R v Best - [2017] SASCFC 55

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BEST
[2017] SASCFC 55
Judgment of The Court of Criminal Appeal
(The Honourable Justice Stanley, The Honourable Justice Parker and The Honourable Justice Lovell)
26 May 2017
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - PARTICULAR CASES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE
Appeal against sentence imposed on the appellant for one count of trafficking in a controlled drug and three firearms offences, to which he pleaded guilty.
The sentencing judge fixed a head sentence for the trafficking offence of two years and five months. But for the plea of guilty the head sentence would have been four years. The judge imposed one sentence of two weeks and six days for associated breaches of bail and an intervention order. But for his pleas of guilty the head sentence would have been four weeks. These sentences were to be served concurrently.
The judge imposed a single sentence of 14 months and two weeks in respect of the firearms offences. But for the pleas of guilty the sentence would have been two years. That sentence was ordered to be served cumulatively on the sentence for the trafficking offence.
Accordingly, the total head sentence was three years, seven months and two weeks, with a non-parole period of two years and four months.
Held:
1. The sentence imposed for the trafficking offence is manifestly excessive, having regard to the circumstances. This was low-level offending in which the appellant was trafficking in a small amount of methylamphetamine to feed his addiction. He has no previous convictions of a drug-related nature, and has good prospects of rehabilitation. As such the starting point of four years was manifestly excessive (at [31]).
2. The sentence imposed for the firearms offences were not manifestly excessive. Firearms offences represent a serious and real threat to public safety and sentences for firearms offences must reflect the imperative of both specific and general deterrence (at [32]).
3. The appellant is resentenced to 21 months and three weeks in respect of the trafficking offence. To that sentence must be added the sentence of 14 months and two weeks for the firearms offences and the concurrent sentence of two weeks and six days for the breach of bail and intervention order offences. This creates a head sentence of 36 months and one week. The sentence for the firearms offences is to be served cumulatively with the sentence for the trafficking offence. A non-parole period of 18 months is fixed. The sentence and non-parole period are backdated to 27 April 2016 (at [57]).
Controlled Substances Act 1984 (SA) s 32; Firearms Act 1977 (SA) s 11, s 29A; Criminal Law (Sentencing) Act 1988 (SA) s 33BB, s 38, referred to.
R v Young (2016) 126 SASR 41; R v Dell (2016) 126 SASR 571, applied.
R v Standley [2016] SASCFC 141, distinguished.
Markarian v The Queen (2005) 228 CLR 357; The Queen v Morse (1979) 23 SASR 98; Hili v The Queen (2010) 242 CLR 520; R v Weatherill [2015] SASCFC 113; R v Cetojevic (2005) 92 SASR 451; R v Kong (2013) 115 SASR 425; R v Tran [2000] SASC 431; R v Daniele [2014] SASCFC 22; R v O'Toole [2013] SASCFC 18; R v Mangelsdorf (1995) 66 SASR 60; R v Couper [2009] SASC 361; R v Filipponi (2016) 126 SASR 464; R v Hosking [2017] SASCFC 50; Police v Holer [2016] SASC 187; Attorney-General v Tichy (1982) 30 SASR 84; R v Violi [2015] SASCFC 2; R v Rerich [2016] SASCFC 78; R v E, AD (2005) 93 SASR 20, considered.

R v BEST
[2017] SASCFC 55
Court of Criminal Appeal: Stanley, Parker and Lovell JJ
STANLEY J.
Introduction

This is an appeal against sentence.
The appellant pleaded guilty to the following offences:
1Traffic in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA);
2Aggravated possess a loaded class H firearm, namely, a silver .22 handgun whilst not holding a firearms licence authorising possession of that firearm contrary to s 11(1) of the Firearms Act 1977 (SA);
3Possess class H firearm, namely, a Browning handgun, whilst not holding a firearms licence authorising possession of that firearm contrary to s 11(1) and s 11(7b) of the Firearms Act 1977 (SA); and
4Possess a silencer contrary to s 29A(1) of the Firearms Act 1977 (SA).
