R v C, A

[2015] SASCFC 156

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v C, A

[2015] SASCFC 156

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Stanley)

4 November 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - PARITY BETWEEN CO-OFFENDERS

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 - GROUNDS FOR INTERFERENCE  - OTHER MATTERS

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING

Application for permission to appeal against sentence.

The applicant pleaded guilty to two counts of trafficking in a large commercial quantity of a controlled drug. The applicant was sentenced by a District Court Judge. The Judge imposed a single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA). She imposed a head sentence of seven years and one month with a non-parole period of four years. The sentence imposed was fixed by commencing with a notional head sentence of eight years imprisonment. The Judge allowed a discount of 10 per cent on account of the guilty pleas, resulting in a sentence of seven years and two months, which was further reduced by one month to take account of time spent in custody and on home detention. The sentencing Judge had previously sentenced a co-offender. In that case she also commenced with a notional head sentence of eight years imprisonment which was discounted by 30 per cent for his guilty plea. That left a head sentence of five years and six months, which was reduced by six months to account for time spent in custody and on home detention bail, leaving a head sentence of five years with a non-parole period of two years and nine months. The applicant appealed his sentence. Permission to appeal was refused by a Judge of this Court. The applicant now seeks permission to appeal from the Full Court.

Whether the sentencing Judge erred in sentencing the applicant for offending since 2012, whereas he was charged with and pleaded guilty to offending which occurred on 14 November 2013. Whether the sentencing Judge erred in her determination of the relative seriousness of the applicant’s conduct, having regard to his role in the organisation. Whether the sentencing Judge erred in failing to have proper or adequate regard to the question of parity in relation to the sentence imposed on the co-offender. Whether the sentencing Judge erred in failing to have adequate regard to the applicant’s antecedents, personal circumstances and prospects of rehabilitation. Whether the head sentence and non-parole period were, in all the circumstances, manifestly excessive.

Held per Stanley J (Sulan J and Peek J agreeing) (refusing the application for permission to appeal):

1. The Judge was at pains to emphasise that the applicant was not to be sentenced in relation to any offences except those to which he pleaded guilty (at [20]).

2. There was no error in the Judge’s characterisation of the role the applicant played in the trafficking organisation (at [22]).

3. There can be no doubt that in sentencing the applicant the Judge applied the parity principle (at [25]).

4. The sentencing Judge plainly had regard to the applicant’s antecedents, personal circumstances and prospects of rehabilitation. The authority of this Court to substitute a sentence imposed by the Judge is not enlivened by forming the view that inadequate weight was given by the sentencing Judge to the applicant’s personal circumstances (at [32]-[34]).

5. Both the head sentence and the non-parole period were within the sentencing discretion of the Judge (at [43]).

6. Permission to appeal is refused (at [44]).

Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Jongewaard (2009) 266 LSJS 283; House v The King (1936) 55 CLR 499; R v Kreutzer (2013) 118 SASR 211; R v Reiner (1974) 8 SASR 102; Weininger v The Queen (2003) 212 CLR 629; Green v The Queen; Quinn v The Queen (2011) 224 CLR 462; Street v Queensland Bar Association (1989) 168 CLR 461; Bugmy v The Queen (2013) 249 CLR 571; R v Kreutzer (2013) 118 SASR 211; R v Lutze (2014) 121 SASR 144; The Queen v Morse (1979) 23 SASR 98; Markarian v The Queen (2005) 228 CLR 357; R v Smith (2012) 281 LSJS 130; R v Kong (2013) 115 SASR 425; R v Violi [2015] SASCFC 2; R v Mustac (2013) 115 SASR 461; R v Creed (1985) 37 SASR 566; R v Shrestha (1991) 173 CLR 48; AB v The Queen (1999) 198 CLR 111; R v Kentwell (2014) 252 CLR 601, considered.

R v C, A
[2015] SASCFC 156

Court of Criminal Appeal:  Sulan, Peek and Stanley JJ

1. SULAN J: I would refuse the application for permission to appeal.  I agree with the reasons of Stanley J.

2. PEEK J.    I would refuse permission to appeal.  I agree with the reasons of Stanley J.

   STANLEY J.

