R v Arnold - [2015] SASCFC 23

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ARNOLD
[2015] SASCFC 23
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Stanley)
10 March 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
Application for permission to appeal against sentence.
The applicant pleaded guilty to three counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) and one count of unlawful possession contrary to s 41 of the Summary Offences Act 1953 (SA).
The offences were committed on two separate dates. Two counts of trafficking relate to a search of the applicant’s home on 14 October 2012 during which the applicant was found to be in possession of 110 ecstasy tablets and 29.36 grams of methylamphetamine in crystalline form. The remaining count of trafficking relates to a further search of the applicant’s home on 15 January 2013 where the applicant was found in possession of 3.82 grams of methylamphetamine. The single count of unlawful possession related to $17,140 in cash which was the aggregate amount found in the applicant’s possession on both occasions. The applicant was sentenced on the basis that the cash represented the proceeds of drug sales.
The offences of 15 January 2013 occurred while the applicant was on bail in respect of the charges arising from the offending of 14 October 2012.
The applicant had been engaged in the trafficking of drugs from July 2011 to January 2013. Detailed records kept by the applicant indicated $1.26M in total sale of drugs with the applicant deriving nearly $285,000 in total earnings from that activity. He had 104 customers to whom he supplied drugs.
The applicant had no prior convictions.
A judge of the District Court imposed a single sentence of four years imprisonment pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) for the two counts of trafficking in a controlled drug committed on 14 October 2012. The judge imposed a sentence of four years and six months imprisonment for the further offence of trafficking in a controlled drug committed on 15 January 2013. For the offence of unlawful possession the applicant was convicted without further penalty. The sentences of imprisonment were made cumulative. The total head sentence was eight years and six months imprisonment. The judge imposed a non-parole period of four years. The cash the subject of the unlawful possession charge was forfeited to the Crown.
The sole ground of appeal is that the sentence imposed was manifestly excessive.
The applicant brought his application for permission to the Court of Criminal Appeal after a judge of this Court refused permission.
Whether the sentence imposed was manifestly excessive. Whether the sentencing judge erred in making the sentences cumulative upon each other.
Held per Stanley J (Kelly J agreeing) (Blue J dissenting) refusing the application for permission to appeal):
1. In sentencing for drug trafficking general deterrence is a primary consideration. A sentencing judge will have regard to whether there was an ongoing commercial enterprise, the extent of that enterprise and the quantity and nature of the drugs the subject of the charge (at [64]).
2. The nature of the offending called for a significant sentence. The total sentence is a just and appropriate measure of the criminality involved (at [77]).
3. There is no requirement for concurrent sentences for offences of a similar nature not widely separated by time. Where concurrent sentences are imposed there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration. While it was within the discretion of the learned sentencing judge to impose a sentence which was partially concurrent, he was not bound to do so. His failure to do so does not demonstrate error (at [74] - [75]).
Controlled Substances Act 1984 (sA) s 32, s 44; Summary Offences Act 1953 (SA) s 41; Criminal Law (Sentencing) Act 1988 (SA) s 10, s 18A, referred to.
Markarian v The Queen (2005) 228 CLR 357; R v Scarpantoni [2013] SASCFC 120; R v Cetojevic (2005) 92 SASR 451 ; R v Di Maria (1996) 67 SASR 466; R v Reiner (1974) 8 SASR 102 ; R v Taddeo (1993) 67 A Crim R 338; R v Teremoana (1990) 54 SASR 30; R v Godfrey (1993) 69 A Crim R 318; R v Tran & Tran [2011] SASCFC 153; Attorney-General v Tichy (1982) 30 SASR 84; Griffiths v R (1989) 167 CLR 372; Johnson v R (2004) 78 ALJR 616; R v Copeland (No 2) (2010) 108 SASR 398; R v Barnes [2014] SASCFC 79; R v Fuller [2013] SASCFC 85; R v Rossi (1988) 142 LSJS 451; Postiglione v The Queen (1997) 189 CLR 295, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"cumulative sentences” and “concurrent sentences"

R v ARNOLD
[2015] SASCFC 23
Court of Criminal Appeal: Kelly, Blue and Stanley JJ

KELLY J: I would refuse permission to appeal for the reasons given by Stanley J.
BLUE J:
This is an application for permission to appeal against sentence.
The defendant was arrested on 14 October 2012 and subsequently charged with one count of trafficking in methylamphetamine (approximately 29 grams, 17 grams pure),[1] one count of trafficking in 3, 4 methylenedioxy methylamphetamine (MDMA or Ecstasy) (approximately 21 grams, 5 grams pure)[2] and two counts of unlawful possession of $10,910 in cash reasonably suspected of having been obtained by unlawful means.[3]
[1]    Controlled Substances Act 1984 (SA) s 32(3).
