Pateras v The Queen - [2021] SASCA 107

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
PATERAS v THE QUEEN
[2021] SASCA 107
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Livesey and the Honourable Justice Bleby)
7 October 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING METHYLAMPHETAMINE
The appellant was found in possession of 7.39 grams of a substance containing methylamphetamine and was charged with trafficking in a controlled drug. The appellant entered a plea of guilty one month prior to trial. A judge of the District Court imposed a term of imprisonment of three years and seven months and fixed a non-parole period of two years with the sentence to commence on 18 November 2020, the date the appellant had been remanded in custody. The Sentencing Judge did not find that a good reason existed to reduce the sentence by virtue of the guilty plea and declined to do so. The Sentencing Judge declined to suspend the sentence or order that it be served on home detention.
The appellant agitated a number of grounds of appeal against sentence, alleging that the Sentencing Judge committed various process errors. The appellant further contended that the Sentencing Judge erred in declining to reduce the sentence for the appellant’s guilty plea, that the sentence was manifestly excessive, and the sentence should have been suspended or served on home detention.
Held, by the Court, granting permission to appeal on Grounds 1.5 and 2, allowing the appeal, and resentencing the appellant:
1.The Judge erred in his interpretation of s 40(3)(e) of the Sentencing Act 2017 (SA). The sentencing discretion therefore miscarried.
2.The Sentence imposed in the District Court is set aside.
3.On resentence, the appellant is sentenced to two years, two months and 29 days imprisonment with a non-parole period of 10 months and 11 days. The sentence is suspended on the condition that the appellant enter into a good behaviour bond with conditions.

Bail Act 1985 (SA) s 21B; Controlled Substances Act 1984 (SA) s 32(3); Criminal Law (Sentencing) Act 1988 (SA) s 10C, s 19B; Sentencing Act 2017 (SA) s 5, s 11, s 29, s 40(3), s 40(5) , referred to.
Hackett v The Queen [2021] SASCA 32; House v The King (1936) 55 CLR 499; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; R v Bahrami [2020] SASCFC 111; R v De Simoni (1981) 147 CLR 383; R v Horstmann [2010] SASC 103; R v Mackay [2019] SASCFC 45; R v Pham (2015) 256 CLR 550; R v Wakefield (2015) 121 SASR 569; R v Wymond; R v Evans [2013] SASCFC 12; R v Young [2016] SASCFC 102, considered.

PATERAS v THE QUEEN
[2021] SASCA 107
Court of Appeal: Lovell, Livesey and Bleby JJA
THE COURT:

On 4 May 2019, the police found the appellant in possession of 7.39 grams of a substance containing methylamphetamine. The appellant was arrested and participated in an interview with police admitting that the drugs were his and that he intended to sell some of them to support his habit and put food in the fridge. He told police that he had been selling drugs for approximately two months.
The appellant was charged with one count of trafficking in a controlled drug, namely methylamphetamine contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The appellant entered a plea of guilty a month prior to trial. The Sentencing Judge did not find that a good reason existed to reduce the sentence by virtue of the plea and declined to do so. The Sentencing Judge sentenced the appellant to a term of imprisonment of three years and seven months and fixed a non-parole period of two years with the sentence to commence on 18 November 2020, the date on which he had been remanded in custody. The Sentencing Judge declined to suspend the sentence or order that the sentence be served on home detention.
On appeal, the appellant contended that the Sentencing Judge made a number of “process errors” leading to the sentence imposed being manifestly excessive. He also submitted that the sentence of imprisonment should have been suspended or that he should have been allowed to serve the sentence on home detention.
Background
The offending
On 4 May 2019, the appellant was a passenger in a vehicle driven by his partner. At approximately 10:30pm the police observed the vehicle drive past them without its headlights operating. Police conducted a traffic stop of the vehicle. Whilst police were questioning the appellant’s partner, the appellant interjected and was observed by police to be apparently under the influence of an illicit drug. They formed the suspicion that there may be drugs inside the vehicle and advised the appellant and his partner of their intention to conduct a search of the vehicle. The police observed the appellant drop a bag onto the ground and kick it away. A search of the bag revealed three plastic resealable bags containing what appeared to be methylamphetamine, an ice pipe and a set of scales. Later analysis revealed that the substance weighed 7.39 grams and contained approximately 50% methylamphetamine. The police arrested the appellant.
