R v BONSON - [2021] SADC 120

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v BONSON
[2021] SADC 120
Ruling of his Honour Judge O'Sullivan
3 November 2021
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER
The defendant was charged with two offences of aggravated trafficking in a controlled drug, committed six days apart. In March 2015, he was sentenced as a serious firearms offender. An issue arose for consideration prior to sentence as to whether the defendant is a serious repeat offender, within the meaning of s53(1)(a) of the Sentencing Act 2017.
Held: The defendant is a serious repeat offender.
Controlled Substances Act 1984 (SA) 32(3); Sentencing Act 2017 (SA) s 52(a), 53(1)(a); Firearms Act 1977 (SA); Firearms Act 2015 (SA); Acts Interpretation Act 1915 (SA), referred to.
R v Harradine [2019] 134 SASR 68; R v Culley [2019] 134 SASR 92, considered.

R v BONSON
[2021] SADC 120
Introduction

The defendant pleaded guilty in the Adelaide Magistrates Court to two counts of aggravated trafficking in a controlled drug, contrary to s32(3) of the Controlled Substances Act 1984. The maximum penalty for each of these offences is a $50,000 fine or imprisonment for 10 years or both.
There is no issue that by reason of the timing of his guilty pleas, the defendant is entitled to a reduction of up to 20% of any penalty I may impose.
An issue that has arisen for consideration prior to sentence is whether the defendant is a serious repeat offender, within the meaning of s53(1)(a) of the Sentencing Act 2017.
Factual circumstances
The factual circumstances surrounding the offending are that on 22 May 2019, the defendant received a call from a man referred to as "Jake" in which he was asked for a half-ball (or 1.75 grams) of methylamphetamine. The defendant responded that he only had a gram on him and he would let Jake know when he was able to get the rest.
Very early in the morning on Thursday 23 May 2019, Jake and the defendant exchanged text messages and participated in a telephone call in which Jake indicated that he wanted the methylamphetamine that night. The defendant told Jake that the methylamphetamine was in his car and was being brought to the defendant's house by the defendant's girlfriend. The defendant and Jake agreed to meet outside the defendant's home.
Later that afternoon, the defendant sent a text to Jake apologising for the underweight of the methylamphetamine and requesting payment.
On Wednesday, 29 May 2019, police attended at the defendant's property and conducted a search of the property as well as the defendant's person. Five resealable plastic bags were found in the defendant's right hand, each of which contained a white crystalline substance, subsequently found to be methylamphetamine. The total weight of methylamphetamine contained in the five resealable plastic bags was 1.75 grams.
Inside the house, police located a small bag of cannabis, three ice pipes and a set of black digital scales. The scales were found to have methylamphetamine residue on them. The items located in the search of the house are not the subject of any charges.
Still later that evening, the defendant made a call to an unidentified person at which he discussed his arrest and remarked that the police only found "1.3" he had prepared earlier for "deals".
Section 53(1) of the Sentencing Act 2017
Section 53(1) of the Sentencing Act 2017 provides relevantly:
53—Serious repeat offenders
(1) A person is, by force of this subsection, taken to be a serious repeat offender if the person (whether as an adult or as a youth) has committed and been convicted of—
(a) at least 3 serious offences committed on separate occasions (whether or not the same offence on each occasion); or
"Serious offence" is defined in s52 of the Sentencing Act 2017 to include an offence under part 5, division 2 or 3 of the Controlled Substances Act 1984.[1] The offences to which the defendant has pleaded guilty are offences contained within part 5 Division 2 of the Controlled Substances Act 1984.
[1] Section 52(b)
Prior offending
On 19 March 2015, the defendant was sentenced in this Court to three counts of possessing a firearm without a licence and failing to store ammunition separately from firearms, pursuant to the then Firearms Act 1977. One of the firearms was a category H firearm. His Honour Judge Boylan DCJ noted that the defendant was on bail at the time of the offending, was a serious firearms offender and sentenced him on that basis.
Section 52(a) of the Sentencing Act 2017 defines a serious offence as including a serious firearms offence within the meaning of division 3 of the Sentencing Act 2017 which in turn defines a serious firearms offence as being various offences under the Firearms Act 2015. It includes the use or carriage of a category H firearm that is unregistered at the time of the offending.
Although the Sentencing Act 2017 refers to the Firearms Act 2015, pursuant to s24 of the Acts Interpretation Act 1915, that Act is taken to be substituted for the Firearms Act 1977.