[2]    Controlled Substances Act 1984 (SA) s 32(3).
[3]    Summary Offences Act 1953 (SA) s 41(1).
The defendant was arrested on 15 January 2013 and subsequently charged with one count of trafficking in methylamphetamine (approximately 4 grams, 2 grams pure).[4]
[4] Controlled Substances Act 1984 (SA) s 32(3).
On 13 August 2013, the defendant indicated at a directions hearing in the District Court before he was arraigned that he would plead guilty to the five counts. Subsequently, on 22 May 2014, at the suggestion of the sentencing Judge, the unlawful possession counts were merged into a single count and the amount amended to a total of $17,140 encompassing the cash found in the defendant’s possession on 14 October 2012 and $6,230 found in his possession on 15 January 2013.
For the two trafficking offences committed on 14 October 2012, the Judge sentenced the defendant utilising section 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) to a single sentence of imprisonment for four years. The Judge recorded a conviction without further penalty for the unlawful possession offence and the money was forfeited.[5] For the trafficking offence committed on 15 January 2013, the Judge sentenced the defendant to imprisonment for four and a half years. The Judge fixed a non-parole period of four years. The head sentence and non-parole period were to commence on 22 May 2014 being the date on which the Judge remanded the defendant in custody.
[5] Criminal Assets Confiscation Act 2005 (SA) s 47.
The defendant seeks to appeal against the head sentence for the count of trafficking committed on 15 January 2013 on the ground that it is manifestly excessive and consequentially against the non-parole period on the same ground. The defendant does not challenge the head sentence imposed for the 14 October 2012 trafficking offences or the unlawful possession offence as such but challenges the total of the head sentences on the basis of totality.
The application for permission raises three issues:
1.Did the Judge err in his approach to sentencing the defendant for the 15 January 2013 offence in the manner in which he took into account the defendant’s prior offending?
2.Is the sentence for the 15 January 2013 offence manifestly excessive?
3.Is the total of the head sentences manifestly excessive?
Relevant circumstances
On 14 October 2012, the police searched the defendant’s residence at Brooklyn Park. They found three tubs containing a crystalline substance weighing 29.46 grams later analysed and found to contain 17.47 grams of methylamphetamine. They found 12 plastic bags containing 110 tablets weighing 21.78 grams later analysed and found to contain 4.87 grams of MDMA. They found $10,910 in cash.
The defendant was arrested and charged with trafficking in controlled drugs and unlawful possession. He was granted police bail to appear in court approximately two months later.
On 15 January 2013, the police returned to search the defendant’s residence at Brooklyn Park. They found a tub containing a crystalline substance weighing 3.82 grams later analysed and found to contain 2.5 grams of methylamphetamine. They found $6,230 in cash.
The police located spreadsheets compiled by the defendant recording details of purchases and sales of methylamphetamine. They showed total sales of almost 1.5 kilograms from July 2011 to January 2013 for $1,262,895 at a gross profit of $284,915. The defendant was charged with trafficking in a large commercial quantity of a controlled drug,[6] but a nolle prosequi was entered in relation to that charge upon the defendant pleading guilty to the counts relating to 14 October 2012 and 15 January 2013.
[6] Controlled Substances Act 1984 (SA) ss 32(1), 33N.
At the time of sentencing, the defendant was 45 years of age. He had no relevant prior convictions.
The defendant had a very good work record. Upon completing his secondary education at the age of 17, he worked for two years at a hardware store and then for 20 years for a mining company, becoming Business Development Manager.
In mid-2004, he and his partner had a daughter. In mid-2006, he and his partner separated and he commenced using methylamphetamine regularly. In mid-2007, upon his entry into a new relationship, his former partner reduced the time he was permitted to spend with his daughter, resulting in proceedings in the Family Court.
In 2008, the defendant lost his long term employment with the mining company as a result of being made redundant. The combination of loss of access to his daughter and of his long term employment resulted in his suffering depression and anxiety. He became highly dependent on methylamphetamine and also became a compulsive gambler.
The defendant obtained employment with his brother’s company for a time before returning to the mining industry, but in mid-2011 he was again made redundant. At the point, he owed a substantial debt to drug suppliers who prevailed upon him to sell methylamphetamine to fund his use of it. He was spending up to $10,000 per month on buying methylamphetamine.
In early 2012, the defendant found full time employment working in animal management services and continued in that employment until his bail was revoked by the sentencing Judge in May 2014. In mid-2012, the defendant entered into a relationship with a woman who was using methylamphetamine but who subsequently stopped using the drug and became a positive influence upon him.
In February 2013, following his second arrest, the defendant undertook hypnotherapy to assist him to stop using methylamphetamine and after several lapses successfully stopped using the drug.
