R v Constant

[2016] SASCFC 87

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CONSTANT

[2016] SASCFC 87

Reasons for Decision of The Court of Criminal Appeal

(The Honourable Justice Nicholson, The Honourable Justice Lovell and The Honourable Justice Hinton)

15 August 2016

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

On 18 April 2016, the applicant was sentenced for six counts of attempting to import a marketable quantity of a controlled precursor; namely pseudoephedrine. The offending breached a two year suspended sentence bond imposed on 7 June 2012, which involved one count of trafficking in a controlled drug. The sentencing Judge revoked the suspended sentence of one year and three months with a non-parole period of six months and sentenced the applicant to two years and seven months. He ordered her release after serving 12 months on her own recognisance to be of good behaviour for two years. The sentence was to commence at the end of the six month non-parole period for the revoked suspended sentence.

At the time of sentence the applicant had an 18-month old child. During sentencing submissions the Judge was informed that the applicant was pregnant with her second child. Whether the Judge gave appropriate and adequate weight to the effect of imprisonment on the applicant's young child and unborn child - whether special reasons existed to reduce the term of the suspended sentence - whether Commonwealth sentence was manifestly excessive.

Held per the Court (allowing the application):

1.  Permission to appeal is granted.

2.  Appeal allowed. The sentencing orders imposed in the District Court are set aside.

3. Special reasons exist and pursuant to s 58(4) of the Criminal Law (Sentencing) Act 1988 the sentence the subject of the bond is reduced to 13 months of imprisonment with a non-parole period of four months. The penalty imposed in relation to the Commonwealth offences is manifestly excessive and is set aside.

4.  The applicant is to be resentenced and the parties are invited to make further submissions.

Criminal Code Act 1995 (Cth) s 11.1(1) s 307.11(1), s 307.12(1), s 307.13(1); Crimes Act 1914 (Cth) s 16A(1), s 16A(2), s 16A(2)(p), s 10(1)(n); Criminal Law (Sentencing) Act 1988 (SA) s 10(1), s 58(1), s 58(4)(a), referred to.
House v The King (1936) 55 CLR 499; R v Hai Van Nguyen (2010) 205 A Crim R 106; Norman v Lovegrove (1986) 40 SASR 266, applied.
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; Nguyen v R; Phommalysack v R (2011) 31 VR 673; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; DPP v Vestic [2008] VSCA 12; DPP v Edge [2012] VSCA 289; The Queen v Wirth (1976) 14 SASR 291; R v Edwards (1996) 90 A Crim R 510; The Queen v Moffa [No 2] (1977) 16 SASR 155; R v Togias (2001) 127 A Crim R 23; Nguyen v The Queen (2001) 160 FLR 216, discussed.
R v Kong (2013) 115 SASR 425; Markarian v The Queen (2005) 228 CLR 357; Wong v The Queen (2001) 207 CLR 584; Barbaro v The Queen (2014) 253 CLR 58; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; R v Buckskin [2010] SASC 138, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"manifestly excessive"

R v CONSTANT
[2016] SASCFC 87

Court of Criminal Appeal: Nicholson, Lovell and Hinton JJ

THE COURT.

Introduction

1. Sorayah Constant, the applicant, pleaded guilty to six counts of attempting to import a marketable quantity of a border controlled precursor (“the Commonwealth offences”). In committing these offences, she contravened a suspended sentence bond. The bond was revoked and the applicant was ordered to serve the sentence to which it related, namely, a head sentence of one year and three months of imprisonment with a non-parole period of six months. For the six counts of attempting to import a marketable quantity of a border controlled precursor, a sentence of two years, seven months and three weeks of imprisonment was imposed and, pursuant to a recognisance release order, the applicant was required to serve a minimum of 12 months of that term. That sentence was ordered to commence at the conclusion of the revoked suspended sentence. The result is that the applicant will be eligible for release after serving 18 months in prison. The applicant appealed against her sentence.

