R v Bukvic - [2010] SASC 195

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BUKVIC
[2010] SASC 195
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Kourakis)
30 June 2010
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING CANNABIS, INDIAN HEMP OR HASHISH
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - PARITY BETWEEN CO-OFFENDERS - GROUNDS FOR DISCRIMINATION BETWEEN CO-OFFENDERS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER
Appellant convicted of attempting to traffic in a controlled drug - appellant sentenced to two years and five months to be released after nine months upon entering a recognisance to be of good behaviour for two years - whether sentence proportionate to co-offenders - whether an isolated offence - consideration of onus of proof with respect to previous uncharged conduct - whether sentence manifestly excessive.
Held: appeal dismissed - sufficient distinction between the offending of the appellant and co-offenders - Judge properly considered uncharged conduct as denying leniency in sentence.
Criminal Code (Cth) s 11.1, s 302.4; Crimes Act 1914 (Cth) s 16A, s 20(1)(b); Controlled Substances Act 1984 (SA) s 33L; Criminal Law Consolidation Act 1935 (SA) s 50; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Homer (1976) 13 SASR 377; Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; R v MacGowan (1986) 42 SASR 580; Wakely v Police (2003) 229 LSJS 327; R v Chamings [2009] SASC 82; R v McInerney (1986) 42 SASR 111; Weininger v The Queen (2003) 212 CLR 629; Veen v The Queen (No 2) (1988) 164 CLR 464; Ryan v The Queen (2001) 206 CLR 267; R v Olbrich (1999) 199 CLR 270; R v De Simoni (1981) 147 CLR 383; Savvas v The Queen (1995) 183 CLR 1; R v Reiner (1974) 8 SASR 102; R v Godfrey (1993) 69 SASR 413; R v D (1997) 69 SASR 413; R v Lobban (2001) 80 SASR 550; R v Guthrie and Watt [2003] VSC 323; R v H (1980) 3 A Crim R 53; R v Holyoak (1995) 82 A Crim R 502; R v JCW (2000) 112 A Crim R 466; NJL v The Queen [2007] NSWCCA 261; Giles v Director of Public Prosecutions (NSW) [2009] NSWCCA 308; R v D [1996] 1 Qd R 363; R v Bettridge (Unreported, Court of Appeal, Queensland, No 51 of 1998, 27 May 1998); R v CJK (2009) 22 VR 104; Director of Public Prosecutions v McMaster (2008) 19 VR 191; R v Haji-Noor (2007) 21 NTLR 127; R v McNaughton (2006) 66 NSWLR 566, considered.

R v BUKVIC
[2010] SASC 195
Court of Criminal Appeal: Doyle CJ, White and Kourakis JJ

DOYLE CJ: I would grant to Mr Bukvic permission to appeal on ground 1 of the Amended Grounds of Appeal, but subject to that would dismiss the appeal. I agree with the reasons given by White J for so ordering.
WHITE J: Part way through his trial in the District Court, the appellant pleaded guilty to the offence of attempting to traffic in a controlled drug, contrary to ss 11.1(1) and 302.4(1) of the Criminal Code (Cth) (“the Code”). He was sentenced to imprisonment for two years and five months. Acting under s 20(1)(b) of the Crimes Act 1914 (Cth), the Judge ordered that he be released after serving nine months of the sentence upon his entering into a recognisance in the sum of $750 to be of good behaviour for two years.
A Judge of this Court granted the appellant permission to appeal against the sentence on various grounds including on the ground that the sentence was manifestly excessive. The Judge refused to grant permission on grounds which complained of a lack of parity of the appellant’s sentence with those imposed on his co‑offenders. The appellant renewed his application for permission on those grounds at the hearing of the appeal. It is convenient to consider these grounds first.
Parity of Sentencing
The Circumstances of the Offending
The appellant was apprehended at Adelaide Airport on 12 January 2007 as he waited in an airline queue. He had with him a suitcase containing 4.571 kg of cannabis packed into 10 vacuum sealed plastic bags. The value of the cannabis was between $22,150 and $35,239. The appellant was booked on a flight to Sydney leaving at 11.50am on 12 January 2007, and on a flight to return to Adelaide the same day at 6.50pm.
The appellant, a Mr Lyberopoulos, a Ms Schmaal and a youth (R O’R) had been under police surveillance, including by way of telephone intercepts, for some time prior to 12 January 2007. The telephone intercepts suggested that Mr Lyberopoulos and Ms Schmaal were involved in the trafficking of cannabis and that from time to time the appellant and R O’R acted as interstate couriers for them. The intercepts also suggested that the appellant had assisted in the disposal, or concealment, of some cannabis on 5 January 2007 when Mr Lyberopoulos and Ms Schmaal became apprehensive that police may attend at their home.
Other evidence indicated that in the period from 1 August 2005 to 21 February 2007 Ms Schmaal had booked 46 interstate airline flights which generally involved a same or next day return. The flights had been booked for the appellant, R O’R and for others. Ms Schmaal paid for some flights in cash, and at other times used a credit card in the name of Mr Lyberopoulos. Ms Schmaal had booked two flights for 12 January 2007: one for the appellant, and one for R O’R to leave on a flight to Townsville at 1.15pm.
Apart from the flight on 12 January 2007, Ms Schmaal had booked and paid for three other journeys in the appellant’s name: in two cases involving trips to Townsville with a return on the following day, and on the third occasion (29 December 2006) a one way flight to Sydney. Other evidence indicated that the appellant had made that flight, and that he had returned to Adelaide on 31 December 2006.
