R v Bechara
[2014] SASCFC 36
•10 April 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BECHARA
[2014] SASCFC 36
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Vanstone)
10 April 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER
The appellant appeals against the sentence imposed in the District Court on his conviction of a number of serious commercial drug related offences. The offending consisted of four separate incursions into criminal activity over a period of about thirteen months.
The sentencing Judge declared the appellant to be a serious repeat offender pursuant to s 20B(3) of the Criminal Law (Sentencing) Act 1988 (SA). Having made that declaration, the Judge sentenced the appellant to a term of imprisonment of 22 years and six months, cumulative on the seven months and 5 days unexpired balance of a previous sentence. A total period of 23 years, one month and five days imprisonment was imposed and backdated to commence on the date that the appellant was taken into custody. In accordance with s 20BA of the Criminal Law (Sentencing) Act 1988 (SA), a non-parole period of 18 years was imposed.
The appellant appeals on the grounds that the sentence was manifestly excessive and that the Judge erred in making a serious repeat offender declaration. The appellant also complains that the Judge erred in various other respects.
Held (Kourakis CJ and Sulan J agreeing):
The Judge had regard to the wrong maximum penalty for the offence of trafficking in methylamphetamine and, therefore, the sentencing discretion miscarried (Kourakis CJ at [6]).
The Judge made an error of law when he considered the application to declare the appellant a serious repeat offender, in that he failed to address one of the conditions on which the statutory power rests; whether the offender’s history warrants a particularly severe sentence in order to protect the community (Kourakis CJ at [31]).
The serious repeat offender declaration was not necessary to adequately protect the community. Applying ordinary sentencing principles, the appellant would be sentenced to the same term of imprisonment as that imposed by the Judge (Kourakis CJ at [6]).
The head sentence imposed by the Judge is the sentence which should have been imposed. In the absence of s 20BA of the Criminal Law (Sentencing) Act 1988 (SA), a non-parole period of three quarters of the head sentence is fixed; the non-parole period is reduced to 17 years and 3 months imprisonment (Kourakis CJ at [73]).
Appeal allowed; the sentence fixed by the Judge and the s 20B declaration set aside; a sentence of 23 years, one month and five days imprisonment with a non-parole period of 17 years and 3 months imposed (Kourakis CJ at [74]).
Vanstone J (dissenting):
It was open to the sentencing Judge to make the declaration and indeed he should have made it in obedience to s 20B(3)(b) of the Criminal Law (Sentencing) Act 1988 (SA). However, because regard was had to an incorrect maximum penalty, the sentence must be set aside and the appellant re-sentenced. A declaration should be made afresh (Vanstone J at [79]).
Controlled Substances Act 1984 (SA); Criminal Law Consolidation Act 1935 (SA) s 353(4); Criminal Law (Sentencing) Act 1988 (SA) s 20B, s 20BA, s 32(5)(c), referred to.
R v Brady (2011) 110 SASR 246, distinguished.
R v Jackamarra [2013] SASCFC 98; R v Gjoni [2012] SASCFC 48; R v Jones [2011] SASCFC 97; R v Williams (2006) 96 SASR, discussed.
Bugmy v The Queen (2013) 87 ALJR 1022; Fardon v Attorney-General for the State of House v The King (1936) 55 CLR 499 Qld (2004) 223 CLR 575 ; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 ; R v Williams (2006) 96 SASR 226 ; R v Kafexholli [2012] SASCFC 140; R v Copeland (No 2) 108 SASR 398; Veen v The Queen (1979) 143 CLR 458; Veen v The Queen (No 2) (1988) 164 CLR 465, considered.
R v BECHARA
[2014] SASCFC 36Court of Criminal Appeal: Kourakis CJ, Sulan and Vanstone JJ
KOURAKIS CJ: The appellant appeals against the sentence imposed on his conviction of six offences against the Controlled Substances Act 1984 (SA) (“the CSA”).
On 6 June 2012 the appellant pleaded guilty to the following offences which had been listed for trial on that day:
1One count of cultivating a commercial quantity of cannabis plants at Allenby Gardens.
2One count of cultivating a commercial quantity of cannabis plants at Gepps Cross.
3One count of possessing prescribed equipment at Allenby Gardens and Gepps Cross.
On 22 March 2013 after a trial by judge alone, the appellant was found guilty of the following offences:
1Two counts of trafficking in a controlled drug, namely methylamphetamine.
2One count of trafficking in a commercial quantity of a controlled drug, namely cocaine.
The cannabis cultivated at Allenby Gardens was the second crop of cannabis grown at those premises. The offences of trafficking in methylamphetamine were part of an ongoing business involving the sale of drugs to persons in Queensland.
The offences consisted of four separate incursions into criminal activity over a period of about thirteen months. The sentencing Judge, who was the presiding Judge on the trial of the methylamphetamine and cocaine charges, declared the appellant to be a serious repeat offender pursuant to s 20B(3) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”). Having made the declaration, the Judge sentenced the appellant to a term of imprisonment of 22 years and 6 months, cumulative on the 7 months and 5 days unexpired balance of a previous sentence.[1] A total period of 23 years, 1 month and 5 days imprisonment was imposed and backdated to commence on 2 February 2011, the date the appellant was taken into custody. In accordance with s 20BA of the Sentencing Act a non-parole period of 18 years was imposed.
[1] The appellant was on parole for previous offending outlined at [20]-[21] below.
The appellant appeals on the grounds that the sentence was manifestly excessive and the Judge erred in declaring the appellant a serious repeat offender pursuant to s 20B of the Sentencing Act. In addition to the contention that the sentence was manifestly excessive, the appellant complains that the Judge erred:
•by having regard to the incorrect maximum penalty for the offence of trafficking in methylamphetamine;
•in failing to consider the imposition of concurrent or partially concurrent sentences;
•in his evaluation of the seriousness of the methylamphetamine trafficking offence;
•in his approach to sentencing in that excessive weight given to the appellant’s antecedents and breach of parole and bail;
•in declaring the appellant a serious repeat offender in that his Honour:
oproceeded on the incorrect basis that the appellant’s prior conviction for possession of cannabis for sale was a serious offence for the purposes of s 20B of the Sentencing Act; and
oapplied incorrect criteria in exercising the discretion to make a declaration.
The Director of Public Prosecutions (the Director) concedes, as indeed is plain on the face of the sentencing remarks, that the Judge had regard to the wrong maximum in sentencing for the methylamphetamine trafficking offences. The Judge mistakenly proceeded on the basis that the maximum penalty was 15 years when it was 10 years. The sentencing discretion has miscarried. On reviewing the sentence afresh, I would not make the serious repeat offender declaration because, after applying the ordinary sentencing principles, I would sentence the appellant to the same head sentence as that imposed by the Judge. There is therefore no need to resort to the extraordinary sentencing powers conferred by ss 20B and 20BA of the Sentencing Act to adequately protect the community. For the reasons which follow, I am satisfied that the head sentence ultimately imposed by the Judge is the sentence which should have been passed, but I would vary the non-parole period to 17 years and 3 months.