   Introduction

3. The applicant pleaded guilty to two counts of trafficking in a large commercial quantity of a controlled drug.

4. The applicant was sentenced by a District Court Judge. She imposed a single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act).  The Judge imposed a head sentence of seven years and one month with a non-parole period of four years.  The sentence was fixed to commence on 5 June 2015 when the applicant was taken into custody following the revocation of his bail.

5. The sentence imposed was fixed by commencing with a notional head sentence of eight years imprisonment.  The Judge allowed a discount of 10 per cent on account of the guilty pleas, resulting in a sentence of seven years and two months, which was further reduced by one month to take account of time spent in custody and on home detention.

6. The sentencing Judge had previously sentenced a co-offender Peter Mindis.  In that case she also commenced with a notional head sentence of eight years imprisonment which was discounted by 30 per cent for his guilty plea.  That left a head sentence of five years and six months, which was reduced by six months to account for time spent in custody and on home detention bail, leaving a head sentence of five years with a non-parole period of two years and nine months. 

7. The applicant sought to appeal his sentence.  Permission to appeal was refused by a Judge of this Court.  The applicant now seeks permission to appeal from the Full Court. 

   Grounds of appeal

8. The applicant seeks permission to appeal on the following grounds:

   ·that the sentencing judge erred in sentencing him for offending since 2012, whereas he was charged with and pleaded guilty to offending which occurred on 14 November 2013 (ground 1);

   ·That the sentencing judge erred in her determination of the relative seriousness of the applicant’s conduct, having regard to his role in the organisation (ground 2);

   ·that the sentencing judge erred in failing to have proper or adequate regard to the question of parity in relation to the sentence imposed on the co-offender, Mr Mindis (ground 3);

   ·that the sentencing judge erred in failing to have adequate regard to the applicant’s antecedents, personal circumstances and prospects of rehabilitation (ground 4); and

   ·that the head sentence and non-parole period were, in all the circumstances, manifestly excessive (ground 5).

   Approach on appeal

9. The test to be applied in determining whether to interfere on appeal with a decision on sentence is set out in R v Jongewaard[1] where Doyle CJ said:[2]

   The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence.  This Court does not substitute its opinion as to an appropriate sentence.  The Court will intervene only if error is established.  As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:

   As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.

   [1] [2009] SASC 346, (2009) 266 LSJS 283.

   [2] [2009] SASC 346 at [40], (2009) 266 LSJS 283 at 288-289.

10. A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing Judge about the most appropriate sentence.  Only if there is an error of the kind described in House v The King[3] will the appeal court quash the sentence passed below.  As was said in R v Kreutzer by Kourakis CJ,[4]  if the error identified by the appeal court is manifest excess or inadequacy (an outcome error), the Full Court will fix the sentence it thinks ought to have been imposed.  If the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable.  On the other hand, the Full Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed.  In such a case, it will dismiss the appeal.

    [3] (1936) 55 CLR 499.

    [4] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214-215.

    Circumstances of the offending

11. The applicant was part of an interstate drug trafficking organisation.  The head of the organisation was his brother.  The applicant’s role in the organisation was to act as the conduit for communications between his brother and the courier, Mr Mindis.  On 14 November 2013 the police seized 20,230 ecstasy tablets and 13.3 kilograms of cannabis from Mr Mindis at the Keswick Railway Station.  The drugs were worth up to $300,000.  The drugs were packaged in suitcases and had been put into luggage on the Indian Pacific.  Mr Mindis had a ticket to travel on the train to Perth.  When arrested, he was in the process of couriering these drugs to Perth.  On that day the applicant was involved in organising the drugs to be transported, being at the premises where the drugs were packaged into heat-sealed bags, and driving Mr Mindis and the drugs to the railway station in the knowledge that this was for the purpose of couriering the drugs to Perth. 

    The applicant’s personal circumstances

12. The applicant is 43 years of age.  He married in 2007.  That marriage has ended.  The applicant’s marriage broke down when his wife left him for another man.  There are three children of the marriage aged 7, 6 and 5.  There was a forced sale of the matrimonial home.  He received $20,000 from the proceeds but this amount was depleted in litigation in the Family Court.  His counsel submitted to the sentencing Judge that he had no assets and no money. 

13. Following the breakdown of his marriage he moved in with his mother in 2011.  Since 2007 he has been the principal carer for his mother.  He remains close to his children. 

14. He had a good employment history until the separation from his wife and his father’s diagnosis with cancer.  All this occurred in 2011.

