R v Buttigieg - [2020] SASCFC 38

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BUTTIGIEG
[2020] SASCFC 38
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Lovell)
20 May 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION - DOUBLE JEOPARDY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - RECOGNISANCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
The respondent pleaded guilty to importing a marketable quantity of a border controlled drug contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth). He was sentenced to imprisonment for two years, 11 months and three weeks. He was released forthwith on a recognizance release order upon giving security of $5,000 and on the condition that he be of good behaviour for two years and six months. The Commonwealth Director of Public Prosecutions appeals against the sentence imposed.
Crown appeals against sentence – whether the sentence is manifestly inadequate – whether rare and exceptional circumstances exist – double jeopardy – exercise of residual discretion to refuse permission to appeal
Held, per Lovell J (Kourakis CJ and Nicholson J agreeing), refusing permission to appeal:
1. The sentence is manifestly inadequate.
2. On a Commonwealth Crown appeal against sentence the principle of double jeopardy applies at the permission to appeal stage of the appeal.
3. The gravity of the offending does not overwhelm the respondent's personal circumstances and to allow the appeal would come at too high a cost, in terms of justice, to the respondent.
Criminal Code Act 1995 (Cth) ss 149.1, 307.2; Crimes Act 1914 (Cth) ss 16A, 16BA, 19AC, 20; Criminal Procedure Act 1921 (SA) ss 150, 157; Judiciary Act 1903 (Cth) s 68, referred to.
Everett v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168; R v Harkin [2011] SASCFC 24; R v McIntosh [2017] SASCFC 87; Dinsdale v The Queen (2000) 202 CLR 321; R v Peet [2018] SASCFC 91; Hili v The Queen (2010) 242 CLR 52; R v Kong [2013] SASCFC 15; R v Marien [2011] SASCFC 116; Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; Wong v The Queen (2001) 207 CLR 584; Green v The Queen (2011) 244 CLR 462; R v Borkowski (2009) 195 A Crim R 1, considered.

R v BUTTIGIEG
[2020] SASCFC 38
Court of Criminal Appeal: Kourakis CJ, Nicholson and Lovell JJ

KOURAKIS CJ: I would refuse permission to appeal for the reasons given by Lovell J. I would add that the uncertain factual basis on which the submissions and the sentencing proceeded make this appeal an unsatisfactory vehicle through which to maintain sentencing standards or to explicate the proper application of sentencing principles for offences of this kind.
NICHOLSON J: I would refuse permission to appeal for the reasons given by Lovell J.
LOVELL J: On 27 September 2016, Mr Buttigieg, the respondent, was arrested by Australian Federal Police (‘AFP’) officers for importing 134.5 grams of pure cocaine. He was charged with importing a marketable quantity of a border controlled drug, contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth) (‘the Criminal Code’). The maximum penalty for the offence is 25 years imprisonment.
On 18 May 2018, three days before his trial was due to commence, the respondent pleaded guilty to this charge. As part of the sentencing process, the respondent, having signed a schedule pursuant to s 16BA(1) of the Crimes Act 1914 (Cth) (‘the Crimes Act'), admitted a further offence, namely obstructing a Commonwealth public official, contrary to s 149.1 of the Criminal Code. The maximum penalty for the offence is two years imprisonment.[1] The Sentencing Judge was permitted to take into account the respondent’s commission of the scheduled offence.
[1] Criminal Code Act 1995 (Cth) s 149.1(1).
On 26 July 2019, the respondent was sentenced to imprisonment for two years, 11 months and three weeks. He was released forthwith on a recognizance release order[2] upon giving security of $5,000 and on the condition that he be of good behaviour for two years and six months.[3]
[2] Crimes Act 1914 (Cth) s 19AC(1).
[3] Crimes Act 1914 (Cth) s 20(1)(b).