The offences
Between May 2010 and August 2010 the appellant cultivated a commercial quantity of cannabis in a warehouse at Allenby Gardens. When police attended the premises at Allenby gardens they found the appellant’s co-offenders, Bednarz and Walker, harvesting a 26-plant crop of cannabis which was being grown in a concealed mezzanine area above some offices in the warehouse. The offices were furnished with business signs and office equipment to give the appearance that the warehouse was being occupied by a legitimate business. The concealed area was purpose built for cultivating cannabis. A secreted button opened access to the grow rooms. A total of approximately 29 kg of female flowering cannabis was located in styrofoam boxes. The value of the cannabis crop was estimated at between $140,000 and $190,000.
The Gepps Cross cultivation was undertaken between 1 January and 14 August 2010 in cold storage warehouse attached to a residential home. There police located a sophisticated hydroponic system with 82 empty growing containers and extensive associated equipment. The cannabis crop had been harvested shortly before the police arrived, because of the police raid on the Allenby Gardens premises some 11 days earlier. There was a dispute before the Judge as to whether cannabis plants were grown in every one of the containers found by police. The prosecution witness, and co-offender, Vrynios, had deposed in his witness statement that 82 plants were grown at Gepps Cross. Mr Bechara’s counsel conceded that between thirty and forty plants were grown at Gepps Cross before they were prematurely harvested. The value of the cannabis crop harvested at Gepps Cross was estimated to be between $240,000 and $480,000.
Mr Bechara had sold the product from earlier cultivations to persons in Queensland. It was accepted that Mr Bechara was responsible for finding buyers for the anticipated harvests from both cultivations. He was at the head of a vertically integrated production and distribution enterprise. The enterprise was well organised. Significant effort had been put into concealing the growing areas.
The offence of possession of prescribed equipment related to the equipment used in both the Allenby Gardens and Gepps Cross premises for the hydroponic cannabis cultivation. The person who sold the equipment to the appellant testified that the appellant paid $160,000 in cash for it. The appellant claimed that he paid only $54,000 for the equipment. On either account, the purchase is an indication of the large scale of the appellant’s cannabis enterprise.
There were at least three co-offenders involved with the appellant in the cannabis production: namely, Vrynios, Donjerkovic and Bednarz. However, the Judge found that the appellant was the driving force behind the cultivations:
In relation to the cannabis cultivation, you had at least three co-offenders; namely, Vrynios, Donjerkovic and Bednarz. You admit that you were the coordinator of the operation. I think this is a rather mild description of your role. You financed the operation and you directed the other participants. You arranged for the sale of the crop. You coordinated the leasing of premises and the purchasing of equipment and provided the finance to do that, which was substantial.
I have no doubt that you were the person with the intelligence and the organising skills to have conceived and executed these operations.
On the appellant’s own admission, he had cultivated an earlier crop at Allenby Gardens from which he had won a substantial financial reward. The appellant is not to be sentenced for that conduct but it shows that he embarked on the cultivations for which he fell to be sentenced as an offender motivated by greed and that he was deeply committed to engaging in the criminal drug trade for the purpose of extracting high profits.
The first offence of trafficking in methylamphetamine related to one of what were alleged to be a series of shipments of that drug to Queensland. The evidence of Vrynios was that each of the shipments were of an ounce or a couple of ounces of methylamphetamine. Telephone conversations between the appellant and others in which the payment for the shipments were discussed clearly demonstrate that substantial amounts were involved. The value in South Australia of an ounce (28.35 grams) of methylamphetamine is between $3,000 and $15,000, and in Queensland the lower end value of an ounce is closer to $5,000. Vrynios and his wife testified that they flew to Queensland to collect tens of thousands of dollars in payments from the Queensland buyer. The Judge found that George Vrynios sent the package, which is the subject of the first count, to the appellant’s Queensland buyer in August 2010 on the appellant’s instructions. The appellant was charged with simple trafficking and not trafficking in a commercial quantity because of the insufficiency of the evidence of quantity. The evidence of Vrynios was that five ounces were concealed in that package but the Judge did not make any specific finding as to the weight of the package. The quantity prescribed to be a commercial quantity of methylamphetamine is 500 grams of the drug in a mixed form.
The other count of trafficking in methylamphetamine charged a consignment of that drug made in January 2011. The drug was concealed in a cavity between two boards of the kind used to make cabinet doors. Vrynios gave evidence that four ounces of methylamphetamine were placed in the cavity between the boards. A gold laminate was then glued to the face of the boards. The boards were then wrapped in several layers of plastic and coffee added to the package to disguise the smell of the methylamphetamine. The intended recipient was the boyfriend of the Queensland buyer to whom the consignment, the subject of the first count, was sent. Police intercepted the consignment, without the appellant’s knowledge, and found it to contain 219.2 grams of mixed methylamphetamine with a purity of 42 per cent.
Finally, the appellant was found guilty of trafficking in a commercial quantity of cocaine. This offence related to a package containing 333.08 grams of a mixture containing 196.09 grams of pure cocaine which was found in a van driven by Mr Vrynios when it was stopped by police on 2 February 2011. The quantity prescribed as a commercial quantity for cocaine is 100 grams in the pure form, and 200 grams when in an admixture. The value of the cocaine was estimated by a police witness to be between $84,000 and $144,000. Even though the cocaine was discovered in Vrynios’ possession, the Judge found that the appellant had taken delivery of the cocaine from a visitor from Sydney, known as Zoki, at the appellant’s business premises and had then given it to Vrynios to transport to his mother’s home.
With respect to the methylamphetamine and cocaine trading, the sentencing Judge said:
The details of your offending in relation to the methylamphetamine and cocaine are set out in my reasons for verdict published on 22 March this year. Without repeating the details, it is sufficient to say at this point that all three counts were part of an ongoing, extensive, complex and well organised drug distribution operation which functioned both in this State and interstate, particularly in Queensland. …
It is clear from my findings that I accept the prosecution evidence that you orchestrated the entire operation. You financed it and you directed your accomplices as to what should occur. Substantial quantities of drugs were being shipped and large amounts of money were changing hands.
In the course of his sentencing remarks the Judge referred to the appellant’s counsel’s submission, that the appellant had embarked on the offending to clear his brother’s gambling debts as well as debts which the appellant owed to criminals. It is not clear whether or not the Judge accepted the submission but if that was the appellant’s initial motivation it is clear from the evidence that his involvement in drug trafficking had extended well beyond its early purpose by the time he was apprehended. The appellant’s counsel, rightly, did not advance that circumstance as a mitigating factor. If it had been advanced as a mitigating factor, the onus would have fallen on the appellant to prove it on the balance of probabilities.
The Appellant’s Personal Background
At the time of sentencing the appellant was 44 years of age, having been born in Lebanon on 10 August 1968. He is married with two children aged about 22 and 16 years. He received a private school education in Adelaide until, at age 14, he left school to become involved in business activities.
The appellant’s wife suffers from severe autoimmune disease which has resulted in major functional limitations and an incapacity to undertake domestic duties and to care for their two children. The appellant was also one of several carers of his father who has been left in a vegetative state by catastrophic injuries suffered in a car accident.
