R v Bennett - [2015] SASCFC 164

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BENNETT
[2015] SASCFC 164
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Peek)
12 November 2015
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - PARITY BETWEEN CO-OFFENDERS OTHER RELATED OFFENDERS - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - PARITY BETWEEN CO-OFFENDERS OTHER RELATED OFFENDERS - GROUNDS FOR DISCRIMINATION BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS - PERSONAL FACTORS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
Appeal against sentence. The defendant pleaded guilty to one count of trafficking in a controlled drug. He was sentenced by a Judge of the District Court to a head sentence of three years and eight months of imprisonment, with a non-parole period of 15 months. The defendant was sentenced with two co-offenders in respect of this offence, Travis Davis and Alana Hill. The head sentence had been reduced on account of the defendant’s plea of guilty by 26.67 per cent. Pursuant to section 10C of the Criminal Law (Sentencing) Act 1988 (SA) the defendant was entitled to a reduction of up to 30 per cent.
Whether the reduction made by the Judge on account of the defendant’s plea of guilty was inadequate. Whether there was as a material disparity between the sentence imposed on the defendant and the sentences imposed on his co-offenders. Whether the sentence imposed was manifestly excessive.
Held per the Court:
1.       The sentence imposed was not manifestly excessive.
2.       When the entire sentences imposed on Davis and the defendant are considered, there is no relevant disparity.
3.       In sentencing Hill, the Judge was entitled to have been influenced by the significant steps Hill had taken toward rehabilitation.
Held per Gray J (allowing the appeal)(Peek J agreeing):
1.       If a sentencing judge considers it necessary or desirable to depart from the maximum discount for the guilty plea, this Court has indicated that it is desirable for reasons for the departure to be provided, in part to ensure that practitioners are in a position to advise their clients of the likelihood of a full benefit.
2.       Appeal allowed for the limited purpose of increasing the reduction on account of the defendant’s plea to a 30 per cent reduction.
3.       Defendant resentenced to a term of imprisonment of three years and six months, with a non-parole period of 13 months.
Held per Kourakis CJ (dismissing the appeal):
1.       There is no reason to interfere on account of the Judge’s failure to reduce the notional starting point by 30 per cent.
2.       The failure to give reasons for falling short of the maximum reduction by such a small amount, in the context of the timing of the plea, is not an error of law.
Controlled Substances Act 1984 (SA) s 32(3); Criminal Law (Sentencing Act) 1988 (SA) s 10C; Criminal Law (Sentencing) (Guilty Pleas) Amendment Act 2012 (SA), referred to.
House v The King (1936) 55 CLR 499; Kentwell v The Queen (2014) 88 ALJR 947; R v Dwyer [2015] SASCFC 12; R v Nguyen [2015] SASCFC 40; Postiglione v R (1997) 189 CLR 295; Green v The Queen (2011) 244 CLR 462, considered.

R v BENNETT
[2015] SASCFC 164
Court of Criminal Appeal: Kourakis CJ, Gray and Peek JJ

KOURAKIS CJ: I gratefully adopt the summary of the relevant factual circumstances in the judgment of Gray J. I agree that the sentence was not manifestly excessive for the reasons given by Gray J.
I also agree that there was no material disparity between the sentence imposed on the appellant and the sentences of his co-offenders for the reasons given by Gray J. I would add that even though the appellant fell to be sentenced for one offence, compared to three and two counts respectively for his co-offenders, it was an offence committed in the course of commercial trading. There was therefore little reason to differentiate between the co-offenders because of the differing number of counts of which they were convicted. Moreover, the appellant was, in the period of trading to which he admitted, a supplier to his co-offenders and the offence of which he was convicted involved a greater quantity of methylamphetamine than was involved in the earlier offences of his co-offenders.
I would not interfere on account of the Judge’s failure to reduce the notional starting point by 26.67 per cent instead of 30 per cent. True it is that no reasons were given for not reducing the notional starting point by 30 per cent but the reduction was very close to the maximum. The difference in terms of time to be served is two months. I acknowledge that two months imprisonment is not insignificant but neither is it substantial, particularly when only a proportion will be served in custody and the remainder on parole. Moreover, the appellant did not plead guilty until 25 February 2015 even though the declarations had been provided on 19 November 2014, albeit on an earlier information than the one filed on 14 January 2014. The declarations disclosed the strength of the prosecution case of which the appellant must have, in any event, been well aware. A plea entered soon after the delivery of the declarations would have more strongly attracted the maximum reduction. I am not persuaded that the failure to give reasons for falling short of the maximum reduction by such a small amount, in the context of the timing of the plea, is an error of law. If I am wrong, I would not reduce the head sentence imposed both because the plea was not as early as it might have been and because the starting point was a moderate one.