The sentencing Judge was provided with a report by Mr Fugler, a clinical forensic psychologist. Mr Fugler reported that the defendant expressed contrition for his offending. He expressed the opinion that the defendant has an addictive personality, that he has sufficient insight to understand this and that he needs to remain vigilant to avoid gambling and drug use. He recommended that the defendant engage in a program of psychotherapy coupled with ongoing supervision and a drug treatment program and said that this would strengthen his prognosis with respect to not offending.
The sentencing Judge was provided with references from the defendant’s father, partner and a friend. The defendant has strong support from his family who are committed to assisting him to ensure that he does not re-offend.
Sentencing remarks
The Judge summarised the circumstances of the offending and the defendant’s personal circumstances. In relation to the uncharged conduct of selling 1.5 kilograms of methylamphetamine over eighteen months, the Judge said:
It goes without saying that you cannot be punished for anything you have not been charged with, however, the evidence of your substantial past drug dealing activities places the charged offences in their proper light, that is, offences committed as incidents of your drug dealing business over the years.
The result of that is the sentence I will impose upon you must act to personally deter you from dealing in drugs and it also diminishes any leniency that can be afforded to you on the basis that your offences were isolated instances of drug trafficking or only short-lived.
The Judge referred to the extent of the defendant’s offending:
Those who traffic drugs in our society, or are considering doing so, must be deterred. This is only achieved, in cases of serious drug trafficking, such as you have committed, through the imposition of a prison sentence, the length of which will reflect the extent of your drug dealing activities.
…
You must appreciate … that your crimes are at the higher end of the scale of seriousness and so your sentence, including the non-parole period, must reflect that.
The Judge referred to the unlawful possession charge:
I will convict you without further penalty in relation to the charge of being in unlawful possession of the cash, because, in my view, that offence simply provided evidence of your drug dealing activities and the extent of it. I will be sentencing you to a term of imprisonment for your drug trafficking offences.
The Judge referred to the circumstances of the 15 January 2013 offence being committed while on bail:
The offence of trafficking in methylamphetamine, which you committed on 15 January 2013, is aggravated because it was committed by you, whilst on bail for identical offending. Having said that, I agree with the submission made by Mr Caldicott on your behalf that being addicted to methylamphetamine meant you could not simply give up using methylamphetamine that easily and you did not, and that explains your continuing drug dealing.
The Judge referred to the defendant’s previous good character, reasons for offending and prospects of rehabilitation in the following terms:
You became involved in drug trafficking as you were heavily addicted to methylamphetamine and ran up a substantial debt to your dealers who prevailed upon you to sell drugs to pay off your debts to them.
You turned to methylamphetamine following difficulties you were experiencing with your former partner, which included her refusing to allow you access to the daughter.
...
Your life was falling apart around you. You were made redundant in a job that you held for 20 years and you began to gamble excessively. You have since sought treatment for your drug and gambling addictions.
…
I have received a report from Mr Fugler, a forensic psychologist, which details your background. In addition, I have received and taken into account several written references from your father, your partner and a close friend of yours. You have strong support from your family who are committed to assist you in any way in order that you stay on the straight and narrow.
I note that you only became addicted to methylamphetamine late in your life following the breakdown of your marriage and subsequent difficulties in gaining access to your daughter. Your life went from a relatively normal one, with a good job, which you held for 20 years during which you were promoted throughout, and a happy family, until you were retrenched from your job due to a takeover and restructure of the company and the breakdown of your relationship. Thereafter, your life started spiralling downwards until you hit rock bottom.
You are now climbing your way back up to your pre-drug using and dealing days. You have had your current job now for the past two years. You have received treatment for your addictions to drugs and gambling. You are in a stable relationship with a new woman. You are, as Mr Caldicott submitted, heading in the right direction in terms of your rehabilitation. All that is very promising.
…
Your prospects of total rehabilitation must be guarded, given your addictive personality, which means that unless you are vigilant you will be at risk of relapsing into gambling and drugs when you are released from prison.
The Judge adopted a starting point of imprisonment for five years for the 14 October 2012 offending, and reduced it by one year to four years on account of the defendant’s guilty plea. The Judge adopted a starting point of imprisonment for five and a half years for the 15 January 2013 offending, and reduced it by one year to four and a half years on account of the defendant’s guilty plea.
The arguments on appeal
The defendant contends that, notwithstanding the Judge’s acknowledgement in the passage extracted at [22] above that the defendant could not be punished for anything he had not been charged with, the passages extracted at [26] above demonstrate that, when sentencing the defendant for the 15 January 2013 offending, the Judge to some degree imposed a sentence reflecting the totality of the defendant’s offending including the uncharged conduct and the 14 October 2012 offending. This is also demonstrated by the fact that the objective seriousness of the 15 January 2013 offending was much less than the 14 October 2012 offending because there was only one count and one type of drug and because the quantity of the drug was only about 10% of the quantity involved in the 14 October 2012 offending.