On 12 January 2007 Ms Schmaal drove the appellant and R O’R to the airport at the same time. When the appellant was arrested, he telephoned Mr Lyberopoulos who in turn telephoned Ms Schmaal. They then agreed not to “send” R O’R and she did not take the flight to Townsville booked in her name for that day.
R O’R was arrested at Adelaide Airport on 17 January 2007 as she waited to take a flight to Townsville on that day. She had a suitcase containing 5.45kg of cannabis. Although reluctant to do so, she had been persuaded by Mr Lyberopoulos to make the flight.
Each of the appellant, Mr Lyberopoulos, Ms Schmaal and R O’R were charged with offences arising out of the conduct which I have just summarised.
The Sentence Imposed on Each Offender
R O’R, who was 17 years old, was charged and sentenced in the Youth Court. Because of the different sentencing regime applicable to youths under the Young Offenders Act 1993 (SA), the appellant (correctly) did not seek to make any comparison with her sentence,[1] and it is not necessary to mention it further.
[1] R v Homer (1976) 13 SASR 377 at 382-3.
On 23 June 2008, Ms Schmaal pleaded guilty in the District Court to two counts of aiding, abetting, counselling or procuring another to traffic in a controlled drug (cannabis)[2] and to one count of possession of the cannabis[3] found in her home at the time of her arrest on 6 March 2007. The conduct comprising the two aiding and abetting offences was Ms Schmaal’s booking the flights for the appellant and R O’R on 12 and 17 January respectively, and her conduct in transporting them to the airport. The Judge who sentenced Ms Schmaal (the same Judge who sentenced the appellant) took as a starting point for the two aiding and abetting offences a single sentence of imprisonment for two years and six months but reduced that to two years on account of Ms Schmaal’s guilty pleas. He then ordered that Ms Schmaal be released forthwith upon entering into a recognisance in the sum of $200 to be of good behaviour for a period of two years. For the possession offence, the Judge imposed a conviction without further penalty.
[2] Sections 11.2.1 and 302.4(1) of the Code.
[3] Section 33L of the Controlled Substances Act 1984 (SA).
Mr Lyberopoulos pleaded guilty on 1 June 2009 to one offence of trafficking in a controlled drug (cannabis) contrary to s 302.4(1) of the Code. The prosecution relied upon the conduct of Mr Lyberopoulos in arranging for the appellant and R O’R to transport the cannabis found in their possession when they were arrested on 12 January and 17 January 2007 respectively.
On 19 November 2009 Mr Lyberopoulos was sentenced by a different Judge to imprisonment for a period of two years and six months, but with an order for his release after 12 months upon him entering into a recognisance to be of good behaviour for a period of 18 months.
The appellant pleaded not guilty to his charge and his trial commenced on 16 November 2009. However, on the sixth day of trial, the appellant was re‑arraigned and then pleaded guilty. The Judge took as a starting point a sentence of imprisonment of three years. He reduced that sentence to two years and eight months on account of the appellant’s guilty plea. The Judge then reduced that period by a further three months on account of the period of 76 days which the appellant had spent in custody and the period of approximately 14 months which he had spent on home detention bail. That resulted in a sentence of two years and five months. The Judge refused to suspend that sentence wholly and, as noted above, ordered that the appellant be released after serving nine months of the sentence in custody.
Consideration of Parity
The relevant principles concerning parity in sentencing are well settled. Like cases ought to be treated alike.[4] The concept of equality requires that, as between co-offenders, there should not be a marked disparity giving rise to “a justifiable sense of grievance”.[5] In R v MacGowan,[6] King CJ stated the underlying principle in the following terms:
Where two or more persons are sentenced by the same judge for the same crime or crimes the sentences imposed on them should be proportionate to their respective degrees of culpability and to the various personal factors of aggravation and mitigation. Any distinctions in the sentences imposed should fairly reflect differences in the respective degrees of culpability and the circumstances of the offenders and should be explained by the sentencing judge. Unjustified disparities will be rectified by the Court of Criminal Appeal …[7]
King CJ also emphasised that when different Judges are sentencing co‑offenders, the sentences should be proportionate to the respective degrees of culpability and the individual circumstances of the co‑offenders.
[4] Lowe v The Queen (1984) 154 CLR 606 at 610; Postiglione v The Queen (1997) 189 CLR 295 at 301.
[5] Ibid.
[6] (1986) 42 SASR 580.
[7] Ibid at 582-3.
I do not understand the later decision of the High Court in Postiglione v The Queen[8] to have altered the position summarised by King CJ in MacGowan. The approach has been applied in a number of later decisions of this Court, including Wakely v Police[9] and R v Chamings.[10]
[8] (1997) 189 CLR 295.
[9] [2003] SASC 295; (2003) 229 LSJS 327.
[10] [2009] SASC 82.
The appellant emphasised that the head sentence imposed upon him was only one month less than that imposed upon Mr Lyberopoulos and that Mr Lyberopoulos was required to serve only three months more than him in custody before his release on a recognisance. He also emphasised the greater gravity of Mr Lyberopoulos’ conduct as he was a principal, and his offending involved trafficking in some 10kg of cannabis, the use of two couriers, and his persuasion of R O’R to act as a courier against her initial reluctance.
In my opinion, no useful comparison can be made with the sentence imposed upon Mr Lyberopoulos. The sentencing remarks of the Judge who sentenced Mr Lyberopoulos were not placed before the sentencing Judge, nor before this Court. Those remarks are apparently the subject of a suppression order. However, there is no reason why an application could not have been made to the Judge who sentenced Mr Lyberopoulos for a variation in the suppression order which would have permitted the remarks to be available to the Judge sentencing the appellant, and to this Court.
