Quick v The Queen - [2020] SASCFC 92

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
QUICK v THE QUEEN
[2020] SASCFC 92
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Livesey)
25 September 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING CANNABIS, INDIAN HEMP OR HASHISH
Appeal against sentence.
The appellant pleaded guilty to five counts of trafficking in a large commercial quantity of cannabis contrary to s 32(1) of the Controlled Substances Act 1984 (SA).
On 25 May 2017, police located a cannabis trafficking operation at the appellant’s residence. A concealed room within a shed at the rear of the property contained cannabis and equipment for packaging cannabis. The appellant would package the cannabis and send the parcels to various addresses in Queensland. A co-offender, his wife, MQ, would collect the parcels of money sent from Queensland to the appellant’s postal box.
The appellant stated that he committed the offending at the suggestion of his Queensland co-offender, J, whom the appellant had met several years prior, as well as because of financial and psychological vulnerabilities. The appellant was sentenced to nine years imprisonment with a non-parole period of seven years and 72 days.
The sole ground of appeal was that the sentence imposed is manifestly excessive, based on four complaints: (1) the Judge failed to maintain an appropriate demarcation between the appellant’s culpability and that of a more senior participant in an operation of this kind; (2) the Judge’s summary of the appellant’s personal circumstances neutralised the extent to which the appellant was psychologically vulnerable at the time of the offending; (3) the Judge failed to take into account the appellant’s prospects of rehabilitation; and (4) the notional starting point was outside the available range.
Held per Nicholson J (Kourakis CJ and Livesey J agreeing) allowing the appeal in part:
1. The starting point for the head sentence in this case of a little more than 10 years was not outside the available range; it was not manifestly excessive.
2. The Judge erred in applying a guilty plea discount after first giving an undisclosed credit for time in custody and on home detention bail, that is, in not applying the discount to the true or effective starting point.
3. Appeal allowed solely to correct the error in 2.
4. Appellant resentenced to imprisonment for eight years, 11 months and 21 days with a non-parole period of seven years and 63 days commencing 5 August 2019.
Criminal Law Consolidation Act 1935 (SA) s 32; Sentencing Act 2017 (SA) s 26, s 54; Criminal Code Act 1995 (Cth) cl 400.9; Criminal Assets Confiscation Act 2005 (SA) s 42, referred to.
Hilfy v The Queen [2020] SASCFC 72; House v The King (1936) 55 CLR 499; R v Horstmann (2010) 269 LSJS 42; R v Lyberopoulos [2017] SASCFC 139; R v Standley [2016] SASCFC 141; R v Faehrmann; R v Moore; R v Price-Austin (2014) 118 SASR 549; R v Hunt; R v Yates [2012] SASCFC 74; R v Mustac (2013) 115 SASR 461; R v Hucks [2016] SASCFC 92; R v Yavuz; R v Soyler; R v Bayraktar (2017) 130 SASR 231; R v K [2019] SASCFC 87; R v Malakouti [2018] SASCFC 115; R v Morse (1979) 23 SASR 98, discussed.

QUICK v THE QUEEN
[2020] SASCFC 92
Court of Criminal Appeal: Kourakis CJ, Nicholson and Livesey JJ

KOURAKIS CJ: For the reasons given by Nicholson J, I would allow the appeal for the limited purpose of adjusting the sentence to properly take into account the time spent in custody and home detention bail.
NICHOLSON J.
Introduction
On 5 August 2019, the appellant[1] pleaded guilty in the District Court to five counts of trafficking in a large commercial quantity of a controlled drug, namely cannabis, in contravention of subsection 32(1) of the Controlled Substances Act 1984 (SA).[2] The maximum penalty for each count is life imprisonment and or a fine of $500,000.
[1] On 10 March 2020, a Judge of this Court granted permission to appeal on the sole ground specified in the notice of appeal.