The Commonwealth Director of Public Prosecutions (‘the Director’) appeals against the sentence imposed. The Director seeks permission to appeal on the following grounds:
1The sentence imposed is manifestly inadequate as:
(a) the sentence is not of appropriate severity and fails to adequately reflect the principles of general and specific deterrence required for drug import offences; and
(b) the sentence does not adhere to the requirement for national consistency in sentencing standards for federal offences.
2The Sentencing Judge erred in ordering that the offender be released forthwith.
The Director submitted that the sentence imposed was outside the range of appropriate sentences for this type of offending. While acknowledging that permission to appeal should only be granted with respect to Crown appeals against sentence in cases that are ‘rare and exceptional’, the Director submitted this sentence was so low that permission to appeal should be granted, the appeal allowed and the respondent be resentenced.
The facts
On 11 September 2016, the respondent travelled from Sydney to the United States. On 14 September 2016, he arranged an international consignment, labelled ‘documents’ and directed to a person at an address in Adelaide. The respondent returned from the United States, landing in Victoria, on 16 September 2016.
On 18 September 2016, the consignment arrived at Melbourne Gateway Facility where it was intercepted by Department of Immigration and Border Protection officers and seized by AFP officers. A foil sachet containing white powder was found in the consignment. The powder was found to be 80.1% pure cocaine. The nett weight of the cocaine was 134.5 grams.
The house in Adelaide recorded on the consignment note was not occupied and the parcel was returned to Australia Post. The respondent made multiple attempts to collect the parcel from Australia Post. On 26 September 2016, he attended at the Australia Post Business Hub on Gouger Street, Adelaide, and was informed that it would be delivered to the consignee address. On 27 September 2016, AFP officers approached the respondent in his car in the vicinity of the consignee address. After providing a name and address, the respondent was arrested. When told he would be searched, the respondent complained of chest pains and became increasingly anxious to the point an ambulance was called. The respondent then attempted to escape and resisted police by continually thrashing his arms and legs and failing to follow directions. He was eventually taken to the Royal Adelaide Hospital.
The respondent pleaded not guilty at committal and arraignment. On 18 May 2018, three days prior to the start date of the trial, the respondent pleaded guilty to the charge. He was sentenced in July 2019.
Delays
After the respondent pleaded guilty on 18 May 2018, the factual basis for the plea was disputed causing significant delay in the sentencing process. The dispute centred on the circumstances leading up to the importation, that is, whether or not it was premeditated. The respondent contested the factual basis on which he was to be sentenced until at least 30 November 2018. The Director submitted that the significant delay during that period was caused by the respondent’s ‘adherence to a basis of the plea that was inconsistent with many of the materials that indicated there was pre-planning, that it was premeditated’.
However, there were also delays outside of the respondent’s control from December 2018 to July 2019. One of the delays was waiting for this Court to hand down its decision in R v Medalian.[4]
[4] [2019] SASCFC 40.
The respondent was sentenced on 26 July 2019. The appeal was filed on 15 August 2019. The respondent appeared unrepresented on 30 September 2019 and 14 October 2019 before applying for a further adjournment in December 2019.
The Director submitted that whilst the delay is not irrelevant and something this Court will take into account, he submitted that the delay in the hearing of this appeal was largely due to the respondent and his failure to secure representation.
Mr Millsteed QC, counsel for the respondent, conceded that some of the delay was occasioned by the respondent. He submitted that part of the delay related to the question as to whether permission could be granted by a single Justice of the Court. The respondent, being unrepresented at the time, was unable to assist the Court on submissions, resulting in the matter being adjourned.
Mr Millsteed QC submitted that although the respondent was responsible to some extent for the delay, he still continued his rehabilitation. This is a factor the Court can take into account in determining whether to grant permission, or if permission is granted, whether he should be resentenced.
Factual basis for sentencing
At the hearing of this appeal there was dispute as to the factual basis on which the respondent was sentenced. The Sentencing Judge in his remarks stated:
The brief circumstances are that you arranged for the importation into Australia of 134.5 g of 80% pure cocaine, for which you paid $5,000. This was done at the behest of your Australian dealer as a means of repaying a sizeable outstanding debt to him and to sustain your own extensive habit.