The most appropriate point for comparison between two sentences is not the actual sentence imposed but the sentencing Judge’s starting point in each case. That is because the actual sentence imposed is likely to be affected by matters which are personal to each defendant, such as the reduction for a plea of guilty, reductions for time spent in custody or on home detention bail and, possibly, a reduction on account of assistance provided to the authorities. Without resort to the sentencing remarks, this Court does not know the starting point for the sentence imposed on Mr Lyberopoulos, the reduction for his plea of guilty (which was made earlier than was the appellant’s), the time spent by Mr Lyberopoulos in custody or on home detention bail, his full antecedent history, whether he had cooperated with the authorities by providing assistance, his prospects of a successful rehabilitation, the extent to which he had indicated remorse, and whether he had engaged in any further offending since January 2007.
As noted, the Judge’s starting point for the appellant’s sentence was three years. I agree that the gravity of Mr Lyberopoulos’ offending is greater, but that means that the starting point in his case is likely to have been at least three years and probably more. Without knowing that starting point, it is difficult to make any useful comparison.
Further, all that is known concerning Mr Lyberopoulos’ history is that he had a previous conviction for supplying cannabis for which he served a term of 12 months’ imprisonment in 2001 and 2002. The appellant, on the other hand, has an extensive criminal history extending over 20 years. He has numerous convictions for offences of dishonesty and traffic offences. Prior to January 2007, he had been sentenced to imprisonment on no less than seven separate occasions. A suspended sentence bond into which the appellant had entered on 23 August 2004 requiring him to be of good behaviour for two years expired in August 2006, only five months before the appellant committed the subject offence.
Further, on 12 January 2008, and while on bail for the subject offence, the appellant committed an offence of supplying cannabis for which he was sentenced in the Local Court at Hay in New South Wales to imprisonment for 18 months with a non‑parole period of nine months. Although the appellant was not to be punished again for this offence, its commission was relevant to the sentence to be imposed for the 12 January 2007 offence. As the reasons of King CJ and of Cox J in R v McInerney[11] indicate, the commission of further offences after the offence for which a defendant is being sentenced may diminish or abrogate any leniency which can be given on account of good character, and may also indicate that considerations of personal deterrence are particularly important in the sentencing.
[11] (1986) 42 SASR 111.
For all these reasons, I do not consider that any useful comparison at all can be made between the sentence imposed on the appellant, on the one hand, and that imposed upon Mr Lyberopoulos, on the other.
More information is available concerning the sentence imposed upon Ms Schmaal. When sentencing Ms Schmaal, the Judge accepted that she knew that the appellant and R O’R were to carry cannabis in suitcases, but that she had not been involved in the packaging of the cannabis, and that she did not receive any benefit from the assistance which she provided. The Judge also accepted that Ms Schmaal had entered into a relationship with Mr Lyberopoulos at a time when she suffered from depression and anxiety, and that she had been very much under his influence and control. He accepted that there was evidence of a genuine turn around in Ms Schmaal’s life with the effect that her prospects for a successful rehabilitation were good. Although Ms Schmaal had some previous convictions, they were committed when she was aged about 20, and Ms Schmaal had a clean record for some nine years before the offending committed in January 2007.
Contrary to the submission of the appellant, I do not consider that the criminality involved in Ms Schmaal’s offending was more serious than his own. True it is that Ms Schmaal was to be sentenced for two offences compared with the appellant’s one, but the conduct committed by Ms Schmaal was of a relatively low level kind and, unlike the appellant, she did not engage in the conduct for the purposes of financial gain.
In all these circumstances, I do not consider that it can be said that the similarities between the appellant’s circumstances, on the one hand, and those of Ms Schmaal, on the other, were such that the difference in the sentences imposed on them, can be said to give rise to “a justifiable sense of grievance”.
As this ground was fully argued, I would grant permission to appeal with respect to it. However, I would dismiss the appeal on this basis.
Isolated Offence and the Onus of Proof
The Judge rejected a prosecution submission that he should sentence the appellant on the basis that he had also acted as a drug courier before January 2007, and in particular on the flights which had been booked for him to Townsville and Sydney in October, November and December 2006. The Judge seems to have regarded the prosecution submission as raising a matter of aggravation, about which he had to be satisfied beyond reasonable doubt, and he was not so satisfied.
On the other hand, the Judge rejected the appellant’s submission that the offence committed on 12 January 2007 was an isolated offence. The Judge regarded this as a plea of a mitigatory matter and therefore a matter which the appellant had the onus of establishing on the balance of probabilities. The Judge rejected this plea saying that he thought it probable that the appellant had carried drugs to Townsville and Sydney on the previous flights booked for him by Ms Schmaal. The Judge’s reasoning is seen in the following passages in his sentencing remarks:
The DPP submitted that I should sentence you on the basis that it was not an isolated incident of offending, but that you had offended in a similar way in October and November of the previous year when you took two return trips by air to Townsville. I was asked to infer and find beyond reasonable doubt that when you took those two trips you had done so for the purpose of trafficking in drugs, and therefore your offending in January 2007 was not an isolated incident. …
Your counsel submitted to me that I cannot find beyond reasonable doubt that the two trips to Townsville or either of them were for the purpose of trafficking in drugs. He submitted that I should sentence you on the basis that your offending in January 2007 was an isolated incident.