2. As at the hearing of this appeal, the applicant had a daughter, M, aged 22 months, and was over six months pregnant with her second child. The applicant and M were separated when the applicant was taken into custody on 18 April 2016. On the hearing of the appeal, the Court was informed that when her baby is due the applicant will be taken from prison to a hospital. There, after giving birth and allowing some time for her recovery, she will be separated from the newborn child and returned to prison. Her partner, William Banks, who is currently caring for their daughter M, will then take on the responsibility of caring for the newborn. Thus the applicant’s imprisonment means her separation from M and her partner for 18 months, and will mean separation from her expected child for most of its first year of life. The Court was further informed that, as matters currently stand, until October 2017 when the applicant is due for release, Mr Banks, M and the newborn child will only have the opportunity to visit the applicant twice a week, on Saturday and Sunday, for up to three hours at a time. 

3. Before this Court the applicant’s counsel submitted that the sentencing Judge did not correctly allow for the hardship that would be suffered by the applicant and her children in consequence of her imprisonment and, further, her efforts to rehabilitate prior to her incarceration.

4. On 29 July 2016, we granted permission to appeal and allowed the appeal. We made orders reducing the non-parole period the applicant will be required to serve in respect of the revoked suspended sentence to four months and adjourned sentencing afresh on the Commonwealth offences to a later date pending further submissions and the receipt of additional material. Our reasons for those orders follow.

   The offending and the sentence imposed

   The suspended sentence bond

5. On 7 June 2012, the applicant was sentenced by his Honour Judge Rice in the District Court for one count of trafficking in a controlled drug, namely, methylamphetamine. Judge Rice described the drug, which was located in the applicant’s vehicle, as being “in relatively small quantities”. He considered that the applicant was a good candidate for rehabilitation. He sentenced her to imprisonment for 15 months with a non-parole period of six months. His Honour then suspended that sentence upon the applicant entering into a bond to be of good behaviour for a period of two years. Judge Rice concluded his sentencing remarks with the following: 

   I propose to impose some supervision on you from a Community Corrections Officer and you should fall back on that person if you find yourself tempted to mix with the wrong people again. It is those people who will bring you down, not necessarily your own attitude.

   There will be a conviction, of course, and there will be a sentence of one year, three months, with a non-parole period of six months. That sentence will be suspended upon you entering into a bond or an agreement in the sum of $100 to be of good behaviour for two years. For the first year you will be under the supervision of a Community Corrections Officer; that is, one year from today. You must obey that officer’s directions about any drug rehabilitation or counselling courses that officer may suggest and you must, of course, attend any counselling that may be suggested. You have to remain of good behaviour for the full two years and, if you breach the bond, you will be back here facing the possibility of doing at least six months in gaol, plus any new time for any new offence. I assume you are prepared to enter into that bond.

   PRISONER NODS.

   HIS HONOUR:   This will sit on your record, so even if you survive the bond period, say in five or 10 years time you get into strife again, the court will see you have been previously in trouble and have not taken full advantage of the leniency that has been given to you.

   Even though the bond does not expressly refer to you undertaking whatever courses or counselling a Community Corrections Officer might suggest, nonetheless that is part of your obligation.

6. The offending, given the sentence, was clearly toward the lower end of the scale of seriousness.

   The Commonwealth offences – importing a marketable quantity of a border controlled precursor

7. The six counts of attempting to import a marketable quantity of a border controlled precursor intending to use, or believing that another person intended to use, any of the substance to manufacture a controlled drug, contrary to sections 307.12(1) and 11.1(1) of the Criminal Code (“the Code”),[1] were the product of an investigation undertaken by the Australian Customs and Border Protection Service. The circumstances surrounding the applicant’s offending were summarised by the sentencing Judge as follows:

   [1]    Criminal Code Act 1995 (Cth) Schedule – The Criminal Code.

   Between March 2013 and January 2014 through multiple eBay accounts, the offender attempted to import ten parcels of pseudoephedrine, constituting the six counts she is charged with.

   Firstly, on 4 March 2013 the offender used an eBay account registered to her to purchase four boxes of Aerius Allergy Dual Action 12 hour tablets from a seller in Canada. This constitutes count 1.

   Secondly, 18 April 2013, the offender was invoiced for 10 boxes of Actifed Multi Action from a UK-based online seller. Her MasterCard was debited for this purchase on 23 April 2013. This constitutes count 2.