15. The applicant had convictions in 2009 for possession and cultivation of more than the prescribed number of cannabis plants.  He also pleaded guilty to an offence of aggravated assault which occurred in 2011. 

16. The applicant was the beneficiary of funds provided by his brother who paid household bills and the maintenance for the applicant’s children.  This is the context in which the applicant agreed to assist his brother in the trafficking operation.

    Sentencing remarks

17. The Judge sentenced the applicant on the basis that his offending did not occur in isolation.  His involvement in the trafficking of drugs had occurred for about a year prior to November 2013. 

18. The Judge said:

    Your counsel did not challenge that your involvement was a significant one. He, however, urged me to find that your role was less culpable than that of Mr Mindis. Mr Mindis made several trips to Perth during 2013. These trips were associated in one way or another with cannabis or the drug trade. Mr Mindis gave evidence before me that on other occasions he was transporting money back and forth. There was clear evidence from the telephone intercepts that you were having contact with Mr Mindis over this time. Mr Mindis was conveying to you what was that happening in Perth and although he was speaking in code, the conversation appears to be in relation to the drug trade.

    This was particularly so in October 2013. Mr Mindis was ringing you, it seems, to get you to undertake certain tasks. It may be that you were referring back to your brother [SC] in order to answer these questions. But nevertheless your involvement in relation to this drug operation is clear. In the days prior to the trip to Perth in November 2013, there were conversations between you and Mr Mindis where things were clearly being organised for the trip. On 14 November 2013 Mr Mindis was observed going to your brother’s house at about 10.30. After that he went to Pack-and-Send on Main North Road. He returned home to his own home and then went to your brother’s house. There is then activity that clearly involved drugs being moved in and out of boxes and placed in cars. You were a party to telephone conversations and other activities involving the drugs on that day.

    There was clearly a drug operation going on on South Road in Mile End where the packaging of the drugs would occur. You were at that house at that time. Just after 5 p.m. you and Mr Mindis left your home in his vehicle. You were both carrying a suitcase and you drove to [SC’s] house. You went inside and remained in there for a short time.  You then drove Mr Mindis to the railway station. When you arrived at the railway station you both took out the suitcases. You shook his hand. He took both suitcases and went into the terminal. You then got into the driver’s seat and left the car park.

    Your plea is not entered on the basis that this was a one-off occasion. You have been engaged in the drug operation for some time. It is a significant operation. It’s been urged upon me that your role in relation to this matter was not as significant as Mr Mindis or your brother [SC]. I can accept that it was not as significant as your brother but it is at least as significant as [Mr Mindis]’s part in relation to it.

    …

    What is apparent from your involvement in relation to this offending is that it has been a long-term involvement, on your own counsel’s submission, since about 2012, and it is plain from the telephone intercepts that it was going on as early as 2013.

    You were one of the organisers in relation to this operation. You were not as culpable as your brother [SC] but were you [sic] clearly being used to assist in the organisation of a large interstate drug operation.

    …

    The operation that was being run in relation to this matter was a significant one. The role that each person played in relation to it was important and an integral part of the operation. It is clear that your role in it was as one of the organisers. You were a middle man, so to speak, between Mr Mindis and your brother and you also played a personal role in relation to the packaging and the transportation of Mr Mindis to the railway station when he was going to Perth and from the airport when he returned from Perth.

    In imposing penalty today, I am mindful of the considerations of s.44 of the Controlled Substances Act. I have taken those considerations into account. It is clearly necessary that the court sends a strong message to deter others and you from engaging in drug trafficking, especially on a scale such as this. This was a highly organised and potentially a very profitable organisation. There was much to be gained from this drug operation and the business that was being engaged in.

    Your role was a significant one and I am going to sentence you on that basis. You were very close to the top of the organisation and your involvement extended for over 12 months. You are not to be sentenced in relation to any offences except those to which you have pleaded guilty, however, I must take into account that this is not isolated offending.

    Consideration

    Grounds 1 and 2

19. It is convenient to address grounds 1 and 2 together.  In short, the applicant submits that the sentencing Judge fell into error in imposing a sentence for offending that went beyond the events of 14 November 2013, so as to impermissibly sentence him for offending that occurred since 2012.  In addition, the sentencing Judge erred in sentencing the applicant on the basis that he was one of the organisers of the trafficking occurring between Adelaide and Perth.