[2] The appellant was initially charged with 27 offences contrary to section 32 of the Controlled Substances Act 1984 (SA). However pleas to counts 2, 7, 14, 20 and 27 were accepted in full satisfaction of the information.
On 19 December 2019, the sentencing Judge imposed a single penalty[3] for all offences of imprisonment for nine years. The appellant qualified as a serious repeat offender and, as such, a non-parole period of four-fifths,[4] being seven years and 72 days, was fixed. The head sentence and non-parole period commenced on 5 August 2019.
[3] Pursuant to section 26 of the Sentencing Act 2017 (SA).
[4] Section 54(1)(b) of the Sentencing Act 2017 (SA).
The appellant has appealed on the sole ground that the sentence of imprisonment imposed was manifestly excessive.
The factual basis of the offending
The appellant and his co-accused, his wife, MQ,[5] became involved in an ongoing cannabis trafficking operation at the suggestion of a man, J.[6] The appellant had met J in 2006 through their mutual interest in Ford cars. It was accepted by the Judge that the operation was on foot prior to 24 January 2017 and continued until the appellant’s arrest in May 2017. The appellant was sentenced on the basis that the operation ran for 19 weeks. The Judge found that the appellant’s role in the operation was to package the cannabis and to send the parcels to each of three addresses in Queensland by post. Money from Queensland buyers was sent in parcels to the appellant’s post office box. These parcels would sometimes contain paper with a number written on it, alleged by the prosecution to be “orders” for cannabis. The parcels were retrieved from the post office box by MQ and delivered to the appellant.
[5] MQ was separately charged with and has been sentenced for money laundering offences.
[6] On 22 November 2018, J was sentenced in the District Court of Queensland to a partially suspended head sentence of imprisonment for four and a half years. The factual basis for J’s offending accepted by the Queensland Judge was quite different from the nature and extent of his involvement in the enterprise agreed upon by the parties and accepted by the Judge for the purpose of this matter. No issue of parity arises.
The cannabis operation was discovered during a search by police of the appellant’s residence. A shed with a concealed room was located at the rear of the property. The concealed room contained equipment for packaging cannabis, including: scales, bags, and a heat sealing machine. Also found was cannabis that had been pressed, bagged into cryovac bags and placed into large plastic buckets which were then glued shut and placed into boxes for postage. The appellant was arrested and charged.
The Judge found that during the course of the operation, the appellant sent at least one consignment of cannabis per week to one, or sometimes each, of the addresses. Each consignment weighed between four and 16 pounds. He sent a total of 290 pounds during the period of the operation. The Judge accepted that the appellant received a payment of $200 per pound, that is, a total of $58,000, during the period. However, the five offences for which the appellant was convicted concerned a total of 63 pounds,[7] with a return to him of $12,600.
[7] Count 2 comprised 13 pounds, count 7 comprised 15 pounds, count 14 comprised 10 pounds, count 20 comprised 14 pounds and count 27 comprised 11 pounds.
The appellant’s personal circumstances
The appellant is 48 years old, the father of three children, and grandfather of one. He has been married to MQ for 30 years. However, at the time of the commission of these offences, the marriage was failing. They had separated but were living in the same house. The Judge accepted that the appellant “[had] always been a hard worker and that he [had] always had it as a priority to provide for [his family]”. During sentencing submissions, several letters of support were provided speaking of his, otherwise, good character.
The appellant struggled at school, probably while suffering from undiagnosed dyslexia. The Judge found, notwithstanding, that the appellant had a good work history including owning his own businesses: a car wash; and operating a tip truck and bobcat.
The appellant had an unremarkable childhood, although his parents were heavy drinkers. The appellant also became a heavy drinker. Unfortunately, in the years preceding the offending, several people close to the appellant died, some by suicide. Of particular significance were a 19 year old male, the partner of the appellant’s elder daughter who had lived with them since the age of 14 and whom the appellant had regarded as a son, and the appellant’s best friend. They passed away in 2015 and 2006 respectively. The appellant continues to grieve for these people. He has feelings of guilt given that he failed to recognise their signs of depression. In addition, the appellant’s parents who, according to the appellant are dependent upon him, are unwell and may die whilst he is in custody.