The appellant then participated in an interview with police. He admitted that on the night in question he had been trafficking about seven grams of methylamphetamine that was approximately 50% pure. The appellant told police that he had been dealing for two months and had conducted between 10 and 20 deals at that time selling methylamphetamine in half-gram lots for $150. The appellant stated he was a long-time user of methylamphetamine, his habit had significantly increased and he had begun dealing to pay for his habit and to put food and drinks in the fridge.
Submissions before the Sentencing Judge
Despite the admissions to police the appellant initially pleaded not guilty to the charge. The matter was listed for trial on 29 March 2021. However, on 26 February 2021 the appellant was arraigned and pleaded guilty.
On 26 March 2021, submissions were made before the Sentencing Judge. A dispute arose as to the appropriate basis for sentencing. The prosecution alleged that the appellant’s trafficking was motivated by profit. The appellant maintained the position he stated during his interview that he sold drugs only to support his addiction. The appellant gave evidence and was cross-examined. In his reasons for sentence the Sentencing Judge found that the appellant had established, on the balance of probabilities, that he was a street dealer “selling methylamphetamine largely to defray the cost of [his] habit”. That is, he accepted the basis for sentencing urged by the appellant.
At the time of sentence, the appellant was 33 years of age. After finishing school, he worked driving semi-trailers for his father’s business making deliveries for a soft drink manufacturer. The manner of distribution changed causing the business to close and the appellant lost his job. This occurred approximately two months prior to the offending in May 2019. Prior to losing this job, the appellant had been a user of methylamphetamine; after the loss of his job, his use of the drug became greater. At the time of the offending, the appellant was living with his grandparents who supported him by providing, amongst other things, food, clothing and petrol.
The appellant’s father, who had started a new cleaning business, remained supportive of the appellant despite the charge. He was prepared to employ the appellant upon his release.
The sentence
As mentioned earlier, the Sentencing Judge accepted that the appellant was a street dealer selling methylamphetamine largely to defray the cost of his own habit. He noted that the appellant was “not impoverished, nor dealing very small amounts.” The Sentencing Judge further noted that the police did not find large amounts of cash nor any “tick lists”. The Sentencing Judge found that there was no suggestion the appellant was living a comfortable or hedonistic lifestyle.
The Sentencing Judge noted that the appellant did not have an extensive criminal history and that this was his first drug-related offence. However, the appellant had breached his home detention bail by cutting off the bracelet and was subsequently taken into custody on 18 November 2020. The appellant’s father was supportive of him and was prepared to employ the appellant in his new business. The Sentencing Judge accepted that the appellant’s offending was at the lower end of the scale of objective seriousness.
Taking into account both specific and general deterrence, the Sentencing Judge imposed a term of imprisonment of three years and seven months. While he accepted that by reason of his guilty plea, the appellant was eligible to a reduction up to 5%, the Sentencing Judge was not satisfied that “good reason” was established to reduce the sentence; he therefore declined to do so. A non-parole period of two years was imposed.
The Sentencing Judge was not satisfied that “good reason” existed to suspend the sentence and declined to do so. He did not consider that it was appropriate to order the appellant serve the sentence on home detention. The sentence and non-parole period were backdated to commence on 18 November 2020, the date the appellant was taken into custody.
Grounds of appeal
The grounds of appeal may be summarised as follows:
1.The Sentencing Judge erred in imposing a sentence by making the following process errors:[1]
(a)    sentenced the appellant for multiple acts of trafficking rather than the single act charged;
(b)    failed to identify the factual basis for sentencing;
(c)    took into account an extraneous matter, namely that the appellant was, at the time of sentencing, on bail for further drug offences;
(d)    took into account that the appellant had failed to participate in any rehabilitation programs;
2. The Sentencing Judge erred in failing to give any reduction for the appellant’s plea of guilty;
3. The sentence imposed was manifestly excessive and further, the Sentencing Judge erred in failing to suspend the sentence or alternatively ordering it be served on home detention.
[1]     Other particulars alleged in Ground 1 are relevant to the other grounds of appeal.
Principles on appeal
On appellate review of a sentencing decision the principles enunciated in House v The King are applicable.[2] A challenge to a sentencing judge’s discretionary decision can only succeed if the judge:[3]
1.made an error of legal principle;
2. made a material error of fact;
3.took into account some irrelevant matter;
4.failed to take into account, or gave insufficient weight to [exceptional] some relevant matter; or
5. arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
[2] (1936) 55 CLR 499.
