R v BURTT - [2018] SASCFC 5

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BURTT
[2018] SASCFC 5
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Parker)
7 February 2018
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - RECOGNISANCE RELEASE ORDER
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
A jury found the respondent guilty of attempting to import a border controlled precursor contrary to s 11.1(1) and s 307.13(1) of the Criminal Code (Cth). The charge related to the respondent’s involvement in an attempted importation of ephedrine and/or pseudoephedrine into Australia. Powder weighing 1.9 kilograms was sewn into clothing and despatched in parcels from India. The Indian authorities who intercepted the parcels did not conduct sufficient testing to determine the quantity of the substances in the powder.
The respondent had a history of drug use and a conviction in 2005 for manufacturing and possessing amphetamines for sale. Information provided to the sentencing Judge indicated that since the offending the respondent had begun work as a cleaner and a volunteer, started a Diploma of Counselling, changed her peer group and no longer used drugs.
In August 2017, the sentencing Judge indicated that he would sentence the respondent to a head sentence of imprisonment of four years. However, his Honour did not complete the sentencing process due to uncertainty concerning the power to suspend a sentence under the Commonwealth sentencing regime. The matter was adjourned to allow for clarification.
In September 2017, the respondent was sentenced to imprisonment of two years and nine months, with an order that she be released forthwith upon entering into a recognizance in the sum of $300 to be of good behaviour.
The Commonwealth Director of Public Prosecutions sought permission to appeal that sentence on the basis that it was manifestly inadequate having regard to: the nature and circumstances of the offending, the principles of general and personal deterrence and the requirement for national consistency in sentencing standards for federal offences. The Director also contended the sentencing Judge erred in ordering that the respondent be released forthwith under recognizance.
Held per Parker J (Kourakis CJ and Stanley J agreeing), refusing permission to appeal:
1. Whilst in most cases it is undesirable for a judge to indicate one sentence and then impose another, the fact that the sentencing Judge revised his view as to the appropriate sentence does not, of itself, demonstrate an error in sentencing.
2. Whilst consistency is an importance aspect of sentencing, what is required is not numerical equivalence but rather consistency in the application of sentencing principles. The interstate District Court sentencing decisions relied on by the Director had not been reviewed by an appellate court and in each case the quantity of the precursor substance was known. Nevertheless, there is no obvious disparity between the sentences imposed in those cases and that imposed on the respondent.
3. The double jeopardy principle is of particular significance where a suspended sentence has been imposed and the appeal is against the decision to suspend. The Court must be slow to set aside a decision to suspend unless the decision reveals an error of principle that would shake public confidence in the administration of justice if it were allowed to stand.
4. Whilst the Court of Criminal Appeal in R v Filliponi (2016) 126 SASR 464 held that general deterrence militates strongly against the suspension of a sentence of imprisonment imposed for drug trafficking, in this case it was appropriate for the Judge to take into account the respondent’s personal history and her significant efforts to rehabilitate herself. It was within a reasonable exercise of the Judge’s discretion to order the respondent’s immediate release under recognizance. Although the head sentence tended to the lower end of the available range, it does not display an error of principle that would shake public confidence in the administration of justice if it were allowed to stand.
Criminal Code (Cth) ss 11.1 and 307.13, referred to.
Everett v The Queen (1994) 181 CLR 295; R v Payne (2004) 89 SASR 49; R v Morse (1979) 23 SASR 98; Wong v The Queen (2001) 207 CLR 584; Hili v The Queen (2010) 242 CLR 520; Director of Public Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28; Barbaro v The Queen (2014) 253 CLR 58; R v Hicks (1987) 45 SASR 270; Green v The Queen (2011) 244 CLR 462; R v Kong (2013) 115 SASR 425; R v Filipponi (2016) 126 SASR 464; R v Mangelsdorf (1995) 66 SASR 60, discussed.

R v BURTT
[2018] SASCFC 5
Court of Criminal Appeal: Kourakis CJ, Stanley and Parker JJ

KOURAKIS CJ: I would refuse permission to appeal for the reasons given by Parker J.
STANLEY J: I agree.
PARKER J: This is an application by the Commonwealth Director of Public Prosecutions to appeal against the sentence imposed by the District Court following a finding by a jury that the respondent was guilty of the offence of attempting to import a border controlled precursor contrary to s 11.1(1) and s 307.13(1) of the Criminal Code (Cth).[1] The application for permission to appeal and the appeal have been considered concurrently.
[1] Which is the schedule to the Criminal Code Act 1995 (Cth).
The respondent was sentenced to imprisonment for two years and nine months with an order that she be released forthwith upon entering into a recognizance in the sum of $300 to be of good behaviour for a period of two years and nine months. The recognizance release order also required the respondent to be under the supervision of a probation officer for 18 months. The sentence commenced on 19 September 2017. The maximum penalty for importing, or attempting to import, a border controlled precursor is imprisonment for seven years.
Grounds of appeal
The applicant seeks permission to appeal on the following grounds:
1.The sentence imposed was manifestly inadequate as:
(a)the sentence fails to adequately reflect the nature and circumstances of the offending, including the maximum penalty for the offence;
(b)the sentence fails to adequately reflect the principles of general and personal deterrence, punishment and denunciation;
(c)the sentence does not adhere to the requirement for national consistency in sentencing standards for federal offences.
2.The learned sentencing judge erred in ordering that the offender be released forthwith.