The appellant has one relevant prior conviction being for unlawful possession of money reasonably suspected of being proceeds of crime, in the amount of approximately $67,000.[8] The appellant was sentenced to six months imprisonment but released on his own recognizance.
[8] Criminal Code Act 1995 (Cth) cl 400.9 (1A).
The Judge’s approach to sentence
The Judge indicated a notional starting point of 10 years imprisonment “after having taken into account” eight days spent in custody and “some six months” on home detention bail following arrest. His Honour then allowed a 10 per cent discount for the guilty pleas. This resulted in a head sentence of nine years. Upon being convicted of all five counts, the appellant was deemed a serious repeat offender and a mandatory non-parole period of seven years and 72 days (four-fifths of the head sentence) was fixed. The Judge ordered forfeiture of the amount of $25,080 cash seized by police during the search of the premises.[9]
[9] Pursuant to section 47 of the Criminal Assets Confiscation Act 2005 (SA).
The Judge described the seriousness of the offending as follows.
I accept that you were not the ringleader in this cannabis trafficking operation. A man named [J] co-opted you to work at this end packaging, sending the cannabis to Queensland and receiving the money. I accept that [J], not you, was getting the lion’s share of the proceeds of this operation.
I sentence you on the basis that you are far from being the ringleader but that you did play a significant role. You have acknowledged through your counsel that yours is very, very serious offending and that you went into it with your eyes open…
This finding that the offending was very serious was not contested on appeal. With respect to deterrence, the Judge said:
General deterrence is of great importance in cases such as these. I think that in your case, personal deterrence is now of less importance.
The Judge made plain that while the appellant was only to be sentenced for the five counts to which he pleaded guilty, this was to be viewed against the background of the 19 week operation. The Judge noted that the total amount of cannabis, 63 pounds, referable to the five counts, was still to be regarded as a “very substantial amount”.
The appellant’s submissions in brief
As stated above, the appellant’s sole ground of appeal was that the sentence imposed on the appellant was manifestly excessive. This error was said to be supported by four main complaints as follows.
Complaint (i)
The appellant acknowledged that the Judge expressly referred to the appellant’s role, stating he was not the ringleader and that he was “co-opted” by J. However, the appellant’s counsel contended that the starting point, and ultimate sentence, indicated that the Judge failed to maintain an appropriate demarcation between the appellant’s culpability and that of a more senior participant in an operation of this kind.
The respondent submitted that drug trafficking enterprises of this scale could not succeed without involvement by a number of people. The sentence must be such as to deter “subordinates” from involving themselves in this type of enterprise.
On appeal, it was accepted by the appellant’s counsel that the appellant was the “South Australian end” of the enterprise and that his receipt of $200 per pound was a substantial portion, perhaps a third, of the potential profits.
Complaints (ii) and (iii)
The appellant contended that the starting point indicated that the Judge had not sufficiently allowed for significant mitigatory aspects of the appellant’s personal circumstances, in particular:
(i)the Judge’s summary of the appellant’s personal circumstances neutralised the extent to which the appellant was in a psychologically vulnerable place at the time he was recruited to participate in the offending; and
(ii)the Judge failed to adequately take into account the appellant’s prospects of rehabilitation, and consequential unlikelihood of future offending.
The psychological report of Mr Fugler dated 27 August 2019, described the appellant’s descent into the offending. After recording the suicide of his daughter’s partner, the report includes the following observations.
[The appellant] described having experienced a grief reaction, which has yet to resolve, that caused him to be depressed, guilt ridden, emotionally numb, developing sleep, eating, and sexual difficulties, and becoming unconcerned about his personal welfare or the consequences of his actions. He also reported other family members having been devastated [by the death], especially his daughter…, [the appellant] stating he felt inadequate when unable to assist in relieving other family members grief.