[3] Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45].
Members of an appellate court cannot substitute on appeal a judgment which turns on their own exercise of discretion merely because they would themselves have exercised the original discretion, had it attached to them, in a different way.[4] For an appealable error in the exercise of judicial discretion to be established, the appellate court must be satisfied that what was done by the primary judge in the judgment under appeal amounted to a failure to properly exercise the discretion actually entrusted to the sentencing court.[5] To succeed on this ground, absent identifying a process error, the appellant must establish that the sentence imposed was unreasonable or unjust.
[4] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [37] (Gageler J).
[5] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [37] (Gageler J).
Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence. To observe that a sentence is “very heavy” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing judge’s discretion.[6]
[6] Hackett v The Queen [2021] SASCA 32 at [8] (Kelly P, Lovell and Livesey JJA), citing R v Pham (2015) 256 CLR 550 at [56] (Bell and Gageler JJ).
Ground 1
(a) The Sentencing Judge erred in that he sentenced the appellant for multiple acts of trafficking rather than the single act charged
It was common ground that the appellant had been trafficking in methylamphetamine for approximately two months. He admitted to the police and accepted before the Sentencing Judge that he had conducted between 10 and 20 deals at that time selling methylamphetamine in half-gram lots for $150. The appellant was to be sentenced against this background.
The Sentencing Judge only sentenced the appellant for one offence; he did not offend the principle enunciated in R v De Simoni.[7] As noted in the sentencing remarks, the appellant did not have “an extensive prior criminal history” and that this was his “first drug-related offence”. It is clear from the sentencing remarks that the Sentencing Judge approached his task correctly and only sentenced the appellant for the one offence. We reject the appellant’s submissions on this issue. We refuse permission to appeal on this ground.
[7] (1981) 147 CLR 383.
(b) Failed to identify the factual basis for sentencing
The Sentencing Judge accepted that the appellant was a street dealer selling methylamphetamine largely to defray the cost of his own habit. He noted that the appellant was “not impoverished, nor dealing very small amounts.” The Sentencing Judge further noted that the police did not find large amounts of cash nor any “tick lists”. He also found that the appellant’s offending was “at the lower end of objective serious[ness]”.
On appeal, complaint was made that the Sentencing Judge found that the appellant was not impoverished nor dealing in very small amounts. During the sentencing submissions, the appellant’s counsel accepted that the appellant was not impoverished in the “normal sense of that word”. Further, the appellant admitted selling the methylamphetamine in half-gram lots. The prosecution tendered the declaration of Detective Brevet Sergeant Roberts, a member of the Drug and Organised Crime Task Force. She stated that methylamphetamine is commonly sold in “points”. A point is 0.1 of a gram — a very small amount. It is hardly surprising that the Sentencing Judge sentenced the appellant on his own version of events. It is difficult to understand the appellant’s argument. The findings of the Sentencing Judge were precisely what the appellant sought. We reject the appellant’s arguments on this issue. we refuse permission to appeal on this ground.
Before leaving this issue, we wish to say something about the oft-quoted passage from R v Young.[8] Chief Justice Kourakis stated:[9]
The offending of a street dealer whose addiction has left him or her largely impoverished and who trades in very small amounts only to feed his or her addiction is at the lower end of the scale of objective seriousness. Other street dealers may not use at all or may be only occasional or social users who engage in street trading primarily to fund a comfortable, usually hedonistic, lifestyle. Other street-level dealers, motivated by profit alone, may sell drugs directly to the end user but not use drugs at all.
[8] [2016] SASCFC 102.
[9] R v Young [2016] SASCFC 102 at [65] (Vanstone and Stanley JJ agreeing).
On appeal, there was some discussion about the meaning of the expression “largely impoverished” in the context of this passage. It should be noted that Kourakis CJ was contrasting an addicted street dealer selling drugs to support the addiction with those selling drugs to fund a “comfortable, usually hedonistic lifestyle.” Impoverished in this context does not simply relate to the addict’s financial position. Working people may nonetheless find themselves impoverished because their employment is poorly paid or temporary, or because their financial, family and social capital has been depleted by their addiction. Addicts may well be able to feed themselves, pay the rent or mortgage, and own a car but still be living in impoverished circumstances. Often the question to be determined at the sentencing stage is whether a person has been trafficking drugs to assist or support a better lifestyle, or for the purpose of satiating an addiction.