At the relevant time the appellant was on a bond imposed in the Magistrates Court in November 2015. As a consequence of the breach of that bond the appellant fell to be sentenced for the offences of breach of bail and breach of an intervention order.
The appellant was entitled to the 30 per cent discount for the plea of guilty he entered to the bond breach. He was entitled to a 40 per cent discount for his pleas of guilty in relation to the other offences.
The sentencing judge fixed a head sentence for the trafficking offence of two years and five months. But for the plea of guilty the head sentence would have been four years. The judge imposed one sentence of two weeks and six days for the breach of bail and breach of intervention order offences. But for his pleas of guilty the head sentence would have been four weeks. The judge ordered that this sentence be served concurrently with the sentence imposed for the trafficking offence.
The judge imposed a single sentence of 14 months and two weeks in respect of the firearms offences. But for the appellant’s pleas of guilty the sentence would have been two years. That sentence was ordered to be served cumulatively on the sentence for the trafficking offence.
Accordingly, the total head sentence was three years, seven months and two weeks. The judge fixed a non-parole period of two years and four months.
The judge could not find good reason to suspend the sentence. The judge considered the appellant to be an unsuitable person to serve his sentence on home detention.
The sentences were backdated to 27 April 2016.
The judge further imposed a firearms prohibition order prohibiting the appellant from holding or obtaining a firearms licence until further order.
Grounds of appeal
The appellant seeks to appeal on the following grounds:
1The head sentence and non-parole period are manifestly excessive.
2The sentencing judge erred in deciding that no good reason existed to suspend the sentence.
3In the alternative to ground 2, the judge erred in failing to adequately consider the factors relevant to the imposition of a home detention sentence.
4The judge erred in failing to consider whether the offending was connected in time and circumstances such as to support concurrency or partial concurrency.
5The judge erred in finding the offending was not isolated.
A Judge of this Court granted permission to appeal on ground 1 and referred the question of permission on grounds 2, 3, 4 and 5 to this Court.
Circumstances of the offending
On 27 April 2016 police conducted a traffic stop of a motor vehicle driven by the appellant. The vehicle was registered in his partner’s name. A search of the vehicle located two small clip bags containing a white crystalline substance. An analysis found that the crystalline substance was a mixed amount of methylamphetamine weighing 0.76 grams.
On the front passenger seat of the motor vehicle police also found a mobile phone and a black case containing multiple press seal bags and digital scales. Police also found a 30 centimetre knife and cannabis in the vehicle.
Police subsequently searched the appellant’s premises and located a silver Mauser .22 handgun, a Browning handgun and a silencer. The Mauser was loaded but the firearms were inoperable and the silencer did not fit either firearm. Police also located a notebook containing a tick list.
The sale of the methylamphetamine would have realised between about $380 and $760 if sold in small amounts at street level.
At the time of the appellant’s arrest he had been unemployed for a period of 10 months. However, the appellant did not provide any explanation for his possession of methylamphetamine or how he had engaged in trafficking.
The sentencing judge rejected the explanation proffered by the appellant through his counsel that he had the scales to weigh drugs when purchasing them in order to ensure that he received what he paid for and that the tick lists were a record of money he had borrowed. The judge rejected the submission that the appellant’s offending was isolated. The judge said, “… your explanation for the scales and lists cannot be looked at in isolation and their coexistence, along with the bags and your unemployment, gives rise to the inference, to the exclusion of all other possibilities, that you were selling methylamphetamine in order to support your own habit and that you had been doing so for a little while at least, and that some of the relevant methylamphetamine was your stock-in-trade while the balance was for your own use.”
Personal circumstances of the applicant
The appellant was 26 years of age. He had no relevant prior convictions. He was addicted to methylamphetamine. He had been using drugs from the age of 11. Notwithstanding his addiction he had a consistent work history in the construction industry commencing at age 18 until about 10 months before this offending. He has employment available to him upon his release from prison. He has the support of his parents and his former partner who is the mother of their young daughter. The sentencing judge had before him a number of references that he considered evidenced positive prospects for the appellant’s rehabilitation. He noted that the time the appellant had spent in custody since his arrest had saved his life in that he had become drug-free and had taken the opportunity to develop appropriate insight to make the right choices for the future so as to focus on his young daughter, employment and addressing his issues with drugs and gambling.