In 1996 the appellant was convicted of possession of cannabis for sale and he received a suspended sentence. In March 2001 in Perth the appellant was convicted of possession of heroin for sale and was sentenced to 10 years imprisonment. On the appellant’s prison transfer to South Australia from Western Australia, a non-parole period was fixed in the District Court of this State which resulted in the appellant’s release on parole on 30 June 2003. The relatively early release of the appellant on that sentence was the result of judicial leniency extended because of the medical condition of his wife.
The appellant committed the Allenby Gardens and Gepps Cross cannabis offences whilst still on parole for the Western Australian offending. The appellant was arrested for the cannabis offences on 26 August 2010 and subsequently granted bail. The second offence of trafficking in methylamphetamine and the cocaine offending were committed whilst the appellant was on bail. Indeed the second offence of methylamphetamine trafficking was committed even though the home of the appellant’s Queensland buyer had been searched by police on 27 August 2010. The appellant was arrested in relation to the methylamphetamine and cocaine offences on 2 February 2011 and has been in custody since that time.
The Appellant’s Sentence
The Judge gave the following reasons for making a serious repeat offender declaration pursuant to s 20B of the Sentencing Act:
There is no doubt that, having committed these offences, that section [s 20B of the Sentencing Act] does apply to you, and [defence counsel] conceded as much today.
I must therefore decide whether a particularly severe sentence is warranted in order to protect the community from your offending.
I have had regard to what his Honour Sulan J said in R v Williams, and in particular the factors his Honour outlined there, the number of prior offences, the seriousness of those offences, your age and prospects of rehabilitation, time which has elapsed since your previous convictions, the likelihood of re-offending, and the reason why it is necessary to protect the community by a particularly severe sentence.
It seems to me that you should be the subject of such a declaration. Having been paroled for a particularly serious drug trafficking offence, you committed further serious drug offences while on parole, and committed further serious drug offences while on bail for those offences.
All the offences were on a large scale, involving large amounts of money, and were masterminded and orchestrated by you. Your activities were so serious that a specific police task force was set up to investigate. Considerable resources at great public expense were directed towards the detection of these crimes.
It seems to me that that type of offending is the very type of offending which this piece of legislation was intended to deal with. It is the type of offending which does call for a particularly severe sentence to act as both a personal and general deterrent, and to signal the disapproval of the community of this type of criminality.
It also signals that because of your preparedness to offend whilst on parole and whilst on bail, a sentence with a particularly long non-parole period is called for.
I therefore declare you a serious repeat offender. It follows then that the sentence I impose need not be proportionate to the seriousness of the particular crimes for which you are to be sentenced and the non-parole period must be four fifths of the sentence.
The Judge indicated that he would have sentenced the appellant to 12 years imprisonment with respect to the cannabis offending after discounting a notional head sentence of 15 years for the appellant’s guilty pleas. The Judge indicated that he would have imposed a head sentence of 18 years imprisonment on the methylamphetamine and cocaine offences. The Judge continued:
The totality of those sentences is 30 years imprisonment. On one view of the legislation I should not have regard to the totality principle, but it is not compulsory that the sentence be disproportionate. In my view the totality principle still has work to do even for a serious repeat offender.
Having reviewed the totality of the sentence, always keeping in mind that it is not appropriate that you should receive a discount for bulk offending, but also keeping in mind the provisions of s.20B and s.20BA of the Sentencing Act, the sentence in my view can be reduced to no less than 22 years and six months according to the totality principle.
So I impose one sentence of 22 years and six months pursuant to s.18A of the Sentencing Act in relation to all the offences before me today.
I order that sentence to commence at the expiration of the period of unexpired sentence for which you were on parole of seven months and five days, which I order should commence on 2 February 2011 pursuant to s.75(3) of the Correctional Services Act.
The Sentencing of Co-offenders
The appellant’s co-offenders were dealt with as follows. Vrynios was sentenced in relation to the cannabis cultivations at Allenby Gardens and Gepps Cross and the consignment of methylamphetamine to Queensland. In addition, he was sentenced for trafficking substantial amounts of heroin and methylamphetamine and for possession of a homemade pistol and machine gun. Vrynios received a sentence of eight years imprisonment reduced from 16 years on the grounds of his cooperation with the authorities in the prosecution of the appellant, against whom he gave evidence, and his pleas of guilty. The sentencing Judge was satisfied that Vrynios, although a substantial participant, was under the supervision and direction of the appellant.
Donjerkovic pleaded guilty to the Allenby Gardens and Gepps Cross cultivations and another smaller cultivation in domestic premises. He was sentenced to nine years and eight months imprisonment reduced from 12 years for his pleas of guilty.
Bednarz was found guilty after a trial by Judge alone of involvement in the Allenby Gardens cultivation, the Gepps Cross cultivation and a smaller cultivation at his home. He was 61 years of age. He was sentenced to 15 years imprisonment.
The Appeal
The Judge recorded in his sentencing remarks that he was proceeding on the basis that the maximum penalty for the offences of trafficking in methylamphetamine was imprisonment for 15 years. The Director concedes that the applicable maximum was 10 years. An error as to the maximum sentence applicable to the offence for which an offender is sentenced is an error of law which may be described both as a failure to have regard to a relevant consideration, namely the maximum penalty prescribed by law, and as having regard to an irrelevant circumstance, namely a maximum penalty which is not applicable to the offence.
Counsel for the Director put an argument that an error as to the maximum penalty does not necessarily vitiate the resulting sentence. He submitted that the error must be “material”. Indeed the appellant’s written submissions appeared to accept that it was necessary to identify some discernible effect on the sentence caused by the reference to the wrong maximum penalty.
It is trite that an appeal against sentence is to be determined in accordance with the principles stated in House v The King,[2] and recently reaffirmed in Bugmy v The Queen.[3]An error of law, analogous to those errors which, in public law, vitiate administrative decisions, must be established. When such an error is established, it is not necessary to also show that the Judge would have imposed some other sentence but for the error. The error vitiates the exercise of the sentencing discretion and it therefore falls to be exercised afresh by the appeal court. Plainly enough, as s 353(4) of the Criminal Law Consolidation Act 1935 expressly provides, the appeal may still be dismissed by the Full Court if it considers that the same sentence should have been passed. However, the dismissal is simply the practical result of the coincidence between the sentence that the Full Court would have imposed, in accordance with sentencing principle, and the sentence which the Judge happened to get right, notwithstanding the express error. That coincidence should not be mistaken for a modification of the principle stated in House v The King.
[2] (1936) 55 CLR 499.
[3] (2013) 87 ALJR 1022.
Once made, a serious repeat offender declaration enlivens s 20BA if the person so declared falls to be sentenced for other offences in the future.[4] It follows that an order made pursuant to s 20B of the Sentencing Act has an existence independently of the sentence it first affects. Nonetheless, the sentence under appeal was fixed by reference to s 20B of the Sentencing Act. The product of that process is, in this case, the sentence of 22 years and six months with a non-parole period of 18 years. The initial making of a serious repeat offender declaration is inextricably linked to the fixing of the sentence for the offence in respect of which the declaration is made. In this case, that sentence is affected by the error conceded by the Director and it falls to this Court to review both the sentence and the declaration.