Prosecution submissions
Since the defendant was sentenced as a serious firearms offender in 2015, the prosecution submits that those offences count as one qualifying offence for the purposes of s53(1) of the Sentencing Act 2017. The defendant does not dispute the characterisation of the 19 March 2015 offences as one qualifying offence.
The prosecution submit that as the first offence to which the defendant has pleaded guilty occurred on 23 May 2019, with the provision of methylamphetamine to "Jake", and the second offence to which the defendant has pleaded guilty occurred on 29 May 2019, the defendant has been convicted of three serious offences within the meaning of s53(1)(a) of the Sentencing Act 2017 and is therefore to be sentenced as a serious repeat offender.
Defendant's submissions
The defendant denies he is a serious repeat offender.
He refers to the reports from neuropsychologist Mr Mark Reid, dated 13 August 2020 and an addendum report dated 5 October 2020 as to a number of matters, including his personal circumstances.
Those personal circumstances record the defendant making a claim in relation to a serious motorcycle accident on 12 December 2015, as a result of which he suffered extensive physical injuries, including multiple orthopaedic injuries and a major head trauma, resulting in a traumatic brain injury.
The defendant submits that there is a reference in Mr Reid's report to a lack of fatigue. Mr Anders of counsel, who appeared for the defendant, informs me in his written submissions that the absence of fatigue is due to self-medication using amphetamines.
The defendant submits that the physical and intellectual injuries sustained by him and his changed emotional capabilities led him into drug addiction as a maladaptive coping strategy.
Whereas he had been previously employed, the loss of that employment and his inability to engage in employment led him to act in a way which is primarily directed to maintaining and servicing his own drug addiction.
The defendant refers to the judgment of Hughes J in R v Harradine,[2] where her Honour notes that multiple offences of the same nature may be characterised as a single episode or occasion and that it requires a consideration of the surrounding circumstances. Her Honour said:[3]
87.It is not appropriate to read into the Division the concept of courses of conduct when those words do not occur there. However, the explanatory words suggest that the mischief to which the section and the Division is directed is addressed by understanding an occasion as a single event of conduct or a course of conduct.
88.This is supported by the Court’s analysis in R v M, STE in its consideration of the term “separate offences” in the scheme for sentencing serious repeat offenders as it was in s 20B of the CLSA after amendments in 2003. The Court said:
It is clear from a plain reading of s 20B that, where a person has committed the requisite number of separate offences or separate courses of conduct, the discretion to make a declaration will be enlivened, regardless of when the person is convicted of those offences and when the person is sentenced for those offences… For example, a person who is convicted at the one time of two separate serious sexual offences may be declared a serious repeat offender despite the convictions being entered instantaneously. Where an offender appears before a court for the first time and is convicted of the requisite number of offences committed on separate occasions, the discretion to make a declaration is enlivened. This construction is consistent with the High Court’s analysis in White.
89.A course of conduct may describe one or many occasions. Where a person has committed multiple offences in succession, continuity of intent may provide the circumstance that leads to the course of conduct being characterised as a single occasion. This is more likely to be the case where the multiple offences are different in nature. But where there are multiple offences of the same kind, such as sexual offending against the same victim, or drug dealing over the course of a period of time, continuity of intent may not establish that the multiple offences constitute a single episode. It will always be a matter to be determined by reference to all of the circumstances, though not a matter of discretion. That a course of conduct may describe several occasions was observed by Parker J in O’Dea v Commissioner of Police. The Court was required to determine whether a person had committed certain offences upon a sufficient number of occasions to enliven classification as a “registerable repeat offender” for the purposes of the Child Sex Offenders Registration Act 2006. His Honour said:
The reference by the sentencing judge to a course of conduct simply meant that he had repeatedly committed the same type of offence with the same victim after he had groomed her. It did not mean that he had not committed the offences on separate occasions as that concept was explained by the High Court in R v White. He is clearly a “registrable repeat offender” under either limb of the definition in s 4(1) of the Act on the basis that he committed a relevant offence on the requisite number of separate occasions.
90.In my view, the analysis of Riley J in Kelly v The Queen, and endorsed in Tognolini v The Queen, provides the most instructive approach to the way in which the term “separate occasions” should be understood to operate within s 53. There must be a temporal separation or a separation in circumstances between acts to describe them as having occurred on separate occasions.