The respondent contends that the Judge made it plain in the passage extracted at [22] above that the defendant was not to be punished for uncharged conduct and the passages relied upon by the defendant are to be read in that light. The Judge was entitled, pursuant to section 10(1)(c) of the Sentencing Act and at common law, to take into account that the 15 January 2013 offence formed part of an ongoing course of conduct and was entitled to take into account the context in which that offence was committed.
The defendant contends that, considered in isolation, a quantity of 3.82 grams containing 2.49 grams of pure methylamphetamine is relatively small for a trafficking offence. Notwithstanding that the defendant was not entitled to leniency on the basis that the offending was isolated and notwithstanding that it was aggravated by his being on bail in respect of the earlier offending, a starting point of imprisonment for five and a half years for a relatively small quantity of methylamphetamine is manifestly excessive.
The respondent contends that, viewed objectively, the defendant’s offending was very serious. The fact that it was committed while he was on bail in respect of the charge for the same type of offence was an aggravating factor. The sentence imposed was within the permissible range for offences of commercial drug trafficking.
The defendant contends in the alternative that, if imprisonment for four and a half years would otherwise have been appropriate for the 15 January 2013 offending, the Judge erred in not making the sentence partially concurrent, either because it represented part of the same course of conduct as the 14 October 2012 offending or due to considerations of totality.

The respondent contends that the ultimate sentence properly reflected the overall criminality of the offending, having regard to the course of the conduct and the fact that the defendant did not cease drug trafficking after his first arrest.
Approach to sentencing for individual offence
In R v Faehrmann,[7] this Court addressed the manner in which an uncharged course of conduct of drug trafficking can and cannot be taken into account when sentencing for offences comprising individual transactions or quantities:
[7] [2014] SASCFC 25, (2014) 118 SASR 549.
It was common ground before the sentencing judge that Faehrmann and Moore were only to be sentenced for the offences to which they pleaded guilty, and while there were agreed facts concerning trading and a course of conduct over a four and a half month period, those agreed facts only formed the background against which they were to be sentenced. This background is relevant to such matters as questions of leniency and prospects for rehabilitation but should not lead to a sentence higher than would otherwise be appropriate for the offences for which the defendants have been convicted.
…
In considering the Queensland authorities to which we have referred, it is important to bear in mind the particular form of the offence of drug trafficking enacted by s 5 of the Drugs Misuse Act 1986 (Qld). Section 5(1) of that Act provides:
5 Trafficking in dangerous drugs
(1)A person who carries on the business of unlawfully trafficking in a dangerous drug is guilty of a crime.
...
In R v Jacobs the offence enacted by that section was described as a continuing single offence which could be committed by engaging in multiple commercial transactions of more than one dangerous drug. A judge sentencing for an offence against s 5(1) of the Drugs Misuse Act 1986 (Qld) may therefore make findings, consistently with the verdicts or other sentencing materials, as to the totality of the offending over the period charged and fix a sentence which is proportionate to the totality of that conduct. In South Australia, by contrast, a judge must sentence for the particular offences of which the defendant has been convicted, the trafficking context in which the offences were committed can do no more than inform the prospects for rehabilitation on the one hand or the degree of personal deterrence on the other which that sentence must reflect. To put it in the shorthand way in which it is often expressed, an offender sentenced for an offence committed in the course of commercial trading cannot expect the leniency which might be afforded to a defendant who commits an isolated offence. In this State the ultimate sentence for multiple offences will also reflect the exercise of the sentencing discretion to impose those sentences cumulatively or concurrently, in whole or in part, even when resort is made to the facility of s 18A of the Sentencing Act. It is therefore important that both the prosecution and the defence pay careful attention to the offences which are charged, and to the counts and basis on which guilty pleas are negotiated.[8]
[8] Ibid at [37], [55]-[56] per Kourakis CJ, Blue and Nicholson JJ (Footnotes omitted).
In the present case, the Judge acknowledged at the outset of his remarks that the defendant was not to be punished for the uncharged conduct. The defendant contends that, notwithstanding this acknowledgement, the Judge in fact proceeded when imposing the sentence of imprisonment for the 15 January 2013 offence to punish him for trafficking extending beyond the 2.49 grams of methylamphetamine the subject of that charge.
The Judge said that he imposed no penalty for the unlawful possession of the cash because that offence simply provided evidence of the defendant’s drug dealing activities and their extent. The cash was necessarily the result of uncharged trafficking because the charged trafficking related to drugs yet to be sold. The statement by the Judge suggests that His Honour regarded the defendant already to have been punished on the three trafficking counts for his uncharged conduct which had resulted in the accumulation of the cash.