…
Whilst I am satisfied that you probably acted as a drug courier carrying drugs to Townsville in October and November 2006 and to Sydney in December 2006 I am not satisfied of that beyond reasonable doubt. My being satisfied that was probably the case is based on the telephone intercepts between you and Mr Lyberopoulos, …
My not being satisfied beyond reasonable doubt that you were a courier of drugs in the three months preceding the year 2007 does not necessarily mean that I must sentence you for your offending on 12 January 2007 as if it was an isolated offence. I have to be satisfied of that on the balance of probabilities as it is potentially a mitigating feature of your offending.
I am not satisfied that your offending on 12 January 2007 was probably an isolated offence. I am not so satisfied because I am satisfied that you probably carried drugs to Townsville and Sydney the year before. I cannot therefore sentence you for this offending on the basis that it is isolated drug offending by you.

On the appeal, the appellant argued that he should have been sentenced on the basis that his offending was isolated and that the Judge had erred in not doing so. In this respect, the appellant raised issues similar to those considered by the High Court in Weininger v The Queen.[12] For the reasons which follow, I consider that the Judge did not make the error for which the appellant contends.
[12] [2003] HCA 14; (2003) 212 CLR 629.
The sentencing of the appellant was governed by Part 1B of the Crimes Act 1914 (Cth). Section 16A(1) of the Crimes Act required the Court to impose a sentence which was of “a severity appropriate in all the circumstances of the offence”. By s 16A(2) the Judge was required to take into account a number of matters including:
…
(b) other offences (if any) that are required or permitted to be taken into account;
(c)if the offences form part of a course of conduct consisting of a series of criminal acts of the same or a similar character – that course of conduct;
…
(m)the character, antecedents, age and physical or mental condition of the person.
The purpose for which the appellant submitted that the 12 January 2000 offence should be regarded as an isolated incident is clear enough. He wished to avoid, no doubt, the Judge forming an adverse view of his character by reason of his having recently engaged in criminal conduct of the same kind, and thereby to attract such leniency in the sentencing which may otherwise have been available.
The purpose for which the prosecutor contended that the sentencing Judge should conclude that the appellant’s offence on 12 January 2007 was not an isolated offence is less clear. It is possible that the prosecutor referred to the appellant’s previous conduct in order to emphasise the culpability of his conduct on 12 January 2007.
As with any sentencing decision, it would have been appropriate for the Judge to take account of the appellant’s previous incursions into criminal activity to the extent that they indicated the moral culpability (sometimes called the turpitude) of his offending on 12 January 2007, and the need to impose a sentence which would deter him and others from committing further offences of a like kind.[13] Using an established antecedent history in this way would not have been in error as it would have involved no more than the Judge taking into account the appellant’s character and antecedents in a way contemplated by s 16A(2) of the Crimes Act.[14] However, the appellant had not been charged with, let alone convicted of, any offences arising out of the previous flights, and he had not made any admissions to the effect that those flights involved the couriering of drugs. Accordingly he did not have an established or admitted antecedent history arising from those flights which could be used in this way.
[13] Veen v The Queen (No 2) (1988) 164 CLR 465 at 478; Ryan v The Queen [2001] HCA 21 at [181]; (2001) 206 CLR 267 at 320.
[14] Weininger v The Queen [2003] HCA 14 at [32]; (2003) 212 CLR 629 at 640.
The Judge could have used his finding that the appellant had recently engaged in conduct similar to that which he had attempted on 12 January 2007 as a basis upon which to deny him any leniency on account of good character.
The Judge’s consideration of the parties’ submissions concerning the appellant’s previous conduct required the application of two important sentencing principles. The first is that the prosecution has the onus of establishing any aggravating circumstance which it alleges[15] and offenders have the onus of establishing any mitigatory matter which they allege. That does not mean that all matters put before a judge are to be characterised as favourable or adverse, or as aggravating or mitigatory.[16] Some matters may be properly known to, and relied upon by, a sentencing judge which fit into neither category.
[15] R v Olbrich [1999] HCA 54 at [27]; (1999) 199 CLR 270 at 281.
[16] Weininger v The Queen [2003] HCA 14 at [22]; (2003) 212 CLR 629 at 637.
The second principle is that an offence is not to be regarded as aggravated by some conduct which would constitute a different offence for which the offender has been neither charged nor convicted.[17] If the prosecution does wish to rely on the aggravating factor in those circumstances, it must bring a charge of the separate offence, and have the accused tried on that charge.[18] In this way the second principle qualifies the operation of the first.
[17] R v De Simoni (1981) 147 CLR 383 at 389; Savvas v The Queen (1995) 183 CLR 1 at 5; R v Reiner (1974) 8 SASR 102 at 105.
[18] R v Olbrich [1999] HCA 54 at [18]; (1999) 199 CLR 270 at 278-9.
Because the earlier conduct relied upon by the prosecution in the present case involved the commission of offences, the application of the second principle meant that the appellant’s earlier flights could not be regarded as circumstances of aggravation so as to justify the imposition of a sentence going beyond that which was appropriate for the 12 January 2007 offence, considered by itself. Even if the Judge had been satisfied beyond reasonable doubt, on the material before him for the purposes of sentencing, that the appellant had committed offences on those flights, he could not have taken that into account so as to increase the sentence which may otherwise have been imposed. In saying this, I am not overlooking a passage in the reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ in Weininger v The Queen in an analogous context:
…It may well have been open to the sentencing Judge to conclude beyond reasonable doubt that the appellant had previously been knowingly concerned in the importation of cocaine. The statement of facts provided a sound basis for that conclusion and the hearsay statements by the appellant reported in other evidence may not ordinarily be thought to excite any doubt about it. Such a conclusion would have entitled the primary Judge to take it into account as a matter warranting the imposition of a heavier sentence than might otherwise have been imposed.[19]
However, as this passage indicates, the material before the sentencing Judge in Weininger included a statement of the facts concerning the defendant’s previous participation in the importation of cocaine. It was the statement of facts which provided the “sound basis” to which the joint reasons referred.