(Emphasis added)
The Director submitted that the respondent’s drug dealer demanded an amount of money from him and it was left to the respondent to come up with a way to repay that debt. Consequently, the respondent designed the importation scheme as a one-off transaction, playing the only role in the operation, with the end product going back to his dealer.
Mr Millsteed QC contested this factual basis, pointing to the Sentencing Judge’s remarks that it was done ‘at the behest of your Australian dealer’. Mr Millsteed QC pointed to sentencing submissions, where counsel for the respondent put forward the following unchallenged factual basis:
1at the time of the commission of the offence and at the time the respondent went to America, he was a heavy user of cocaine;
2at the time he had built up a substantial drug debt to the person who was supplying him with cocaine in Australia;
3that the importation constituting the offence was carried out to pay off the debt that the respondent owed to his supplier and to support his own habit; and
4the offending occurred in circumstances where his supplier was a drug dealer who had a reputation for violence and the respondent was fearful for his safety if he did not pay off the debt.
There was a further unchallenged submission that ‘the criminal offending was done and initiated by his dealer who [scil: as] was his trip to America as a means of getting [the respondent] to pay off his debt’.
The Sentencing Judge’s remarks are unclear on this point. I consider it appropriate to proceed on the basis that this Court can neither assume that the respondent organised the entire operation himself, nor can it proceed on the premise that his Australian dealer organised all the contacts for the importation. What is clear is that the respondent’s participation in the scheme was significant.
The respondent’s personal circumstances
At the time of sentencing, the respondent was 35 years old; he is now 36. He is in a stable, supportive and loving relationship of many years and has the support of his parents and wider family. After completing Year 12, he worked in the retail motor vehicle and boating industry. He is presently employed at a furniture business and he is spoken well of in that work. The respondent contributes to the community through volunteering work. Outside of his work and volunteering commitments, the respondent helps care for his mother who is in very poor health.
He has a history of significant, long-term cocaine use. He started using cocaine recreationally in his late 20s and prior to his arrest in September 2016, he was using the drug every day.
The respondent has no prior convictions of relevance. However there has been a persistent pattern of motor vehicle offences since 2002 resulting in short prison sentences.
Since the offence, the respondent has taken significant steps towards rehabilitation.
Medical evidence
Mr Sukovic, a psychologist, has treated the respondent since mid-2017. He provided a report, dated 26 November 2018: this was tendered at the sentencing hearing.
On the history provided by the respondent, Mr Sukovic considered that the respondent suffered from clinically significant symptoms of anxiety in addition to panic attacks. These issues pre-dated his offending and increased in frequency and intensity after his arrest in 2016. Further, at the time of the offending, the respondent was suffering from a moderate to severe Stimulant Use Disorder. The respondent completed a five-month drug rehabilitation programme in addition to regular consultations with Mr Sukovic. Mr Sukovic assessed his risk of future similar offending as low.
In 2018, the respondent consulted a psychiatrist who prescribed anti- depressant medication.
Dr White, a psychologist, provided a report, dated 27 November 2018, for sentencing purposes. Dr White’s opinions were consistent with those expressed by Mr Sukovic. Dr White diagnosed the respondent with stimulant use, post-traumatic stress, and adjustment disorders with mixed anxiety and depressed mood, and a mixed personality disorder. The report noted a positive prognosis in view of the maintenance of a lifestyle free from substance abuse since his arrest. Dr White opined that the respondent appeared motivated to continue his rehabilitation. Dr White considered that a custodial sentence would have adverse effects on the respondent’s mental health and rehabilitation.
The evidence established that the respondent had diligently applied himself to his rehabilitation. He undertook a drug rehabilitation course and attended psychological and psychiatric counselling. The respondent removed himself from the drug culture.