Background
The jury found the respondent guilty of attempting to import a border controlled precursor contrary to s 11.1(1) and s 307.13(1) of the Criminal Code. The precursor substances were ephedrine and/or pseudoephedrine. Powder weighing a total of 1.9 kilograms was sewn into female clothing contained in two parcels that were despatched from India. The two parcels were intercepted by the Indian authorities. They permitted one parcel to be forwarded to Australia after it was repacked without the precursor substances. That parcel was delivered to an Adelaide address by an Australian Customs officer posing as a courier driver. The other parcel was retained by the Indian authorities.
Although the Indian authorities conducted sufficient testing to determine that the parcels contained ephedrine or pseudoephedrine, the testing did not reveal the percentage of those substances contained in the powder. Thus, the precise weight of the border controlled precursors is unknown. However, it is not necessary to prove the weight of the substance to secure a conviction under s 307.13(1) of the Criminal Code.
The essence of the prosecution case was that during November and December 2013 the respondent arranged for the importation of the border controlled precursor from India with the assistance of her co-offenders, Karen Inkster, Vincent Arrowsmith and Christopher Bryant. The parcel was delivered to Mr Arrowsmith’s home.
The respondent had sought the assistance of Ms Inkster in obtaining contact details for her foreign supplier of ephedrine or pseudoephedrine. Ms Inkster facilitated contact between the respondent and the supplier who was located in Nigeria. The supplier was known as ‘Monkey’. Thereafter, the respondent made frequent contact with Monkey by way of SMS messages. In addition to the SMS messages, documents found on the respondent’s laptop computer provided further evidence of her involvement. This material has been referred to as the ‘suburbia’ documents. The respondent also conducted research about, and obtained materials for, the conversion of pseudoephedrine or ephedrine into methamphetamine.
The respondent transferred funds to a person in Togo nominated by Monkey. Mr Bryant also transferred funds. The total amount transferred exceeded $30,000.
The respondent’s personal circumstances
The respondent was aged 42 years at the time of the offence and is now aged 46 years. She has a number of convictions for road traffic offences and other minor offences with the last recorded in 2007. Her only drug related conviction was in 2005 when she was sentenced by the District Court of South Australia to imprisonment for two years with a non-parole period of 15 months upon her conviction for taking part in the manufacture of a controlled substance and possessing amphetamines for sale. The sentence was suspended upon her entering into a good behaviour bond for two years. Those offences had occurred in 2002.
A report from Dr Jack White, a forensic and clinical psychologist, dated 13 October 2015 was provided to the sentencing judge. Dr White reported that the respondent was of average intelligence. She had completed year 11 at a private school and had a history of stable employment having worked in a supermarket, as a company representative, as a manager of a fitness centre, as a receptionist and as a cleaner.
The respondent informed Dr White of three previous significant relationships that had each involved domestic violence. She also informed Dr White that she had been violently assaulted and raped by a friend of a former partner.
Based upon the information provided by the respondent and psychological testing he had conducted, Dr White reported the respondent satisfied a number of DSM-5 diagnoses indicating alcohol use disorder, stimulant use disorder, adjustment disorder with mixed anxiety and depressed mood, pain disorder, schizophrenia, borderline personality disorder and complex post-traumatic stress disorder. Dr White also stated that the respondent had significant mental health problems and there was evidence to suggest that her executive functioning was impaired. Her condition was exacerbated by ‘extreme’ substance abuse which, in the opinion of Dr White, was engaged in largely to cope with her mental health problems. Her emotional state was very fragile and very volatile. This state was compounded by her ‘extreme’ substance abuse involving alcohol and methamphetamine. She had an ‘extreme’ addiction to methamphetamine. Her mental health problem symptoms were ‘extreme’ and her decision making was ‘severely impaired’. She also exhibited ‘extreme’ symptoms of cognitive and affective depression with extreme emotional instability and heightened suicidal ideation. It was likely that this had been the situation since before 2013, i.e. when the relevant offence occurred. She was also in the ‘extreme high risk’ range for suicidal behaviour. Dr White stated that it was unlikely that she would receive any significant mental health treatment within the Adelaide Women’s Prison. However, if she were to remain living in the community she would potentially benefit from services in the area of mental health and substance abuse.
A further psychological report dated 19 July 2017 was provided by Ms Lisa Darmenia, a member of Dr White’s practice. Ms Darmenia treated the respondent for the maximum number of 10 sessions allowed by Medicare. Ms Darmenia noted that the respondent was working a few hours each week as a cleaner and also undertook regular volunteer work for Anglicare. In the opinion of Ms Darmenia, the respondent presented with post-traumatic stress disorder and chronic low grade depressed mood. Ms Darmenia made no mention of the many other disorders referred to by Dr White.
The respondent informed Ms Darmenia that she had abstained from drug use for several months prior to her initial treatment session in May 2016. As far as Ms Darmenia was aware, the respondent had not used drugs while she was her patient. Her abstinence from drugs had been achieved without the support of drug and alcohol counselling or related medication. Ms Darmenia had not provided drug counselling as her focus had been on dealing with the trauma issues that affected the respondent.
