R v Bagguley - [2015] SADC 137

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BAGGULEY
[2015] SADC 137
Reasons for Sentence of His Honour Judge Muscat
14 October 2015
CRIMINAL LAW
Sentence for two counts of trafficking in a large commercial quantity of cannabis - interstate truck driver - serious and organised crime offence - meaning of "exceptional circumstances" and whether established pursuant to s 38(2ba) of the Criminal Law Sentencing Act 1988.
"Exceptional circumstances" not established - sentence not suspended.
Criminal Law (Sentencing) Act 1988 ss 38(2b), (2ba), referred to.
R v Slaven [2014] SASCFC 108; R v Dolovac [2014] SASCFC 86; R v Mustac (2013) 115 SASR 461; R v Hunt & Yates [2012] SASCFC 74; R v Mema [2011] SASCFC 56; R v Famiglietti (2005) 243 LSJS 199; R v Stamos & Others [2004] SASC 132; R v Barilla & Others [2002] SASC 106; R v Fowler (2006) 243 LSJS 285; R v Mangelsdorf (1995) 66 SASR 60; R v Gjoka Unreported Court of Criminal Appeal Judgment No. S6211 delivered 1 July 1997; R v Kelly [2000] 1 QB 198; Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290; R v Mac [2012] VSCA 19; R v Ioannou (2007) 17 VR 563; R v Tootell [2012] QCA 273; R v Duncan [2015] NTCCA 2; Griffiths v R (1989) 167 CLR 372; Baker v R (2004) 223 CLR 513; Muldrock v R (2011) 244 CLR 120; R v Wiskich (2000) 207 LSJS 431; R v Wirth (1976) 14 SASR 291; R v Adami (1989) 51 SASR 229; R v Penno (2004) 236 LSJS 457; R v Buckskin [2010] SASC 138; A-G v Tichy (1982) 30 SASR 84; R v Smith [2015] SASCFC 138; R v Spiero (1981) 26 SASR 577; R v Lucky (1974) 12 SASR 136; R v Arnold [2015] SASCFC 23; R v Belczacki (2012) 112 SASR 95; R v C, M [2014] SASCFC 62, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"exceptional circumstances"

R v BAGGULEY
[2015] SADC 137
Introduction

The defendant has been committed to this court to be sentenced after pleading guilty at his committal hearing to two counts of trafficking in a large commercial quantity of cannabis.[1] Both counts relate to his transportation of large quantities of cannabis from South Australia to Western Australia.
[1] A large commercial quantity of cannabis is 2kg or more of pure plant material, including flowering and fruiting tops, leaves, seeds or stalk: Schedule 1 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014.
At the time of the commission of the offences the defendant was working as an interstate truck driver.
The first count relates to his transportation of 20 lbs (approximately 9 kg) of cannabis from South Australia to Western Australia in early July 2014. The second count occurred about two weeks later, this time involving a shipment of 22 lbs (approximately 10 kg) of cannabis, which the defendant was transporting from South Australia to Western Australia. The cannabis trafficked on each occasion could have been sold in Western Australia for between $80,000 and $110,000, if sold in pound quantities.
The offences are extremely serious as reflected by the high maximum penalty of life imprisonment, a fine of $500,000 or both, contained in s 32(1) of the Controlled Substances Act1984.
On 24 November 2013 section 38(2b) and (2ba) of the Criminal Law (Sentencing) Act 1988 came into operation. Those sub-sections were enacted by Parliament to reduce the circumstances in which a sentencing court may suspend a prison sentence for certain crimes and offenders.
One of the crimes affected by the amendments, is trafficking in a large commercial quantity of a controlled drug, which is an offence declared by s 38(4) to be a serious and organised crime offence. A court may not suspend a prison sentence for such an offence unless exceptional circumstances exist for doing so, which is a different and obviously more onerous test to whether good reason exists to suspend a prison sentence for other crimes. I will return to this aspect of suspending a prison sentence for a serious and organised crime offence later in these reasons.
The offending
The defendant’s crimes were detected by the police following a lengthy investigation into the cultivation of cannabis plants in South Australia and trafficking of cannabis between South Australia and other states.