In addition to the psychological reports, the respondent tendered eight character references. The references disclosed a supportive network around the respondent. They established that the respondent is a caring man, dedicated to his work and to supporting his family. They suggested that the respondent expressed genuine remorse for the offence and has strived to turn his life around since his arrest.
The sentence
The respondent pleaded guilty to one count of importing a marketable quantity of a border controlled drug, contrary to s 307.2(1) of the Criminal Code. The maximum penalty for the offence is 25 years imprisonment, or 5000 penalty units, or both.[5] As discussed, the Sentencing Judge was also permitted to take into account the respondent’s commission of the scheduled offence, namely obstructing a Commonwealth public official, contrary to s 149.1 of the Criminal Code. The maximum penalty for the offence is two years imprisonment.[6]
[5] Criminal Code Act 1995 (Cth) s 307.2(1).
[6] Criminal Code Act 1995 (Cth) s 149.1(1).
In sentencing, the Sentencing Judge remarked:
In sentencing you it is necessary to maintain adequate deterrent standards to deter others from engaging in similar activity, and because cocaine is such a dangerous and highly addictive drug.
In the combined circumstances, no other sentence than a term of imprisonment is appropriate…
The Sentencing Judge’s starting point was a head sentence of four years and four months imprisonment. The Sentencing Judge reduced the head sentence by 10 months, or just under 20%, to allow for the respondent’s late guilty plea and to reflect the ‘high degree of evident contrition and remorse’. The sentence was further reduced by one month to account for time spent in custody immediately following the arrest, and a further five-month reduction for time spent ‘in difficult circumstances’ on home detention bail and ‘in somewhat straitened circumstances afterwards over a protracted period of time’.
The final sentence was two years, 11 months and three weeks. The Sentencing Judge found good reason existed to release the respondent forthwith upon giving security of $5,000 and on the condition that he be of good behaviour for two years and six months.[7] Further conditions of the bond included that he be under the supervision of a Probation Officer for two years, that he did not travel interstate or overseas without written permission of Probations within those two years, that he did not consume illegal drugs and submitted to testing for those drugs, and that he attended and completed any assessment, counselling treatment or therapeutic programs as may be directed within that two years.
[7] Crimes Act 1914 (Cth) s 20(1)(b).
The Sentencing Judge outlined the factors he took into account when reaching that decision:
It is here that your personal circumstances come into sharper focus. In the period approaching the [scil: three] years since the offence, you committed early to a successful course of rehabilitation and dealt appropriately with the acute and multiple health issues. You enjoy the strong support and encouragement of your wider family. You consistently remained in stable employment whilst at the same time contributed productively to the Community. As things currently stand, you present as a completely changed person. The prospects of complete rehabilitation appear secure if you continue to adhere to the proposed regime of treatment and counselling.
Legal principles – Crown appeals
It is well established that leave should only be granted with respect to Crown appeals against sentence in cases that are ‘rare and exceptional’.[8] As Brennan, Deane, Dawson and Gaudron JJ said in Everett v The Queen:[9]
An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed.
[8] Everett v The Queen (1994) 181 CLR 295 at 299.
[9] (1994) 181 CLR 295 at 299.
A Crown appeal against the adequacy of a sentence should be approached with great care, and the ‘rare and exceptional’ test should be rigorously applied. However, the Crown will be granted permission to appeal if it is necessary to enable the Court to establish and maintain adequate standards of punishment for crime; to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected; or if a sentence is so far below the appropriate range of sentences that the sentence reflects an error of principle or would ‘shock the public conscience’.[10] Both error and strong reasons of public policy are required to justify appellate intervention in a sentence said to be manifestly inadequate. The Crown must persuade the Court that such strong reasons of public policy exist which demand permission to appeal be granted despite the public interest in not twice vexing the respondent.[11]
[10] R v Nemer (2003) 87 SASR 168 at 172 [24]; R v Harkin [2011] SASCFC 24 at [19].