   Thirdly, on 7 May 2013 the offender was invoiced by two UK pharmacies for the purchase of 25 boxes of Coughs and Colds Decongestant and 15 boxes of Otrivin Mu-Cron Decongestant. The funds were charged to her MasterCard in May 2013 and hard copies of the invoices were located at her premises.

   On 20 May 2013 the offender was invoiced for 15 boxes of Sudafed Non-drowsy Decongestant tablets purchased from London. The invoice for this was also found at the premises. This is count 3.

   Fourthly, count 4 consists of two consignments, one ordered on 13 July 2013, 15 boxes of Actifed which were seized and destroyed by Customs, and another 15 packets of Otrivin Mu-Cron decongestant in which the invoice was found at her premises. This is count 4.

   Fifthly, count 5 also consists of two consignments, the first being on 11 September 2013 when she was invoiced by Pharmplex Ltd for 90 Actifed tablets, the purchase date being 8 September 2013. The second was from the same company on 19 September 2013 and consisted of 96 Actifed tablets located, seized and destroyed by Customs. These consignments were made under the alias of Sophie Williams. This is count 5.

   Sixthly, on 27 September 2013 the offender received notice advising her that a parcel she ordered containing 96 pseudoephedrine tablets had been seized and that such importing can result in imprisonment.

   Despite this notice, the offender on 5 January 2014, using a new eBay account, successfully bid on 12 boxes of Reactine from a Canadian seller. This is count 6.

8. The sentencing Judge recorded that in total the applicant had attempted to import 107 grams of pseudoephedrine, which could be used to produce 102 grams of methylamphetamine, having a street value of $102,000 in 2014. He noted that the prescribed marketable quantity was 3.2 grams.

9. The offences span a period commencing 20 March 2013 and ending January 2014. As indicated they were committed whilst the bond that the applicant entered into before Judge Rice was on foot.

10. A warrant for the applicant’s arrest in relation to the Commonwealth offences was executed on 30 January 2014 and she was taken into custody. She was subsequently released on home detention bail on 6 February 2014. She pleaded guilty to the Commonwealth offences on 3 November 2015, approximately three weeks out from trial. We note M’s date of birth is 18 September 2014 and that when the applicant was first arrested in January 2014, she was already pregnant, albeit unaware of that fact at that time.

11. The applicant’s explanation for her offending is contained in a report prepared by Mr Allen Fugler, a psychologist, dated 8 January 2016 and provided to the sentencing Judge. No issue was taken with the explanation provided in that report as relayed to Mr Fugler by the applicant.

12. Mr Fugler notes that during 2013 the applicant had developed a dependency on methylamphetamine. At that time, she was in a relationship with a man who was a heavy amphetamine user. Prior to the breakdown of that relationship, the applicant was using in the order of a gram a day. It was her then partner who showed the applicant internet sites from which pseudoephedrine could be purchased. She told Mr Fugler that she was drug affected during the period of her offending and did not consider the negative consequences of becoming involved in attempting to import pseudoephedrine. She said she “just let it happen”. The role she played can be described as arranging and signing for the material having ordered it using her eBay account to pay for the transactions. She added that her then partner was always with her at these times and that there was a further individual who was involved at the importing phase. The aim in importing the pseudoephedrine was that it be passed on to a fourth person who would use it to manufacture methylamphetamine. The applicant and her co-offenders were then provided with 50 per cent of the manufactured product, which, with the exception of selling small quantities to friends who were known to be amphetamine users, was for personal use.

13. Her explanation for becoming involved in this offending, despite being on a suspended sentence bond, was that she had become dependent and needed access to amphetamine regularly, so much so that she gave no thought to the possibility that she would “get in trouble”. Mr Fugler records, “[s]he tearfully told me, ‘it was a waste of life’ the use of drugs being a consistent element in what was a dysfunctional, negative relationship with” her then partner.

    The sentencing Judge’s remarks

14. The sentencing Judge outlined the serious nature of the offending and the fact that the offending occurred whilst the applicant was on a suspended sentence bond for other serious drug charges. He noted that Judge Rice, who had imposed the suspended sentence bond, had delivered to the applicant a strong warning as to the consequences of breaching the bond. 