Telephone calls of suspected offenders were intercepted and the police also conducted surveillance over those involved in the cultivation and distribution of large amounts of cannabis in South Australia and interstate. The defendant was one of many persons arrested as a result of the police operation.
The defendant’s involvement in transporting large quantities of cannabis interstate is limited to the two offences charged.
At the time he committed both offences the defendant was separated from his wife and children which was brought about by his severe reaction to the death of his mother and his response in unfairly casting some of the blame for that onto his wife. He was living with another man who was himself involved in the distribution of cannabis. The defendant had purchased a vehicle from this person, which he was repaying. He claimed that this person approached him and asked whether he would be prepared to transport cannabis to Western Australia for him. The defendant agreed to do so and was paid the sum of $6,000 for the first delivery of 20 lbs of cannabis. The defendant was asked to do another delivery, which he willingly agreed to. The defendant was arrested in Western Australia with 22 lbs of cannabis in his truck. The defendant said that he expected to receive a similar payment to that he had received for the first shipment, for transporting this cannabis to Western Australia.
The defendant clearly took a calculated risk in transporting the cannabis to Western Australia, in return for large sums of money, commensurate with the high risk involved. I am satisfied that the defendant must have realised that he would be facing imprisonment if he was detected transporting such large quantities of cannabis interstate. Despite the state of the defendant’s mental health at the time, I have no doubt that he gave consideration to the risks involved in doing so and weighed that against how often his truck might be expected to be pulled over by the police and his cargo searched.
When arrested and later interviewed by the police in South Australia, the defendant was not entirely truthful with them. He told the police that a person named ‘Noddy’ had given him the carton in which the cannabis was contained in his truck when searched by the Western Australian police. He claimed that ‘Noddy’ told him that the carton contained chicken necks, which he asked the defendant to drop off at a garage in Western Australia. The defendant was therefore prepared to lie to the police about the extent of his knowledge in what he well knew he was transporting. The defendant further denied, during questioning by the police, to ever having transported cannabis to Western Australia before. This was plainly a lie.
The defendant’s crimes are no less serious because he was only involved in transporting the cannabis interstate at the request of others. Those more directly involved in the commercial cultivation and distribution of cannabis require people such as the defendant, who are willing to assume the risk involved in transporting large quantities of cannabis and in that way assist, and therefore facilitate, the distribution of cannabis between the States and Territories for profit.
The defendant’s role can be likened to that played by trucking companies generally, which move goods interstate every day of the week, except that the defendant was transporting an illegal load and returning with cash for the distributors that he worked for.
In a number of authorities the Court of Criminal Appeal has reiterated the need for strong deterrent sentences of imprisonment to be imposed for trafficking in large commercial quantities of cannabis where the transportation of large amounts of cannabis interstate is involved, commensurate with the seriousness of the offence, as informed by the high maximum penalties prescribed by Parliament. See R v Slaven [2014] SASCFC 108; R v Dolovac [2014] SASCFC 86; R v Mustac (2013) 115 SASR 461; R v Hunt & Yates [2012] SASCFC 74; R v Mema [2011] SASCFC 56; R v Famiglietti (2005) 243 LSJS 199; R v Stamos & Others [2004] SASC 132; R v Barilla & Others [2002] SASC 106.
The defendant’s personal circumstances
The defendant is aged 33 years. In sentencing the defendant I have taken into account a psychological report prepared by his treating psychologist.
The defendant was initially referred to his psychologist after exhibiting signs of severe depression following the sudden death of his mother, who he had the sad misfortune of discovering lying on the lounge room floor of her home in 2013.
Since that time the defendant has been treated for chronic and severe depression, with episodes of suicidal ideation. He has also suffered from moderate levels of stress and anxiety.
The defendant’s psychological condition was such that he experienced extreme and prolonged difficulty overcoming the death of his mother, which has greatly affected his life. His major depressive condition now places him at high risk of suicide. Indeed the defendant is extremely fearful of being imprisoned, so much so that he does not believe that he would come out alive if he is sent there. This illustrates the dire condition of his depression and anxiety.