[4] R v Jackamarra [2013] SASCFC 98, [60] & [101].
Serious Repeat Offender Declarations
Even if I be mistaken in thinking the effect of the error as to the applicable maximum vitiates the serious repeat offender declaration, I am in any event satisfied that the Judge made an error of law in his consideration of the application of s 20B of the Sentencing Act by failing to address one of the conditions on which the statutory powers rests; namely, whether the offender’s history “warrants a particularly severe sentence in order to protect the community”.
Before explaining why I would so hold, it is convenient to set out the terms of s 20B and s 20BA of the Sentencing Act. They provide:
20B—Serious repeat offenders
(a1)A person will, by force of this subsection, be taken to be a serious repeat offender if the person (whether as an adult or as a youth)—
(a) has committed on at least 3 separate occasions a category A serious offence to which this Division applies (whether or not the same offence on each occasion); and
(b) has been convicted of those offences.
(1)Without limiting subsection (a1), a person is liable to be declared a serious repeat offender if the following conditions apply:
(a) the person (whether as an adult or as a youth)—
(i)has committed on at least 3 separate occasions an offence to which this Division applies (whether or not the same offence on each occasion); and
(ii)has been convicted of those offences; or
(b) the person (whether as an adult or as a youth)—
(i)has committed on at least 2 separate occasions a serious sexual offence against a person or persons under the age of 14 years (whether or not the same offence on each occasion); and
(ii)has been convicted of those offences; or
(c) the person (whether as an adult or as a youth)—
(i)has committed on at least 2 separate occasions a category A serious offence (whether or not the same offence on each occasion); and
(ii)has been convicted of those offences.
(1a)For the purposes of this section, when determining the number of occasions on which a person has committed a particular kind of offence, the offence for which the person is being sentenced is to be included if it is of the relevant kind.
(3)If a court convicts a person of a serious offence, and the person is liable, or becomes liable as a result of the conviction, to a declaration that he or she is a serious repeat offender, the court—
(a) must consider whether to make such a declaration; and
(b) if of the opinion that the person's history of offending warrants a particularly severe sentence in order to protect the community—should make such a declaration.
20BA—Sentencing of serious repeat offenders
(1)The following provisions apply in relation to the sentencing of a person who is a serious repeat offender for an offence (including an offence that resulted in the person being a serious repeat offender):
(a) the court sentencing the person is not bound to ensure that the sentence it imposes for the offence is proportional to the offence;
(b) any non parole period fixed in relation to the sentence must be at least four fifths the length of the sentence.
(2)However, a court that is sentencing a person who is a serious repeat offender for an offence may declare that subsection (1) does not apply if the person satisfies the court, by evidence given on oath, that—
(a) his or her personal circumstances are so exceptional as to outweigh the primary policy of the criminal law of emphasising public safety; and
(b) it is, in all the circumstances, not appropriate that he or she be sentenced as a serious repeat offender.
I start by observing that s 20B(3)(a) imposes an obligation on a court sentencing a person liable to a serious repeat offender declaration to “consider whether to make such a declaration”. The obligation so imposed is an obligation to exercise what might be called the “serious repeat offender” jurisdiction conferred by s 20B of the Sentencing Act. I acknowledge that more strictly s 20B(3) of the Sentencing Act confers an ancillary sentencing power. However, the point I wish to make is that s 20B(3)(a) does no more than require the Court to consider whether or not to exercise its jurisdiction/power whenever it sentences a person who is liable to be so declared. The obligation to consider the power is perhaps expressly imposed by s 20B(3)(a) of the Sentencing Act because it arises independently of the making of an application by the prosecutor. The legislature appears to have chosen the course of imposing an obligation on sentencing courts to consider the making of the declaration of their own motion, instead of requiring or empowering the prosecution to make an application which would, in the ordinary course then, enliven a judicial obligation to hear and determine it.
Next I observe that there is no indication in s 20B(3)(a) of the Sentencing Act, or in any of the preceding provisions of s 20B, of the considerations against which that discretion is to be exercised. The earlier provisions do no more than identify the persons who are liable to be declared to be serious repeat offenders. It is in s 20B(3)(b) of the Sentencing Act that the legislature prescribes the opinion which, if held by a court, may result in the making of the declaration that a person is a serious repeat offender. Section 20B(3)(b) of the Sentencing Act also discloses the purpose of the power.
That purpose must also serve as the primary consideration in the exercise of the power, namely whether the “persons history of offending warrants a particularly severe sentence in order to protect the community”. The sentence referred to must be the sentence the Court is considering imposing for the offence(s) which have left the defendant liable to be declared a serious repeat offender. A court could not form such a view about sentences for offences of which it is ignorant and, indeed, may not yet even have been committed. So central is that consideration to the making of the order that the legislature has provided that a court which is of that opinion “should make” the serious repeat offender declaration. Here the legislature’s choice of the word “should” contrasts with the use of the word “must” in s 20B(3)(a) of the Sentencing Act. The different words used in the two subsections of s 20B(3) reflect the general approach of legislatures in conferring jurisdiction and powers on courts. Generally, it is intended that courts vested with jurisdiction must exercise it, but that courts be allowed a discretion as to the orders they make on assuming that jurisdiction. The word “should” leaves some discretion to a court, even if it forms the opinion that the offender’s history warrants a particularly severe sentence, to decline to make a serious repeat offender order. Nonetheless, the section evinces a legislative expectation that, if the prescribed opinion is held, in the ordinary course the declaration will be made. However, s 20B(3) of the Sentencing Act itself gives no indication as to when, if ever, a declaration can or should be made if the court is not of that opinion.
Further guidance on the exercise of the power to make a declaration can be gained from s 20BA of the Sentencing Act which sets out the consequences of the making of the order. That section provides that the making of a serious repeat offender declaration abrogates the principle of proportionality in sentencing for the offence which has attracted the special power conferred by s 20B of the Sentencing Act and for any subsequent offences of which the offender may be convicted. The section also demands the imposition of a non-parole period of no less than four fifths of the head sentence.
Plainly enough if a sentencing court is of the opinion that a sentence fixed in accordance with ordinary sentencing principles, including the principle of proportionality, sufficiently protects the community there can be no need to make a serious repeat offender declaration in order to increase the head sentence on the offences before the court.
Nor would there be any reason to do so in order to impose a non-parole period of four fifths or more. Section 32(5)(c) of the Sentencing Act provides that:
A court may, by order, decline to fix a non-parole period in respect of a person sentenced to imprisonment if the court is of the opinion that it would be inappropriate to fix such a period because of –
(i) the gravity of the offence or the circumstances surrounding the offence; or
(ii) the criminal record of the person; or
(iii)the behaviour of the person during any previous period of release on parole or conditional release; or
(iv) any other circumstance.
The power conferred by that section, to decline to fix a non-parole period at all, shows that proportionality in the non-parole period may be outweighed by the very factors which inform the question of what is needed for community protection.