The Judge characterised the defendant’s offending on 14 October 2012 and 15 January 2013 as “serious drug trafficking” and said that the length of the prison sentence imposed would reflect “the extent of your drug dealing activities” and the fact that “your crimes are at the higher end of the scale of seriousness”. The quantity of the mixed substance containing methylamphetamine the subject of the 15 January 2013 trafficking charge for which the defendant stood to be sentenced was 3.82 grams. The offence of trafficking encompasses quantities up to 500 grams of a mixed substance or 100 grams of the pure substance before the offence of trafficking in a commercial quantity[9] is committed.[10] The maximum penalty for trafficking is imprisonment for 10 years whereas the maximum penalty for trafficking in a commercial quantity is 25 years. To give rise to a prima facie presumption of trafficking, a person must be in possession of 2 grams of a mixed substance containing methylamphetamine.[11] Given the relatively small quantity of less than 4 grams of the mixed substance, objectively the 15 January 2013 offending could not be characterised as “serious drug trafficking” and “at the higher end of the scale of seriousness”. This suggests that the Judge was including trafficking by the defendant before 15 January 2013 – either conflating the 14 October 2012 and 15 January 2013 offending or including uncharged conduct – in the offending for which the sentence of imprisonment for four and a half years was imposed.
[9] Controlled Substances Act 1984 (SA) s 32(2).
[10] Controlled Substances (Drugs, Precursors and Plants) Regulations 2000 (SA) reg 6(6) and sch 1.
[11] Controlled Substances Act 1984 (SA) s 32(5); Controlled Substances (Drugs, Precursors and Plants) Regulations 2000 (SA) reg 6(6) and sch 1.
The Judge imposed a higher sentence for the 15 January 2013 offending than the combined sentence for the 14 October 2012 offending notwithstanding that the latter involved two different types of drugs and quantities greatly in excess of that involved on 15 January 2013. While the Judge identified as an aggravating factor that the later offence was committed while the defendant was on bail for the earlier offences, it appears that the Judge only moderately increased the sentence on that account because the Judge accepted the submission made on behalf of the defendant that being addicted to methylamphetamine meant that he “could not simply give up using methylamphetamine that easily and you did not and that explained your continuing drug dealing”.
These three matters combined demonstrate that the Judge fell into error in imposing a sentence of four and a half years for the 15 January 2013 offence by effectively punishing the defendant for trafficking extending beyond the 2.49 grams of methylamphetamine the subject of that charge. This error vitiates the Judge’s exercise of the sentencing discretion.
Manifestly excessive
The defendant contends that, in any event, a starting point of imprisonment for five and a half years for the 15 January 2013 offence was manifestly excessive for trafficking in a mixed substance weighing 3.82 grams and containing 2.49 grams of methylamphetamine. Given my conclusion that the Judge erred in his approach to sentencing the defendant for the 15 January 2013 offence, it is not strictly necessary to consider this contention but, as it was fully argued, I address it briefly.
The committal papers contained declarations showing that 3.82 grams is approximately 1/8^th of an ounce, known as an eight ball, and has a retail value ranging from $1,200 to $2,600 depending on purity and supply and demand. As noted above, the quantity the subject of the 15 January 2013 offence was towards the bottom end of the range for trafficking.
As the Judge observed, the defendant had a very good record until he reached his forties, having no relevant prior convictions and having held his job with one employer for 20 years, during which he was promoted throughout. As the Judge observed, the defendant’s life fell apart when his relationship ended, he was made redundant and he lost access to his daughter, resulting in his becoming addicted to gambling and drugs, which resulted in turn in his trafficking of drugs. At the time of sentencing, the defendant had ceased gambling and using drugs and had expressed contrition for his offending. Mr Fugler expressed a positive opinion about the defendant’s prognosis for not re-offending in the future, provided that he engaged in psychotherapy and drug treatment programs, which the defendant was willing to do.
The fact that the defendant committed the 15 January 2013 offence while on bail for the 14 October 2012 offences was an aggravating factor tending to increase the sentence otherwise appropriate for the offence but, as the Judge recognised, the effect of that aggravating factor was partially ameliorated by the fact that the defendant was addicted to the methylamphetamine at that point, which in turn caused him to continue trafficking in the drug to support his addiction. That addiction is not a mitigating factor reducing the sentence otherwise appropriate for the offence but it is appropriate to take it into account as partially ameliorating the aggravating factor of the offence being committed while on bail.
Taking into account the objective level of seriousness of the offence involving a quantity towards the bottom end of the range, the hitherto good character of the defendant until reaching his forties and his prospects of rehabilitation, recognising that the 15 January 2013 offence was not isolated offending and weighing these factors together with the aggravating factor that the offence was committed while he was on bail for the earlier offences in circumstances in which his drug addiction caused him to continue to use and deal in methylamphetamine, a starting point of imprisonment for five and a half years was manifestly excessive.