The judge had a psychological report that diagnosed the appellant as suffering from a number of recognised psychological conditions which required treatment for cognitive functioning and anxiety issues. The psychologist, Dr Lim, considered that those conditions, if left unaddressed, would result in the appellant remaining within the moderate range risk of recidivism. She recommended the appellant needed community based support and treatment programs which were not available in prison. However, she considered that there were a number of factors in his life which suggested his prospects of rehabilitation were positive.
The judge’s sentencing remarks
After setting out the circumstances of the offending and the appellant’s personal circumstances the sentencing judge referred to the issue of whether the appellant’s offending in relation to trafficking in methylamphetamine was isolated. He also referred to the appellant’s interest in firearms and the appellant’s explanation for his possession of the firearms the subject of the charges on the basis that he had an interest in firearms and had purchased one of the handguns in an hotel and found the other wrapped in tape by the side of the road. He also noted that the appellant said he had bought the silencer at a garage sale. The sentencing judge found there was nothing to link the trafficking offending to the firearms or to suggest that the appellant had the firearms for any nefarious purpose, however, he found “it is nonetheless plain that they could have been used as a means of reinforcing threats if they fell into the wrong hands”.
The judge then turned to the imposition of sentence. He noted that the appellant put forward a false story about whether the trafficking was isolated, saying that this went to whether or not the appellant was contrite in relation to that crime. The judge noted that the offences for which the appellant fell to be sentenced were plainly serious. He observed that the maximum sentence for the offence of trafficking is imprisonment for 10 years or a fine of $50,000 or both, the maximum sentence for the aggravated offence of possessing the class H Mauser firearm without a licence is imprisonment for 10 years or a fine of $50,000, the maximum sentence for possessing the class H Browning firearm without a licence is seven years or a fine of $35,000, and the maximum sentence for possessing the silencer is two years imprisonment or a fine of $10,000.
Having fixed sentence, the judge found that his offending was so serious and the need for deterrence was so significant that good reason to suspend the sentence could not be found and for the same reasons he considered that the appellant was an unsuitable person to serve his sentence on home detention and a home detention order could not properly be made. In any event he held that the appellant was ineligible for home detention because he would be serving cumulative sentences.
Ground 1
Ground 1 is that in all the circumstances the sentence imposed was manifestly excessive.
The approach of an appeal court in considering an appeal against sentence is explained by the High Court in Markarian v The Queen.[1]Gleeson CJ, Gummow, Hayne and Callinan JJ said:[2]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”...
[Citation omitted.]
[1] [2005] HCA 25, (2005) 228 CLR 357.
[2] [2005] HCA 25 at [25], (2005) 228 CLR 357 at 370 – 371.
In The Queen v Morse[3] King CJ identified the factors to be considered in determining whether a sentence is manifestly excessive. He identified those factors as the maximum sentence prescribed by law, the standards of sentencing customarily observed for offences of that kind, the seriousness of the offence committed when compared to other offences of its kind, and the personal circumstances of the offender.[4]
[3] (1979) 23 SASR 98.
[4] (1979) 23 SASR 98 at 99.
To interfere with a sentence on the grounds of manifest excess the court must be satisfied that the sentence imposed was definitely above the highest end of the range of sentences that could be imposed on the facts before the sentencing judge. In Hili v The Queen[5] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:[6]
… appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.
[Citations omitted.]
[5] [2010] HCA 45, (2010) 242 CLR 520.
[6] [2010] HCA 45 at [59], (2010) 242 CLR 520 at 538 – 539.
In considering whether a sentence is manifestly excessive it is appropriate to consider the notional head sentence fixed by the sentencing judge before the application of the statutory discount for a plea of guilty.[7] To approach consideration of whether a sentence is manifestly excessive without regard to the application of the statutory discount would deprive the offender who enters the plea of part of the value of the incentive that the Parliament intended to confer for the plea, at least in the context of the exercise by the offender of an appeal against sentence on the ground of manifest excess, and would distort the application of the test of manifest excess. Generally, a sentence will be manifestly excessive if the notional starting point for fixing a sentence for imprisonment is beyond the range of sentences applicable to that offending.