[19] Ibid at [31]; 282.
In the present case, the second sentencing principle to which I referred above therefore operated in the way I have outlined. That being so, it was unnecessary for the Judge to consider whether he was satisfied beyond reasonable doubt that the appellant’s earlier flights involved offending of a similar kind. However, the fact that he did so has not led to a sentencing error, as the Judge was not in any event satisfied beyond reasonable doubt of that fact.
The fact that the uncharged conduct could not be used so as to lead to the imposition of a greater sentence did not preclude it being used to deny the appellant any leniency which may otherwise have been possible. On the contrary, it was open to the Judge to deny him leniency on that basis. The relevant principle was stated by Bray CJ in R v Reiner as follows:
… I should refer to the topic which Mr Elliott QC, for the applicant, placed in the forefront of his argument. This is that his client was in effect sentenced for other offences for which he was not charged. … The learned Judge of course was not entitled to punish the applicant for any of these crimes … He was not charged with them, he may still be charged with them, and the normal procedure adopted when it is desired that offences not charged should be taken into account, namely the handing up of a precise list of such offences signed by the accused, was not followed.
On the other hand the learned Judge was entitled to take into account the context and the surrounding circumstances of the crime and in particular it was permissible, relevant and important for him to know whether the act charged was an isolated offence or whether it was only, to use the metaphor often adopted, the tip of an iceberg. The surrounding circumstances of the crime may be taken into account in considering whether or not to extend leniency so as to reduce what would otherwise be a proper sentence but the commission of other crimes not asked to be taken into account under the procedure just mentioned cannot be used in order to increase what would otherwise be a proper sentence. As I have said on another occasion, the distinction between refraining from taking something off and adding something on when there is no fixed normal penalty may seem, in some cases, to approach the metaphysical. But it is a recognised and time‑honoured distinction for all of that.[20]
[20] (1974) 8 SASR 102 at 105.
Duggan J explained the permissible and impermissible uses of evidence of previous uncharged criminal conduct in R v Godfrey in the following terms:
Conduct amounting to the commission of other similar offences can only provide a basis for increasing the sentence if the accused is found guilty of those offences at trial, pleads guilty to them, asks for them to be taken into account in fixing penalty, or agrees that counts in the information are to be regarded as representative offences.
This is not to say that the sentencing Judge cannot take into account the context and surrounding circumstances of the crime charged. It may be that in a particular case the Court will be required to consider whether it is entitled to extend leniency on the basis that it is dealing with an isolated offence. But it cannot increase the sentence by reason of a finding on a disputed facts hearing that offences not admitted or asked to be taken into account have in fact been committed. To do this would be to deprive the accused of a proper trial on those counts.[21]
[21] (1993) 69 A Crim R 318 at 322-3.
In R v D[22] Doyle CJ discussed the use which can be made of uncharged offences when a court sentences on representative counts. Doyle CJ said:
The term [representative counts] is well known, and is to be found in a number of decisions. However, as is equally well known, the term is a convenient if somewhat inaccurate term. As applied these days it refers to the approach to which I referred when making reference to R v Reiner. That is, the Court sentences an offender in respect of a relatively small number of offences, but does so on the basis that those offences were not isolated offences, but part of a course of conduct involving similar behaviour. On that basis, the scope for extending leniency is reduced. The uncharged offences that are part of the course of conduct cannot be used to increase the potential maximum punishment, which maximum remains the accumulation of the maxima attracted by other charged offences. The only way in which the uncharged offences can be used is to rely upon them to refuse to extend the leniency that might be extended if the offences for which the offender is convicted were isolated offences.[23]
In this case, there was no request by the appellant that other offences be taken into account, nor any agreement that the offence charged was a representative offence.
[22] (1997) 69 SASR 413.
[23] Ibid at 419.
The distinction which Bray CJ said may sometimes approach the metaphysical has also been endorsed by the High Court, albeit in the context of upholding the principle that, while a plea of guilty may be mitigatory, defendants who enter pleas of not guilty are not, on that account, to be treated adversely when sentenced. In Siganto v The Queen Gleeson CJ, Gummow, Hayne and Callinan JJ said:
To some, it may appear a matter of semantics to distinguish between denying the existence of circumstances of mitigation and asserting the existence of circumstances of aggravation; and judicial statements intended as the former may sometime be misunderstood as intending the latter. However, the distinction can be important.[24]
Earlier in the joint reasons, the Court had observed that a finding by a sentencing judge that a circumstance of mitigation is absent is not a finding of the presence of a circumstance of aggravation.[25] The same point was made in the joint reasons in Weininger:
The Judge may be unpersuaded of matters urged in mitigation or in aggravation. The absence of persuasion about a fact in mitigation is not the equivalent of persuasion of the opposite fact in aggravation. So to conclude would ignore the different standards of proof that are to be applied.[26]
[24] [1998] HCA 74 at [34]; (1998) 194 CLR 656 at 667.
[25] Ibid at [23]; 664.
[26] Weininger v The Queen [2003] HCA 14 at [24]; (2003) 212 CLR 629 at 638. A practical application of this principle can be seen in R v Guthrie and Watt [2003] VSC 323 at [23].