(c) Took into account an extraneous matter namely that the appellant was, at the time of sentencing, on bail for further drug offences
The appellant, at the time of sentencing, was in custody. While awaiting trial on this matter, he was charged with further drug offences but released on home detention bail. Eventually he removed his home detention bracelet and left the premises, thereby breaching his bail agreement on the other charges. The appellant’s bail was revoked on all charges. That information was before the Sentencing Judge.
During sentencing submissions, the prosecutor suggested that the other charges tended “to rebut any assertion that he has got good prospects for rehabilitation”. The prosecutor later stated that “that fact may be of limited use to your Honour in that they are only allegations”. The Sentencing Judge ascertained that the charges were defended.
The Sentencing Judge was entitled to know why the appellant was in custody. His breach of bail could be a relevant, but very limited, sentencing consideration, but the charges themselves could not be. The Sentencing Judge in his reasons stated:
You were place on bail after your arrest but on 18 November 2020 asked for your bail to be revoked. You have been in custody since that date.
The Sentencing Judge’s reference to the information was entirely appropriate. The other charges simply do not feature in his reasoning. It cannot be said that in any way he misused the information. We reject the appellant’s submission. We refuse permission on this ground and dismiss this ground of appeal.
(d) Took into account that the appellant had failed to undertake a or any rehabilitation programs
The Sentencing Judge observed that the appellant had “not embarked upon any rehabilitation programs either before or after you were taken into custody”. Factually that was correct. The Sentencing Judge was required by s 11(1)(h) of the Sentencing Act 2017 (SA) (“the Act”) to have regard to the appellant’s prospects of rehabilitation.
The appellant contended, however, that the sentencing Judge contravened s 11(7) of the Act. Section 11(6) and (7) relevantly state:
(6)If a defendant has participated in an intervention program, a court may treat the defendant's participation in the program, and the defendant's achievements in the program, as relevant to sentence.

(7)However, the fact that a defendant—

(a) has not participated in, or has not had the opportunity to participate in, an intervention program; or

(b) has performed badly in, or has failed to make satisfactory progress in, such a program,

is not relevant to sentence.

An intervention program is defined in s 5 of the Act as:
intervention program
means a program that provides—

(a)supervised treatment; or
(b)supervised rehabilitation; or
(c)supervised behaviour management; or
(d)supervised access to support services; or
(e)a combination of any 1 or more of the above,

designed to address behavioural problems (including problem gambling), substance abuse or cognitive impairment …
The appellant submitted that it was implicit in the Sentencing Judge’s remarks that he had not embarked on any rehabilitation programs including intervention programs. A failure to participate in an intervention program is not relevant to sentence.[10]
[10] Sentencing Act 2017 (SA) s 11(7)(a).
What is meant by the expression “intervention program” was considered in R v Wymond; R v Evans.[11] The Court, in those cases, was dealing with s 19B of the Criminal Law Sentencing Act 1988 (SA) (now s 29 of the Sentencing Act 2017 (SA)) which gave statutory effect to the common law practice of “Griffiths remands”. The concept of an “intervention program” was inserted into the Criminal Law Sentencing Act 1988 (SA) as part of a suite of amendments that aimed to provide a legal framework within which the government could provide or develop programs to address behavioural problems, substance abuse or mental impairment and further, to provide a framework within which the courts may direct eligible defendants into such a program and monitor their progress.[12]
[11] [2013] SASCFC 12.
[12] South Australia, Parliamentary Debates, House of Assembly, 22 September 2005, 3556–3561 (MJ Atkinson, Attorney-General).
In that context, Kourakis CJ, Vanstone and Blue JJ observed:[13]
A program means more than recurrent treatment; the word “program” must be given some work to do. The word “program” connotes a plan and structure in accordance with which the treatment, rehabilitation, behaviour management or support services are provided. It connotes an objective to which those services are directed. A series of medical consultations or other sessions is not, in itself and without more, a program. The Second Reading Speech of the Attorney-General on the introduction of the Statutes Amendment (Intervention Programs and Sentencing Procedures) Bill 2005 (SA) shows that the amendments were made to provide a statutory basis for the participation of defendants in existing and future programs established or funded by the executive government. The programs were described as intensive programs designed to help defendants deal with the underlying cause of their criminal behaviour. We do not mean to suggest that only government established programs fall within the definition of intervention programs. Rather, programs of the kind which Parliament had in contemplation are structured intensive programs directed towards treating criminogenic conditions.