[11] R v McIntosh [2017] SASCFC 87 at [16].
As with any appeal against sentence, error must be identified before an appellate court may interfere. A specific error may be identified if a sentencing judge has acted upon a wrong principle, mistaken the facts, failed to take into account a material consideration, or allowed irrelevant matters to impact the decision. Alternatively, a specific error may not be identifiable yet the sentence imposed is so manifestly excessive or inadequate that the only inference to be drawn is that there was a failure to properly exercise the sentencing discretion.[12]
[12] Dinsdale v The Queen (2000) 202 CLR 321 at 339-340 [58]-[59] (per Kirby J).

Manifest inadequacy is a conclusion.[13] In determining if a sentence is or is not plainly inadequate, an appellate court must essentially repeat the sentencing task undertaken by the sentencing judge and in doing so, determine whether the sentence imposed fell outside the permissible range such that it must be plainly inadequate.[14] A sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result.[15]
[13] Dinsdale v The Queen (2000) 202 CLR 321 at 325 [6].
[14] R v Peet [2018] SASCFC 91 at [6].
[15] Hili v The Queen (2010) 242 CLR 520 at 538-539 [59].
On a Crown appeal, the Court must first deal with the question of permission to appeal before determining whether the appeal should be allowed. The question of permission to appeal involves issues ranging beyond those involved in the merits of the appeal. This Court has determined on numerous occasions that the common law principle of double jeopardy continues to apply in respect of an application by the South Australian Director of Public Prosecutions for permission to appeal against sentence.[16] This is particularly so when the original sentence has been suspended as the offender has been in the community and may have taken significant steps towards rehabilitation. To suddenly reverse the decision and impose a custodial sentence may produce an injustice.[17] A court can exercise its discretion and refuse permission to prevent a person being twice vexed by the repeated exercise of the coercive power of the State.
[16] R v Kong [2013] SASCFC 15 at [36]; R v Harkin [2011] SASCFC 24 at [106]; R v Marien [2011] SASCFC 116 at [18].
[17] R v Kong [2013] SASCFC 15 at [102].
Principles of double jeopardy in relation to federal sentences
Section 157 of the Criminal Procedure Act 1921 (SA) (‘Criminal Procedure Act’) states:
157—Right of appeal in criminal cases
(1) Appeals lie to the Full Court as follows:
(a) if a person is convicted on information—
(i)the convicted person may appeal against the conviction as of right on any ground that involves a question of law alone;
(ii)the convicted person may appeal against the conviction on any other ground with the permission of the Full Court or on the certificate of the court of trial that it is a fit case for appeal;
(iii)subject to subsection (2), the convicted person or the Director of Public Prosecutions may appeal against sentence passed on the conviction (other than a sentence fixed by law), or a decision of the court to defer sentencing the convicted person, on any ground with the permission of the Full Court;
(Emphasis added)
By virtue of s 157(1)(a)(iii) of the Criminal Procedure Act, the South Australian Director of Public Prosecutions may appeal against a sentence passed on the conviction of a person (other than a sentence fixed by law) on any ground with the permission of the Full Court. Prior to statutory modification (s 150 of the Criminal Procedure Act), the common law principle of ‘double jeopardy’ was a factor considered by an appeal court at all stages of a prosecution appeal against sentence.
In considering this appeal, the Court is exercising federal jurisdiction conferred by s 68(2) of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’). Section 68(2) of the Judiciary Act picks up the relevant state provisions, in this case s 157(1)(a)(iii) and s 150 of the Criminal Procedure Act. Importantly, pursuant to s 80 of the Judiciary Act, the common law applies to a court exercising federal jurisdiction ‘so far as the laws of the Commonwealth are not applicable or so far as… it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth’.