[7] R v Weatherill [2015] SASCFC 113 at [6].
In sentencing for trafficking offences general deterrence is a primary consideration.[8] In R v Kong,[9] this Court said:
There continues to be concern about the prevalence of drug abuse in our community. Since Mangelsdorf, the variety of illicit drugs available has increased. Twenty years ago, heroin was a primary concern and was considered to be the most harmful of illicit drugs. The position has changed with the promotion of methylamphetamine and the availability of a variety of illicit drugs, all of which are addictive and have very harmful effects. Research and knowledge about the effects of drugs known as “speed” and “ice” has developed. The so-called party drugs are readily available. The manufacture and importation of drugs is prevalent. The abuse of illicit drugs causes great social harm. The treatment and the management of drug addiction places a substantial financial burden on the health budgets of this State and the Commonwealth. The crimes committed by addicts to support their habits cause much loss and suffering to the community. Those who organise and participate in the distribution of illicit drugs create a serious risk of collateral injury to innocent members of the public. It is, therefore, nor surprising that in an effort to tackle the social harm caused by the abuse of illicit drugs, Parliament has imposed substantial penalties for dealing in commercial drugs to both punish and deter those who are attracted by the large profits that dealing can generate. For those reasons, general deterrence must be given great weight in the balancing of the competing sentencing objectives in the case of commercial drug dealers.
[8] R v Cetojevic (2005) 92 SASR 451 at [25].
[9] [2013] SASCFC 15, (2013) 115 SASR 425 at [90].
As a consequence while the court must consider the prospects of an offender’s rehabilitation in fixing sentence, except in quite exceptional circumstances, rehabilitation must be subservient to the need for deterrence.[10] As this Court recently made clear in R v Young,[11] addressing sentencing for trafficking in a controlled substance, sentences in the range of four to seven years are appropriate for offenders who are motivated to a greater or lesser extent by profit.[12] However, the offending of a street dealer who trafficks in small amounts of a controlled substance only to feed his or her addiction is at the lower end of the scale of objective seriousness. In those cases, as Kourakis CJ said: [13]
There will be a relatively greater scope for rehabilitation in the case of a first offender dealer whose offending arises out of an all-consuming addiction but who has voluntarily embarked on a course of withdrawing from use of the drug. A sentence of less than four years imprisonment may be appropriate for offenders of that kind. However, that level of leniency cannot continue to be extended in the face of persistent offending either whilst on bail, or after sentence on earlier offending. There is much less reason for leniency in the face of persistent and recidivist trafficking even for the heavily addicted street dealer. As the prospects of rehabilitation diminish and the need for personal deterrence increases, the addicted street dealer can expect sentences in the same order as those imposed on the profit driven offenders.
[10] R v Tran [2000] SASC 431 at [34].
[11] [2016] SASCFC 102, (2016) 126 SASR 41.
[12] [2016] SASCFC 102 at [66], (2016) 126 SASR 41 at 62.
[13] [2016] SASCFC 102 at [65], (2016) 126 SASR 41 at 62.

In this case, the notional starting point for fixing the head sentence for the trafficking offence is four years. In the circumstances where this was low-level offending, trafficking in a small amount of methylamphetamine to feed his addiction, and the appellant is a relatively young man who was addicted to methylamphetamine, with no previous convictions for drug offending and with good prospects of rehabilitation, even allowing for the judge’s finding that the offending was not isolated, the starting point of four years is manifestly excessive having regard to the principles in Young. Accordingly, the sentencing discretion miscarried. I would allow the appeal on this ground and set aside the sentence for the trafficking offence.
