importance of the Parole Board and the Department for Correctional Services being made aware of the conclusions of Dr White. In the event of the appellant being eligible for release on parole, his success is very likely to depend on the supervision and supports that may be available for him to minimise his risk of recidivism.
Conclusion
I would make the following orders:
1.Permission to appeal is granted on Grounds 1, 2 and 3.
2.The appeal is allowed, and the sentence is set aside.
3.The appellant is resentenced to a head sentence of two years, four months and 16 days, with a non-parole period of one year and six months. The head sentence and non-parole period are backdated to commence on 23 November 2020.