Given my conclusion, it is not necessary to consider the submission made by the defendant based on considerations of partial concurrency or totality that the total of the head sentences was manifestly excessive.
Resentencing
I would grant permission to appeal and allow the appeal. Given the relationship between the offences committed in October 2012 and January 2013 and the fact that they formed part of a course of conduct (albeit that the defendant stood to be sentenced only for the charged conduct), I would utilise section 18A of the Sentencing Act for all offences. I would adopt a starting point of imprisonment for eight years. I would impose a sentence of six years and five months in recognition of the defendant’s guilty pleas and remorse. I would fix a non-parole period of 3 years and two months, the head sentence and non-parole period to commence on 22 May 2014 being the day of which the defendant was remanded in custody.
STANLEY J:
Introduction
This is an application for permission to appeal against sentence.
The applicant pleaded guilty to three counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) and one count of unlawful possession contrary to s 41 of the Summary Offences Act 1953 (SA).
The offences were committed on two separate dates, namely 14 October 2012 and 15 January 2013. Two counts of trafficking relate to a search of the applicant’s home on 14 October 2012 during which the applicant was found to be in possession of 110 ecstasy tablets weighing 21.78 grams and 29.36 grams of methylamphetamine in crystalline form (17.47 grams of pure methylamphetamine). The remaining count of trafficking relates to a further search of the applicant’s home on 15 January 2013 where the applicant was found in possession of 3.82 grams of methylamphetamine (2.49 grams of pure methylamphetamine). The count of unlawful possession related to $17,140 in cash which was the aggregate amount found in the applicant’s possession on both occasions. The applicant was sentenced on the basis that the cash represented the proceeds of drug sales.
The offences of 15 January 2013 occurred while the applicant was on bail in respect of the charges arising from the offending of 14 October 2012.
The maximum penalty for each of the offences of trafficking in a controlled drug is a fine of $50,000 or imprisonment for 10 years or both. The maximum penalty for unlawful possession is a fine of $10,000 or imprisonment for two years.
The background against which the applicant was sentenced in respect of the 14 October 2012 offences and the 15 January 2013 offence is that he had been engaged in the trafficking of drugs from July 2011 to January 2013. Detailed records kept by the applicant indicated $1.26M in total sale of drugs with the applicant deriving nearly $285,000 in total earnings from that activity. He had 104 customers to whom he supplied drugs.
The applicant had no prior convictions.
The applicant indicated his intention to plead guilty at a directions hearing on 13 August 2013 but a disagreement concerning the factual basis for the guilty pleas led to the listing of a disputed fact hearing for 22 April 2014. Prior to the disputed fact hearing the factual basis for the guilty plea submissions was resolved by negotiation and submissions proceeded before the learned sentencing judge on 31 March 2014 and 22 May 2014.
A judge of the District Court imposed a single sentence of four years imprisonment pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) for the two counts of trafficking in a controlled drug committed on 14 October 2012. The judge imposed a sentence of four years and six months imprisonment for the further offence of trafficking in a controlled drug committed on 15 January 2013. For the offence of unlawful possession the applicant was convicted without further penalty. The sentences of imprisonment were made cumulative. The total head sentence was eight years and six months imprisonment. The judge imposed a non-parole period of four years. The cash the subject of the unlawful possession charge was forfeited to the Crown.
The judge discounted the head sentence by about 20 per cent for the pleas of guilty. In relation to the two trafficking offences which occurred on 14 October 2012 the judge’s starting point was a term of five years imprisonment. In respect of the single offence of trafficking on 15 January 2013 the judge’s starting point was a sentence of five years and six months imprisonment.
The sole ground of appeal is that the sentence imposed was manifestly excessive.
The complaint relates to the head sentence. There is no complaint about the relationship of the non-parole period to the head sentence. If the appeal is allowed there will necessarily be an adjustment to the non-parole period.
The applicant has brought his application for permission to the Court of Criminal Appeal after a judge of this Court refused permission.
Principles on appeal
The approach of an appeal court in considering an appeal against sentence is explained by the High Court in Markarian v The Queen.[12] Gleeson CJ, Gummow, Hayne and Callinan JJ said:[13]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
[12] [2005] HCA 25, (2005) 228 CLR 357.
[13] [2005] HCA 25 at [25], (2005) 228 CLR 357 at 370-371.
When determining whether a sentence is manifestly excessive the court considers a number of factors including the maximum penalty for the offence, the range of sentencing customarily observed for the type of offending, the seriousness of the offending and the personal circumstances of the offender.[14]
[14] R v Scarpantoni [2013] SASCFC 120 at [81].