The defendant’s psychologist has stated that during the period of his offending the defendant was also struggling with emotions surrounding his mother’s request that upon her death her ashes be taken to Sydney, which further exacerbated his already depressed state and in turn clouded his judgment.
If this was so, then it is not reflected in the intercepted telephone calls, which reveal that the defendant was more than willing to engage in the illegal transportation of cannabis interstate.
I accept at the time of his offending, that given the defendant’s heightened psychological issues, he was particularly vulnerable to offers which he foolishly accepted. His psychological issues clearly had a part to play in the defendant’s decision to involve himself in these serious crimes. Having said that, the defendant is not a user of drugs and so I can only view his offending as being motivated by financial gain.
I accept that the defendant’s crimes are out of character for him and he is now extremely remorseful and contrite.
The defendant has now ceased working as a truck driver. He is presently employed as a baker’s assistant with a country bakery. The proprietor of that bakery has written a letter of support on behalf of the defendant. The business has experienced a period of growth and the defendant’s work in the bakery has been highly regarded by his employer.
The defendant and his wife have now re-united and are living together again. They are working through their relationship difficulties.
The defendant and his wife have three children aged 12, 11 and 9 years. The defendant’s brother has a number of personal problems which has resulted in him being unable to care for his two children, who are aged 11 and 10 years. The defendant has taken these children into his family. This reveals the strong personal qualities the defendant possesses and the great sense of responsibility he has to care for his brother’s children as if they were his own. This confirms the defendant’s strong commitment to family as recognised by those who know him. The defendant is also community-minded and is involved in coaching a local sporting team.
All of these matters accord with the psychologist’s assessment of the defendant as a very kind-hearted and caring father and loyal family member, as do the character references tendered on his behalf.
It was submitted that the defendant’s extreme fear of being imprisoned and the impact that would have on his family provide strong motivating factors that tell against any further offending.
Accepting that the defendant’s prospects of rehabilitation are good does not diminish the seriousness of his crimes and the need for general deterrence to play a significant role in the sentencing process.
The sentence to be imposed
I intend to impose separate sentences for each count. Allowing the defendant a 30 per cent reduction from his sentence for having pleaded guilty in the Magistrates Court, he is sentenced to imprisonment for two years and three months on count one and for two years and six months on count two.
The sentence imposed in respect of count two is slightly higher than for count one because the defendant repeated that crime.
Although the defendant was similarly involved in each offence by transporting the cannabis for others, the two counts are nevertheless quite separate and distinct offences separated in point of time, justifying that they be served wholly cumulatively. See A-G v Tichy (1982) 30 SASR 84; R v Spiero (1981) 26 SASR 577; R v Lucky (1974) 12 SASR 136; R v Arnold [2015] SASCFC 23 per Stanley J; cfR v Belczacki (2012) 112 SASR 95; R v C, M [2014] SASCFC 62.
The defendant is therefore imprisoned for a total of four years and nine months.
Taking into consideration all of the defendant’s personal circumstances, I will fix a very low non-parole period of two years.
By comparison to the sentences imposed in the authorities I have referred to, the sentence I have passed upon the defendant is an extremely merciful one, in recognition of his personal circumstances and his excellent prospects of rehabilitation.
Suspension of the sentence
As I observed at the beginning of these reasons, the defendant’s crimes are included in the definition of a serious and organised crime offence, which affects the grounds upon which a prison sentence may be suspended.
I may only suspend the sentence I have imposed upon the defendant if I am satisfied that exceptional circumstances exist for doing so.
On 24 November 2013 sub-ss (2b) and (2ba) of s 38 of the Criminal Law (Sentencing) Act came into operation. The section was further amended by Parliament on 2 November 2014 to broaden the circumstances in which a sentence of imprisonment may not be suspended. Sub-s (2b) was replaced by sub-s (2) at that time.
Relevantly, at the time the defendant committed the offences sub-s (2b), as it was then worded, stated:
The court may not suspend a sentence of imprisonment under this section in any of the following cases:
(a)The defendant is being sentenced as an adult for a serious and organised crime offence …
Pursuant to sub-s (4) a serious and organised crime offence includes an offence of trafficking in a large commercial quantity of a controlled drug, which the defendant has committed.