A progress report dated 19 July 2017 was prepared for the sentencing Judge by the Department for Correctional Services (‘DCS’). The report writer noted that the respondent had been reliable in attending appointments and had engaged readily in the supervision process. She had also shown a keen desire to adopt a ‘non‑offending, pro-social lifestyle’ and had demonstrated a capacity to achieve this in the long term. She was polite and respectful to DCS staff and presented as being stable. She held paid employment and also undertook voluntary work throughout the period of her bail. She was considered to be a suitable candidate for further supervision orders. On the basis of her positive response to the extended bail period the respondent was considered to be at a low risk of breaching the order. Remarks to the same effect were made in further reports from the DCS provided to the sentencing judge dated 16 August 2017 and 12 September 2017. The respondent told DCS that she had made significant changes to her peer group.
Anglicare provided a reference for sentencing purposes confirming that the respondent had been working as a volunteer since April 2016. A report provided by SMART Recovery Australia Inc confirmed that the respondent had participated in five meetings during April and May 2016. I understand that SMART Recovery facilitates mutual support meetings to assist persons recover from addiction.
Information was also supplied to the sentencing Judge confirming the respondent’s enrolment in a Diploma of Counselling course provided by Estrada College. At the time of sentencing, she had completed two of the 11 modules of the course. The respondent asserts that her purpose in undertaking the course is to provide her with the skills to assist other women who are addicted to drugs or suffer domestic violence.
Copies of urinalysis test reports dated 18 May 2017, 26 May 2017 and 7 July 2017 were provided to the Judge. The tests were conducted under supervision. None of the habitual drugs of abuse were detected. The respondent’s counsel informed the Court that she had also returned negative results for supervised urinalysis testing conducted over the period from January 2016 to May 2016.
Sentencing remarks
The Judge commenced to sentence the respondent on 24 August 2017. At that time his Honour stated that he would sentence the respondent to a head sentence of imprisonment for four years. However, his Honour did not complete the sentencing process because of uncertainty concerning the power to suspend a sentence of imprisonment under the Commonwealth sentencing regime. The matter was adjourned to enable clarification.
In subsequent submissions the Commonwealth Director accepted that the Judge had not perfected the sentence on 24 August 2017. Accordingly, the Director accepted that the Judge could impose a different sentence to that foreshadowed if his Honour considered that there was a proper basis to do so. The Director also submitted that a recognizance release order may only be made with respect to a federal offender where the term of imprisonment does not exceed three years. Likewise, an order that a term of imprisonment for a federal offence be served on home detention may only be made if the term of imprisonment does not exceed three years. If a sentence exceeds three years, a non-parole period must be set.
In the sentencing remarks delivered on 19 September 2017, the Judge stated that he had thought about the matter carefully since failing to complete the sentencing process on 24 August 2017. His Honour now considered that the appropriate sentence was imprisonment for two years and nine months.
The Judge observed that the jury had necessarily accepted the gravamen of the prosecution case and rejected the highly unlikely evidence of the respondent to the contrary. The Judge held that the volume of text and email messages clearly indicated the active part taken by the respondent in facilitating the shipment of border controlled precursors to Australia and also her role in paying for the shipment. She was to be sentenced on the basis that the ‘suburbia’ documents had been largely, if not entirely, authored by her and also on the basis that no less than $30,000 was expended to obtain the precursor substances, although that money may have been supplied to her by others. While it was unclear whether the respondent was to receive any money for her participation, the Judge found it beyond question that she expected to receive drugs. His Honour commented that the risks involved in importing such a large quantity of drugs strongly suggested that the appellant expected to receive a not insubstantial portion for her own use.
The Judge found that there was nothing in the text and email messages to suggest that the respondent had participated in the venture under duress or pressure. In fact, the messages demonstrated her willing participation in a bigger enterprise in which she played her individual part. Others had played their respective roles, as a ‘courier’ in the case of Mr Arrowsmith and as a ‘conduit’ in the case of Ms Inkster.
The Judge noted that the respondent had been introduced to the use of amphetamine as a result of a relationship breakdown. She managed to break the cycle of addiction for a long period and moved to Alice Springs where she ran a successful fitness centre with her then husband. Upon the breakdown of that relationship she returned to Adelaide and resumed her drug use. Her involvement in the present offence was generated by this second period of addiction.
The Judge stated that the life led by the respondent following her sentence in 2005 for the earlier drug offence demonstrated that she was capable of adhering to good behaviour bonds, especially with the support of her mother, but she was susceptible to relapse under pressure.
The Judge noted in the course of sentencing submissions that home detention would not be practicable due to the nature of the respondent’s employment as a domestic cleaner.
As I have noted, the Judge stated that he had given careful thought to the matter after foreshadowing a sentence of imprisonment for four years. He later considered that the appropriate sentence was imprisonment for two years and nine months. His Honour also noted that the progress reports before the Court demonstrated that the respondent was reliable, had a low risk of re-offending and had undertaken supervised voluntary urine tests which supported her claim that she was now drug free. In view of those matters his Honour ordered that the respondent be released forthwith upon giving security of $300 by way of recognizance for a term of two years and nine months and on the further condition that she be under the supervision of a probation officer for 18 months.
The applicant’s submissions

The applicant acknowledges that permission for a prosecution appeal against sentence should only be granted in ‘rare and exceptional circumstances’ but submits that this requirement is met.[2] The applicant submits that the remarks made by the Judge on 24 August 2017, when he first purported to sentence the respondent, demonstrate that the sentence ultimately imposed by his Honour was manifestly inadequate. When the attention of the Judge was drawn to the fact that it is not possible to suspend a non-parole period imposed for a federal offence, his Honour made the following observations:
Yes. I should say to you both though, having set the head sentence of four years, that I should not be adjusting that just to accommodate this problem … Whether right or wrong, I thought that’s what was merited and we have to start with that starting point.