I would dismiss the appeal.
GRAY J.
This is an appeal against sentence.
On 21 November 2014, the defendant and appellant, Daniel John Bennett, was sentenced for one count of trafficking in a controlled drug.[1] The offence was committed on 20 August 2013. The defendant was sentenced to a head sentence of five years of imprisonment, reduced to three years and eight months of imprisonment on account of his guilty plea. A non-parole period of 15 months was fixed. The defendant was sentenced with two co-offenders in respect of this offence.
[1] Controlled Substances Act 1984 (SA) section 32(3). The maximum penalty for that offence is a fine of $50,000.00 or imprisonment for 10 years or both.
One co-offender, Travis Mark Davis, was sentenced for three counts of trafficking in a controlled drug. Davis received a head sentence of five years of imprisonment, reduced to three years and eight months on account of his guilty pleas and further reduced to three years and seven months on account of his time in custody. A non-parole period of 20 months was fixed. The sentencing Judge found no good reason to suspend this sentence of imprisonment.
The other co-offender, Alana Alice Jordana Hill, was sentenced for two counts of trafficking in a controlled drug. She received a head sentence of four years of imprisonment, reduced to two years and eight months on account of her guilty pleas. A non-parole period of 12 months was set. This sentence was suspended upon Hill entering into a three year good behaviour bond with conditions in the amount of $1,000.00.
The Circumstances of the Offending
The circumstances of the offending may be summarised as follows. All of the offending occurred in and around Victor Harbour. At the time, Davis and Hill were living together and were in a relationship. The defendant knew Davis and Hill socially.
On 12 July 2013, police commenced an undercover operation targeted at Davis. All charges related to the sale of methylamphetamine to an undercover operative in August 2013.
On 12 August 2013, the undercover operative attended unannounced at the door of the house in which Davis and Hill were residing. Davis answered the door and the operative said he wished to purchase drugs. The operative was taken inside to a lounge room, where Hill was present. Davis took a seat on a couch next to ten press seal bags, each containing an off-white substance. A revolver type handgun was on the seat next to Davis. Davis handed the operative one of the plastic press seal bags in exchange for $100.00. Hill gave the operative Davis’ phone number as a contact for future drug purchases. The operative then left. The press seal bag was later found to contain 0.11 grams of powder, which contained 0.05 grams of methylamphetamine. This transaction was the subject of the first count of trafficking against Davis and Hill.
On 15 August 2013, the same undercover operative again attended the premises occupied by Davis and Hill to purchase more drugs. Davis was present and told the operative that he was out of drugs and an arrangement was made for the operative to return later that day. Later that day, the operative sent an SMS message to Davis using the mobile phone number provided by Hill. Davis called the operative in response. Following the conversation, the operative attended Davis and Hill’s premises. He was taken into the house and conversed with Davis. The defendant entered the room. Other unknown men were also present. Davis handed the operative a press seal bag containing an off-white substance and the operative handed Davis $350.00. The operative then left. Hill was not present at all on this day. Later examination revealed the press seal bag to contain 0.49 grams of powder, containing 0.39 grams of methylamphetamine. This transaction gave rise to the second count of trafficking, which related only to Davis.
On 19 August 2013, the undercover operative initiated SMS contact with Davis using the mobile phone number provided by Hill. This led to the operative attending at the same premises on 20 August 2013. The operative entered the house and initially commenced a conversation with Hill and three unknown men. Hill then called the operative into the kitchen area where the operative was shown two plastic press seal bags containing a crystalline substance. They then returned to the lounge, where Davis was seated working on two laptops. The operative observed Hill supply a small plastic press seal bag of cannabis to one of the unknown men, who subsequently dropped it in front of the operative and then picked it up. The unknown men left. Shortly thereafter, at the direction of Davis and Hill, the operative drove the three of them to business premises in Port Elliot. Hill was seated in the front passenger seat. The defendant exited the business premises and got into the back of the vehicle. The operative drove a short distance before stopping. Hill produced a small set of electronic scales, which she sat on a book on top of the centre console. The defendant produced a plastic press seal bag containing a crystalline substance from inside his jacket. The defendant moved the scales to the backseat. Hill handed the defendant a scoop and the defendant measured out an amount of the crystalline substance from the full bag into a smaller press seal bag on the scales. The defendant handed the smaller press seal bag to the operative, who handed $700.00 to the defendant. The operative drove the defendant back to the business premises and then Davis and Hill back to their premises. The powder weighed 1.01 grams and contained 0.6 grams of methylamphetamine. This transaction gave rise to the third count of trafficking against Davis, the second count against Hill and the single count against the defendant.