Martin J in R v Lobban addressed the issue in the following passage:
Finally, it is important to bear in mind that frequently a sentencing Judge will not be persuaded of a particular fact. If a fact is advanced in favour of an offender but a Judge is not persuaded of the existence of the fact, the absence of that fact does not prove the converse fact adverse to the offender. It simply means that the offender does not get the benefit of the fact that was advanced in the offender’s favour. Similarly, if a fact is advanced adverse to the interests of the accused but is not proven beyond reasonable doubt by the Crown, it simply means that the adverse fact does not exist for the purposes of sentencing.[27]
[27] [2001] SASC 392 at [32]; (2001) 80 SASR 550 at 557.
The proposition that uncharged conduct which the appellant has not asked to be taken into account cannot be regarded as aggravating the offence, but can be used to deny leniency has also been adopted in New South Wales.[28] In Queensland, in R v D[29] it was held that uncharged conduct which may amount to a separate offence cannot be considered for any purpose at all in the sentencing of other offences, including for the purpose of denying the offender leniency, but the Court of Appeal in Queensland has since recognised that it may be necessary for that Court to revisit that decision.[30]
[28] R v H (1980) 3 A Crim R 53; R v Holyoak (1995) 82 A Crim R 502; R v JCW [2000] NSWCCA 209; (2000) 112 A Crim R 466; NJL v The Queen [2007] NSWCCA 261, but cf Giles v Director of Public Prosecutions (NSW) [2009] NSWCCA 308 in relation to offences charged as representative offences.
[29] R v D [1996] 1 Qd R 363.
[30] R v Bettridge (Unreported, Court of Appeal, Queensland, No 51 of 1998, 27 May 1998).
The decision of the Court of Appeal in Victoria in R v CJK[31] indicates that in those cases in which an offender agrees that the charged offences are representative offences, the uncharged conduct may be used not only to deny leniency, but to increase the sentence which would otherwise have been appropriate.
[31] [2009] VSCA 58; (2009) 22 VR 104. See also Director of Public Prosecutions v McMaster [2008] VSCA 102; (2008) 19 VR 191.
However, in this State the position is that described by Bray CJ in Reiner, by Duggan J in Godfrey and by Doyle CJ in R v D. That position is derived from the common law, which in this respect has not been modified by the provisions of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA). I do not understand either s 16A of the Crimes Act or the joint reasons in Weininger to require any different approach.
In the present case, the Judge did not use the material concerning the appellant’s previous conduct in a way which was adverse to him, in the sense discussed in the authorities. The appellant’s own submission that the offence committed on 12 January 2007 was an isolated act was tantamount to a plea of his good character. In effect (although not in express terms) the appellant asked the Judge to sentence him on the basis that his incursion into crime on 12 January 2007 was an isolated act, possibly resulting from poor judgment or from his succumbing to momentary temptation but, in reality, an act which was out of character for him. The prosecution disputed that contention. The Judge was asked to resolve the dispute “on the papers”.
As the matter asserted by the appellant was mitigatory in nature, the appellant had the onus, as the Judge correctly found, of establishing on the balance of probabilities the circumstance which he asserted.[32] There was ample evidence justifying the Judge’s rejection of the appellant’s claim. Having rejected the claim, the Judge was not bound to sentence the appellant on the basis that it was correct, simply because it was not open to the prosecution to prove the contrary.[33]
[32] R v Olbrich [1999] HCA 54 at [27]; (1999) 199 CLR 270 at 281.
[33] Ibid at [24], 280; Weininger v The Queen [2003] HCA 14 at [20]; (2003) 212 CLR 629 at 636-7.
The Judge was entitled, on account of the appellant’s conduct in October, November and December 2006, to deny him any leniency to which he may otherwise have been entitled, and this is what the Judge did.
Accordingly, the Judge did not make the error which this ground of appeal imputes to him.
Manifestly Excessive
The appellant is now 40 years old. As previously noted, he has a very poor criminal history, and committed a further drug offence in January 2008. These matters suggest that both personal and general deterrence are particularly important in his case. The drug trade is able to continue because the appellant, and people like him, have been willing, for the purposes of financial gain, to run the risk of detection. This makes considerations of general deterrence important.
In these circumstances, the submission that the head sentence of two years and five months, after credit for three months in custody and on home detention, is manifestly excessive faces some difficulties.
The appellant came to Australia when he was 15, having been born in Bosnia. He left school in Bosnia after only eight years of education. The appellant’s upbringing was unsettled, because of difficulties in the relationship between his parents and because of his immigration to Australia. A social worker considers that he has suffered from a lack of exposure to appropriate values which a stable home life can provide.
Before being imprisoned, the appellant had employment working for a floor restorer.
A psychiatrist has diagnosed the appellant as suffering from depression and considers that his mental state in January 2007 may have compromised his ability to make a sound judgment. The psychiatrist has prescribed medication and has recommended a program of psychotherapy to address the depression. A psychologist has made a similar recommendation.
Being incarcerated will deprive the appellant from having contact with his 10 year old son at an important time in his son’s life.
The Judge referred to all of these matters in some detail in his sentencing remarks. It was not suggested that they had been overlooked, only that the Judge should have attached more weight to them.
Like the Judge, I consider that the objective seriousness of the appellant’s offending, together with his poor criminal history and the need for both general and personal deterrence, required a significant sentence of imprisonment. The Judge took account of the appellant’s psychiatric condition and his need for treatment. It seems that this is one of the reasons why the Judge required the appellant to serve a relatively small period of the overall sentence in custody.
Even making allowance for the appellant’s personal circumstances, my opinion is that the sentence involved in this case cannot be regarded as manifestly excessive. In fact, I regard it as an appropriate sentence.
Should the Sentence Have Been Wholly Suspended?
This ground of appeal was argued only somewhat faintly.