[The appellant said] he behaved like a “typical male” and did not seek professional assistance. He attempted to employ the psychological defence mechanisms of denial and avoidance, and while unmotivated he attempted to focus on work and other activities in what was an often unsuccessful attempt to avoid experiencing negative intrusive thoughts about the loss of the young man. That involved he [sic] maintaining an interest in Ford motor vehicles, which led him to meet [J] to whom he expressed some of his distress. It was that individual who he believes groomed him into become part of the offending, which occurred at a time when he was not only depressed but also experiencing financial difficulties, and thought the acquisitions [sic] cash would in some way be of use in helping family members cope with their grief.
Mr Fugler expressed the following conclusions.
[The appellant] has an unresolved grief reaction to the death of a young man with whom he enjoyed a close and supportive relationship. He described having become depressed as part of the grief process and found the psychological defence mechanisms of avoidance and repression that had to some extent been successfully applied in the case of previous losses to be ineffective in blocking distress from consciousness. The result was that not only was the death of [his daughter’s partner] highly distressing, but that the unresolved negative affects [sic] associated with the previous losses presented and exacerbated his low level of psychological functioning…
[The appellant] has a history of alcoholism that may have a hereditary basis and while he reports having managed to avoid consuming that substance during the period spent on Home Detention Bail, a laudable effort on his part and indicative of positive motivation to continue to abstain, he remains vulnerable to relapse and should be referred to an ongoing alcohol treatment programme to assist with relapse prevention. [The appellant] has avoided discussing his distress and other concerns with others and has attempted, unsuccessfully in the long run, to deny and avoid dealing appropriately with the distress associated with a number of significant losses. He would be likely to obtain benefits from a being involved in a [sic] grief counselling with an experienced psychologist. A resolution of his present high level of emotional distress should, given he also avoids individuals associated with the drug sub culture, see an improvement in his decision making skills and prognosis over that existing in 2017
However, Mr Fugler also noted that “[the appellant’s] cognitions were not disturbed and there were no indications he was suffering a major psychiatric or obvious personality disorder” at the time of interview. The appellant also acknowledged to Mr Fugler that he clearly understood the nature of the offending and was a willing participant.
The Judge referred to having taken into account Mr Fugler’s report when imposing sentence. The Judge accepted that the appellant was “still grieving” over the deaths of his daughter’s partner and his best friend at the time of the offending.
The appellant submitted that the Judge failed to adequately have regard to the effect these experiences had on the appellant’s decision making capacity, his post-offending insight into his psychological pressure points, and his prospects for re-offending. It was submitted that the appellant’s personal circumstances “presented a worthy case for leniency”.
The respondent submitted that it is plain that the Judge took these factors into account, and that “this was a case where other sentencing principles were of paramount importance”.
Complaint (iv)
The appellant’s fourth primary contention was to the effect that the starting point was outside the available range suggested by other cases. As to the notional starting point of 10 years imprisonment, the appellant’s counsel submitted that the Judge must have, in fact, employed a starting point greater than 10 years because the Judge nominated 10 years after taking into account time in custody and time on home detention, although the amount of the discount was not identified by the Judge. The true starting point must have been something between 10 years and 10 years, six months, and eight days.
Counsel drew the Court’s attention to a number of other cases involving substantial trafficking in cannabis in support of the submission that a starting point of 10 years was outside the available range.
Consideration
The sole ground of appeal is manifest excess. I repeat the summary of the proper approach to this ground of appeal that I provided in Hilfy v The Queen.[10]
[10] [2020] SASCFC 72 at [36]-[37].
The question of whether or not a sentence is manifestly excessive is to be determined by asking whether, after considering all the circumstances relevant to sentencing, and notwithstanding that no specific error of reasoning may be apparent, the sentence imposed was unreasonable or plainly unjust.