[2] Everett v The Queen (1994) 181 CLR 295.
Subsequently the following exchange occurred between the judge and counsel for the respondent:
MR BLEECHMORE: I understand your intention is to give effect to the sentence you’ve already given?
HIS HONOUR: To the extent I lawfully can do, but I see myself as bound with a starting point of four years, we simply have to work from there and I consider myself bound by the – I’ll just call it the non‑parole period of two years, six months. The question is how we give effect to it under Commonwealth law.
The Judge had taken into account all relevant matters on 24 August 2017 when he indicated his intention to impose a sentence of four years. The final sentencing remarks made by the Judge on 19 September 2017 did not differ, apart from the sentence imposed, from the remarks made by his Honour on 24 August 2017. Although his Honour’s remarks did not change, the applicant observes that a head sentence of imprisonment for two years and nine months is substantially less than a head sentence of four years imprisonment.
The applicant also submits that the respondent had been charged with the offence under s 307.13(1) of the Criminal Code because the Crown was unable to prove the pure amount of the precursor that she had attempted to import. If the quantum of the precursor could be proven, the available maximum penalties are substantially higher, i.e. 25 years imprisonment for a commercial quantity and 15 years imprisonment for a marketable quantity. The marketable quantity of ephedrine or pseudoephedrine is 3.2 grams while a commercial quantity is 1.2 kilograms. The applicant submits that while the pure quantity of the precursor substance is unknown, the seriousness of the respondent’s offending is demonstrated by the gross weight of 1.9 kilograms of powder that she attempted to import.
The applicant submits the Judge did precisely what his Honour had stated that he would not do, i.e. adjust the head sentence ‘to accommodate the problem’ of being unable to suspend that part of the respondent’s sentence that was to be spent in custody because her head sentence exceeded three years. The applicant contends that the sentencing judge substantially reduced the head sentence so as to enable it to be fully suspended. That resulted in a manifestly inadequate head sentence.
The inadequacy of the head sentence was demonstrated by the role of the respondent in the offending, the need for general and personal deterrence, punishment and denunciation of the offending and also the requirement for national consistency in sentencing standards.
Section 16A(2)(j) and 16A(2)(ja) of the Crimes Act 1914 (Cth) require that the Court take into account the principles of specific and general deterrence when sentencing for a federal offence. The applicant further submits that general deterrence and denunciation are prime considerations when sentencing for a drug importation offence.[3] The High Court held in Tak Fat Wong v The Queen that general deterrence is to be given chief weight in the sentencing exercise for drug importers.[4]
[3] R v Riddell (2009) 194 A Crim R 524 at [55]-[58].
[4] (2001) 207 CLR 584 at [64], Gaudron, Gummow and Hayne JJ.
The applicant acknowledges that, because the respondent was regarded as having a low risk of re-offending and had been drug free for a lengthy period, specific deterrence was of lesser importance than it might otherwise have been. However, her prior conviction in February 2005 for manufacturing amphetamines disentitled her to leniency.
The applicant also observes that the High Court has held that consistency is an important aspect of sentencing, both at first instance and on appeal.[5] What is required is not numerical equivalence but rather consistency in the application of sentencing principles.[6]
[5] Tak Fat Wong v The Queen (2001) 207 CLR 584; Hili v The Queen (2010) 242 CLR 520.
[6] Hili v The Queen (2010) 242 CLR 520 at [48], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; The Queen v Pham (2015) 256 CLR 550.
Counsel for the applicant informed the Court that she was not aware of any appellate court authority where sentencing in a drug importation case had been considered without there being any information before the court as to the pure quantity of the drugs. Nevertheless, the applicant submitted that the Court may draw some limited assistance from two decisions of the District Court of Western Australia and one decision of the District Court of Queensland. In each case the defendant had been charged under s 307.13(1) of the Criminal Code, i.e. the same offence as the respondent.
The first of the sentences referred to by the applicant was imposed by the District Court of Western Australia in R v Gosden.[7] The defendant had flown into Australia with 276 grams of pseudoephedrine at a time when the marketable quantity was 400 grams. He had been promised a payment of $10,000 to $15,000, an amount which was said to be higher than that paid to a courier. He pleaded guilty at an early stage. He was a 42 year old father of three children, received a disability support pension and was under financial stress. He demonstrated remorse, had a history of substance abuse, a supportive employer and was a volunteer in a community organisation. The defendant was sentenced to 18 months imprisonment with an order for release after serving 12 months upon entering into a recognizance to be of good behaviour for six months.
[7] District Court of Western Australia, 7 December 2010, Eaton DCJ.
In R v Symons, Chief Judge Kennedy of the Western Australia District Court sentenced the defendant to three years imprisonment to be released after serving 16 months on a recognizance to be of good behaviour for 18 months.[8] The defendant had imported 1.4 kilograms of pure pseudoephedrine by post. He was to receive a cash payment. He was a 50 year old father of three children and a drug addict with a prior history of drug offending. He had also been a victim of childhood abuse but had a supportive family.
[8] District Court of Western Australia, 28 July 2009, Kennedy CJDC.
The third case referred to by the applicant was R v Nel where Judge Noud of the Queensland District Court sentenced a defendant who had tricked a friend into taking delivery of 17.2 kilograms of phenylpropanolamine.[9] He had then travelled to Australia to oversee delivery of the drugs from the friend’s house to the place where it was to be manufactured into a drug. He entered an early guilty plea. The defendant was aged 44 years with no prior convictions. He demonstrated remorse and had taken steps to rehabilitate himself. The defendant was imprisoned for four years to be released after serving 468 days (a little over 15 months) upon entering into a recognizance to be of good behaviour for five years.