In ordering the appellant to serve some period of the sentence of imprisonment in custody, and not to order his immediate release, the Judge was exercising the discretion vested in him by s 20(1) of the Crimes Act. That section empowers the Court “if it thinks fit” to order the immediate release of an offender sentenced to imprisonment, or to order the release of the offender after he or she has served a period of the sentence in custody.

The limited circumstances in which an appellate court interferes with a discretionary decision of this kind are well known. The Court may interfere on appeal if satisfied that the sentencing Judge has made a relevant error of principle, has failed to have regard to a relevant matter, or has taken into account an irrelevant matter, or, even if no error of these kinds can be shown, is satisfied that the decision is so clearly wrong that it must have been tainted by some error.
The appellant did not point to any consideration of this kind which may have tainted the Judge’s decision. My review of the material and of the Judge’s sentencing remarks does not reveal any such error. On the contrary, given the appellant’s poor record, and his commission of a further drug offence in January 2008 and while on bail, the Judge’s decision to require the appellant to serve only nine months of the sentence in custody was somewhat merciful.
This ground of appeal fails.
Conclusion
For the reasons given above, I would grant the appellant permission to appeal on the grounds which complained of a lack of parity but would dismiss the appeal.
KOURAKIS J: It is a principle of the common law that no person shall be punished for conduct unless he or she has first been convicted of an offence committed by that conduct. I refer to a single exception to that principle which is established by long standing authority at [79] below. But for that exception, I would have regarded the principle as a fundamental common law limitation on the judicial power to punish and not just as a rule which guides the exercise of that power.
When a court’s sentencing power is enlivened by the conviction of an offender on one offence, the court cannot take the opportunity to impose punishment for another offence of which he or she has not been convicted but which has come to the attention of the Court. If the objective and personal circumstances of the offence and the offender (which I shall refer to as the totality of the known circumstances) on which the offender is to be sentenced warrant a particular penalty, a greater penalty cannot be imposed because the proved or admitted facts show that he or she has committed one or more other offences. The principle is not that, where the totality of the known circumstances are otherwise the same, an offender who is known to have committed other offences must receive the same punishment as an offender who has not, or is not known to have, committed any other offences. Rather, the principle is that no punishment should be imposed which is greater than the punishment otherwise warranted by the totality of the known circumstances.[34] The distinction is subtle. However, it has sensible and practical consequences which can be illustrated by reference to the following hypothetical circumstances.
[34] The authorities and statements of principle are collected in B P Boucaut, ‘Punishing repeat offenders: How should prior convictions be taken into account in sentencing?’ (Part 1, July 2009) Vol 31 Issue 6 Law Society of South Australia Bulletin 22; (Part 2, August 2009) Vol 31 Issue 7 Law Society of South Australia Bulletin 12; (Part 3, September 2009) Vol 31 Issue 8 Law Society of South Australia Bulletin 12.
It sometimes happens that an offender with prior convictions comes to be sentenced by a court (which I shall refer to as a nescient court) which is not informed of whether or not the defendant has criminal antecedents. If defence counsel knows that to be the case, he or she must of course take care not to submit, or indirectly suggest, that the offender has otherwise led a blameless life. Quite apart from proscribing misleading conduct because it is inherently unacceptable, that ethical rule recognises that an offender who is sentenced by a nescient court will receive a higher sentence than an offender who is known to be a first-time offender if the totality of the circumstances are otherwise the same. This is because the court will treat the fact that the offender is a first-time offender, when that fact is known to the court, as a mitigating circumstance. Where an offender not only has no criminal history, but is also known to generally be of positive good character,[35] the penalty imposed will be less again if the totality of the remaining circumstances are otherwise the same.
[35] See the distinction drawn in Weininger v The Queen (2003) 212 CLR 629 at 638 [26].
In order to take the benefit of a penalty lower than that which would be imposed by the nescient court, the onus is on the offender with no prior convictions, or with positive good character, to prove that mitigating circumstance. In practice, if the prosecutor has no information to the contrary, that onus is commonly satisfied by the assertion of the defendant’s counsel and the provision of character references.
On the other hand, a sentencing court which knows that an offender has a criminal past will impose a heavier penalty than would be imposed by a nescient court or one which was informed of an offender’s positive good character. That is so because the prospects of rehabilitation are necessarily lower and the need for specific deterrence greater in the case of such an offender. I understand the references in the authorities to the criminal antecedents of an offender precluding a court from extending leniency to be another way of expressing the same proposition.[36] It is of course for the prosecution to prove an offender’s adverse antecedent history. In practice, that onus is commonly discharged by providing the antecedent history prepared from police databases.
[36] R v Reiner (1974) 8 SASR 102 at 105; R v Godfrey (1993) 69 A Crim R 318 at 322-2; R v D (1997) 69 SASR 413 at 419.
The higher sentence imposed on an offender with a criminal past is not the result of the imposition of an additional quantum of punishment for the earlier offending. It simply reflects the different penalty point at which the competing sentencing considerations of rehabilitation, punishment and deterrence are balanced in his or her case relative to offenders with different antecedent circumstances. In my respectful opinion, it is that point which is made in the passage from the reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ in Weininger v The Queen[37] cited by White J which observes that Weininger’s other offending would have warranted “the imposition of a heavier sentence than might otherwise have been imposed”.[38] I do not read the passage as authority for the proposition that a higher sentence can be imposed than is warranted by the totality of the circumstances, including the reduced prospect for rehabilitation which can be inferred from the other offending, simply because the defendant has agreed in a statement of fact used for the purpose of sentencing that he has committed another offence. So much is clear from the paragraph which immediately follows the passage cited by White J:
Secondly, there is no reason to doubt the conclusion of the Court of Criminal Appeal that the primary judge had not sentenced the appellant for crimes with which he was not charged. Of course it would have been wrong to do so. A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life. Imposing a sentence heavier than otherwise would have been passed is not to sentence the first person again for offences of which he or she was earlier convicted or to sentence that offender for the offences admitted but not charged. It is to do no more than give effect to the well-established principle (in this case established by statute) that the character and antecedents of the offender are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed. Taking all aspects, both positive and negative, of an offender's known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration.[39]
[37] (2003) 212 CLR 629
[38] Weininger v The Queen (2003) 212 CLR 629 at 639 [31].