The defendant, Davis and Hill were arrested on 3 September 2013. All pleaded guilty at an early date, entitling each to a reduction of up to 30 per cent, pursuant to section 10C of the Criminal Law (Sentencing) Act 1988 (SA).
The Sentencing Judge
The Judge concluded that the defendant and Davis each occupied a similar position in the drug dealing hierarchy. In particular, the Judge observed:
There is no dispute Mr Davis obtained the methylamphetamine that he sold to customers from several sources of whom you, Mr Bennett, were one. However, it is not suggested that you, Mr Bennett, occupied a position higher than Mr Davis in the drug dealing hierarchy. There is also no dispute that each of you participated in the trade to finance your own addiction to the drug.
In my view, each of you should be sentenced on the basis that you operated at a street dealer level. In your case, Ms Hill, you seemed to have assisted Davis in his enterprise to support your drug addiction.
The Judge first addressed the circumstances of the defendant, Davis and Hill, noting their personal and criminal antecedents and, in particular, their involvement in the use of drugs. The Judge then proceeded to sentence. In respect of Davis, the Judge said:
I begin with you, Mr Davis. In relation to three counts of trafficking to which you pleaded guilty, I will impose a single sentence for all offences pursuant to s.18A of the Criminal Law (Sentencing) Act. By reason of your early guilty pleas, you are entitled to a sentencing discount of up to 30%. The starting point is a sentence of five years imprisonment reduced to three years and eight months on account of your early guilty pleas and further reduced to three years and seven months and account of the one month you spent in custody before your release on home detention bail. I fix a non-parole period of 20 months.
Having regard to the gravity of the offences and your poor performance whilst on bail, I consider there is no good reason to suspend the sentence. The commencement of the sentence is backdated to 23 October 2014 when I revoked your bail agreement.
In respect of Hill, the Judge said:
I turn to you, Ms Hill. I infer that your level of offending was less serious than that of Mr Davis in that you were acting in the nature of an assistant though you plainly benefited by reason of that assistance. For the two counts of trafficking I impose a single sentence pursuant to s.18A of two years and eight months imprisonment reduced from four years on account of your guilty pleas. Since your arrest you have embarked on a successful and complete rehabilitation. I fix a non-parole period of 12 months.
Having regard to your guilty pleas and the efforts that you have made to turn your life around, I do not think that neither you nor the community would benefit from you being imprisoned. I believe there is good reason to suspend the sentence. The sentence is suspended upon you entering into a bond in the amount of $1000 to be of good behaviour for three years.
When considering the defendant, the Judge said:
In relation to you, Mr Bennett, your early guilty plea attracts a sentencing discount of up to 30%. I impose a sentence of three years and eight months imprisonment reduced from five years on account of your early guilty pleas. Your progress on bail was marred by the amphetamine driving offence, however, I consider your prospects of rehabilitation to be greater than those of Mr Davis. Accordingly I fixed a low non-parole period of 15 months. In my view, there is no good reason to suspend the sentence having regard to the nature of your offending.
The Appeal
Four primary complaints were advanced on the appeal. It was said that there an inadequate reduction on account of the defendant’s plea of guilty; that there was a material disparity between the sentence imposed on the defendant and the sentences imposed on Davis and Hill; that the sentence imposed was manifestly excessive; and that the Judge’s exercise of discretion concerning suspension miscarried.
In terms of the latter two grounds, this Court has a discretion to intervene where, although the nature of the error is not discoverable, the sentence arrived at by a sentencing judge is plainly unjust.[2] To enliven this Court’s jurisdiction to interfere the appellant must establish that the sentence arrived at was “outside the permissible range of sentences for the offender and the offence”.[3]
[2] House v The King (1936) 55 CLR 499, 505.
[3] Kentwell v The Queen (2014) 252 CLR 601, 615.
On appeal, counsel for the defendant pointed out that the Judge only allowed a reduction on account of the plea of 26.67 per cent, rather than the full 30 per cent. If the full reduction was applied it would result in a reduction in the head sentence of two months. The Judge made a reduction of 33 per cent in respect of the sentence to be imposed on Hill. Counsel for the defendant further argued that, insofar as there was differing circumstances between the defendant and his co-offenders, those differences favoured the defendant. Counsel submitted that the fact that these differences were not recognised in the eventual sentence imposed on the defendant suggested error.