[2] [2019] 134 SASR 68
[3] Ibid at [87]-[90]
The defendant also refers to the judgment of the Chief Justice in R v Harradine.[4] His Honour was in dissent and held that the question of what comprises "separate occasions" for the purposes of s53 of the Sentencing Act 2017 is a question of fact. His Honour said:
[4] Ibid at [4]-[7]
4.It follows from the text of s 53 of the Sentencing Act that more than one offence can be committed on the same occasion, but that a series of offences will not always be committed on the same occasion.
5.The question is whether a lay speaking person narrating the respondent’s conduct would say that the aggravated assault causing harm was committed on the same occasion as the aggravated driving dangerously to escape police pursuit and aggravated creating likelihood of harm offences.
6.It is possible to identify at least some of the facts and circumstances which would affect whether offences could be said to have been committed on the same occasion. They include:
- the degree of contemporaneity of the offences;
- the distance between the places at which the offences were committed;
- the identity of the victims;
- the degree of similarity in the nature of the offences and accompanying conduct;
- the circumstantial relationship, if any, between the offences;
- the offender’s reasons for committing the offences;
- the opportunity of the offender to reflect on his or her conduct between the offences; and
- the nature of the preparatory conduct engaged in between each offence.
7.To illustrate how each of the considerations may interact with each other, I observe that a series of sexual offences against the same victim over a period of hours, in which the victim and the offender remain in the same room or house, are likely to constitute a single occasion. However, if the same number of similar offences are committed against different, unrelated victims in different homes some distance away, it becomes more difficult to say that the offences were committed on the same occasion. Similarly, thefts from several tellers and customers in one bank may readily be found to be committed on one occasion. However, similar offences committed even within hours in another nearby bank may not be.
Relying on R v Harradine, the defendant submits that the trafficking offences for which the defendant has now been convicted have a temporal connection in that the offences all occur within the same week.
The defendant also refers to R v Culley.[5] Mr Anders submits that in Culley, where the defendant was found to be a serious repeat offender, the offending occurred in April 2015 and then, whilst on home detention bail, committed further offences in December 2016. He points to the difference in time between the first offending and the second offending in Culley and seeks to distinguish the facts in this matter where the offending was separated by some six days and that the offending occurred at the same place, which was the defendant's home.
[5] [2019] 134 SASR 92
The defendant asks the Court to draw an inference that any sale that may have taken place on 29 May 2019, could have easily involved the supply of drugs to "Jake" on 23 May 2019. It submits that inference is available as "Jake" had not received the full amount of methylamphetamine he wished to receive on 23 May 2019. So it is that the defendant submits there is an inference able to be drawn that any further transaction could easily have involved "Jake" in circumstances where he did not receive the amount that he initially sought.
The defendant described that as a not unreasonable inference but accepted it involved an element of speculation. I say now that I am not prepared to draw that inference, as it is no more than speculation. In fairness, the defendant also submitted that the inference, that is that making up the balance of the drug transaction due to "Jake", is not a key consideration but is a consideration and refers to what is described as the unifying circumstances of the offender's state of mind.
The defendant also points to the degree of similarity between the offending, in the sense that it is the same drug, same manner of packaging, same process of sale. The defendant also refers to the opportunity for him to reflect on his conduct following his arrest on 23 May 2019 and the impact his serious head trauma sustained in the motorcycle accident may have had on that ability to reflect.
The defendant concluded his submissions by submitting that the facts are in favour of the Court finding that this is a set of circumstances that constitutes a single occasion and that on that basis, there are two occasions not three with a result that the defendant is not a serious repeat offender.
Consideration
The issue is whether the admitted trafficking offences on 23 May 2019 and 29 May 2019 are separate occasions or do they form part of a single episode and therefore a single occasion.
Notwithstanding the defendant's comprehensive and careful submissions, in my view it is quite clear on the facts that there were two separate occasions. The first involved the defendant supplying "Jake" with at least one gram of methylamphetamine early in the morning on 23 May 2019. The next occasion was when the police attended and found the defendant in possession of five resealable plastic bags containing various amounts of methylamphetamine.
I find there were two occasions on which the offence of aggravated trafficking in a controlled drug occurred. I find that the two offences do not form part of the one transaction. In particular, amongst other things, the temporal difference in this particular case, by itself, is sufficient to classify the two counts as offending on separate occasions.
Accordingly, I find the defendant is a serious repeat offender.