20. In my view, there is no error in the approach taken by the sentencing Judge.  The Judge was at pains to emphasise that the applicant was not to be sentenced in relation to any offences except those to which he pleaded guilty.  She correctly acknowledged that he was not to be sentenced on the basis that this offending was isolated.  I do not accept that the Judge in effect sentenced the applicant for other offences for which he was not charged and to which he did not plead guilty.  Rather, the approach the Judge took reflects the sentencing principle enunciated in R v Reiner by Bray CJ:[5]

    [T]he 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 that.

    [5] (1974) 8 SASR 102 at 105.

21. The applicant accepted during the course of sentencing submissions made on his behalf that the offending had not happened in isolation.  He accepted that he had been engaged in a significant drug operation involving Mr Mindis and the movement of drugs to Western Australia on a regular basis for about a year prior to November 2013.  The applicant’s counsel accepted that there was no doubt that the applicant acted as a shield for his brother, and as a conduit for information.  He played an important role in concealing his brother’s major involvement in drug trafficking from the authorities.  He assisted the courier to do his work.[6] 

    [6]    AB107.

22. That was the context in which the Judge sentenced the applicant for serious drug offending.  He plainly was not entitled to the leniency that the status of a first offender would usually attract.[7]  Furthermore, in my view there was no error in the Judge’s characterisation of the role the applicant played in the trafficking organisation.  The Judge characterised the applicant’s role in the operation as significant.  This was in the context of considering the role that each person played in the enterprise.  The Judge found the role each person played was important and an integral part of the operation.  That was the context in which she considered that the applicant’s role was one of the organisers.  I understand the Judge to mean that the applicant was an organiser in the sense that he was actively involved in organising the trafficking of the drugs on this occasion.  Moreover, her characterisation of the applicant as “a middle man, so to speak” was accurate, in that he was the conduit between the courier, Mr Mindis, and the applicant’s brother, who was the mastermind of the operation.  All communications between the courier and the applicant’s brother occurred through the applicant.  In this sense there was no error in characterising his role as a “middle man”.  Furthermore, I do not accept that the Judge misunderstood the relative seriousness of the applicant’s conduct or his role in the organisation.  On 14 November 2013, he was engaged in the active organisation of the couriering of the drugs from Adelaide to Perth.  He was the conduit of communication between his brother and Mr Mindis. 

    [7]    Weininger v The Queen [2003] HCA 14 at [28], (2003) 212 CLR 629 at 639.

1. I do not consider grounds 1 and 2 to be reasonably arguable.

   Ground 3 – parity

2. The parity principle in sentencing requires that like offenders be treated in a like manner.[8]  The principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.  The normative principle of equal justice is not contravened by differential treatment, it is contravened by differential treatment on an irrelevant basis.[9]  An appellate court will not intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.[10] 

   [8]    Green v The Queen; Quinn v The Queen [2011] HCA 49 at [28], (2011) 244 CLR 462 at 472.

   [9]    Street v Queensland Bar Association [1989] HCA 53, (1989) 168 CLR 461 at 570 – 572.

   [10]   Green v The Queen; Quinn v The Queen [2011] HCA 49 at [31], (2011) 244 CLR 462 at 474 – 475.

3. There can be no doubt that in sentencing the applicant the Judge applied the parity principle.

4. The Judge started with the same notional head sentence of eight years she had adopted in relation to Mr Mindis.  The difference in the respective head sentences is explained by the substantial difference in the discount the Judge allowed them for their guilty pleas.  Mr Mindis received a 30 per cent reduction and the applicant received a 10 per cent reduction leading to interim adjustments of their sentences to five years and six months in the case of Mr Mindis by contrast with seven years and two months in the case of the applicant.   Mr Mindis also received the benefit of a larger reduction for time spent in custody before release on home detention bail compared to the applicant.  Mr Mindis spent four months and two days in custody compared to the applicant who spent 10 days in custody prior to release on home detention bail.  Mr Mindis’ sentence was further reduced by six months while the applicant’s sentence was further reduced by one month. 

5. The Judge sentenced both Mr Mindis and the applicant for the offending committed on 14 November 2013.  However, in both cases she fixed a head sentence on the basis that their offending was not isolated and they were not entitled to the leniency which would usually be extended to a first offender.[11]

   [11]   See AB323, 325 and 100.