Ordinarily, an appellate court when deciding the question of manifest excess will include in the factors to be considered: the maximum penalty for the relevant offence; the range of sentences customarily observed for the type of offence; the seriousness of the offence committed; and the personal circumstances of the offender. The task for an appellate court (in the context of a consideration of the cognate notion of manifest inadequacy) was explained in more detail by the High Court in Hili v The Queen.
As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”.

But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.
(Footnotes omitted)
(Footnotes omitted)

It is not necessary to determine whether or not a sentencing Judge has made a specific error. Indeed, usually this will be difficult to demonstrate for otherwise it would have been raised in the notice of appeal as what is often described as a process error.[11] Nor is it necessary to consider whether or not a sentencing Judge has placed insufficient weight on individual sentencing factors. Such a finding, whilst, itself, not a process error may be inferred from a finding of manifest excess.[12]
[11] House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505, R v Horstmann [2010] SASC 103; (2010) 269 LSJS 42 at [36]-[38].
[12] House v The King [1936] HCA 40; (1936) 55 CLR 499, R v Horstmann [2010] SASC 103; (2010) 269 LSJS 42.
Nevertheless, I will make some brief observations concerning the appellant’s four specific complaints before turning to consider the question of manifest excess generally.
As to the first complaint, the evidence available made it difficult for the Judge and this Court to precisely position the appellant within the structure of the operation. The information in this respect available to the prosecution in the witness declarations was very limited. As a consequence, together with the fact that the appellant appears to have been less than forthcoming (as was his right) the written “Factual Basis for Sentence”, agreed upon by the parties, can be described as economical in this and other respects. In any event, it can be unhelpful to focus on labels in an effort to define individual roles in a drug dealing operation. Much will depend on the nature and structure of the particular organisation.
In this case, the operation was large and sophisticated and involved very substantial quantities of cannabis and sums of money. Whilst the appellant is only to be sentenced for the five offences for which the was convicted, the turnover of the operation over the 19 week period was in the order of $580,000 to $870,000. The turnover relevant to the charged amounts was in excess of $175,000.
The evidence does not disclose the involvement of any persons at the South Australian end other than the appellant and his wife. To the extent that the appellant was answerable to someone in South Australia (potentially mitigatory but probably not) he has not indicated as much. On the basis of what is known, I agree with the respondent’s submission that, on any analysis, the appellant was an important player in a very big operation.
He’s the critical funnel through which all the cannabis is flowing from South Australia to Queensland and in reverse order with the money coming back.
I am not satisfied that the Judge failed to properly appreciate the appellant’s level of involvement and consequent culpability.
As far as complaints (ii) and (iii) are concerned, the Judge in his remarks addressed critical aspects of the appellant’s personal circumstances and made reference to Mr Fugler’s report. It ought be accepted that the Judge read and considered the opinions expressed in Mr Fugler’s report. In any event, while there are aspects of the appellant’s background that evoke sympathy, any causal connection between the appellant’s emotional and psychological state and the decision to offend and continue to offend in this way is not at all made clear by Mr Fugler, nor is it intuitively obvious.
There is no doubt that the appellant was in a vulnerable state, emotionally, psychologically and perhaps financially - but so are many who do not turn to drug trafficking of this magnitude. The appellant did not have a drug habit. His motivation was commercial, simple greed must have been a significant stimulus.
Under the fourth complaint, the appellant drew the Court’s attention to the relatively recent decisions on appeal to this Court in R v Lyberopoulos,[13] R v Standley,[14] R v Faehrmann; R v Moore; R v Price-Austin[15] and R v Hunt; R v Yates.[16]
[13] [2017] SASCFC 139.
[14] [2016] SASCFC 141.
[15] [2014] SASCFC 25; (2014) 118 SASR 549.
[16] [2012] SASCFC 74.