Once permission to appeal is granted, s 150 of the Criminal Procedure Act precludes the Court from having regard to ‘double jeopardy’ if and when a court decides to resentence for Commonwealth offences.[18] However, it was accepted by both parties on appeal that the principle of double jeopardy still applies at the permission stage of a Crown appeal on sentence for both State and Commonwealth offences.[19]
[18] R v Kong [2013] SASCFC 15 at [33]. R v Kong discussed the now repealed s 340 of the Criminal Law Consolidation Act 1935 (SA), which was in identical terms to s 150 of the Criminal Procedure Act 1921 (SA).
[19] Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638.
In Bui v DPP (Cth),[20] the High Court observed that the term ‘double jeopardy’ is not always used with a single meaning and said the term has been used to describe the ‘distress and anxiety’ a convicted person may feel when ‘faced with the prospect of resentencing by an appeal court’[21]. As ‘presumed anxiety and distress’ is not a factor to consider when resentencing an offender, the Director submitted that ‘presumed anxiety and distress’ must also be ignored at the permission stage when considering whether the sentence under appeal was manifestly excessive. I agree with that submission if it is restricted to an assessment of the adequacy or otherwise of the sentence. However, in my view the ‘presumed stress and anxiety’ discussed at the permission stage is relevant to the question of a person being twice vexed by the repeated exercise of the coercive power of the State. That is, when considering the public policy issue at the permission stage, the Court is entitled to assume that a prisoner will be stressed and anxious about a Crown appeal. If permission to appeal is granted and the offender resentenced, stress and anxiety cannot be presumed but rather it must be proved before it can be taken into account under s16A(2)(m) of the Crimes Act.
[20] Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638 at 649-650 [14].
[21] Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638 at 649-650 [14].
The Director’s submissions
Counsel for the Director, Mr Barklay QC, submitted that the sentence imposed by the Sentencing Judge was manifestly inadequate as it was not a sentence of appropriate severity and failed to adequately reflect the principles of general and specific deterrence for drug importation offences. In support of this submission, counsel relied on the observation of the High Court in Wong v The Queen[22] that deterrence is to be given chief weight when sentencing drug importers.
[22] (2001) 207 CLR 584 at 608 [64].
The Director relied upon a schedule of what was described as comparable cases. Counsel stressed the importance of the need for consistency in the sentencing of federal offenders.[23] While the schedule was helpful it was of limited use. However, in my view, the schedule generally supported the Director’s submissions.
[23] Hili v The Queen (2010) 242 CLR 520 at 538 [57].
The Director also pointed to what was described as a ‘generous’ discount of 20% for a guilty plea entered only a few days before the trial was due to commence. Not only was the discount of 20% too generous, the late plea reflected the true nature of the respondent’s contrition.
The Director also submitted that the Sentencing Judge’s reduction of the sentence by five months for time ‘spent in difficult circumstances on home detention bail’ and in somewhat ‘straitened circumstances afterwards over a protracted period of time’ was too generous. In my view, the five months allowed was within the Sentencing Judge’s discretion.
The Director also submitted that the decision to release the respondent forthwith was indicative of error given the serious nature of the offending. The Director submitted that permission to appeal should be granted, the appeal allowed and the respondent be resentenced.
Respondent’s submissions
Mr Millsteed QC, submitted that, while the sentence was low, it was not outside the range of sentences available to the Sentencing Judge. Defining the limits of the range of appropriate sentences was a difficult task and was a matter on which reasonable minds could differ. The Director, he submitted, had failed to establish that the respondent’s sentence fell outside the scope of the Sentencing Judge’s legitimate sentencing discretion. Mr Millsteed QC contended that the discount for the late guilty plea was appropriate given the ‘utilitarian benefit’ of avoiding a trial.