15. The sentencing Judge  referred to the deleterious effect of amphetamine in the community, the quantity here involved and the potential financial gain as in combination calling for a sentence that deterred generally and specifically. He noted the applicant’s personal circumstances, including her amphetamine addiction and explanation for offending as set out in Mr Fugler’s report. The Judge made plain that the applicant’s addiction was not mitigatory.

16. The Judge considered the applicant’s criminal antecedents. He said:

    The offender has a history of offending, including drug and dishonesty offences and it is concerning that the attempt to import a marketable quantity of a controlled substance offences has occurred while on a bond for Trafficking in a Large Commercial Quantity of a Controlled Drug.

17. The Judge made these remarks with regard to the antecedent report. Unfortunately, the antecedent report is incorrect in that the offence for which Judge Rice imposed a suspended sentence bond was the offence of trafficking in a controlled drug, rather than trafficking in a large commercial quantity of a controlled drug. The only other drug offence in the antecedent report is that of possession of a prescription drug not being a drug of dependence for which the applicant was discharged without penalty.

18. The Judge detailed the applicant’s situation with regard to her dependants. He was aware that the applicant had one child and was expecting a second. In this regard, he noted that she had not used illicit drugs since falling pregnant with M. He also referred to the content of a report from Ms Georgina Black, a clinical psychologist. Having regard to that report, he noted that the applicant was M’s primary attachment figure, that the applicant was a good mother, that mother and daughter shared a healthy relationship, and that the report suggested separation would be deleterious to their relationship and M’s development.

19. In addition to the report, the Judge heard evidence from the General Manager of the Adelaide Women’s Prison about the ability and extent to which the Department of Correctional Services caters for mothers and their children in the prison environment. In short, the applicant could not have M with her. Further, upon recovering from giving birth to her expected child she would be returned to prison and the child given into the care of its father. The Judge accepted the submission that the applicant’s imprisonment would have a detrimental effect upon M. In his consideration of the hardship on the applicant’s dependants, the Judge said:

    I have given great consideration as to whether the effect on the offender’s child and probably the child yet to be born is reason enough to create such an undue hardship as would make it appropriate to suspend any sentence of imprisonment I impose. On the other hand I note that if the offender were to be imprisoned for any period of time her current partner, being the child’s biological father, and her family, will be there to care for the child and I add the child yet to be born. I am satisfied that they are able to provide most of the support those children need.

    I also want it noted that I have taken into account the information that I have recently received about your current pregnancy and I take into account that there will be some disadvantages to that child should that child be born while you are in custody and not permitted to be present with you.

    …

    Unfortunately serious offending of this nature can significantly impact upon the dependants of the offender. This is often an unavoidable consequence in serious offences committed by persons with children.

    In relation to the unborn child, again I have regard to the fact that your partner is in a position or will be in a position to care for them.

    Mitigating factors such as hardship to a third party in favour of a suspension of a custodial sentence are required to be exceptional or out of the ordinary and in this matter I do not believe that to be the case. As I have stated, it is unfortunately not uncommon that women with children serve terms of imprisonment for serious offending.

    For these reasons and taking into account the need for deterrence, both personally as a repeat offender and generally, I do not find that exceptional circumstances exist in order to suspend any sentence of imprisonment.

    I will however, take into consideration the effect on dependants in relation to the length of any non-parole period I impose.

20. His Honour then turned to impose sentence. He revoked the suspension of the sentence imposed by Judge Rice and ordered that that sentence, one year and three months of imprisonment with a non-parole period of six months, commence immediately.

21. For the six counts of attempting to import a marketable quantity of a border controlled precursor, his Honour noted that the maximum penalty was 15 years of imprisonment and/or a fine of $500,000,[2] that the applicant’s conduct was premeditated, calculated and continued despite being in receipt of the seizure notice, that her offending was associated with other unlawful activity, including the manufacture, sale and supply of amphetamine, and that the sentence to be imposed must deter generally. In the circumstances, he concluded that only a sentence of imprisonment would achieve the purposes of punishment and exceptional circumstances did not exist to justify suspension of such imprisonment. He then imposed one sentence for all six offences of two years, seven months and three weeks of imprisonment reduced from three years to account for the applicant’s pleas of guilty, home detention and seven days previously spent in custody, to be served cumulative upon the sentence imposed by Judge Rice. A recognisance release order of 12 months was then made conditioned upon the applicant entering into a recognisance to be of good behaviour for two years. His Honour then explained the effect of the sentences to the applicant, pointing out that she would be eligible for release upon serving 18 months in custody.