It remains to more closely consider whether s 20B of the Sentencing Act confers a power to make a serious repeat offender declaration, even when it is not necessary to impose a disproportionate sentence on the offences before the court to protect the community, in order to subject a defendant to s 20BA of the Sentencing Act should he commit offences in the future. The consequences of so ordering are the abrogation of the principle of proportionality in sentencing the defendant for any offence which he or she may commit in the future, irrespective of the nature of that offence and his or her personal circumstances at the time, and the fixing of a non-parole period of at least four fifths of the head sentence, irrespective of the court’s assessment of the offender’s personal circumstances.
It is here necessary to consider the decision of this Court in R v Brady[5]. In that case the sentencing judge made a declaration on sentencing an offender for serious assault offences. The offences were committed whilst the offender was on parole on a sentence of life imprisonment imposed for murder. It was submitted on appeal that the sentencing judge erred in making a serious repeat offender declaration because the community would be sufficiently protected by the appellant’s return to prison to serve his life sentence. The appellant’s contentions were that:
·s 20B of the Sentencing Act, as it then was, had no application when an offender was subject to a sentence of life imprisonment;
·as a matter of the exercise of the discretion, the declaration need not be made because the appellant had been returned to custody to serve a sentence of life imprisonment.
[5] (2011) 110 SASR 246.
Nyland J, with whom Anderson and David JJ agreed, accepted that the making of a declaration had no real application to the fixing of a non-parole period when a life sentence was first imposed.[6] That is plainly the case having regard to the indeterminacy of a life sentence and the minimum non-parole period of 20 years. Her Honour also observed that s 20B of the Sentencing Act, as it then was, may have less practical effect when the offence which attracts the declarations also actives a pre-existing life sentence. Her Honour said:[7]
It may be that the declaration will have less relevance where a person becomes liable to serve the balance of a sentence of life imprisonment or, for that matter, with respect to any person who is liable to serve a lengthy term of imprisonment for offences other than murder, as the new non-parole period is likely to be substantial and the community thereby protected. That may be a relevant matter for the sentencing court to take into account in a particular case when considering whether it should make the declaration. But, as the judge indicated in his sentencing remarks, the declaration still has work to do. It enables the court to impose a disproportional sentencing for the offence(s) under consideration and it will also be relevant to the length of the non-parole period to be fixed in accordance with s 75 of the CSA.
It is also a matter which will be of assistance to the Parole Board when fashioning conditions for a prisoner's later release on parole. Section 67(3)(a) of the CSA provides that the paramount consideration of the Board when determining an application for the release of a prisoner on parole must be the safety of the community. Section 67(4) of the CSA requires the Board to take into account a number of other matters when determining an application for release. This includes any relevant remarks made by the court in passing sentence,9 the likelihood of a prisoner complying with the conditions of parole,10 as well as any other matters that the Board thinks relevant.11 As can be seen, the focus of both s 20B(3)(b) of the Sentencing Act and s 67(3)(a) of the CSA is the safety or protection of the community. A declaration by a judge, as part of the sentencing process, that a prisoner is a serious repeat offender will therefore be a relevant matter for the Parole Board to consider when determining a prisoner's suitability for release on parole.
However, it is still necessary to determine the way in which s 20B(4)(b) operates with respect to fixing a new non-parole period with respect to a prisoner who is required to serve the balance of his life sentence as a result of breaching parole by the commission of further offences.
[6] [19].
[7] [20]-[22].
It can be seen that neither the point taken by the appellant in Brady, nor the way with which it was dealt by the Court, addressed the proper construction of the provisions of Division 2A of Part 2 as they then stood, and in particular whether it is a condition of the exercise of the power that it is necessary to impose a disproportionate sentence for the offence on which the offender is being sentenced in order to protect the community. The additional consequences of the making of a declaration referred to in the reasons of Nyland J address the central submission made by the appellant that there was no utility in the declaration in the particular case because of the activation of Brady’s life sentence. However, her Honour’s observations assume the existence of the power to make the order even if a disproportionate sentence is not required in the matter before the Court at the time. It is that premise which arises for decision in this case and is, in my respectful opinion, erroneous.
In the ordinary course, sentencing courts are not called upon to make predictions about recidivistic behaviours of individual offenders.[8] That is because the principle of proportionality between sentence and conduct limits the degree of preventative detention which can be imposed. That principle only allows for the adjustment of a sentence, upwards or downwards, within the range which is proportionate to the offending depending on the relative risk of recidivism and prospects of rehabilitation respectively.[9]
[8] Such an assessment may play a part, as one of many considerations, in exercising the power to suspend a sentence.
[9] Veen v The Queen (No 2) (1988) 164 CLR 465; Veen v The Queen (1979) 143 CLR 458.
Part 2, Division 2A of the Sentencing Act confers a power of an extraordinary kind, which, precisely because it abrogates the proportionality principle, requires the sentencing judge to make an anticipatory judgment about the likely behaviour of the offender on his or her release from prison at the end of a sentence fixed in the ordinary way. Courts have long warned that predicting future behaviour well into the future is fraught.[10] Indeed, on the materials ordinarily presented to courts, it can be little more than guess work. Courts have very little experience in making such predictions. If it were ever to become possible to prognosticate in that way, it could only be achieved by carefully organised scientific studies. It is not the function of courts to undertake that work. In applying s 20B and s 20BA of the Sentencing Act, the Courts can do little more than engage in a risk assessment exercise. That exercise requires a court to consider the probability that the offender will reoffend on his or her release after serving a term fixed in the ordinary way and the degree to which the risk of recidivism might be reduced by a longer period of imprisonment. The problematic nature of this power, its departure from common law principles and the harshness of preventative detention regimes all militate against a construction which would enliven a discretion to make a serious repeat offender declaration in order to constrain future exercises of the sentencing discretion when it is not necessary to impose a disproportionate sentence on the offences before the court in order to protect the community.[11]
[10] Fardon v Attorney-General for the State of Qld (2004) 223 CLR 575, 589, 606-608; Veen v The Queen (1979) 143 CLR 458, 464; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 122-123 (McHugh J); Bugmy v The Queen (1990) 169 CLR 525, 532 (Mason CJ and McHugh J), 537 (Dawson, Toohey and Gaudron JJ).
[11] R v Jackamarra [2013] SASCFC 98, [60]. R v Williams (2006) 96 SASR 226, [66]-[70].
If a court were to form the view that a sentence imposed in accordance with ordinary principles would sufficiently protect the community with respect to the offence then before the court, it is difficult to see why the court would be moved to also make a serious repeat offender declaration order with the effect that the fundamental principle of proportionality would be abrogated, and a mandatory non-parole period of four fifths the length of the head sentence, imposed for future offences the circumstances of which the court cannot possibly have any knowledge.
The text of s 20B(3) of the Sentencing Act, the purpose of Division 2A and the consequences of the making of a declaration fixed by s 20BA, taken together, lead me to a construction of s 20B(3) that it is a condition of the exercise of the power it confers to make a serious repeat offender declaration that the sentencing court form the opinion that a more severe sentence for the offence before the Court is required to protect the community than the sentence which could be imposed in accordance with the principle of proportionality.