Sub-s 2(ba) permits the court to suspend a sentence of imprisonment imposed for a serious and organised crime offence if it is satisfied that exceptional circumstances exist for doing so.
The meaning of exceptional circumstances
This test is different and more onerous than the general test for suspending a prison sentence pursuant to sub-s (1), where good reason exists for doing so.
When Parliament was debating the Criminal Law (Sentencing) (Suspended Sentence) Amendment Bill 2013, the Minister stated that repeat violent offenders and offenders who are involved in serious and organised crime will not receive the benefit of a suspended sentence unless their case is truly exceptional and so the purpose of the amendment to s 38 of the Criminal Law (Sentencing) Act was to limit the power of the court to suspend a term of imprisonment to where there are exceptional circumstances for those two targeted groups of offenders.
The Minister referred to the Court of Criminal Appeal decision in R v Fowler in which the Court discussed the difference between the good reason and exceptional circumstances tests for suspending a prison sentence. The Minister stated that R v Fowler demonstrated that if the test for suspending a prison sentence was changed from good reason to exceptional circumstances it would create a higher threshold for an offender to meet and that was the message that Parliament wanted to send to those offenders caught by the amendment to s 38.
It is with that introduction of the Amendment Bill by the Minister that I now turn to a consideration of the meaning of the expression exceptional circumstances as contained in s 38 (2ba) of the Criminal Law (Sentencing) Act.
Before doing so, it is important to undertake a consideration of what still remains as the leading authority in this State on sentencing for crimes involving the commercial dealing in illicit drugs, namely R v Mangelsdorf (1995) 66 SASR 60, a prosecution appeal concerning sentencing for dealing in heroin, LSD and cannabis.
At 63, Doyle CJ stated:
This Court has established standards for the punishment of crimes of the type dealt with by the judges in the cases the subject of the present application. The court has referred time and again to the severe penalties imposed by s 32 of the Controlled Substances Act, in particular to the severe penalties imposed for commercial activity in relation to the drugs dealt with by s 32; and to the evident expectation of Parliament that the courts will impose penalties which will deter people from engaging in commercial activity with respect to these drugs. The court has also made it clear that a suspended sentence will be justified only in truly exceptional circumstances when the offence is one involving, or committed against, a background of involvement in commercial trading or dealing in the drugs dealt with by s 32. [Emphasis added]
Later at 68, the learned Chief Justice stated:
This Court has consistently stressed the need to recognise the severe penalties which Parliament has specified for such offences involving cannabis. The court has emphasised that Parliament clearly expects the courts to impose sentences which are likely to deter people from engaging in commercial activity with respect to this drug. The seriousness of the offence, its prevalence, and the importance to be given to deterrence all combine to lead to the conclusion that ordinarily a sentence of imprisonment for such offences is to be expected, the duration of the sentence reflecting the quantity involved and hence the applicable statutory maximum.
At 75, Doyle CJ went on to state:
In relation to the decision to suspend, one also needs to bear in mind the seriousness of the present offence. As I have already remarked in these reasons, this Court has consistently said that suspension of a sentence of imprisonment is inappropriate in the case of the possession of cannabis for sale when that takes place against a background of substantial involvement in cannabis trading. In my opinion, that is the case here, in the sense that the quantity of cannabis indicated an intention to engage in substantial trading. The court has, on a number of occasions, revoked orders for suspension made in such cases, despite the considerations which tell against doing so on an appeal by the Director of Public Prosecutions against sentence.
During the second reading speech, when introducing the amendments to s 38 of the Criminal Law (Sentencing) Act 1988, the Minister referred to R v Fowler which was said to explain the differences between good reason and exceptional circumstances when a court is considering whether to suspend a prison sentence.
The sentencing judge in Fowler’s case found that he could only suspend the sentence for possessing methylampetamine for sale if exceptional circumstances had been established by the defendant. At that time, the statutory test for suspension of a prison sentence as contained in s 38(1) of the Criminal Law (Sentencing) Act 1988 was whether good reason existed for doing so.