6. That begs the question as to whether it was appropriate to commence the calculation of the applicant’s head sentence from the same point that the Judge commenced the calculation of the head sentence of Mr Mindis.  In my view, there was no error in the approach taken by the sentencing Judge.  She rejected the submission that the applicant’s involvement was not as significant as Mr Mindis.  On the contrary she considered that his role was at least as significant as that played by Mr Mindis.  It was not disputed by the applicant’s counsel that his involvement in this offending was significant.  The Judge approached sentencing on the basis that the role played by each of the applicant, his brother and Mr Mindis was important and formed an integral part of the total operation.  On 14 November 2013, the applicant was engaged in the organisation and couriering of a very large commercial quantity of illicit drugs.  Moreover, he benefited financially from his criminal activities, albeit indirectly.  His brother was making maintenance payments on his behalf and meeting household expenses.  I am satisfied it was appropriate to sentence on the basis that the culpability of the applicant and Mr Mindis was closely comparable.  Their respective personal circumstances are not a sufficient basis to distinguish between them.

7. While there is a difference in the respective non-parole periods imposed, namely, two years and nine months in the case of Mr Mindis and four years in the case of the applicant, this distinction is largely a product of the differences in the head sentences imposed.  In the case of Mr Mindis the non-parole period represents 55 per cent of the head sentence.  In the case of the applicant the non‑parole period represents just over 56 per cent of the head sentence.

8. I do not consider ground 3 to be reasonably arguable.

   Ground 4

9. The applicant submits that the sentencing Judge erred in failing to have adequate regard to the applicant’s antecedents, personal circumstances and prospects of rehabilitation. 

10. This submission is misconceived.  The sentencing Judge plainly had regard to the applicant’s antecedents, personal circumstances and prospects of rehabilitation.   The principles governing the review by an appellate court of the exercise of a sentencing discretion were discussed by Hayne J in AB v The Queen:[12]

    The difference between cases of specific error and manifest excess is not merely a matter of convenient classification. It reflects a fundamental difference in what the appellate court does. In the former case, once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be resentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed. By contrast, in the case of manifest excess, the error in reasoning of the sentencing judge is not discernible; all that can be seen is that the sentence imposed is too heavy and thus lies outside the permissible range of dispositions. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.

    [12] [1999] HCA 46 at [130], (1999) 198 CLR 111 at 160.

11. Similarly, in the recent decision of R v Kentwell, the majority of the High Court (French CJ, Hayne, Bell and Keane JJ) observed:[13]

    In the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed.  By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.

    [13] [2014] HCA 37 at [35], (2014) 252 CLR 601 at 615.

12. The authority of this Court to substitute a sentence imposed by the Judge is not enlivened by forming the view that inadequate weight was given by the sentencing Judge to the applicant’s personal circumstances.  Within a range of sentences for this offence and this offender the weight to be given to the various, conflicting, purposes of sentencing is a matter for the sentencing Judge.  Accordingly, the power to intervene will only be engaged if the Court is satisfied that the sentencing Judge’s discretion miscarried because in the result the Judge imposed a sentence that was in excess of the range of sentences that could be justly imposed for the offence consistently with sentencing standards.  This conveniently brings me to ground 5.

    Ground 5

13. The applicant submits that the head sentence and non-parole period were, in all the circumstances, manifestly excessive.

14. I do not accept that this ground is reasonably arguable.

15. In The Queen v Morse,[14] King CJ identified the factors to be considered in determining whether a sentence is manifestly excessive.  He identified those factors as the maximum sentence prescribed by law, the standards of sentencing customarily observed for offences of that kind, the seriousness of the offence committed when compared with other offences of its kind, and the personal circumstances of the offender.

    [14] (1979) 23 SASR 98 at 99.

16. The maximum sentence for these offences is a fine of $500,000 or life imprisonment, or both.  The maximum sentence prescribed for an offence provides a yardstick that allows a comparison between the worse possible case and the case under consideration.[15]

    [15]   Markarian v The Queen [2005] HCA 25 at [30] – [31], (2005) 228 CLR 357 at 372.