[9] District Court of Queensland, 15 January 2010, Noud DCJ.
The applicant also submits that the Judge erred by ordering that the respondent be released forthwith upon entering a recognizance to be of good behaviour. Counsel submits that the failure to impose any custodial sentence is so far below the appropriate range of sentence as to reflect an error of principle or would “shock the public conscience”.
The respondent’s submissions
The respondent submits that the ‘rare and exceptional circumstances’ requirement for the grant of leave is not met. The sentence imposed was within a reasonable exercise of the Judge’s discretion. The order for her immediate conditional release was also reasonable having regard to the matters that the Judge took into account.
Counsel for the respondent also vigorously attacked the version of the facts advanced by the prosecution at the trial. Counsel submitted that the prosecution had distorted and exaggerated the role of the respondent in the offending. The effect of the submissions made by counsel was that the respondent had played a lesser role than others in planning and executing the importation of the precursor substance. In the words of her counsel, she was merely a ‘mug and dummy’.
It was also submitted that the respondent is both physically and mentally damaged. In addition to the reports provided to the Court, she had given evidence of the physical and mental consequences of her addiction and the abuse she had suffered from participants in the drug arena. Counsel submitted that in some instances her state of mind and culpability would have been affected by these matters. The physical and mental health problems were relevant to not only her state of mind and culpability but also the task of rehabilitation.
Sentences imposed on co-offenders
Counsel for the respondent submitted that the respondent’s culpability was similar to that of Mr Arrowsmith, greater than that of Mr Bryant and less than that of Ms Inkster. The sentences imposed on the co-accused (by a different Judge to the respondent) are set out below.
Ms Inkster pleaded guilty to the offence of aiding and abetting an attempt to import a border controlled precursor. The maximum penalty for that offence is imprisonment for seven years or a fine of $238,000, or both. She also pleaded guilty to failing to comply with a bail agreement by returning a positive urine sample.
Ms Inkster had facilitated communications between the respondent and Monkey with the knowledge that the respondent was intending to import border controlled substances. She had initiated the relationship between Monkey and the respondent and had continued to communicate with Monkey to confirm the deposits and transfers of money and the balances that were outstanding. Ms Inkster had acted with the respondent to recruit Mr Arrowsmith into the enterprise. They secured his agreement to receive the parcel and transport it to the address of Robert Maggs who was to use the imported substances to manufacture methylamphetamine.
In imposing sentence, the Judge noted that Ms Inkster was then 49 years of age and had a history of abusive relationships. She had been using methylamphetamine since she was aged in her thirties and had a long standing addiction. The offence was committed while Ms Inkster was on parole for other drug related offences. She had a history of mostly drug related offences. She had completed a Certificate in Community Work and a Diploma in Drug and Alcohol Rehabilitation. She had been a Lifeline volunteer for some months and hoped to assist others deal with domestic violence. She had reasonably stable employment while on home detention bail for a period of six months.
In Ms Inkster’s case the Judge started with a head sentence of two years and four months which was reduced to one year and eight months on account of her guilty plea because his Honour was satisfied that she had shown contrition. After giving credit for the time spent on home detention bail and taking into account Ms Inkster’s prospects of rehabilitation and antecedents, his Honour ordered her release after serving six months upon entering into a recognizance to be of good behaviour and subject to supervision for 24 months.
Mr Arrowsmith pleaded guilty to the offence of attempting to import a border controlled precursor, i.e. the same offence as the respondent. He was aged 49 years of age and addicted to methylamphetamine. As a result of two motor vehicle accidents and two later strokes he was unable to work and had commenced using methylamphetamine for pain relief. At the time of the offending he was in a relationship with Ms Inkster. He had no relevant prior convictions other than a possess cannabis charge more than 20 years earlier. He was no longer using methylamphetamine and had been on bail for over two years without returning a positive urine sample. He had agreed to have the parcel sent to his house in exchange for an amount of methylamphetamine.
In the case of Mr Arrowsmith the starting point was a head sentence of one year and six months which was reduced to 12 months to reflect his guilty plea, his genuine contrition and the steps taken to rehabilitate himself. He was released immediately upon entering into a recognizance to be of good behaviour and subject to supervision for 12 months.
Mr Bryant had pleaded guilty to one count of dealing with money, being the sum of $10,000 or more, where there was a risk that the money will become an instrument of crime contrary to s 400.6(2) and s 400.1 of the Criminal Code. The offence carried a maximum penalty of five years imprisonment or a fine of $51,000 or both. Mr Bryant was 32 years of age at the time of sentencing. He had worked as a jockey but had been banned for using drugs. His antecedents were primarily driving offences and he had no relevant prior convictions. He became involved in the offending due to his relationship with the respondent. Mr Bryant had facilitated the transfer of funds overseas on behalf of the respondent by physically attending the post office on two occasions. The Judge imposed a head sentence of 12 months imprisonment and declined to discount that sentence in recognition of his guilty plea because his Honour was not satisfied that it amounted to a display of genuine contrition but was instead a recognition of the inevitable. Mr Bryant was released immediately upon entering a recognizance to be of good behaviour and under supervision for 12 months.