On appeal the prosecutor contended that the sentencing judge did not err in his approach to the question of suspension of the sentence and sought to rely on the comments made by Doyle CJ in R v Mangelsdorf (1995) 66 SASR 60 at 63, reproduced above.
Doyle CJ’s observations in Mangelsdorf were viewed by some judges as stating that a suspended sentence for drug trafficking should only be imposed in truly exceptional circumstances. Indeed some prosecutors had made similar submissions to sentencing judges, relying on what Doyle CJ had said in Mangelsdorf.
However, in R v Gjoka Unreported Court of Criminal Appeal Judgment No. S6211 delivered 1 July 1997 Doyle CJ clarified his remarks in Mangelsdorf when he stated at 4:
The remarks of the trial judge suggest that he thought that it would not be appropriate to suspend unless there were exceptional circumstances. In saying that he may have been echoing my remarks in Mangelsdorf. As I have already indicated, those remarks were made with reference to a more serious category of offending. [Being offending against a background of commercial dealing in drugs].
The power to suspend a sentence is conferred by s 38 of the Sentencing Act. The court may suspend the sentence ‘… if it thinks that good reason exists for doing so’. That is the statutory criteria, and that is the test to be applied.
Nevertheless, it is appropriate for this Court in particular cases to determine, as it did in Mangelsdorf, that the nature or gravity of an offence is such that suspension would not be appropriate unless exceptional circumstances are present. To do so is not to displace the statutory criterion. It is to do no more than to indicate that because the statutory criterion has to be applied in the light of the circumstances of the case, the seriousness of a certain type of offence and the appropriate approach to punishment for that offence may combine to mean that it would be very difficult to justify suspension. [Emphasis added]
As Perry J observed in R v Fowler, he did not consider that Doyle CJ in Mangelsdorf was suggesting that the test for suspension was other than as prescribed in the Criminal Law (Sentencing) Act at that time, namely whether the court thinks that good reason exists for doing so.
Perry J did not accept that there was an exceptional circumstances test as discussed in Mangelsdorf by Doyle CJ. Perry J stated that he did not agree with the view expressed by Gray and Layton JJ that Doyle CJ, in Gjoka, had qualified his remarks in Mangelsdorf, but rather had simply explained that it was wrong to have interpreted his comments as suggesting a test of exceptional circumstances applied to suspending a prison sentence. The test remained as contained in s 38, namely whether there exists good reason to suspend a sentence and Doyle CJ made it very clear in Gjoka that that was the only test to be applied.
Perry J went on to observe at [33]-[36]:
But the question whether ‘good reason’ exists, is not to be considered in the abstract, divorced from the other circumstances of the case. Those circumstances include the objective seriousness of the offending.
The import of the remarks of Doyle CJ in Mangelsdorf and Gjoka (concurred in by four other members of the court) is that the objective seriousness of drug offences, particularly those involving commercial dealing, and a need for penalties in such cases to reflect a substantial allowance for general deterrence, will ordinarily outweigh circumstances which otherwise might justify suspension.
To approach the matter with such considerations in mind, in no way subverts the statutory test. It is to do no more than make the essentially pragmatic observation that there is a class of offending which is so serious, that suspension of the sentence is cases falling within the class, is unlikely to be justified often.
There is not an ‘exceptional circumstances’ test as discussed in Mangelsdorf. There is only one test. But in the case of certain serious categories of offending, its successful application in favour of the defendant will be uncommon. A sentencing court does not fall into error, if it recognises the practical reality of that observation.
The Court of Criminal Appeal in this state has regularly stated that the objective seriousness of offences involving the large commercial dealing in drugs and the need for penalties in such cases to reflect a substantial allowance for general deterrence will ordinarily outweigh circumstances which might otherwise justify suspension. In other words, generally speaking, the more serious the offence and therefore the greater the need for a sentence to act as a strong deterrent to others, the less likely the sentence imposed will be suspended.
This is not a novel approach to sentencing for serious crimes, and sentencing judges and appeal courts have regularly recognised and applied this principle. As Perry J recognised this is simply the practical reality of sentencing for some serious crimes, among them serious drug trafficking offences.