17. This was serious offending.  The applicant fell to be sentenced on the basis that he played a significant role in a large commercial trafficking operation.  It involved trafficking not only a significant quantity of cannabis but also a very large quantity of ecstasy tablets.  They were worth up to $300,000.  He was not entitled to the leniency that would usually be extended to a first offender given the context in which this offending occurred.  While there are aspects of his personal circumstances that attract sympathy, including the circumstances in which he became involved in this offending, the decision to do so was deliberate and made with the full understanding of the nature of the criminal conduct in which he engaged.  The maximum term of imprisonment for this offending is life imprisonment.  This Court has emphasised on many occasions the importance of general deterrence in the sentencing of commercial drug offending.[16]  As this Court said in R v Kong:[17]

    … 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 the competing sentencing objectives in the case of commercial drug dealers.

    [16]   R v Smith [2012] SASCFC 77, (2012) 281 LSJS 130; R v Kong [2013] SASCFC 15, (2013) 115 SASR 425; R v Violi [2015] SASCFC 2.

    [17] [2013] SASCFC 15 at [90], (2013) 115 SASR 425 at 443.

18. On the one hand, there is limited utility in comparing a sentence, the subject of an appeal on the ground that it is manifestly excessive, with other sentences, given the wide variation in circumstances of offending and the personal circumstances of offenders.  On the other hand, it can be of some assistance to an appeal court to know of sentences imposed in cases that show some similarity with the sentence under appeal to assist in determining whether or not the sentence under consideration is so far above the range of sentences that could be justly imposed for the offence, consistently with sentencing standards, as to be manifestly excessive.

19. In R v Mustac,[18] the respondent pleaded guilty on the day of trial to one count of trafficking in a large commercial quantity of cannabis.  The respondent was sentenced to three years of imprisonment with a non-parole period of 12 months after a 25 per cent reduction for his guilty plea was allowed by the Judge.  On a Crown appeal against sentence, the appeal was allowed and the sentence was increased to seven years and six months of imprisonment with a non‑parole period of five years.  The Chief Justice, with whom Sulan and Stanley JJ agreed, considered the appropriate starting point in sentencing was a head sentence of eight years imprisonment.  This was reduced by five per cent for a late guilty plea.  The circumstances of the offending were that the respondent was stopped by police in 2011 travelling to New South Wales in a ute towing a trailer containing a secret compartment into which was packed over 20kgs of cannabis packaged into 47 separate bags at an approximate value of $188,000.  It was submitted that the respondent had been procured by his brother to commit the offence.  The respondent had a previous conviction for supply of a commercial quantity of cannabis.  In considering the appropriate sentence, the Court of Criminal Appeal took into account that the offending fell within the most serious category of trafficking attracting the maximum penalty of life imprisonment or a $500,000 fine, the objective criminality revealed was that of a high level commercial enterprise and the respondent could be characterised as at least a middle man.  The Court took account of the fact that sentencing courts consider this level of conduct to be serious criminal conduct which warrants substantial penalties.  Mustac is but one example which demonstrates that the head sentence imposed on the applicant is not manifestly excessive.  

    [18] [2013] SASCFC 21, (2013) 115 SASR 461.

20. Nor do I consider the non-parole period to be manifestly excessive.  The Judge was obliged to fix the non-parole period by identifying the minimum period the applicant had to spend in prison to satisfy the punitive, deterrent and preventative purposes of punishment.[19]  In R v Shrestha,[20] the High Court said all considerations relevant to the sentencing process are relevant both to the head sentence and the non-parole period.  As King CJ said in R v Creed,[21] the non‑parole period, as much as the head sentence, “…[m]ust reflect the basic consideration of justice that the punishment should fit the crime” and be properly proportionate to the gravity of the crime.  At a little over 56 per cent of the head sentence, the non-parole period is not outside the range that could be reasonably imposed in the circumstances of this case, even allowing for the applicant’s antecedents, family circumstances and prospects of rehabilitation.  In fixing the non-parole period the Judge had regard to these matters as well as the seriousness of the offending as she was obliged to do.  No error has been demonstrated. 

    [19]   R v Creed (1985) 37 SASR 566 at 568.

    [20] [1991] HCA 26, (1991) 173 CLR 48 at 68-69.

    [21] (1985) 37 SASR 566 at 568.

21. Both the head sentence and the non-parole period were within the sentencing discretion of the Judge.  I do not consider ground 5 to be reasonably arguable.

    Conclusion

22. I would refuse the application for permission to appeal.