On the other hand, I would not interfere with the sentence imposed by the sentencing judge for the firearms offences. Firearms offences represent a real and serious threat to public safety. The possession, trade and use of unregistered firearms is of significant concern to the community.[14] This Court has repeatedly emphasised that sentences for firearm offences must reflect the imperative of both general and specific deterrence. Notwithstanding that the two firearms in this case could not have been discharged, they could still have been used to provoke fear and intimidate others. This offending called for a substantial sentence.
[14] R v Daniele [2014] SASCFC 22 at [25] – [26].
The sentence discretion having miscarried it is not necessary to consider the other grounds of appeal although the arguments advanced by the appellant on those grounds inform the resentencing of the appellant.
Resentencing
I would re-sentence the appellant for the trafficking offence on the basis of a notional starting point of three years. I would reduce that to a sentence of 21 months and three weeks for the plea of guilty. As I have indicated, I would impose the same sentence of 14 months and two weeks imprisonment for the firearms offences after allowing a discount for the pleas of guilty.
At issue is whether the trafficking and firearms sentences should be served cumulatively or concurrently or partly so.
The starting point for consideration of whether the court should make sentences concurrent or cumulative is the judgment in Attorney-General (SA) v Tichy,[15] where Wells J said:[16]
It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.
[15] (1982) 30 SASR 84.
[16] (1982) 30 SASR 84 at 92-93.
The trafficking in drugs and firearms offences are unconnected. They represent separate incursions into criminal offending. They did not arise out of a single or related course of conduct. Even if they did, that does not necessarily result in a court imposing concurrent sentences. In R v Violi,[17] the Court of Criminal Appeal said:[18]
Even though there is a connection between firearms and drug traffickers, there is very little reason for concurrency between the sentence imposed for the two kinds of offences. The choice to both engage in the drug trade and to do so with firearms is a deliberate one. Drug trading and manufacture can be engaged in without firearms, and firearms may be possessed by someone who is not a drug trafficker. The illegal possession of firearms by drug traffickers must be strongly deterred. For that reason courts should be slow to order any degree of concurrency. There was no error in ordering that the sentences be served cumulatively. The sentences individually and in totality were not manifestly excessive.
A similar approach was taken in R v Rerich,[19] where I said:[20]
... while the sentencing Judge considered that the aggravated firearms offences and the trafficking offence arose out of the same set of circumstances and were part of a single course of criminal conduct, that does not lead to the conclusion that in imposing custodial sentences for the firearms offences the Court must make those sentences wholly or partially concurrent with the sentence of imprisonment I consider must be imposed for the trafficking offence.
[17] [2015] SASCFC 2.
[18] [2015] SASCFC 2 at [34].
[19] [2016] SASCFC 78.
[20] [2016] SASCFC 78 at [27].
However, Mrs Shaw QC, counsel for the appellant, sought to rely on the judgment of the Court of Criminal Appeal in R v Standley.[21] In that case, Blue J said that there are two fundamental rationales for ordering that sentences be made concurrent. The first is the principle of double jeopardy pursuant to which an offender is not to be punished twice for the same crime. The second is the principle of proportionality, namely, that the punishment should be proportionate to the crime.[22] The first rationale has no application to the present case. There is no overlap between the elements of the trafficking offence and the elements of the firearms offences so there is no question of double jeopardy. The application of the second rationale to this case is more problematic. The principle of proportionality does not necessarily require any degree of concurrency between sentences where an offender is sentenced for multiple offences. Whether and to what extent this is required depends on all of the circumstances, including in particular the length of the sentences proportionate to the individual offences.[23] In R v E, AD,[24] Doyle CJ, with whom Debelle and Besanko JJ agreed, said, in the context of sentencing for multiple offences, when a heavy sentence is called for that is the sentence that must be imposed. Considered alone, I can find no reason in principle to take a different approach from that taken by the sentencing judge. However, in this case the situation is complicated by the fact that the appellant has succeeded on the ground that the sentence of imprisonment imposed for the trafficking offence is manifestly excessive. It follows that the total sentence of imprisonment to be imposed for the trafficking and firearms offences is necessarily disproportionate to the overall criminal conduct for which the appellant fell to be sentenced. That lack of proportion is rectified by the sentence imposed for the trafficking offence on resentencing. That obviates any need to make that sentence concurrent with the sentence for the firearms offences. There is no reason why the sentence imposed for the separate offending in relation to the firearms should be made concurrent, either wholly or partially, with that sentence.