    [2]    Although we note that, as submitted by the Commonwealth Director of Public Prosecutions, the maximum penalty was actually in the order of $510,000.

    The grounds of appeal and submissions made

1. The Notice of Appeal contains eight grounds. The eighth ground was abandoned. The remainder can be reduced, in effect, to two; first, that the sentence imposed for the Commonwealth offences, including the determination of the recognisance release order, was manifestly excessive. Secondly, the sentencing Judge erred in failing to find special circumstances justifying a reduction in the term of the suspended sentence.[3]

   [3]Criminal Law (Sentencing) Act 1988 (SA) s 58(4)(a).

2. To succeed in relation to the Commonwealth offences, the applicant must establish that the sentence imposed was unreasonable or plainly unjust.[4] To succeed in relation to the failure to find special circumstances justifying a reduction of the term of the suspended sentence, the applicant must establish that the failure to find special circumstances was a conclusion not open to the sentencing Judge on the evidential material before him.

   [4]House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ).

3. The argument in support of the grounds of appeal focused on the assessment and treatment of the fact of the hardship that would be visited upon M and the expected child as a consequence of their separation from the applicant, and the weight to be attributed to that hardship in circumstances where the evidence before the sentencing Judge demonstrated little need to deter specifically. The argument hinged on the content of the report of Ms Black who advised the sentencing Court of what is known as attachment theory and expressed an opinion as to the effect of the applicant’s separation from M upon M. The report provided no assistance to the sentencing Judge as to the effect upon the expected child of its separation from the applicant so soon after birth and until the applicant’s release. The report was based on an assessment completed on 17 November 2015, which predates the applicant’s pregnancy.

4. The explanation for this lies in the initial decision made by the applicant and Mr Banks, and the applicant’s consequent instructions to counsel, to keep from the Court the fact of her pregnancy so as not to invite any suggestion of her having conceived with a view of attempting to avoid imprisonment. Her pregnancy was not disclosed until early April 2016. We bear in mind that her objective was not to manipulate the sentencing process. However, it has resulted in the sentencing Judge not having the benefit of Ms Black’s opinion on the effect of the applicant’s separation from the newborn on the newborn. Counsel for the applicant did not seek an opportunity before the sentencing Judge to obtain a further report. That was unfortunate. Ms Black’s report provided every reason to inquire of the impact of imprisonment upon the expected child.

5. On appeal, it was submitted that we could assume that Ms Black’s views expressed in relation to the 14 month old M would apply equally to the newborn. We are not prepared to make that assumption. That is not to conclude that we do not think the newborn child will suffer hardship as a consequence of almost immediate separation from its mother. Merely that we do not feel equipped, without more, to gain a true appreciation of the depth of that hardship beyond the obvious consequence of the absence of a loving and nurturing mother in a secure family environment, and the advantages of the bond that would necessarily be forged between parent and child.

6. Ms Black’s report allows us to think that the consequence may be considerably more profound than common experience allows us to conclude. We do not speculate, for example, as to whether and how the adverse consequences of the absence of the applicant for about the first 12 months of the expected child’s life can be repaired. We are well aware that, in recent times, the behavioural sciences have achieved much in the further understanding of the development of children and the importance of parental and other relationships thereto.

7. The argument before us focused very much on the circumstances in which it was appropriate for a sentencing court to take into account the hardship caused to an offender’s family in the event that the offender were to be imprisoned. The contention was that s 16A(2)(p) of the Crimes Act 1914 (Cth) (“Crimes Act”) was to be construed as requiring that such hardship be exceptional before it could be taken into account and that, to amount to a special circumstance for the purposes of s 58(4) of the Criminal Law (Sentencing) Act 1988 (SA) (“Sentencing Act”), it had to likewise be exceptional. Counsel for the applicant submitted that on the basis of Ms Black’s report, this was a case of the exceptional, particularly when the applicant’s success in rehabilitating herself and her efforts as a mother were taken into account. The State and Commonwealth Directors both submitted that it was open to the sentencing Judge to conclude to the contrary.