[39] Weininger v The Queen (2003) 212 CLR 629 at 640 [32].
The sentence imposed on an offender with extensive criminal antecedents must still be proportionate to the objective circumstances of his or her offence, having regard to the range of conduct the maximum penalty for the offending must accommodate. Only if the punishment is disproportionate to the circumstances of the offence itself might it be said that the offender has been punished twice for his past offending.
There are conflicting decisions in the Northern Territory and New South Wales Supreme Courts on whether prior convictions are part of the objective circumstances of the offence which determine the limits of a proportionate sentence. In R v Haji-Noor,[40] Angel J held that the objective circumstances of an offence included the offender’s prior convictions and that, as a result, the upper limit of what would be a proportionate sentence was increased.[41] In R v McNaughton,[42] the Court of Criminal Appeal in New South Wales held that the upper boundary of a proportionate sentence is determined by the circumstances of the offence which did not encompass prior convictions.[43]
[40] (2007) 21 NTLR 127.
[41] R v Haji-Noor (2007) 21 NTLR 127 at 136-8 [35]-[47].
[42] (2006) 66 NSWLR 566.
[43] R v McNaughton (2006) 66 NSWLR 566 at 573-575 [20]-[33].
With respect, I doubt that the difference is anything more than semantic. If the prior convictions have the result that a “proportionate” sentence is higher than it would otherwise be, then the increase cannot be greater than the demands of personal deterrence warrant.[44] Moreover, the increase in the upper boundary of what is proportionate must not be such as to remove any capacity to impose a relatively higher penalty for a repeat offender who commits a graver offence.
[44] Veen v The Queen (No 2) (1988) 164 CLR 465.
If what is proportionate is to be determined without reference to an offender’s prior convictions, then the proportionate range must allow for offenders who have poor prospects of rehabilitation and a greater need of specific deterrence. That, with respect, is what I understand King CJ to have said in the following passage from R v McInerney:[45]
A person is not to be punished, or punished again, for crimes other than the crime for which sentence is being passed. Offences committed prior to sentence for the offence under consideration may affect the sentence in two ways. They may diminish or abrogate any leniency by reason of good character. They may, moreover, lead to a greater sentence than would otherwise be imposed, although within the proper limits indicated by the facts of the immediate crime, for the purpose of personal deterrence; the prisoner’s record may indicate that greater punishment is needed to protect the public by deterring him from further crime.[46]
[45] (1986) 42 SASR 111.
[46] R v McInerney (1986) 42 SASR 111 at 113.
Ultimately, sentencing must allow for penalties which manifest a just and proportionate differentiation between the range of offences and offenders who fall to be sentenced within the applicable maximum.
I referred earlier to an exception which warrants the imposition of a sentence even more severe than that which is appropriate having regard to the reduced prospect of rehabilitation and greater need for deterrence of a persistent offender. That exception is the practice known as taking offences into account. The practice is referred to in the authorities cited by White J in [41] – [43] of his reasons.
In R v Reiner,[47] Bray CJ denied that an agreement to treat charges as representative of other offending could have the same effect. Wells J asserted the existence of such a practice. In my respectful opinion, it is difficult enough to justify the practice of taking offences into account by reference to settled sentencing principles; the exception should not be extended to include uncharged offences “represented” by the charged offences or other conduct incidentally disclosed in the course of sentencing. When offences are taken into account, they are specified with sufficient particularity to allow a court before which a subsequent prosecution might be brought to ensure that, on the one hand, an offender is not twice prosecuted for the same conduct and, on the other, that a proven crime does not go unpunished.
[47] (1974) 8 SASR 102.
This approach should not create any real obstacle to the imposition of an appropriate penalty. In the case of a course of conduct, very few offences need be charged to allow for condign punishment to be imposed by accumulating the sentences imposed or by relying on s 18A of the Criminal Law (Sentencing) Act 1988 (SA). In the case of persistent repeated sexual offending against a child, for example, s 50 of the Criminal Law Consolidation Act 1935 (SA) allows for a maximum term of life imprisonment.
Section 16A(2) of the Crimes Act 1914 (Cth) (the Act) should not be construed in a way which would radically change the nature of the judicial power to punish on the conviction for an offence. Rather, s 16A(2)(b) of the Act should be understood as a legislative adoption of the common law practice of taking offences into account. Section 16A(2)(c) of the Act should be construed, consistently with the common law, to recognise that there is less scope for rehabilitation and a greater need for deterrence where the offences of which the offender has been convicted form part of a course of conduct. There is, I think, real doubt about the power of the Commonwealth to extend the judicial power to punish beyond sentencing for the particular offence of which there has been a conviction.
Be that as it may, for the reasons given by White J in [49] – [50], the Judge did no more than reject the appellant’s assertion that the offence of which he was convicted was an isolated one. As a result, the appellant was to be sentenced on the basis that it was not known whether the offence was part of a course of conduct. On that factual basis, I agree with the reasons of White J for holding that the sentence was not manifestly excessive.