The adjectival qualification of the services as “supervised” is also significant. An adjournment pursuant to s 19B of the Sentencing Act for the purposes of allowing a defendant to participate in an intervention program can only be ordered along with a grant of bail. Complementary amendments to the Bail Act 1985 (SA) (the Bail Act) were made at the same time as the enactment of s 19B of the Sentencing Act. The Bail Act provides that supervision by an officer of the Department of Correctional Services may be ordered as a condition of bail. Section 21B of the Bail Act authorises a court to impose a condition that the person released on bail undertake an intervention program. An intervention program is defined in the same way as it is under the Sentencing Act. The Bail Act and the Sentencing Act must be read in pari materia. The intervention programs envisaged by both Acts are one and the same. The intervention program manager, who is a Courts Administration Authority employee, has a responsibility to oversee intervention programs in which defendants participate and to co-ordinate the implementation of court orders relevant thereto. Reading s 19B of the Sentencing Act in pari materia with the provisions of the Bail Act, we construe the word “supervised” to refer to supervision by the Department of Correctional Services under the bail agreement into which a defendant, whose sentencing is to be deferred pursuant to s 19B(1)(c) and (d) of the Sentencing Act, must enter.
Supervision by an officer of the Department of Correctional Services is an important element of the scheme contemplated by s 19B of the Sentencing Act. The Department of Correctional Services has both institutional and individual expertise in monitoring and encouraging cooperation and participation in rehabilitation programs. Supervision also provides an important element of protection for the public. It also facilitates the Court being informed if the purpose for which an adjournment has been granted under s 19B of the Sentencing Act is no longer being served.
(citations omitted)
[13] R v Wymond; R v Evans [2013] SASCFC 12 at [19]–[21].
The text, context and purpose of ss 11(6), 11(7) and 29 of the Act support a narrow construction of the expression “intervention program”. Properly construed, “intervention programs” are those ordered and monitored by a court pursuant to s 29 of the Act.[14] Section 11 of the Act does not refer to the many and varied rehabilitation programs which may be undertaken by an offender. We reject the appellant’s submissions on this ground. No error has been demonstrated in the Sentencing Judge’s approach. We refuse permission to appeal on this ground.
[14] See also Bail Act1985 (SA) s 21B.
Grounds 2 and 3
It is convenient to deal with these grounds together.
The appellant contended that the Sentencing Judge erred in failing to give any reduction for the appellant’s plea of guilty. This ground also formed part of Ground 1.5, which alleged that the Sentencing Judge erred in finding that the “good reason” test demanded a finding of something in addition to the utilitarian benefit that flows from a guilty plea. Further, the appellant contended that the sentence imposed was manifestly excessive.
Reduction for guilty plea
The appellant pleaded guilty on 26 February 2021, one month before the allocated trial date. Pursuant to s 40(3)(e) of the Act, it was open to the Sentencing Judge to reduce the sentence by up to 5% if satisfied there was good reason to do so. The Sentencing Judge was not satisfied that a good reason existed and declined to reduce the sentence, at all, for the appellant’s guilty plea.
On appeal, the appellant contended that the Sentencing Judge erred in his approach to the construction of s 40(3)(e) of the Act and failed to give any weight to the utilitarian benefit of his plea. The appellant contended that the Sentencing Judge erred in finding that the inclusion of the good reason test in s 40(3)(e) of the Act demanded an additional requirement to the utilitarian benefit of the plea. That is, the appellant alleged that in finding that the utilitarian benefit alone could not amount to “good reason” to grant up to a 5% reduction, the Sentencing Judge committed a process error.
The respondent submitted that the addition of the words “if satisfied that there is good reason to do so” in s 40(3)(e) meant that the utilitarian benefit alone was insufficient to constitute a good reason. The respondent submitted that if the utilitarian benefit alone was sufficient to constitute a good reason, it would follow that every defendant who enters a plea at the relevant point of proceedings would be entitled to a reduction under the corresponding section. In those circumstances, the words “if satisfied that there is good reason to do so” in s 40(3)(e) would have no work to do.
For the reasons that follow, we reject the respondent’s interpretation of s 40(3)(e).