8. The sentencing Judge heard evidence from Mr Shephard-Bayley, the General Manager of the Adelaide Women’s Prison. That evidence formed the background to the submissions then made regarding hardship. Mr Shephard-Bayley advised the Court that:

   -There is no live-in accommodation for children of mothers in custody in South Australia at the present time.

   -Correctional services in New South Wales, Victoria, Western Australia, Queensland and Tasmania all have live-in facilities for children of mothers in custody.

   -At the time that a pregnant woman in custody at the Adelaide Women’s Prison is due to give birth, she can expect to be taken to hospital to give birth, stay in hospital for a period determined by the hospital to allow her some recovery, then, at the expiration of that period, be separated from her child, who would be given into the care of family or social services, and returned to prison.

   -A mother in custody could be visited twice a week by her children, on Saturday and Sunday for up to three hours, but only 12 such visits for all prisoners in the prison can be accommodated on each day in total. To date, the 12 visits have been enough to cope with demand.

   -There is some scope to use home detention to cater for imprisoned mothers with young children depending upon the risk profile of the mother.

   -He accepted that often families are a critical component of the factors that contribute to a prisoner’s motivation to overcome the issues that have brought them to prison.

   -As a social worker, he accepted that for young children the best case scenario was if their mother was available, and emotionally available, not just physically available, to provide the care and attachment that best allowed the child to develop. In this regard, he conceded that the parent/child relationship shared by the applicant and M would be better served if they remained together.

   -The general rule was that a prisoner had to serve 50 per cent of their non-parole period before he or she was eligible for home detention.[5]

   [5]    The legislative basis for early release on home detention conditions recently, and after Mr Shephard-Bayley gave his evidence, has been amended. There is now no minimum period to be served before the discretion of the Chief Executive of the Department of Correctional Services to allow release on home detention conditions arises; Correctional Services Act1982 (SA) s 37A.

9. As mentioned, at present the applicant is in the Adelaide Women’s Prison. There is no plan for her other than serving the entirety of her non-parole period in prison. We have no option but to determine this appeal on that basis. Similarly, we have to determine this appeal on the basis that she will be separated from M for about 18 months, subject to weekend visits, and from the expected child for most of its first year of life. Counsel for the applicant emphasised that one further consequence is that the expected child will not be breastfed.

10. The inability of the Department of Correctional Services in this State to cater for mothers in custody and their newborn or very young children where elsewhere in the Commonwealth such circumstances can be accommodated has the consequence that time served by a mother who is separated from her young child in this State will be more punitive than interstate. Whilst we fully accept that there should be, as far as possible, consistency in sentencing federal offenders,[6] such consistency is derived in the main from the consistent and correct application of principle.[7] It is consistent with principle to account for the more punitive nature of the prison experience for a mother of a newborn or very young child in this State when imposing a sentence of imprisonment for a Commonwealth offence.

    [6]    Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 at [117]-[124] (Basten JA), at [193] (McClellan CJ at CL), but cf. at [296]-[298] (Simpson J); Nguyen v R; Phommalysack v R (2011) 31 VR 673 at [30] (Maxwell P).

    [7]    Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 at [46]-[49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

11. Before addressing the arguments put to us, we first make some observations regarding sentencing for drug offences and the applicable sentencing principles where hardship to the dependants or family of an offender will be occasioned in the event that that offender is imprisoned.

    Sentencing for drug offences

12. In R v Hai Van Nguyen,[8] Johnson J, with whom McFarlan JA and Hulme J agreed, conveniently summarised the general principles applicable in sentencing a defendant who has committed a serious federal drug importation offence. He said:[9]

    [8](2010) 205 A Crim R 106.

    [9](2010) 205 A Crim R 106 at [70]-[72].

    Some general sentencing principles concerning serious federal drug offences

    The importation and possession offences now contained in the Criminal Code (Cth) provide for a structured sentencing regime by reference to the quantity of drug imported. Section 307 adopts “a quantity-based penalty regime” by fixing commercial and marketable quantities of certain drugs, distinguishing between those drugs in setting such quantities, but otherwise making no distinction between them in terms of maximum penalties: Adams v The Queen (2008) 234 CLR 143; 183 A Crim R 534 at [2].