[21] [2016] SASCFC 141.
[22] [2016] SASCFC 141 at [40] and [42].
[23] [2016] SASCFC 141 at [47].
[24] [2005] SASC 332 at [38], (2005) 93 SASR 20 at 30.
On the hearing of the appeal, Mrs Shaw accepted that, on the evidence, the sentencing judge was entitled to make a finding that the trafficking offence was not isolated.[25] That concession was properly made. Proof that the offending was isolated would have been a matter of mitigation. The sentencing judge’s finding that it was not isolated, is not a matter of aggravation, it merely excludes the court sentencing on that more favourable basis.
[25] Transcript of appeal hearing, p 6, lines 6-7.
Accordingly, I would make the sentence for the firearms offences cumulative upon the sentence for the trafficking offence. That aggregates to a head sentence of 36 months and one week.
The appellant submits the sentence of imprisonment should be suspended. The power to suspend a sentence of imprisonment is conferred pursuant to s 38 of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act). The exercise of the power is conditioned by the court finding that good reason exists to suspend a sentence of imprisonment. In R v O’Toole[26] Peek J said:
This provision has been held to require the Court to ask only one question: whether, having regard to all the relevant sentencing considerations in the particular circumstances of the case, there exists good reason to suspend the sentences. The inquiry into “good reason” cannot be reduced to a set of comprehensive criteria, nor circumscribed by a precise formula to be applied in every case. It is also erroneous to attempt to define “good reason” by reference to other cases in which a sentence of imprisonment has been suspended or by inferring that a particular class of offences must attract an immediate term of imprisonment. The decision to suspend must be made solely on the facts and circumstances of the particular case at hand.
[Citations omitted.]
[26] [2013] SASCFC 18 at [50].
In R v Mangelsdorf[27] this Court said that a suspended sentence will only be justified rarely where an offender is being sentenced for drug trafficking given the importance of the factor of deterrence in sentencing for such offending. To allow suspension of the sentence would tend to erode the standard of punishment which the court has set as appropriate for such offending. In R v Couper[28] the court said it is not easy to find good reason to suspend a sentence for trafficking in ecstasy, it is serious offending which calls for a deterrent sentence which must be given greater weight than the personal circumstances of the offender.
[27] (1995) 66 SASR 60 at 70 – 71.
[28] [2009] SASC 361 at [30].
While the authorities recognise that a court can suspend a sentence for an offence contrary to s 32 of the Controlled Substances Act 1984 (SA) good reason does not exist to do so in this case notwithstanding the personal circumstances of the appellant including, in particular, those factors that mitigated his offending and indicated the positive prospects for his rehabilitation. The factors which preclude the existence of good reason to suspend notwithstanding those matters are the fact of the separate incursion into crime involving the firearms offences and the need for general deterrence in relation to both the trafficking and the firearms offences. Ultimately the crimes for which he is to be sentenced are so serious and the need for deterrence so significant that good reason to suspend the sentence cannot be found.
In the alternative, the appellant submits that the sentence of imprisonment should be served on home detention. The power to make such an order is conferred pursuant to s 33BB of the Sentencing Act. That provides:
33BB—Home detention orders
(1) Subject to this section, if—
(a)     a court has imposed a sentence of imprisonment on a defendant; and
(b)     the court considers that the sentence should not be suspended under Part 5; and
(c)     the court considers that the defendant is a suitable person to serve the sentence on home detention,
the court may suspend the sentence under this Division and order that the defendant serve the sentence on home detention (a “home detention order”).
(2) A home detention order—
(a)     must not be made—
(i) unless the court is satisfied that the residence the court proposes to specify in its order is suitable and available for the detention of the defendant and that the defendant will be properly maintained and cared for while detained in that place; or
(ii) if the defendant is being sentenced to a sentence of imprisonment that is to be served cumulatively on another term of imprisonment, or concurrently with another term of imprisonment then being served, or about to be served, by the defendant; and
(b)     should not be made if the court is not satisfied that adequate resources exist for the proper monitoring of the defendant while on home detention by a home detention officer.