Depending upon when the guilty plea is entered, ss 40(3)(a) to (e) of the Act provide for a range of reduction for guilty pleas that may apply to a sentence. The maximum reduction available depends on the timing of the plea. In general terms, the earlier the plea, the greater the reduction available. Section 40(3)(e) of the Act, which is the lowest rung of available reductions, reads as follows:
(3) Subject to this section, if a defendant has pleaded guilty to an offence or offences—
…
(e) during the period commencing immediately after the first date fixed for the arraignment of the defendant in a superior court in relation to the relevant offence or offences and ending at the commencement of the defendant's trial for the relevant offence or offences—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 5%.
(emphasis added)
Section 40(3)(e) stands in contrast to ss 40(3)(a)⁠ to (d) in that the discretion to reduce the sentence by up to 5% is enlivened only if the sentencing court is satisfied that good reason exists to do so. The requirement of the sentencing court being satisfied of a “good reason” is not found in ss 40(3)(a) to (d). That said, the discretions to be exercised pursuant to ss 40(3)(a) to (e) are all subject to the criteria set out in s 40(5) of the Act. The respondent contended that it was the addition of the words “if satisfied that there is good reason to do so” in s 40(3)(e) that requires a defendant to satisfy the sentencing court that there is a factor over and above the utilitarian benefit of the plea before the discretion is enlivened. We reject those submissions.
Chief Justice Kourakis, in R v Bahrami, observed that the appeal court in South Australia has consistently emphasised the utilitarian purpose of s 10C of the Criminal Law Sentencing Act 1988 (SA) and its successor s 40 of the Sentencing Act 2017 (SA) whilst recognising that the provisions allowed judges a discretion in the selection of the appropriate reduction.[15] In R v Wakefield, Blue J explained how the approach taken by the earlier authorities is founded in the text and structure of s 10C.[16] Justice Blue observed:[17]
The evident purpose of the enactment of section 10C is to provide a series of graduated incentives to accused to make early guilty pleas. The section proceeds on the basis that, the earlier a guilty plea is entered, the greater the utilitarian benefit to the community. This purpose evident on the face of the section is confirmed by the second reading speech in relation to the Bill that became the Criminal Law (Sentencing) (Guilty Pleas) Amendment Act 2012 (SA) which introduced sections 10A to 10C into the Act.
The purpose of the enactment of section 10C will in general be best achieved by allowing a discount at or close to the maximum permissible discount in a case in which the criteria specified by subsection 10C(4) do not indicate a lesser discount. The primary emphasis of section 10C is on the existence and timing of the guilty plea. This is evident from the structure of subsection (2), the existence of subsection (3) and the fact that each of the criteria identified in paragraphs (b), (c), (d), (e) and (f) of subsection 10C(4) relate to the existence, timing and circumstances of the guilty plea. The evident reason why the legislature specified discount figures as maxima rather than as fixed discounts is that there will be specific reasons in individual cases why it is appropriate to apply a discount less than the figure mentioned in subsection 10C(2).
[15] [2020] SASCFC 111 at [23] (Kourakis CJ), [92]–[94] (Livesey J).
[16] (2015) 121 SASR 569.
[17] (2015) 121 SASR 569 at [53]–[54].
We note that the previous statutory iterations of s 40 of the Act, including s 10C referred to above, while encompassing different maximums and different time periods, included the same enlivening factor for the exercise of the discretion, namely “good reason” in the lowest band of available reduction.
The current structure of s 40(3) of the Act, which permits only a small reduction for a guilty plea after arraignment, clearly encourages early pleas. However, there can be, and often will be, some utilitarian benefit in a guilty plea prior to trial. As Kourakis CJ stated in R v Bahrami, there are clear social and financial costs associated with unnecessary criminal trials and therefore a social benefit in taking a utilitarian approach to sentence reductions for early guilty pleas.[18] The authorities cited in R v Bahrami support the utilitarian approach to sentence reductions for guilty pleas, even relatively late pleas.[19]
[18] [2020] SASCFC 111 at [30].
[19] [2020] SASCFC 111 at [24]–[29] (Kourakis CJ), [92]–[94] (Livesey J).
The discretion under s 40(3)(e) of the Act is only enlivened when a court is satisfied that there is good reason to exercise the discretion. What amounts to “good reason” is not defined in the section nor in the Act. Section 40(5) directs the court to the factors it must take into account in determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea made within a particular period. This section also includes the proposition that a court “may have regard to any other factor or principle the court thinks relevant”. Clearly it is a wide discretion.