The decision of this Court in R v Jackamarra[12] is not an authority which binds me to a different construction. In R v Jackamarra a Judge imposed a lengthy sentence on an offender for offences of armed robbery and aggravated causing harm, and made a serious repeat offender order pursuant to s 20B of the Criminal Law (Sentencing) Act 1988. However the sentence imposed was, on the face of the sentencing remarks, fixed in accordance with ordinary sentencing principle. The majority, Blue and Nicholson JJ, allowed the appeal and set aside the sentence and serious repeat offender declaration on the ground that the Judge had not taken into consideration the harsh consequences of making the order on sentences which might be imposed for offences which the defendant might commit in the future. Accordingly their Honours had no need to arrive at a concluded construction of s 20B(3) of the Sentencing Act.
[12] R v Jackamarra [2013] SASCFC 98.
Nonetheless I acknowledge that Blue J proceeded on the premise that the decision in Brady determined the question of construction of the section now in question. For the reasons I have given, I take the view that this Court did not authoritatively decide the question in Brady. However, in the end result Blue J allowed the appeal on the grounds that the discretion miscarried for reasons identified by Nicholson J. It follows that his Honour’s assumption about what was held in Brady does not preclude me from taking a contrary view.
Nicholson J held that the discretion miscarried because the sentencing Judge did not appreciate the exceptional nature of the power, its harsh future consequences, and the degree to which a proportionate sentence might sufficiently protect the community. Therefore Nicholson J, like Blue J, did not have occasion to determine whether, on a proper construction of s 20B(3) of the Sentencing Act, the power to make a declaration was conditioned on the sentencing Judge forming an opinion that a disproportionate sentence was required for the offences before the Court in order to protect the community. However, Nicholson J alluded to just such a limitation when he said:
It is to be remembered that according to s 20B(3) a declaration is to be made only where the Court is of the opinion that the person’s history of offending warrants a particularly severe sentence in order to protect the community. The “sentence” referred to is that to be handed down with respect to the “serious offences” then before the Court.
As I have endeavoured to explain, given the nature of the sentence ultimately set and how it was structured, it is not clear to me why the declaration was necessary. In particular, it is not clear how it assisted in enabling a particularly severe sentence for the two aggravated robberies to be set or how it was that such a “particularly severe” sentence for those two serious offences became necessary in order to protect the community.
Vanstone J dissented. In the course of her Honour’s reasons, Vanstone J expounded a construction of s 20B(3) of the Sentencing Act which allowed an order to be made even if a disproportionate sentence did not need to be made to adequately protect the community in the matter before the Court. Vanstone J explained:[13]
In this case, as it happens, the judge chose to first determine what sentence he would impose without reference to s 20B. Then, having referred to defence counsel’s (correct) concession that the discretion to make the declaration was enlivened, the judge considered whether he should make the declaration, concluding that he should do so. Having done so, he determined that it was not necessary to increase the head sentence, but he imposed a non-parole period of four-fifths of the head sentence in obedience to s 20B(4). The appellant argues that the fact that the head sentence was not increased suggests that the declaration should not have been made in the first place.
In my opinion the appellant’s argument should be rejected. It confuses the circumstances calling for a declaration (in s 20B(3)) with the consequences of a declaration in s 20B(4). The declaration should be made if the court is of the opinion that the offender’s “history of offending warrants a particularly severe sentence in order to protect the community”: s 20B(3)(b). There is no occasion to read those words as if they contain a further qualification to the effect “and such a sentence cannot be imposed in accordance with usual sentencing principles”. In R v Pottage [2010] SASCFC 75 the Court of Criminal Appeal came to re-sentence an appellant for two offences of unlawful sexual intercourse. It is instructive to note that there the Court, consisting of Duggan, David and Peek JJ, first determined that the declaration should be made and then proceeded to fix sentence. There was no discussion of whether imposition of a sentence under ordinary sentencing principles might obviate the need for the declaration.
In R v Brady (2011) 110 SASR 246 Nyland J (with whom Anderson and David JJ agreed) noted that the purposes of making a declaration go beyond providing the ability to increase a sentence above what would be allowable under usual sentencing principles. Nyland J referred (at 252) to the impact the declaration has on the non-parole period, as well as the declaration being a matter relevant to the Parole Board’s later consideration of the prisoner’s release on parole.
I would add that it would seem to be an odd result were declarations commonly made where the court was dealing with a single offence and saw a need to impose a disproportionate sentence to protect the public, but were not made when the court was dealing with a number of separate offences and had available to it the ability to impose a much higher total sentence which was seen as adequate to protect the public.
In addition I do not consider it is particularly helpful to assert that occasions for making a declaration will be “rare”. Declarations will be as rare or as common as the statutory criterion dictates, albeit that a measure of discretion is reserved to the court by use of the verb should in the phrase “should make such a declaration” in s 20B(3)(b): see Brady at 251. Having said that, I agree that the courts should not make a declaration except on cogent evidence. It is plain that in considering the offender’s history for the purpose of determining whether to make the declaration the court may have regard not only to the offences which enlivened the discretion, but also to the entirety of the offender’s history.
[13] [14]-[18].
It is plain from those passages, that in dismissing the appeal, Vanstone J rejected a construction of s 20B(3) of the Sentencing Act which conditioned the exercise of the power on the Judge’s opinion that it was necessary to impose a disproportionate sentence to protect the community.
With respect to Vanstone J, and notwithstanding her Honour’s carefully reasoned analysis, I take a different view. In particular, it seems to me that a construction which conditions the exercise of the power on the formation of that opinion does not “read in” the words Vanstone J suggests, rather the construction simply takes the word “sentence” in the phrase “warrants a particular severe sentence in order to protect the community” to mean the particular sentence under consideration for the offence which has made the offender liable to be declared. So construed there is no oddity in the result that offenders whose offences attract very long sentences under ordinary principles will not need those sentences further extended in order to protect the community. What might be needed to protect the community in the future, if further offences are committed, is left to the court which will be called on to deal with those offences. The construction propounded by Vanstone J takes the phrase “a particularly severe sentence” to include both a “particularly severe” proportionate sentence fixed in accordance with the principle of proportionality and a longer protective sentence unlimited by that principle. It follows on that interpretation of the phrase that a declaration might be made even if community protection is achieved by a sentence fixed in the ordinary way. However, I am not able to accept that the legislature meant to include within the phrase “a particularly severe sentence” a proportionate sentence fixed in accordance with ordinary principles. Moreover, if the phrase “a particularly severe sentence” includes a proportionate sentence by what taxonomy are “particularly severe” proportionate sentences to be differentiated from other proportionate sentences.