(3) The paramount consideration of the court when determining whether to make a home detention order must be the safety of the community.
(4) The court must also take the following matters into consideration when determining whether to make a home detention order:
(a)     the impact that the home detention order is likely to have on—
(i) any victim of the offence for which the defendant is being sentenced; and
(ii) any spouse or domestic partner of the defendant; and
(iii) any person residing at the residence at which the prisoner would, if released, be required to reside;
(b)     any report ordered by the court from the CEO or any other person or body for the purpose of assisting the court in determining whether to make a home detention order;
(c)     any other matter the court thinks relevant.
Section 33BB provides an alternative sentencing option for service of a sentence on home detention. A sentence of home detention is an intermediate form of punishment between a suspended sentence and a custodial sentence. The court only considers whether to make a home detention order after it has already imposed a sentence of imprisonment on the defendant and determined that good reason does not exist to suspend the sentence.
The operation of s 33BB has been recently considered by the Court of Criminal Appeal in R v Filipponi,[29] R v Dell[30] and R v Hosking.[31]
[29] [2016] SASCFC 148, (2016) 126 SASR 464.
[30] [2016] SASCFC 156, (2016) 126 SASR 571.
[31] [2017] SASCFC 50.
In R v Filipponi[32] the Chief Justice, with whom Vanstone and Nicholson JJ agreed, discussed the operation of s 33BB. The Chief Justice said:[33]
Subparagraph (c) is directed towards the suitability of the person to serve a sentence on home detention. That criterion addresses primarily the subjective circumstances of the defendant, like his or her capacity to support himself or herself, or be supported by others in private accommodation, and whether he or she is likely to comply with the conditions of home detention.
Once enlivened, the discretion conferred by s 33B(1) of the Sentencing Act to make a home detention order must be exercised having regard to the purposes of sentencing and all relevant considerations. Those purposes importantly include punishment, community protection and both general and personal deterrence on the one hand, and the scope for rehabilitation on the other.
[32] [2016] SASCFC 148, (2016) 126 SASR 464.
[33] [2016] SASCFC 148 at [23] - [24], (2016) 126 SASR 464 at 471.
In Dell[34] Doyle J, with whom Kelly and Parker JJ agreed, considered s 33BB required a two-stage process of enquiry in order to determine whether a home detention order is appropriate. The court must consider whether the defendant is a suitable person to serve a sentence on home detention, and, if so, whether having regard to the full range of sentencing considerations, the sentence should be suspended and an order made that the defendant serve the sentence on home detention. The determination of whether the defendant is a suitable person involves a consideration of matters focussed upon the personal circumstances of the defendant. This involves consideration of matters such as the defendant’s capacity to support himself or herself in private accommodation, whether he or she is likely to comply with the conditions of home detention, and the extent to which the making of an order would support the defendant’s prospects of rehabilitation. In deciding whether the sentence should be suspended and a home detention order made, the court must consider the full range of sentencing considerations which include not only the rehabilitation of the offender but also the objectives of due punishment, denunciation and general deterrence. In deciding this issue, the safety of the community is the paramount consideration. The court must also take into account the impact on the victim, the defendant’s spouse / domestic partner, and any other resident of the premises. Otherwise the same factors that are relevant to determining the head sentence and whether good reason exists to suspend the sentence of imprisonment are relevant to determining whether to make a home detention order.
[34] [2016] SASCFC 156, (2016) 126 SASR 571.
In R v Hosking[35] Vanstone J, with whom Parker J agreed, held that the requirement for a two-stage enquiry did not require a particular sequence from which the relevant factors are to be addressed. The two-stage process involves consideration of separate matters and each must be addressed before a home detention order is made. However, cases will arise where the making of a home detention order will be quite out of the question without reference to the suitability of the defendant for such an order. That might be because of the necessity for general and personal deterrence, protection of the public or punishment. Where such a finding is appropriately made it is not necessary also to consider the suitability of the defendant for home detention.