With that discussion of the approach to sentencing for serious drug offences, I now return to a consideration of Parliament’s requirement that for certain nominated serious offences and certain offenders, a prison sentence may now only be suspended where exceptional circumstances exist.
In R v Fowler, Gray and Layton JJ stated at [54]–[55]:
There is a substantial and important difference between the ‘exceptional circumstances’ test as discussed in Mangelsdorf and the ‘good reason’ test to draw from the wording of the statute. The ‘good reason’ test established by the legislature requires the sentencing judge to consider all of the circumstances of the instant case and make an assessment as to whether those circumstances give rise to good reason to suspend the sentence.
On the other hand, the ‘exceptional circumstances’ test implies that a sentencing judge ought to compare the circumstances of the instant case with other cases and determine whether there are aspects of the instant case that set it apart from the other cases and thereby justify an exercise of the discretion to suspend. This may lead the court to be asked to first consider what the common or typical features of drug trafficking cases are and then compare such features with the case at bar to decide whether such circumstances may be characterised as ‘exceptional’ before considering then whether to suspend. Such an approach would require the fulfilment of conditions which contradict the statutory requirement. In this way, the ‘exceptional circumstances’ test represents a significant departure from the test set down by Parliament.
Parliament has adopted the expression from this judgment but has chosen not to define its meaning in the Criminal Law (Sentencing) Act.
An undefined expression such as this must therefore be read in its statutory context. As is evident from the second reading speeches, Parliament intended the expression to result in a higher threshold for defendants to satisfy before their prison sentence will be suspended, than the good reason test, which has been held to encompass very broad and general considerations. A discretion to suspend a prison sentence remains but it has been narrowed or constrained by the necessity for there to be exceptional circumstances to do so.
As far as I am aware the only pronouncement by the Court of Criminal Appeal in this State as to the meaning of exceptional circumstances is that contained in the joint judgment of Gray and Layton JJ in Fowler. Their Honours did not appear to have had the benefit of reference to authority on the meaning of the expression, presumably because it was considered unnecessary as the only test for suspending a prison sentence at that time was whether good reason existed to do so.
In R v Kelly [2000] 1 QB 198, an often cited authority on the meaning of exceptional circumstances, Lord Bingham, speaking on behalf of the Court stated at 208:
We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
In Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 Campbell JA in the New South Wales Court of Appeal stated at [66]:
Another question of construction concerned ‘exceptional circumstances’ in r 31.18(4). In San v Rumble (No 2) (2007) NSWCA 259 at [59]–[69], I gave consideration to the expression ‘exceptional circumstances’ in a different statutory context to the present. Without repeating that discussion in full, I shall state such are the conclusions as seem to me applicable to construction of r 31.18(4).
(a)Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly [2000] 1 QB 198 at 208.
(b)Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] 1 WLR 1262 at 1268; [2000] 1 All ER 907 at 912-913.
(c)Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [26].
(d)In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland at 1268; 912-913.
(e)Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 at 186.
Similar observations were also made concerning the meaning of exceptional circumstances in R v Mac [2012] VSCA 19, R v Ioannou (2007) 17 VR 563 and R v Tootell [2012] QCA 273.
In R v Duncan [2015] NTCCA 2 the Northern Territory Court of Criminal Appeal stated at [27]:
If, in determining a sentence, it is necessary to consider whether exceptional circumstances arise, the whole of the circumstances of a particular case must be considered. The ‘mitigating circumstances must be considered against a background of matters such as the egregiousness of the offending and the need for deterrence in determining whether they can be said to amount to exceptional circumstances’ (see R v Tootell [2012] QCA 273 at [25]) for the purpose of the legislation. Although individual factors may not be exceptional, the relevant factors, considered in combination, may amount to exceptional circumstances (Griffiths v R (1989) 167 CLR 372 at 379; Baker v R (2004) 223 CLR 513 at 574). Whilst reasons should be given for the exercise of the discretion, the exercise remains part of the overall instinctual synthesis that is undertaken by the sentencing judge.