Nor does the construction I propose conflate the circumstances calling for a declaration prescribed by s 20B(3) with the consequences stipulated by s 20B(4) of the Sentencing Act. It is an accepted principle of statutory construction to interpret a particular provision in its statutory context. Indeed, and this is the major reason for construing s 20B(3) in the way I propose, if the power is not limited to those cases when a disproportionate sentence is required, how is a sentencing court to determine when to make a declaration. Is an order to be made whenever an offender is liable to be so declared? If not, how “bad” need the offender’s antecedents be to warrant the making of the declaration. Alternatively, what risk of recidivism and level of potential harm will call for the order to be made? Moreover, if a court is to make a declaration without considering the sentence, which would ordinarily be imposed, against what yardstick is the disproportionate sentence to be fixed? To put it in another way, if the “particularly severe sentence” which may be imposed pursuant to s 20BA is not anchored in some way to the sentence which would otherwise be imposed is the only determinant of its length, the Court’s prediction of the time in the future when the defendant will pose no real risk to the community?
In short, I would hold that the purpose of the Part 2 Division 2A of the Sentencing Act is to allow a court, sentencing for an offence which renders the defendant liable to be declared a serious repeat offender, to impose sentences, for those offences, which are higher than those which would otherwise be fixed, in accordance with the common law principles and the provisions of the Criminal Law (Sentencing) Act 1988 (SA), when it is of the opinion that it is necessary to do so to ensure public safety and to protect the community. I would also hold that it is a condition of the exercise of the power to make a serious repeat offender declaration that the Court holds the prescribed opinion. That opinion cannot be reached without first asking whether or not a sentence fixed in accordance with ordinary principles does not adequately protect the community from the particular offender who is to be sentenced.[14]
[14] R v Jackamarra [2013] SASCFC 98 at [60].
In several earlier decisions of this Court on the serious repeat offender provisions of the Sentencing Act, observations have been made on the exceptional nature of the power to make a declaration.[15] The effect of my construction of Part 2, Division 2A of the Sentencing Act is that the power to make a declaration is conditioned on the sentencing judge forming an opinion that a disproportionate sentence needs to be imposed for the offences before the Court in order to protect the community. In a sense the formation of that opinion might be described as an exception to the usual course but that should not be understood as implying any factual presumption against a finding that a disproportionate sentence is necessary. The sentencing court must engage in the evaluative exercise of making a sentencing judgment, on the facts and circumstances of each particular case, as to whether there is a need for such a sentence in order to protect the community free of any presumptions. If the Court finds that it is necessary in the ordinary course, the declaration will be made for the reasons I gave in [35] above.
[15] R v Jackamarra [2013] SASCFC 98, [60]; R v Williams (2006) 96 SASR 226, [66]-[70].
The Judge in this case did not directly address the need for a longer sentence than would ordinarily be imposed before proceeding to declare the appellant to be a serious repeat offender. Indeed, as will shortly be shown the sentence imposed by the Judge in accordance with s 20BA of the Sentencing Act was no more severe than the sentence that would be imposed on ordinary principles. For that reason too, I would hold that the exercise of the sentencing discretion has miscarried. It is therefore necessary for this Court to consider the sentence it would impose.
I mention here that the appellant also contended that the Judge wrongly treated the suspended sentence imposed in 1996 as one of the three separate serious offences which condition the exercise of the power conferred by s 20B of the Sentencing Act. Section 20A(3) limits the offences to which the Division applies to serious offences on which a sentence of immediate imprisonment was imposed. However, there is no indication in the remarks that the Judge took the cannabis offence, for which the suspended sentence was imposed, into account in deciding that the power to make the order was enlivened. It is accepted that the heroin offence for which the appellant was sentenced to imprisonment in Western Australia together with the offences on which the appellant fell to be sentenced by the Judge enlivened the power.
Resentence
I commence by considering the sentence which should be imposed in accordance with sentencing principles, leaving aside for now the operation of s 20B and s 20BA of the Sentencing Act.
I turn first to the cannabis offending. The applicable maximum sentence for cultivation of between 20 and 99 cannabis plants is 25 years imprisonment. It will be remembered that 26 plants were found in the Allenby Gardens warehouse and at least 30 plants were grown at Gepps Cross. Cultivations of this size have attracted sentences of about three years in the District Court.[16] In R v Gjoni, White J commented on that range in these terms:[17]
The sentences disclosed in the comparative table provided by Mr Sale may indicate that insufficient regard is being given by sentencing Judges to the increased maximum sentence for offences of the present kind. Section 33B(2) of the Controlled Substances Act 1984 (SA) provides that the maximum penalty for the appellant’s offence is a fine of $200,000 or imprisonment for 25 years, or both. Section 33B came into operation on 3 December 2007. As Vanstone J has observed, the maximum penalty for production of the quantity of cannabis involved in this case before 3 December 2007 was $50,000 or imprisonment for 10 years, or both. There has therefore been a significant increase in the maximum penalty.
This indicates that Parliament intended that offences of the present kind should be regarded seriously, and that substantial sentences should be imposed for them. Sentencing courts should take account of these considerations.
The statement of Doyle CJ in R v Mangelsdorf remains pertinent:
The Court has referred time and time 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.
[Citations omitted]
[16] R v Gjoni [2012] SASCFC 48; R v Kafexholli [2012] SASCFC 140.
[17] R v Gjoni [2012] SASCFC 48, [16]-[18].
Having regard to the maximum sentence of 25 years, the appellant’s involvement as the principal offender in two sophisticated cultivations of close to 30 plants, which were produced for the purpose of sale and with a value of several hundred thousand dollars, warranted sentences in the order of seven years for each offence.
Sentences of imprisonment imposed for separate offences committed over the same period of time as a part of a single criminal enterprise are sometimes made wholly or partly concurrent. However, in the case of drug offences there are several strongly countervailing considerations. First, it is a notorious practice of organised drug syndicates to “decentralise” their operations. Putting all your eggs in one basket is as much a risk for illicit activities as it is for lawful ones. Indeed, in the case of illegal drug operations there is an additional advantage in the practice because sentences are affected by quantitative considerations. Secondly, if concurrent drug offending were dealt with by the imposition of wholly concurrent sentences, the statutory penalty hierarchy fixed by reference to quantity would be undermined. Thirdly, an offender who takes part in concurrent drug operations is likely to be significantly more morally culpable than a single cultivation offender because:
(a)the operations require a greater degree of organisation and collaboration.
(b)he is likely to hold a more senior position in a criminal organisation of one sort or another.
(c)the social harm is greater.
(d)the potential for profit is greater.
The appellant’s involvement in these offences serves as a good example of the matters to which I have referred. Plainly enough, the appellant is not to be sentenced for past offences of supplying cannabis interstate nor for the likely future offences of so doing which were frustrated by the discovery of the cultivations. Nonetheless, it is an important consideration here that the purpose of the cultivations was to produce cannabis for the appellant’s own profitable interstate distribution operations.
Quite apart from the objective circumstances to which I have referred, there are very few reasons for leniency to be found in the personal circumstances of the appellant. Indeed, having regard to his history of drug offending whilst on parole, and then on bail, a sentence which acts as a strong personal deterrent is also required.