    Before turning to the individual sentences imposed in this case, it is appropriate to refer to principles applicable to sentencing for drug importation offences. I include in this offences of attempting to possess a quantity of an unlawfully imported border controlled drug contrary to s 307 Criminal Code (Cth).

    The following general propositions emerge from the authorities:

    (a) the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation: R v Lee at [27];

    (b) problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court: R v Olbrich (1999) 199 CLR 270; 108 A Crim R 464 at [19]; R v Lee at [25];

    (c) it is the criminality involved in the importation which must be identified — the fact that another person may be characterised as the “mastermind” does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility: R v Lee at [26];

    (d) although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: Wong v The Queen at [64]; R v Lee at [23]-[24];

    (e) the statements by the High Court in Wong v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar: R v Nguyen (2005) 157 A Crim R 80 at [110]; Sukkar v The Queen (No 2) (2008) 178 A Crim R 433 at [46];

    (f)as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit: R v Kaldor (2004) 150 A Crim R 271 at [104]; R v Lee at [32];

    (g) the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case: Wong v The Queen at [64];

    (h) the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment: R v Chen (2002) 130 A Crim R 300 at [286]; R v Stanbouli (2003) 141 A Crim R 531 at [114];

    (i) involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served: R v Pang (1999) 105 A Crim R 474 at [6];

    (j) the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence: R v Barrientos [1999] NSWCCA 1 at [52]-[57]; R v Paliwala (2005) 153 A Crim R 451 at [20]-[25]; R v Lee at [14]; good character is not an unusual characteristic of persons involved in drug importation: Okafor v The Queen  [2007] NSWCCA 147 at [47]; Onuorah v The Queen (2009) 76 NSWLR 1; 197 A Crim R 430 at [49];

    (k) where offenders are not young … , the immaturity of youth cannot be claimed as a factor bearing upon their transgressions: Tyler v The Queen (2007) 173 A Crim R 458 at [98];

    (l) where an offender … is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, is relevant to determining the degree of moral culpability attached to the act of attempted possession itself, so that a sentencing judge should have regard to the offender’s involvement in the overall transaction for the purpose of determining the offender’s degree of involvement in a drug-smuggling enterprise: El-Ghourani v The Queen (2009) 195 A Crim R 208 at [33]-[37];

    (m)offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs: R v Ferrer-Esis (1991) 55 A Crim R 231 at 230;

    (n) the range of sentences referred to in the decision of the Court of Criminal Appeal in R v Wong remain useful to sentencing for offences of this type; although they have no validity as guidelines, their utility results from the fact that they are based on the patterns of actual sentences, although allowance must be made for the repeal of s 16G Crimes Act 1914 (Cth): R v Taru [2002] NSWCCA 391 at [12]; R v Bezan at [34]-[36]; R v Mas Rivadavia (2004) 61 NSWLR 63; 149 A Crim R 1 at [65]-[66]; R v SC at [27]; R v Chea [2008] NSWCCA 78 at [40];

    (o) insofar as each respondent asked the sentencing judge to take into account on sentence offences under s 16BA Crimes Act 1914 (Cth), it is necessary for a sentencing court to comply with the general principles applicable to the State regime for taking offences into account in accordance with Re Attorney-General’s Application (No 1 of 2002) (NSW) (2002) 56 NSWLR 146; 137 A Crim R 180: R v Poynder (2007) 171 A Crim R 544 at [28]; Assafiri v The Queen [2007] NSWCCA 159 at [9].

13. We gratefully adopt this statement of principles.[10] We add one further observation, drawn from this Court’s judgment in R v Kong[11] - having regard to what fell from the High Court in Markarian v The Queen[12] as to the use of maximum penalties, courts sentencing for drug offences must “have regard to the scaled penalties in order to maintain some relativity in the spread of sentences both within, and between, the categories.”[13]

    [10]   We note the Victorian Court of Appeal has similarly adopted and approved this statement of principles; Nguyen v R; Phommalysack v R (2011) 31 VR 673 at [33]-[34] (Maxwell P).

    [11](2013) 115 SASR 425.