I have reviewed these cases, bearing in mind that each case concerned a different factual basis for the offences charged and different personal circumstances, including criminal records. Faehrmann et al, considered in isolation, might suggest that a starting point in the present case of 10 years or so was severe. However, neither Lyberopoulos, Standley nor Hunt and Yates provides any support for a conclusion that a starting point of 10 years or so was outside the available range.[17]
[17] In this respect, see also R v Mustac [2013] SASCFC 21; (2013) 115 SASR 461, R v Hucks [2016] SASCFC 92, R v Yavuz; R v Soyler; R v Bayraktar [2018] SASCFC 24; (2017) 130 SASR 231 and R v K [2019] SASCFC 87.
Manifest excess
The offending was undoubtedly serious. Whilst the appellant has little by way of prior criminal record, his previous offence of unlawful possession involved a very substantial sum of money. He received a suspended prison sentence and was on notice that the criminal law treats such matters very seriously. The appellant’s subsequent involvement in such a large cannabis trafficking operation was no mere flirtation. Furthermore, any case for leniency was greatly reduced because of the extensive nature of the uncharged conduct.[18] The appellant’s personal circumstances as I have said evoke sympathy but are not particularly remarkable in the context of this offending. The Judge said that personal deterrence was of less importance. I am not sure I agree. Nevertheless, generally deterrence remains a very significant consideration with respect to offending of this nature.
[18] R v Malakouti [2018] SASCFC 115 at [63].
After reflecting on the considerations relevant to the question of manifest excess as explained by King CJ in R v Morse,[19] the starting point for the head sentence in this case of a little more than 10 years was not outside the available range; it was not manifestly excessive. Save for one further consideration I would dismiss the appeal.
[19] (1979) 23 SASR 98.
Whilst not a ground of appeal, it cannot be gainsaid that the Judge erred in applying the 10 per cent discount to a 10 year starting point after giving undisclosed credit for time in custody and on home detention bail. The Judge should have nominated a starting point before reducing it by 10 per cent and only then allowing an identified amount of credit.
It is clear that the Judge intended to start at more than 10 years, that is, 10 years plus the amount of (unidentified) credit. I will maintain this intention. Taking a generous approach, I would allow 90 days credit for the eight days in custody and “some six months” on home detention bail, giving rise to a true starting point of 10 years and 90 days. The mathematical gymnastics in allowing a 10 per cent reduction from this figure, then reducing the result by 90 days and then imposing a four-fifths non-parole period is akin to the Produnova vault.[20] However, the final result can be achieved by simply reducing the Judge’s figures by nine days.
[20] A handspring into a double front flip with a blind landing; sometimes referred to as the “vault of death”.
I would correct the sentence imposed by the Judge so as to be imprisonment for eight years, 11 months and 21 days with a non-parole period of seven years and 63 days (nine weeks) commencing 5 August 2019. I would otherwise dismiss the appeal.
LIVESEY J: I agree with Nicholson J and the orders he proposes.
The limited evidence before the sentencing Judge showed that the appellant was an integral part of an interstate cannabis trafficking operation. The appellant pleaded guilty to, and was sentenced for, five counts of trafficking during a 19 week period. Each count concerned a large commercial quantity of cannabis with a combined turnover exceeding $175,000. However, the overall turnover of the operation during the 19 week period approximated $580,000 to $870,000. Though the appellant was sentenced on the basis of a 19 week period, his trafficking commenced earlier.
The appellant and his wife comprised the “South Australian end” of the operation which packed and supplied cannabis to Queensland and, in return, received payments from Queensland. Whatever his personal difficulties and stressors, the appellant was motivated by profit. Whether or not someone else was “the ringleader”, and regardless whether the appellant’s “share” was “only” one third of the profits derived by the operation, general deterrence had a very important bearing on sentencing for this kind of very serious offending. The starting point of a little over 10 years’ imprisonment, whilst high, was not manifestly excessive.