Section 10C of the Sentencing Act
As the proceedings were initiated after 11 March 2013, the defendant was to be sentenced in accordance with the Criminal Law (Sentencing) (Guilty Pleas) Amendment Act 2012 (SA). This Act inserted section 10C into the Sentencing Act, which provided that the defendant was, by his plea, entitled to a discount of up to 30 per cent. None of the factors outlined in section 10C(4) were applicable to vitiate the application of the full benefit to the defendant. No other reason was articulated by the sentencing Judge as to why the full discount was not provided to the defendant.
This Court has recently had cause to consider the operation of section 10C of the Sentencing Act in a number of decisions.[4] Those decisions have confirmed the utilitarian purpose of the section and the need for legal practitioners to have confidence about what discount is likely to be received on a timely plea when advising their clients as to the same.
[4] See e.g. R v McPhee [2014] SASCFC 107, R v Dwyer (2015) 121 SASR 587, R v Nguyen [2015] SASCFC 40, R v Wakefield (2015) 121 SASR 569.
As to these issues, Stanley J in Dwyer stated:[5]
In my view, the learned sentencing judge erred in failing to afford the appellant the entire discount permitted by s 10C(2)(b). As I have noted, the learned sentencing judge reduced the head sentence he would otherwise have imposed by reason of the appellant’s pleas of guilty by 25 per cent. Pursuant to s 10C(2)(b) a discretion is conferred permitting the judge to reduce the appellant’s sentence by up to 30 per cent. In my view, the learned sentencing judge failed to explain adequately why he did not reduce the sentence he would otherwise have imposed by the maximum available. In this context it is important to recognise the basis of the scheme enacted pursuant to s 10C. There is no doubt that s 10C, like s 10B, confers a discretion upon a sentencing court. Recognition that the power conferred by s 10C is discretionary does not detract from the utilitarian purpose of the provision. The purpose of s 10C is to regulate and make transparent sentencing discounts for guilty pleas and to encourage offenders to plead early, thereby decreasing delays in the criminal justice system. The power conferred must be construed accordingly. ...
[5] R v Dwyer (2015) 121 SASR 587, 597-8 (Kourakis CJ and Gray J agreeing).
If a sentencing judge considers it necessary or desirable to depart from the maximum discount, this Court has indicated that it is desirable for reasons for the departure to be provided, in part to ensure that practitioners are in a position to advise their clients of the likelihood of a full benefit. As to this point, Nicholson J in Nguyen stated:[6]
... However, there is a practical imperative in the context of the new regime. It is important that accused persons be encouraged to plead as early as possible and that they, and counsel advising, can be confident that an early plea ordinarily will be rewarded in accordance with the expectation engendered by the statute. There will be cases where a proper exercise of the discretion will result in something less than the maximum. However, the utility of the scheme will be seriously undermined if accused persons and their counsel do not understand the reasons why, in other cases and in their own case, the maximum might not have been and might not be, respectively, forthcoming. Given the greater emphasis under the statutory regime on the utility of an early plea as compared with the more amorphous remorse and contrition, reasons and an understanding of their role have become more important.
[6] R v Nguyen [2015] SASCFC 40, [19] (Sulan and Lovell JJ agreeing).

Counsel for the defendant submitted that the full discount should have been applied or that reasons should have been provided as to why the full discount was not applied. The absence of either occurring is indicative of a demonstrable error in the sentencing process. The period of two months is not insubstantial for an offender in a custodial setting. It was then argued that, having regard to this demonstrable error, the Court should consider the sentence afresh, and that process should apply to the head sentence, the non-parole period and the consideration of whether the sentence should be suspended.
Principle of Parity
The principle of parity in sentencing recognises that “like should be treated alike but that, if there are relevant differences, due allowance should be made for them”.[7] The principle exists, in part, in order to avoid unjustifiable disparity between the sentences imposed upon offenders involved in the same criminal conduct or a common criminal enterprise.
[7] Postiglione v R (1997) 189 CLR 295, 301.
In Green the majority restated the principle of parity:[8]
... In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may “reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender”. The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen: “the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.” The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.
[Footnotes omitted.]
[8] Green v The Queen (2011) 244 CLR 462, 474-5.
It is accepted that, even when sentences are disparate, the parity principle will not always have work to do in the sentencing process. For example, if one co-accused was possessed of significantly worse antecedents than the other, the principle may not apply. Moreover, even if a disparity is found to exist in the extent and nature of the offending, it does not follow that the appeal must automatically be allowed.
In Green it was held that the power to reduce a sentence when disparity is present is discretionary and that there is no obligation to reduce a co-offender’s sentence to one that is inadequate, although such disparity may be remedied by the reduction of the offending sentence to a level which, although lower, is still within the appropriate range.