Counsels’ submissions
Mr Griffin QC, counsel for the applicant, submits that while the offences committed on 14 October 2012 were separate from the offence committed on 15 January 2013, they were all part of a total course of conduct of dealing in drugs between July 2011 and January 2013. The learned sentencing judge did not refer to having given any consideration to making the two sentences partially concurrent. He submits it may be inferred that no consideration was given by the sentencing judge to the appropriateness of doing so in these circumstances. He submits that while there is no fixed criteria for deciding whether two or more sentences should be cumulative or concurrent, or partially concurrent, where, as here, a number of offences are part of a single multifaceted course of conduct, concurrent sentences are appropriate. Here there were common factors or components to the separate offending which should, at least, have attracted partially concurrent sentences. Further, the objective circumstances of the offending of 15 January 2013 concerned a much smaller quantity of drug than the 14 October 2012 offences yet the penalty imposed was more severe. While the fact that the offending in January 2013 occurred while the applicant was on bail was a matter of aggravation, that factor did not warrant a starting point for the January 2013 offending of five years and six months imprisonment. The offending occurred over a relatively short period of time and in reality represented a continuation of the same activities by the applicant who was addicted to methylamphetamine. In fixing both sentences the sentencing judge took into account factors that were common to both sentences and in doing so fell into error. Finally, he submits there is no indication the learned sentencing judge gave consideration to the principle of totality in fixing each sentence.
Ms Baohm, counsel for the respondent, submits that the approach taken by the learned sentencing judge was within his discretion and no error has been identified. The ultimate question is whether or not the overall sentence was manifestly excessive having regard to the total criminality of the conduct for which the applicant was convicted. She submits it is not. The judge was entitled to take into account all of the circumstances including the background to the offending in imposing sentence pursuant to s 10(1)(c) of the Sentencing Act. The offending of January 2013 was aggravated by reason of the fact that the applicant was on bail at that time for the earlier trafficking charges. The applicant was engaged in substantial trafficking involving sale proceeds of over $1.26M. The offences of January 2013 evidence the applicant’s continued involvement in drug trafficking. A heavy sentence was required for reasons of both personal and general deterrence. The ongoing course of conduct militated against leniency. While the applicant suffered from an addiction to methylamphetamine his offending must also be seen as motivated by greed. The failure to make the sentences partially concurrent is not indicative of error. There are no hard and fast rules applicable to whether a sentence should be concurrent or cumulative. When considered in the context of the applicant’s overall criminal conduct the sentences cannot be characterised as manifestly excessive.
Consideration
In sentencing for drug trafficking general deterrence is a primary consideration. A sentencing judge will have regard to whether there was an ongoing commercial enterprise, the extent of that enterprise and the quantity and nature of the drugs the subject of the charge.[15]
[15] R v Cetojevic [2005] SASC 273 at [25], (2005) 92 SASR 451 at 455; R v Scarpantoni [2013] SASCFC 120 at [88].

Where offenders engage in commercial drug offending they must expect that the court will impose heavy sentences in which deterrence is a significant factor. Personal circumstances must be given less weight in such cases than they might in other cases.[16] In sentencing for trafficking offences the court is required by s 44(1) of the Controlled Substances Act 1984 (SA) to take into consideration the nature and quantity of the substances involved in the commission of the offence, the personal circumstances of the convicted person including personal use of any controlled drug, the commercial or other motives of the convicted person in committing the offence and the financial gain likely to have accrued to the convicted person as a result of the commission of the offence.
[16] R v Di Maria (1996) 67 SASR 466 per Doyle CJ at 477.
It has long been recognised that a sentencing judge is entitled to take into account the context and surrounding circumstances of a crime and, in particular, whether the act charged is an isolated offence or whether it is part of an ongoing course of conduct.[17] Section 10(1)(c) of the Sentencing Act now elevates that entitlement into a requirement in imposing sentence. As was observed in Taddeo[18] the offence for which a defendant is to be sentenced may take its colour and its character from the context in which it is committed. The principle is qualified however to this extent: where the context and surrounding circumstances of a charged offence may themselves constitute crimes the defendant is only to be punished for the charged conduct. If he is not charged with conduct constituting the surrounding circumstances to the offence for which he or she is to be sentenced, the surrounding circumstances cannot be relied upon as a circumstance of aggravation.[19] Accordingly, the surrounding circumstances of the crime may be taken into account in considering whether or not to extend leniency to a defendant so as to reduce what would otherwise be a proper sentence, however, the commission of a crime, not asked to be taken into account, cannot be used in order to increase what would otherwise be a proper sentence.[20]
[17] R v Reiner (1974) 8 SASR 102 at 105; R v Taddeo (1993) 67 A Crim R 338 at 339.
[18] (1993) 67 A Crim R 338 at 339.
[19] R v Teremoana (1990) 54 SASR 30 at 37.
[20] R v Reiner (1974) 8 SASR 102 at 105; R v Godfrey (1993) 69 A Crim R 318 at 322-323.