Consideration
General principles
In ordinary circumstances permission to appeal will be granted where it is reasonably arguable that the impugned sentence shows error.[10] Because sentencing involves the exercise of a judicial discretion, the alleged error must be of the type identified by the High Court in House v The King.[11] Thus, there must either be a process error or an outcome error.[12]
[10] R v Parenzee (2007) 101 SASR 456 at 461, Doyle CJ, Anderson and Kelly JJ agreeing.
[11] (1936) 55 CLR 499.
[12] R v Horstmann [2010] SASC 103, (2010) 269 LSJS 42; R v Lutze (2014) 121 SASR 144 at [45]-[47], Vanstone and Parker JJ.
Crown appeals
When the Crown seeks permission to appeal against a sentence, a further requirement must be satisfied. The Court must be persuaded that there are public policy considerations that outweigh the public interest in protecting persons from having their liberty twice placed in jeopardy.[13] For that reason the High Court held in Everett v The Queen that leave should be granted for a Crown appeal against sentence ‘only in the rare and exceptional case’.[14] That reflects the reluctance of common law to expose a defendant to double jeopardy by being sentenced on a second occasion for the same crime.[15]
[13] R v Koch [2015] SASCFC 31 at [23], Parker J, Kourakis CJ and Bampton J agreeing.
[14] (1994) 181 CLR 295 at 299.
[15] Malvaso v The Queen (1989) 168 CLR 227 at 234, Deane and McHugh JJ; DPP (Vic) v Bright (2006) 163 A Crim R 538 at 542-543.
The relevant principles were summarised by the Court of Criminal Appeal (comprising five judges) in R v Payne as follows:
Leave should only be granted to establish some matter of principle, pursuant to which the Court of Criminal Appeal might give guidance to sentencing judges, or if it is necessary for the court to establish and maintain adequate standards of punishment for a crime, or to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that standards of penalty and public confidence in the administration of justice can be maintained.[16]
[16] (2004) 89 SASR 49 at 70, Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ.
The change in the Judge’s views
A central element of the applicant’s contentions is that the Judge was correct in his initial assessment that the appropriate head sentence was imprisonment for four years. His Honour imposed a lesser sentence without there being any material difference between his initial sentencing remarks on 24 August 2017 and the remarks he made on 19 September 2017 (when sentence was actually imposed).
While in most circumstances it is not desirable that a judge indicate a proposed sentence and then impose a different sentence, the sentencing process was left incomplete on 24 August 2017. The matter was adjourned for further submissions on the sentencing options permitted by the Commonwealth legislation. Thus, the sentencing process had not concluded.[17] The Judge was merely expressing a preliminary view that, at the time, his Honour considered a sentence of four years to be appropriate. The applicant acknowledged that the Judge was not bound by his preliminary view. When the sentencing process resumed on 19 September 2017, his Honour made it very clear that after giving the matter further thought he had revised his view as to the appropriate sentence and gave reasons for that change. The fact that he revised his view does not, of itself, demonstrate an error in sentencing.
[17] R v Brooks (2006) 95 SASR 369 at [38]-[40], Bleby J suggests that the sentencing process would not have concluded until the judge signed the Record of Prisoners Tried.
Manifest inadequacy
The principles to be applied when determining whether a sentence is manifestly excessive (or, as in this case, whether it is manifestly inadequate) were stated by King CJ in a frequently cited passage in R v Morse:
There is no suggestion that the learned sentencing Judge made any error of fact or law or that he failed in any way to take into account the relevant considerations. This Court can interfere only if it is convinced that the sentence was manifestly excessive. To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.[18]
[18] (1979) 23 SASR 98 at 99.
General and specific deterrence
The High Court held in Wong v The Queen that general deterrence is to be given chief weight in the sentencing exercise for drug importers.[19] The applicant acknowledges that the importance of specific deterrence is lessened because the respondent is at a low risk of re-offending and had been drug free for a lengthy period. However, the applicant also submits that the respondent’s prior conviction in February 2005 for manufacturing amphetamines disentitles her to leniency.
[19] (2001) 207 CLR 584 at [64].
Comparable sentences
The High Court has made it very clear that consistency is an important aspect of sentencing, both at first instance and on appeal.[20] What is required is not numerical equivalence but rather consistency in the application of sentencing principles.[21] In Hili v The Queen the High Court adopted with approval the observation by Simpson J in Director of Public Prosecutions (Cth) v De La Rosa[22] where her Honour stated that ‘it is only by examination of the whole of the circumstances that have given rise to the sentence that “unifying principles” may be discerned’.[23]
[20] Wong v The Queen (2001) 207 CLR 584; Hili v The Queen (2010) 242 CLR 520.
[21] Hili v The Queen (2010) 242 CLR 520 at [48]; The Queen v Pham (2015) 256 CLR 550.
[22] (2010) 243 FLR 28 at [303]-[305].
[23] (2010) 242 CLR 520 at [54], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

In Barbaro v The Queen, in the context of discussing the permissibility of submissions referring to an available sentencing range, French CJ, Hayne, Kiefel and Bell JJ made the following observations touching upon the use of sentencing statistics and comparable sentences:
The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence.
As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect.[24]
(footnotes omitted)
[24] (2014) 253 CLR 58 at [40]-[41].
In addition to the preceding considerations, the High Court has also referred to the need for consistency in sentencing of federal offenders.[25] Unfortunately, the Western Australian and Queensland District Court sentencing decisions referred to by the applicant provide only limited assistance. That is the case for several reasons.