I would have imposed a total notional head sentence of 12 years[18] for the cannabis cultivations but for the appellant’s guilty plea. In so doing, I have allowed for a very small degree of overlap of the sentences which I would have imposed on the individual counts. I would reduce the notional head sentence by just one year for the appellant’s very late pleas of guilty on the first day of trial. The sentence of 11 years I would have imposed for the cannabis offences, if they had stood alone, is just one year less than the sentence which the Judge imposed after making the serious repeat offender declaration.
[18] Cf R v Jones [2011] SASCFC 97 in which case a head sentence of 14 years for three similar sized cultivations, imposed before the 2007 increases in the maximum penalties, and an offence of possess cannabis for sale, was held not to be manifestly excessive.
The offences of trafficking in methylamphetamine were also a part of a sophisticated, ongoing and highly profitable wholesale interstate distribution operation. The method of concealment of the consignment of January 2011 shows a high level of preplanning and organisation.
The methylamphetamine trafficking offences standing alone should not attract a sentence of less than 12 years. There is little room for concurrency in the sentences for similar reasons to those outlined with respect to the cannabis offences. In addition the second methylamphetamine offence was committed after the appellant’s arrest for the cannabis cultivation and involved a different delivery method because of the raid on the Queensland buyer’s premises after the commission of the first methylamphetamine offence.
The offence of trafficking in cocaine was serious in itself. Standing alone, that offence too called for a substantial sentence, of not less than seven years, having regard to the 25 year maximum. The sum of the notional sentences I have indicated for the methylamphetamine and cocaine offending, no less than 19 years, is one year more than that which the Judge would have imposed for those offences if they had been committed alone.
The appellant’s offending must also be considered compendiously. He sat at the apex of a national, diversified drug trading operation. That operation had drawn in a number of, not always completely willing, participants. It appears to have involved the services of a professional accountant in circumstances which raise real questions about the corruption of, at least, the ethical responsibilities, of that accountant. The drug operation was well disguised by “fronts” of various sorts. The evidence shows that force and threats were used when necessary to effect the appellant’s criminal objects. Large profits were made out of the distribution of substantial amounts of drugs which had the potential to cause much social and personal misery.
The sum of the notional head sentences I would have imposed for the three different categories of drug offending in which the appellant engaged is 30 years. The offending was constituted by separate and distinct incursions into the national illicit drug trade which, in combination, constituted both a very substantial and diverse involvement in that trade. For that reason there is again little room for concurrency despite the temporal proximity of the offending. However, the very long period of imprisonment resulting from the simple arithmetical accumulation of the offences requires the sentences to be reviewed from the perspective of the personal and general deterrence which is necessary for the offending as a whole. It also calls for consideration of the way in which the impacts of the deprivations of imprisonment increase with the length of sentence served.[19] That process of review is commonly referred to as a review for totality and encompasses a consideration of whether the sentence is crushing.
[19] R v Copeland (No 2) (2010) 108 SASR 398, [102].
The appellant was 44 years of age at the time he was sentenced by the Judge. He will be 74 years of age at the completion of his sentence if a period of 30 years imprisonment were imposed. A sentence of that length would occupy close to all of the appellant’s remaining productive life. A sentence of that order is more than is necessary for the purpose of personal and general deterrence. On a review of the totality of the notional head sentence I would not fix a sentence of less than the 22 years and six months term which was imposed by the Judge. In particular, I would not reduce the sentence any further by reason of the lesser sentences imposed on the appellant’s co-offenders. They were all the appellant’s subordinates and their offending in particular aspects of the appellant’s enterprise was not in any way comparable to the greater culpability of the appellant. In addition, Vrynios’ low sentence was the result of his co-operation in the appellant’s prosecution.
Taking into account the unexpired parole, the appellant will be 66 years of age at the end of his term of imprisonment. In my view, a more severe sentence is not required in order to protect the community from the risk that the appellant might offend on his release. At the age of 66 and having been isolated from the drug underworld for close to two decades the appellant will not present, on his release, such an obvious and great danger to the community as to require the imposition of a more severe, preventative sentence. It follows that it was not necessary for the Judge, nor is it necessary for this Court, to make a s 20B declaration. I would set aside the Judge’s declaration.
There remains the question of the appellant’s non-parole period. The Judge fixed a non-parole period of 18 years in order to comply with the four-fifths minimum requirements proposed by s 20BA(1)(b) of the Sentencing Act. That maximum requirement is no longer applicable by reason of the setting aside of the serious repeat offender declaration. The need for a more severe sentence for the purposes of s 20B(3)(b) of the Sentencing Act is to be determined by reference to the head sentence. So much is clear because the Court has a wide discretion to fix a very high, non-parole period, indeed to decline to fix one at all even in the absence of s 20BA of the Sentencing Act. Moreover the close supervision of conditional parole in itself provides a measure of community protection. Nonetheless, the appellant’s prospects of rehabilitation judged by his past conduct are very poor. However, given the advanced age he will have attained on his eventual release I would fix a non-parole period of three quarters of his total head sentence.
Conclusion
I would allow the appeal for the limited purpose of reducing the non-parole period. The orders I would make are:
·Appeal allowed.
·Set aside the sentence fixed by the Judge and the s 20B declaration.
·Impose a sentence of 23 years, one month and five days with a non-parole period of 17 years 3 months commencing on 2 February 2011.
SULAN J: I agree with the reasons of the Chief Justice and with the orders that he proposes.
I make the following observation. In R v Williams,[20] I stated that I considered it to be only appropriate to make a declaration if the Court is satisfied that a disproportionate sentence is required to protect the community. I observed that, only in rare cases, will the Court be justified in departing from the recognised principle of proportionality. In making that statement, and in my reasons,[21] I made it clear that the declaration should only be made in circumstances in which the sentencing Judge considered that a disproportionate sentence was required for the offence with which the Judge was dealing, in order to protect the community.
[20] (2006) 96 SASR 226 at [68]-[69].
[21] See (2006) 96 SASR 226 at [66]-[67].
The maximum penalties for serious offenders are sufficiently high to give judges a wider discretion to impose significant penalties for defendants who repeatedly break the law. A judge is also given a wide discretion in setting a non-parole period. It may well be justified, in cases of a person who repeatedly offends, to set a non-parole period of four-fifths the head sentence, or more, without the sentence being disproportionate to the offending. There may be cases where a disproportionate sentence is required for the protection of the public but, in my view, those cases would be rare.
VANSTONE J: I have had the benefit of reading the reasons in draft form of the Chief Justice. As his Honour observes, in R v Jackamarra [2013] SASCFC 98, I set out my reasons for concluding that a serious repeat offender declaration might be made irrespective of whether the sentence to be imposed could be justified on usual sentencing principles. Since the Chief Justice has quoted from my reasons there is no need for me to elaborate on the position I took.
Although I acknowledge the force of the argument to the contrary, I adhere to the view I previously expressed. For that reason I consider that in the current matter it was open to the sentencing judge to make the declaration, and indeed that he “should” have made it in obedience to s 20B(3)(b) Sentencing Act. Nevertheless, I agree that, because regard was had to an incorrect maximum penalty, the sentence must be set aside and the appellant re-sentenced. I agree with the new sentence proposed by the Chief Justice, except that I would make the declaration afresh.
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