In R v Tran & Tran[21] Gray J, with whom Sulan and David JJ agreed, said:[22]
When uncharged acts are of a similar character to the offence for which the defendant is to be sentenced, they may have relevance to several sentencing considerations that do not amount to matters of aggravation. For example; to militate against leniency on the basis of the offence being isolated or an aberration; to consider the importance of personal deterrence in the sentencing process; to indicate the defendant’s moral culpability; to assess the defendant’s prospects of rehabilitation; to diminish the importance of a lack of prior convictions when such offending has been occurring for some length of time; and finally, as part of the defendant’s “character and antecedents” pursuant to section 10 of the Sentencing Act. These matters are relevant to sentencing as they may indicate that a defendant has had time to reflect on his offending and yet has determined to proceed with the subject offence; has engaged in the subject offending in an organised and planned manner; intends to continue with the offending; or was motivated by greed.
[21] [2011] SASCFC 153.
[22] [2011] SASCFC 153 at [29].
The applicant has engaged in trafficking over an 18 month period. During this period he sold drugs for an amount in excess of $1.2M. He earned nearly $285,000 from this activity. Even allowing for his addiction I accept that he was deriving an income in excess of the money required to feed his habit. I accept the respondent’s submission that his offending was motivated partly by greed. Notwithstanding his lack of antecedents, the seriousness of his offending warranted a significant term of imprisonment.
In my view, whether considered separately or in aggregate the sentences imposed are not manifestly excessive. I reject the applicant’s submission that there is some disparity between the sentence imposed in respect of the January 2013 offending by comparison with the sentence imposed for the October 2012 offending given the substantially smaller quantity of drugs involved in the latter offending. The latter offending was a matter of serious aggravation in that it was the commission of further trafficking while the applicant was on bail for earlier trafficking offending. More importantly, the further offending in January 2013 evidenced the applicant’s willingness and determination to continue offending after he had the opportunity to reflect on the criminality of his conduct. In my view, the sentence imposed properly reflected the need for both personal and general deterrence. In fixing sentence the learned sentencing judge was required to consider these additional matters, not just the quantity of drugs involved.
Further, I do not consider that the sentences imposed, when considered in aggregate, should have been reduced either on the basis that the sentencing judge should have made them partially concurrent or on the basis of the totality principle.
I do not consider that any error has been demonstrated by the decision of the sentencing judge to make the sentences of imprisonment cumulative.
In Attorney-General v Tichy Wells J, with whom King CJ and Cox J agreed, said:[23]
It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.
[23] (1982) 30 SASR 84 at 92-93.
This statement of principle has been approved and applied on numerous occasions by the High Court and this Court.[24]
[24] Griffiths v R [1989] HCA 39, (1989) 167 CLR 372; Johnson v R [2004] HCA 15, (2004) 78 ALJR 616; R v Copeland (No 2) [2010] SASCFC 61, (2010) 108 SASR 398; R v Barnes [2014] SASCFC 79; R v Fuller [2013] SASCFC 85.
As was said in R v Fuller by Gray J, with whom David and Nicholson JJ agreed, there is no requirement for concurrent sentences for offences of a similar nature not widely separated by time. Where concurrent sentences are imposed there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.[25]
[25] R v Fuller [2013] SASCFC 85 at [27].
While it was within the discretion of the learned sentencing judge to impose a sentence which was partially concurrent, he was not bound to do so. His failure to do so does not demonstrate error. Whether the applicant’s offending arose out of the one course of criminal conduct is a matter of degree. What is essential is, as was said by King CJ in Tichy,[26] that in fixing consecutive sentences there must be no overlapping of the factors brought into account in determining the length of each sentence. In my view that did not occur here. There is no indication that in fixing both sentences the sentencing judge took into account factors common to both sentences so as to fall into error.
[26] Attorney-General v Tichy (1982) 30 SASR 84 at 85.
The totality principle permits a court when sentencing an offender for a number of offences to mitigate what strict justice would otherwise require by reducing the length of the sentences where it considers the total sentence is so severe as to be crushing. In these circumstances the principle allows for a merciful reduction in the sentences.[27] There may also be scope for the operation of the principle in a case where the aggregation of sentences cannot be characterised as crushing.[28]
[27] R v Rossi (1988) 142 LSJS 451 per King CJ at 453 subsequently approved by the High Court in Postiglione v The Queen [1997] HCA 26, (1997) 189 CLR 295 at 307-308.
[28] Johnson v R [2004] HCA 15 at [22], (2004) 78 ALJR at 616 at 624.
In my view, when the sentences are considered in aggregate the terms of imprisonment are not crushing. On the contrary, the nature of the offending called for a significant sentence. The total sentence is a just and appropriate measure of the criminality involved.
Conclusion
I would refuse the application for permission to appeal.