What s 40(3)(e) of the Act does not require is the finding of a factor outside of s 40(5) to conclude that a good reason exists to reduce the sentence. What may constitute a “good reason” depends on the particular circumstances in each case. The expression “good reason” of itself does not point one way or the other to any particular factor. While the utilitarian benefit of a guilty plea is perhaps more apparent under the other subsections of s 40(3), it is less obvious as the trial date approaches. The necessity of a court being satisfied that “good reason” exists to exercise the discretion focuses the court’s attention on the fact that the guilty plea has been entered relatively late in proceedings. It is correct to observe that the finding of “good reason” is not necessary for the discretion to be enlivened under ss 40(3)(a) to ⁠(d). However, nothing in the text of the section nor in the many authorities which have considered s 40 or its predecessor s 10C of the Criminal Law Sentencing Act 1988 (SA) suggest that the utilitarian nature of the plea cannot of itself amount to “good reason”. It may or it may not be a good reason, depending on the court’s assessment of all the relevant factors.
In our view, when considering whether good reason exists to exercise the discretion pursuant to s 40(3)(e) of the Act, the court should have regard to the utilitarian benefit of the guilty plea.
Against that background we turn to examine the Sentencing Judge’s approach to s 40(3)(e) of the Act. Having identified s 40(3)(e) as the relevant subsection, the Sentencing Judge correctly identified the s 40(5) mandated factors he must have regard to when sentencing. He also observed that s 40(5) included any other factor or principle the court thinks relevant. The Sentencing Judge then stated:
As to that ‘other factor or principle’, in R v Bahrami, Kourakis CJ considered the history and underlying utilitarian or practical reasons to reduce the sentence of offenders who co-operated in the administration of justice by pleading guilty. I take into account the utilitarian approach to which his Honour referred to in R v Bahrami and the other matters his Honour considered as part of my considerations under s.40(5).
In s.40(3)(e), however, unlike the other parts of s.40(3), there is an additional requirement that the court be satisfied that there is ‘good reason’ to reduce the sentence otherwise it would otherwise have imposed by up to 5%. The prosecution submit no good reason has been put forward to satisfy the court that the sentence should be reduced. I accept that submission. In my view, no good reason has been shown why the court should reduce your sentence by reason of your guilty plea at this stage of the proceedings. I decline to reduce your sentence.
The appellant submitted that the Sentencing Judge’s remarks demonstrated that he considered s 40(3)(e) required something in addition to the utilitarian benefit of a guilty plea to find “good reason”. To put that another way, the appellant contended that the Sentencing Judge in effect found that the utilitarian nature of the guilty plea of itself could never amount to “good reason”.
The Sentencing Judge’s remarks generally are well structured and cogent. However, on this issue his remarks are, unfortunately, not clear. Sentencing remarks are, of course, not to be read as if they are a considered judgment. It is open to interpret the remarks in the manner the appellant suggested. It is also open to interpret the remarks as demonstrative of the Sentencing Judge taking into account the utilitarian nature of the plea but finding, on the facts of the case, that the utilitarian nature of the plea did not amount to “good reason”. The former interpretation demonstrates error, the latter does not.
There is a further complication. The Sentencing Judge stated that the prosecution had submitted that “no good reason has been put forward to satisfy the court that the sentence should be reduced. We accept that submission.” That is an error. The prosecution did not make that submission.
The prosecutor in her submissions simply, by going back to basics, identified for the Sentencing Judge the correct section and the terms of the section. She identified, for the Sentencing Judge, that up to 5% was the maximum reduction, that he had to be satisfied “good reason” existed and that the appellant bore the onus of establishing that good reason existed. The prosecutor’s submissions were clear and correct. At no time did she submit that that the appellant had failed to establish that good reason existed to reduce the sentence. It appears that the Sentencing Judge misunderstood the prosecutor’s submissions. The Sentencing Judge, in accepting a prosecution submission that they did not make, has clouded his reasoning process. The Sentencing Judge should have, when denying the appellant any reduction for his guilty plea, explained briefly, why he adopted that course.