[25] Hili v The Queen (2010) 242 CLR 520 at [57], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
First, these sentences have not been reviewed by a Court of Criminal Appeal. Secondly, unlike the present case, in each of the interstate cases the quantity of the pure substance was known to the sentencing court. Thirdly, while there appears to be some broad similarities between the personal circumstances of the respondent and those of the defendants in Gosden and Symons, only limited information has been provided. Finally, the information goes little beyond numerical equivalence and provides no assistance on matters of sentencing principle.
The quantity of the pure substance in the interstate cases ranged from 26 grams to 17.2 kilograms. It can be inferred from the payment of at least $30,000 that the respondent and the others involved expected to be supplied with a significant pure quantity of the precursor substance. The pure quantity that the appellant and her co-offenders believed they were to receive must surely have been much greater than the 26 grams involved in Gosden,[26] but obviously much less than the 17.2 kilograms in Nel. The pure quantity of 1.4 kilograms in Symons appears to be broadly comparable with the total weight of 1.9 kilograms in this case. The head sentence of three years imprisonment in Symons was little different to the two years and nine months imposed in the present case.
[26] It was only necessary for the 1.9 kilograms of powder seized in India to comprise 1.37% of the border controlled precursor for the pure quantity to exceed the 26 grams involved in Gosden.
Parity with co-offenders
As stated earlier, the respondent submits that her culpability was similar to that of Mr Arrowsmith, greater than that of Mr Bryant and less than that of Ms Inkster. While there is no cross appeal by the respondent, my understanding of the point made by her counsel is that even greater leniency may have been warranted. Thus, counsel submits that there is no basis for the contention of manifest inadequacy.
The respondent’s submission that she played a greater role than Mr Bryant is clearly correct. However, her contention that her role was similar to that of Mr Arrowsmith is not correct. His participation was limited to receipt of the parcel at his home followed by its delivery to another suburb. The Judge found that the volume of text and email messages to and from the respondent, her primary role in authorship of the ‘suburbia’ documents and the making of payments (albeit with money supplied by another person) indicated her active part in facilitating the shipment.
Ms Inkster pleaded guilty to aiding and abetting an attempted importation rather than an attempted importation per se. While both offences carry a maximum penalty of imprisonment for seven years, it is apparent from the decision to charge Ms Inkster with aid and abet that a lesser role was being alleged. Her role was primarily that of a facilitator rather than an active participant. Thus, the starting point for her sentence of imprisonment for two years and four months does not indicate a disparity with that imposed on the respondent, albeit that Ms Inkster had a history of similar offending and committed the subject offence while on parole. The Judge also had the benefit of reading remarks made by Judge Slattery when his Honour sentenced the others involved in these offences.
Discussion
While for the reasons stated at [65], only limited significance can be attached to the comparative sentences, those sentences tend to suggest that the head sentence of two years and nine months imprisonment was not so low as to be manifestly inadequate. That suggestion is reinforced when the sentence is measured against the maximum sentence of seven years prescribed by the Parliament.
Another important consideration is that although the respondent played a somewhat more significant role than her co-offenders, the supply of the money for the purchase by a third party indicates that she was not the head of the criminal organisation. Instead, she was an addict who was apparently to be rewarded with some of the precursor substance. It was also appropriate for the Judge to take into account the respondent’s personal history, her adherence to the good behaviour bond following her conviction in 2005 and the significant efforts she has made to rehabilitate herself and become drug-free after her arrest. Those matters, and the time elapsed, reduced the significance that might otherwise have been attached to her conviction in 2005.
I note the concerns expressed by the applicant about the striking difference in the diagnoses provided by Dr White and his colleague, Ms Darmenia. As the respondent was treated by Ms Darmenia on ten occasions, but only saw Dr White once, the more limited diagnosis of Ms Darmenia appears far more persuasive. However, it is not necessary to take that matter any further.
I consider that, although the head sentence tended to the lower end of the available range, it does not display an error of principle that would shake public confidence in the administration of justice if it were allowed to stand.
Immediate release on a recognizance order
The further issue is whether the decision not to order immediate imprisonment and to release the respondent on a recognizance order reveals any error. A wrongful decision to suspend is a species of manifest inadequacy.[27] A complaint about the decision not to suspend the sentence must be subject to the same process as a complaint concerning the length of the sentence.[28]
[27] Dinsdale v The Queen (2000) 202 CLR 321 at [6], Gleeson CJ and Hayne J; R v Lutze (2014) 121 SASR 144 at [49], Vanstone and Parker JJ.
[28] R v Lutze (2014) 121 SASR 144 at [48], Vanstone and Parker JJ.
The double jeopardy principle is of particular significance where a suspended sentence has been imposed and the appeal is against the decision to suspend.[29] When considering Crown appeals against the suspension of a sentence, the Court should be slow to imprison once the defendant has been told by the lower court that they will not have to go to gaol.[30] Thus, in R v Hicks King CJ observed:
When a person such as the present respondent has been told that he will not have to go to prison, a great load is lifted from his mind. The consequences of reversing that intimation could be devastating.[31]
[29] R v Nemer (2003) 87 SASR 168 at [26]-[31]; R v Kennedy [2012] SASCFC 13 at [32], Gray J.
[30] R v Hicks (1987) 45 SASR 270.
[31] (1987) 45 SASR 270 at 273.