Mr Millsteed QC submitted, however, that even if the sentence was manifestly inadequate, the Court should exercise its residual discretion and refuse permission to appeal. The purpose of a Crown appeal, he submitted, can be achieved by the Court stating that the sentence is wrong and why it is so. The Court should then, having regard to the principle of double jeopardy, take into account the time delay since the respondent’s arrest and the substantial process of rehabilitation undertaken by him during that time and refuse permission. Mr Millsteed QC emphasised that the respondent had:
·abstained from taking drugs and disassociated himself from the drug scene;
·successfully completed a drug rehabilitation program;
·undertaken treatment and counselling to address his underlying psychological problems that pre-dated his offending;
·obtained full-time employment;
·performed voluntary work;
·remained the main carer for his mother who suffers from Barrett’s disease; and
·maintained a caring and stable relationship with his partner.
Mr Millsteed QC submitted that to allow the appeal and resentence the respondent would unravel his rehabilitation to the detriment of the respondent, his family and the community. Such a result would come at too high a cost in terms of justice to the community.
Discussion
The starting point on appeal is to determine the question of permission to appeal. The Court must determine whether the sentence imposed is manifestly inadequate and if so, whether the discretion to permit an appeal should be exercised in favour of the Director. In my view, the Director has established that the sentence imposed by the Sentencing Judge was outside the range of sentences available to the Sentencing Judge. I accept that the respondent had no prior history in importing, selling or trading in cocaine. The evidence established that the respondent was addicted to cocaine and had become a prolific user; the importation was an attempt by him to repay his drug debt and, no doubt, use some of the cocaine himself. However, the size of the importation, the detailed nature of the plan to import and the type of drug involved called for a sentence which reflected the principles of general and personal deterrence. The sentence imposed did not reflect those principles and was a sentence of inadequate severity. I also consider the 20% discount allowed by the Sentencing Judge for the late plea of guilty was too generous. The sentence imposed was manifestly inadequate.
As discussed that does not necessarily mean that permission to appeal should be granted.
The purpose of a Crown appeal is not simply to correct an erroneous sentence. As Mr Barklay QC submitted, a Crown appeal has a wider purpose, namely to achieve consistency in sentences and the proper application of sentencing principles. These purposes can be achieved to a large extent by this Court acknowledging that the sentence imposed was wrong and why it was wrong.[24]
[24] R v Borkowski (2009) 195 A Crim R 1 at [70]; Green v The Queen (2011) 244 CLR 462 at 478 [37].
As French CJ, Crennan and Kiefel JJ stated in Green v The Queen:[25]
A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”. That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion.
[25] Green v The Queen (2011) 244 CLR 462 at 477 [36].
Factors that French CJ, Crennan and Kiefel JJ considered relevant to the exercise of the discretion included 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 observed that ‘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’.[26] In addition, the principle of double jeopardy must be considered at the permission stage.
[26] Green v The Queen (2011) 244 CLR 462 at 479-480 [43].
As the Court stated in R v Kong:[27]
This Court must first deal with permission. 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 which 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 now be required to serve a lengthy and immediate custodial sentence.
[27] R v Kong [2013] SASCFC 15 at [102]-[103].
Where a defendant is serving a sentence which has been suspended, an appellate court should hesitate to impose a custodial sentence which would frustrate the earlier sentence and deprive a defendant of the opportunity to rehabilitate himself, particularly when he has already demonstrated that he is on the path to successful rehabilitation.[28]
[28] R v Kong [2013] SASCFC 15 at [98].
Unsurprisingly in this case, the Sentencing Judge was impressed by how the respondent had turned his life around and, as he observed, was a ‘different person’ to the one who committed the offences. I have earlier set out the personal factors in favour of the respondent which demonstrate a determination to continue his rehabilitation. Indeed, it could be said that he has travelled a long way down the road of successful rehabilitation; it is nearly three years and eight months since his arrest. Whilst I accept that public policy reasons exist to allow permission to appeal, I do not consider that the gravity of the respondent’s offending overwhelms his personal circumstances. In my view, the public interest in ensuring that the respondent is not twice vexed by the repeated exercise of the coercive power of the State leads to the conclusion that to allow the appeal would be at too high a cost, in terms of justice, to the respondent.
I would refuse permission to appeal.