The resolution of this issue is difficult. The sentencing remarks are ambiguous as to the way in which the Sentencing Judge considered the exercise of his discretion pursuant to s 40(3)(e). In light of this ambiguity, we cannot be confident that the Sentencing Judge has approached this issue correctly. There is, in our view, an unacceptable risk the Judge considered the exercise of the discretion on an incorrect basis. We find that the Sentencing Judge erred in his consideration of s 40(3)(e).[20] The appellant has established a process error and must be resentenced. We grant permission to appeal on Grounds 1.5 and 2 and allow the appeal on those grounds.
[20] See R v Mackay [2019] SASCFC 45 at [45].
Resentence
As mentioned earlier, on an appeal against sentence, the Court of Appeal has no power to set aside or vary that sentence unless it is satisfied that the sentence is affected by an error of the type identified in House v The King.[21] Here the appellant has established a material process error. The Court of Appeal, where it identifies a process error, may interfere in the sentence. As Kourakis J (as he then was) observed in R v Horstmann:[22]
Plainly enough, in the case of an outcome error it is implicit in a finding of manifest excess or inadequacy that the Court of Criminal Appeal has formed the view that a different sentence should have been passed and it will vary the sentence accordingly.

[21] (1936) 55 CLR 499.
[22] [2010] SASC 103 at [37]–[38].
In the case of a process error, the Court of Criminal Appeal may yet refrain from interfering with the sentence if it thinks that the resulting penalty was appropriate notwithstanding the demonstrated error. In such a case, the Court of Criminal Appeal will not vary the sentence if it thinks that the same or a higher sentence would be passed if it were to exercise the discretion itself. However, where a process error is demonstrated, the Court of Criminal Appeal may reduce the sentence if in the exercise of its own discretion it considers that a lesser sentence is appropriate, even though the sentence under appeal is not manifestly excessive.

It is therefore necessary for this Court to exercise its own independent discretion and determine the appropriate sentence for the appellant. Given our conclusion that the Sentencing Judge erred in his approach to the guilty plea reduction, it is not necessary for us to consider whether the sentence was manifestly excessive. While it is implicit in what follows in our resentencing of the appellant that we would have imposed a lesser sentence, it does not follow that the sentence imposed below was manifestly excessive.
The Sentencing Judge found that the appellant’s trafficking of drugs was not motivated by profit. At the time of the offending the appellant had lost his job and was in the throes of a significant addiction. The appellant had no prior drug offending history. The offending was at the lower end of objective seriousness. The appellant’s background and personal circumstances are set out earlier in these reasons.
But for the plea of guilty we would have imposed a sentence of three years and three months imprisonment. In the circumstances of this matter we find good reason does exist to reduce the sentence for the plea of guilty. We reduce the sentence by six weeks. That leaves a final sentence of three years, one month and two weeks. We fix a non-parole period of 21 months. The appellant has been in custody since 18 November 2020, a period of 10 months, two weeks and five days. We reduce the head sentence and non-parole period accordingly.
That leaves a final sentence of imprisonment for two years, two months and 29 days with a non-parole period of 10 months and 11 days.
We turn to the question of whether good reason exists to suspend the sentence. It was open to the Sentencing Judge to find that good reason did not exist to suspend the sentence. However, we must sentence the appellant taking into account that, since sentenced, he has served a further period of nearly five months in prison. He has employment with his father if released and has now been in custody for over 10 months.
In all of the circumstances, we find good reason exists to suspend the sentence on the condition that the appellant enter into a bond in the sum of $500 to be of good behaviour for a period of 18 months. The bond is to also contain the following conditions:
1.That the appellant is to be under the supervision of a Correctional Services Officer for the period of the bond;
2.That the appellant undertake psychological or psychiatric counselling relating to drug addiction rehabilitation as reasonably directed by his Community Corrections Officer;
3.That the appellant undergo and complete such blood or urine analysis for the detection of illicit substances as reasonably recommended by his Community Corrections Officer.
Orders
1. Permission to appeal is granted on Grounds 1.5 and 2.
2. The appeal is allowed.
3. The sentence imposed in the District Court is set aside.
4. The appellant is sentenced to three years and three months imprisonment. The sentence is reduced to three years, one month and two weeks with a non-parole period of 21 months. The head sentence and non-parole period are reduced to account for time in custody. The final sentence is imprisonment for two years, two months and 29 days with a non-parole periods of 10 months and 11 days.
5. The sentence is suspended on entry into a good behaviour bond with conditions.