In Green v The Queen, similar observations were made by French CJ, Crennan and Kiefel JJ:
Other circumstances may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent’s release on parole or unconditionally, and the effect of resentencing on progress towards the respondent’s rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual …[32]
[32] (2011) 244 CLR 462 at 479-480.
This Court also commented in R v Kong that:
There are circumstances which will produce an injustice if a Crown appeal is allowed, even in a case in which the sentence is erroneously lenient. Factors such as a defendant’s personal circumstances, the defendant’s progress towards rehabilitation, the harshness of sentencing a person to custody who has been free in the community and has taken significant steps to rebuild his life are just some of the factors which are relevant to the exercise of a residual discretion to refuse a Crown appeal.
It would be a crushing reversal of fortune for a man who left the dock nine months ago, believing that he would not be taken from his family and would be able to continue his rehabilitation in the community, to be now required to serve a lengthy and immediate custodial sentence.
In this case, to grant permission to the Crown to appeal and to allow the appeal would be at too high a cost in terms of justice, to the defendant …[33]
[33] (2013) 115 SASR 425 at 444-445, Kourakis CJ, Sulan and David JJ.
While the preceding authorities make it very clear that the Court must be slow to set aside a decision not to order immediate imprisonment, this will be necessary where a decision to suspend reveals an error of principle that would shake public confidence in the administration of justice. Accordingly, in R v Filipponi this Court granted permission for the Crown appeal and set aside the order that the respondent serve his sentence on home detention following conviction for serious drug offences.[34]
[34] 2016) 126 SASR 464. In that case, the sentence of immediate imprisonment was reduced slightly in recognition of the period served on home detention.
In Filipponi the respondent had been sentenced to four years and nine months imprisonment reduced by 5% from a starting point of five years on account of his guilty plea. He had been found by police in possession of mixed material containing slightly more than 116 grams of pure cocaine. He was also found with scales and small plastic resealable bags together with over $9,000 in cash and list of sales of cocaine, i.e. a tick list. Police evidence indicated that the value of the cocaine ranged between about $81,000 to about $326,000 if it was sold in one gram deals and depending on how it was ‘cut’.
While the respondent has not been convicted of trafficking, the observations made in Filipponi are of general relevance to the sentencing of persons who play a significant role in the drug trade. In Filipponi the Court referred to the observations made in R v Kong about the effect of the drug trade:
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, not 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 competing sentencing objectives in the case of commercial drug dealers.[35]
[35] See, R v Kong (2013) 115 SASR 425 at [90], Kourakis CJ, Sulan and David JJ.
The Court held in Filipponi that general deterrence militates strongly against the suspension of a sentence of imprisonment imposed for trafficking. In that regard, the Court referred to the observations made by Doyle CJ in R v Mangelsdorf where his Honour held that to allow suspension of a sentence in a serious drug case would tend to erode the standard of punishment which the Court has determined to be appropriate for such offences.[36]
[36] (1995) 66 SASR 60.
While Filipponi dealt with a prosecution appeal against a sentence being served on home detention, the same principles apply when determining whether release on a recognizance order reveals an error in the exercise of the sentencing discretion. Attempting to import a substantial quantity of a border controlled precursor substance is clearly a serious drug offence. If the attempt had succeeded, the precursor substance would almost inevitably have been converted into a substantial quantity of amphetamine or methylamphetamine. The often terrible consequences caused by misuse of these highly addictive drugs is an issue constantly before the courts.
While the fact that the money sent overseas was supplied by others indicates that the respondent was not at the top level of the enterprise, she played a significant role and had co-opted others to assist her. Those matters suggest that an immediate custodial sentence was required in the absence of compelling contrary considerations.
Due to the delay in the matter coming to trial and the long period that the respondent spent on bail, she has had ample opportunity to rehabilitate herself. While that delay may substantially have been the product of the decision by the respondent to withdraw her initial guilty plea, she has used the time profitably. She has undergone psychological treatment and participated in group counselling. She has remained drug free for a considerable period and has also taken up a course of study that may enable her to assist others. The reports supplied by the DCS speak strongly in her favour to an extent that is rarely seen.
In view of the particular efforts made by the respondent to free herself from addiction and to generally rehabilitate herself, I am not persuaded that it was not within a reasonable exercise of the Judge’s discretion to order her immediate release on a recognizance order. I do not regard that conclusion as being inconsistent with the principle in Filipponi that persons who commit serious offences related to the drug trade, whether that be trafficking, importation or otherwise, should in most circumstances be subject to an immediate custodial sentence.
Permission to appeal
I would refuse permission for this prosecution appeal against sentence because I do not consider that the ‘rare and exceptional circumstances’ requirement has been satisfied. The public policy considerations referred to by the applicant clearly do not, in my view, outweigh the countervailing public interest in protecting persons from double jeopardy. My reasons can be summarised as follows.
Although the head sentence imposed on the respondent tended to the lower end of the available range, it does not display an error of principle that would shake public confidence in the administration of justice if it were allowed to stand. While the sentences in the interstate cases referred to by the applicant provide only limited assistance, there is no obvious disparity between those sentences and that imposed on the respondent. That point is reinforced by the complete lack of information in this case about the quantity of the precursor substance. There is also, in my view, no disparity between the respondent’s sentence and those imposed on her co-offenders. I also consider, notwithstanding that this was a serious drug offence, that the decision to order the respondent’s immediate release on a recognizance order was a reasonable exercise of the sentencing discretion in light of her particular circumstances.
Conclusion
I would refuse permission to appeal.