It is relevant to note that no mention of the principle of parity was made by the sentencing Judge in his sentencing remarks.
Counsel for the defendant submitted that, in considering the application of the parity principle, the Court should first ascertain whether there is a disparity between the sentences imposed. It was said that this required an assessment to be made of the defendant’s offending compared to that of the co-offenders, both as to the nature of the offending and its extent.
In regard to Davis, it was emphasised that he had been involved in an established business of selling methylamphetamine for some time. It was pointed out that he was sentenced in respect of three counts of trafficking on three different occasions. Attention was drawn to Davis’ possession of a firearm at the time of the subject offending on 12 August 2013. It was also pointed out that Davis breached the terms of his bail. Reference was made to the criminal antecedents of Davis and, in particular, to his involvement in drug offending. In respect of Hill, it was pointed out that she was involved with Davis in an established business of selling methylamphetamine. It was said that the Judge was wrong to characterise her role as less than that of Davis. It was said that an analysis of the evidence of the undercover operative clearly demonstrated that she was equally involved with Davis in the offending and in many respects was taking a lead in regard to their criminal activities. It was pointed out that she was sentenced in respect of two counts of trafficking and that her criminal conduct was in breach of a good behaviour bond. Hill had lengthy criminal antecedents, including drug and firearm offences.
The defendant, as earlier noted, was only sentenced in respect of one count of trafficking, had no criminal antecedents in regard to drug offending, had only been involved in a course of criminal conduct for a month and had not breached any court order at the time of the subject offending. It was claimed that, on any view, his criminal culpability was less than that of Davis or Hill.
In assessing the defendant’s criminal culpability, it is to be borne in mind that, in respect of the 20 August 2013 offending, he was the supplier of the drug and he carried on his person a more substantial quantity than was required to meet the request of the undercover operative. Notwithstanding these factors, I consider that the offending of Davis and Hill was more serious than that of the defendant.
The next consideration relates to the personal circumstances of the defendant, when compared to those of Davis and Hill. Davis was some years older than the defendant. Their antecedents were broadly similar, save that the defendant had the benefit of a suspended term of imprisonment. It was pointed out that Davis’ compliance with home detention bail was marred by constant breaches due to further substance abuse. The defendant was detected driving under the influence of methylamphetamine on one occasion while on bail for this offending. To my mind, there is little to distinguish between Davis and the defendant in respect of their antecedents. At the time of sentencing, Hill had progressed in her rehabilitation. She had a lengthy period of being clean from drug use. Her compliance with bail had been satisfactory. She had demonstrated prospects of future employment. I consider that Hill’s antecedents demonstrated that she had better prospects of rehabilitation that either the defendant or Davis.
In the present proceeding, the Judge’s notional head sentence in respect of Davis and the defendant was five years. The Judge made an identical reduction on account of their pleas. The Judge made a further reduction in the case of Davis of one month on account of time spent in custody. In the case of the defendant, the Judge fixed a particularly merciful non-parole period of 15 months, whereas in the case of Davis, the Judge imposed a non-parole period of 20 months.
When the entire sentences imposed on Davis and the defendant are considered, I am not satisfied that there is any relevant disparity.
I consider the sentence imposed on Hill to have been materially influenced by the significant steps she had taken toward rehabilitation. The Judge was entitled to reflect on this matter, both in fixing a head sentence, the non-parole period and when considering the question of suspension. The Judge made an error in the extent of the discount that he applied in regard to Hill, but in all the circumstances, I do not consider that this can give rise to a sense of grievance on the part of the defendant, providing an adjustment is made to allow for the full 30 per cent discount in his sentence.
Having regard to the foregoing, it is appropriate to indicate that I consider that the sentence imposed on the defendant, subject to an adjustment made on account of the plea, was well within the sentencing discretion of Judge, and I would not otherwise interfere with the head sentence or non-parole period imposed.
Suspension
On the appeal, the defendant complained about the failure of the Judge to suspend the sentence. It was suggested that good reason did exist. In particular, attention was directed to the fact that this was the defendant’s first drug offence. My review of all of the circumstances of the matter satisfies me that the Judge’s discretion did not miscarry.
Conclusion
I would allow the defendant’s appeal for the limited purpose of increasing the reduction on account of the defendant’s plea to a 30 per cent reduction. As a consequence, I would set aside the sentence imposed in the District Court. I would sentence the defendant to a term of imprisonment of three years and six months. I would fix a non-parole period of 13 months. In doing so, I have been more merciful than the sentencing Judge in regard to the fixing of the non-parole period.
PEEK J. I agree with the orders proposed by Gray J and with his reasons.