I do not consider that the majority in Fowler was suggesting that a sentencing judge must undertake a comparison of cases to determine whether the circumstances in any particular case are exceptional. The majority were stating no more than contained in the authorities cited above, namely that one must look for something out of the normal course. In doing so, one necessarily must make some comparison to what is the normal situation, be it in terms of the circumstances of the offending or of the offender.
In determining whether exceptional circumstances exist one must be careful not to set the test so high that it becomes near impossible for a defendant to achieve. As the authorities reveal, a consideration of the circumstances of the offence, the offender or both must be carefully assessed and weighed as the authorities highlight. Either a single circumstance or a combination of circumstances may exist which will be exceptional in the particular case under consideration. It is futile to attempt to list any particular circumstance or combination of circumstances which may be regarded as being exceptional. What constitutes exceptional circumstances will depend upon the facts of each particular case.
The defendant has submitted that a significant feature of his case was his complex state of mental health and his separation from his family at the time he committed each offence, which resulted in the defendant being particularly vulnerable to suggestions from others and so affected his judgment or decision making at that time. Together with his personal circumstances, his lack of any relevant criminal history, his early guilty pleas, impeccable work ethic, his family responsibilities (which include those of his brother’s children), his community values and his excellent prospects of rehabilitation, it was submitted all combined to amount to exceptional circumstances justifying suspension.
There is nothing in the circumstances of the defendant’s offending that would take it out of the norm. He performed the important role of transporting large quantities of cannabis interstate for the principal offenders involved in the enterprise and did so for substantial cash reward. The intercepted telephone calls reveal his willingness and eagerness to participate in these serious crimes. These are typical features of offences of this type.
Although the defendant’s state of mental health, as reported by his psychologist, is obviously an important matter to be taken into consideration because it assists in explaining his actions, I am not satisfied, on the material presented to the court, that it reduces his moral culpability, such as to bear upon whether considerations of general deterrence, retribution and denunciation should be given less weight in determining an appropriate sentence, as discussed in Muldrock v R (2011) 244 CLR 120 and R v Wiskich (2000) 207 LSJS 431.
In the latter judgment, Martin J stated at 457-458:
The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender’s thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct. In this respect I agree with the approach taken in the Victorian and New South Wales authorities that, as a general proposition, if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration. It is not difficult to understand that the element of general deterrence can readily be given considerably less weight in the case of an offender suffering from a significant mental disorder who commits a minor crime, particularly if a casual relationship exists between the mental disorder and the commission of such an offence. In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave, that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence. In between those extremes, an infinite variety of circumstances will arise in which competing considerations must be balanced.
The mitigating effect of the defendant’s mental state at the relevant time is outweighed by the gravity and repetition of his crimes and the strong need for general deterrence.
Whilst there will naturally be hardship to the defendant’s family if he is immediately imprisoned, that is an inevitable consequence of his committing two very serious crimes. I am not satisfied that the hardship to his family would be extreme or that extraordinary circumstances exist to justify a merciful approach to sentencing him as discussed in R v Wirth (1976) 14 SASR 291, R v Adami (1989) 51 SASR 229, R v Penno (2004) 236 LSJS 457, R v Buckskin [2010] SASC 138 and R v Smith [2015] SASCFC 138.
Whilst I acknowledge the defendant’s complex state of mental health at the time he committed the crimes and his personal circumstances excite much sympathy, and despite everything else that has been put on his behalf, including his excellent prospects of rehabilitation, I am not satisfied that those factors taken individually or in combination, are sufficient to amount to exceptional circumstances such as are required to suspend the sentence I have passed.
Those who are prepared to involve themselves in such serious offences as trafficking in large commercial quantities of controlled drugs, including cannabis, which carry maximum penalties of life imprisonment, must be deterred, as must others who are contemplating doing so.
The cannabis seized by the police will be forfeited to the Crown pursuant to s 52E (7) of the Controlled Substances Act.
I direct that the psychological report dated 9 July 2014 be brought to the immediate attention of the Department for Correctional Services so that proper steps can be taken to provide for the defendant’s mental health and reduce his risk of self-harm or suicide whilst he is serving his sentence.