[35] [2017] SASCFC 50.
In Dell in considering the paramount consideration of community safety, Doyle J said:[36]
By reason of s 33BB(3), safety of the community is the paramount consideration. There is no reason to take a narrow view of the safety of the community. A significant risk of reoffending will often present a threat to the safety of the community. While the risk of reoffending by those convicted of offences involving violent and sexual misconduct will present the most obvious, and perhaps most immediate and direct, threat to the safety of the community, the risk of reoffending by those convicted of other offences will also often present a relevant threat to the safety of the community. I include within these offences those which involve the production or trafficking of illegal drugs. A significant risk of reoffending by a defendant convicted of involvement in the distribution of illegal drugs presents a significant threat to the safety of the community.
I observe in relation to s 33BB(3) that while the existence of a threat to the safety of the community will often go close to foreclosing an exercise of discretion in favour of a grant of home detention, I do not consider that the converse proposition necessarily holds true. The mere fact that there is limited identifiable risk to the safety of the community may not mean there is a strong case for a home detention order. Put another way, while the considerations in favour of a home detention order will rarely outweigh a significant threat to the safety of the community (given the paramountcy of this consideration), considerations militating against a home detention order may more readily outweigh the absence of any identifiable threat to the safety of the community.
[Citation omitted.]
[36] [2016] SASCFC 156 [51] - [52], (2016) 126 SASR 571 at 582.

In R v Filipponi,[37] Kourakis CJ said:[38]
In the case of serious drug trafficking the demands of general deterrence and punishment are such that if these considerations have operated to preclude a suspended sentence then, in the ordinary case, it is unlikely that the purposes of sentencing will be met by imposing a home detention order.
[37] [2016] SASCFC 148, (2016) 126 SASR 464.
[38] [2016] SASCFC 148 at [37], (2016) 126 SASR 464 at 473.
In a similar vein, in Police (SA) v Holer,[39] Peek J observed that in many cases, the combination of factors militating against suspension of sentence not only leads to a rejection of whole or partial suspension under s 38 of the Sentencing Act but it will also lead to rejection of a submission that a home detention order should be made.
[39] [2016] SASC 187 at [44].
The paramount consideration in the exercise of the discretion conferred by s 33BB is the safety of the community. As Doyle J observed in Dell, offences which involve the production or trafficking of illegal drugs can represent a significant threat to the safety of the community. The evidence is that the appellant remains within the moderate range risk of recidivism over the foreseeable future. In any event, as was noted in Dell, even if there is a limited identifiable risk to the safety of the community that does not mean there is a strong case for a home detention order. In this case general sentencing considerations militate against the making of such an order given the seriousness of the offending for which the appellant is to be punished. The combination of factors that weigh against suspension also weigh against the making of a home detention order. Accordingly, the appellant is not a suitable person to serve the sentence on home detention. Further, in all the circumstances, a home detention order is not appropriate. The appellant fails at both stages of the Dell enquiry.
In all the circumstances on resentencing I would fix a non‑parole period of 18 months having regard to the appellant’s favourable prospects for rehabilitation and the desirability of him being able to access treatment programs not available in prison.
The sentence and non-parole period will be backdated to 27 April 2016.
There is no complaint about the sentencing judge’s order prohibiting the appellant from holding or obtaining a firearms licence until further order. It stands.
Conclusion
I would allow the appeal on ground 1. I would set aside the sentence for the trafficking offence. I would impose a sentence of imprisonment of 21 months and three weeks for that offence. I would impose a sentence of 14 months and two weeks for the firearms offences. I would impose a sentence of two weeks and six days for the breach of bail and intervention order offences. The breach sentence is to be served concurrently with the sentence for the trafficking offence. The sentence for the firearms offences is to be served cumulatively with the sentence for the trafficking offence. I would fix a non-parole period of 18 months. The sentences of imprisonment and the non-parole period are backdated to 27 April 2016.
PARKER J. I agree with the reasons of Stanley J and the orders he proposes.
LOVELL J. I agree.