    [12](2005) 228 CLR 357 at [30]-[31] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

    [13]R v Kong (2013) 115 SASR 425 at [86] (The Court).

14. Importing and exporting border controlled precursors is the subject of Chapter 9, Division 307, Subdivision D of the Code. The offences within that subdivision were inserted into the Code in 2005 and follow what is now a similar pattern for drug offences throughout the country, that is, as Johnson J observed, a quantity-based penalty regime. Section 307.11(1) creates the offence of importing and exporting commercial quantities of border controlled precursors, s 307.12(1) importing and exporting marketable quantities of border controlled precursors, and s 307.13(1) importing and exporting border controlled precursors.

15. As indicated the difference between each offence lies in the quantity of the border controlled precursor imported or exported. Limiting ourselves to pseudoephedrine, for s 307.11(1) a commercial quantity is 1.2 kilograms,[14] for s 307.12(1) a marketable quantity is 3.2 grams,[15] and for s 307.13(1) the relevant quantity would be anything less than 3.2 grams. Each offence attracts a different penalty; for s 307.11, imprisonment for 25 years or 5000 penalty units or both, for s 307.12, imprisonment for 15 years or 3000 penalty units years or both, and for s 307.13, imprisonment for seven years or 1400 penalty units or both.

    [14]   Criminal Code Act 1995 (Cth) s 301.10 item 1; Criminal Code Regulations 2002 (Cth) reg 5F(2).

    [15]   Criminal Code Act 1995 (Cth) s 301.11 item 1; Criminal Code Regulations 2002 (Cth) reg 5F(3).

16. The different penalty ranges provided for each offence reflect the quantity range of precursor concerned which, in turn, is indicative of the level of involvement of the accused in the illicit drug trade, the level of profit generated by such involvement, and the level of damage caused to the community by the relevant quantity of the drug that would ultimately be manufactured. This is evident in the sixth report of the Model Criminal Code Officers Committee which informed the quantum approach to offence and sentence differentiation in Chapter 9 of the Code generally.[16] Consequently, each of these factors, as Johnson J has said, is relevant to determining the appropriate penalty in the individual case. 

    [16]   Model Criminal Code Officers Committee of the Standing Committee of the Attorneys-General, Parliament of Australia, Model Criminal Code. Chapter 6, Serious drug offences (1998).

17. Consistent with this we note that in Wong v The Queen, Gaudron, Gummow and Hayne JJ observed that, whilst there are a whole range of matters relevant to determining the appropriate penalty in a given case,[17]

    … [i]n general, however, the larger the importation, the higher the offender’s level of participation, the greater the offender’s knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted. It is by these kinds of criteria that comparisons are to be made between examples of the offence and the sentences that are or were imposed. Our purpose in mentioning these matters is, however, not now to attempt an exhaustive statement of relevant factors, or to attempt some formulation of applicable principles. What is important for present purposes is that it is all of the matters mentioned, and others, including those mentioned in Pt 1B of the Commonwealth Crimes Act, which should be taken into account in formulating applicable principles.

    [17](2001) 207 CLR 584 at [64].

1. Accepting this, it becomes important in this case to note that the penalty range for the offence created by s 307.12(1), where the border controlled precursor is pseudoephedrine applies to importations or exportations in amounts ranging from 3.2 grams to 1.2 kilograms. The amounts subject of each count in this case are, taken in isolation, indicative of offending at the lower end of the scale of seriousness for the offence.

2. That the applicant’s offending is at the lower end of the scale of seriousness is confirmed by her unchallenged explanation. She was not commercially motivated and did not obtain any benefit from her offending beyond the supply of methylamphetamine for her own habit and occasional sales to visitors known to be users. That said, it must be accepted that she facilitated gain by others, however, such gain, at its highest, was in the order of 50 per cent of $102,000. The potential harm of any ultimate manufacture and supply must similarly be seen in such light. Further, it must be kept in mind that her role was limited to attempting to import relatively small quantities (having regard to the marketable quantity range), being 107.28 grams in total, over about a 10 month period, motivated by the need to satisfy her own habit, and with the assistance and encouragement of her then partner.

3. Further again, we note the lack of sophistication of the enterprise, but we do not overlook the fact that it was premeditated, that offending of this nature is difficult to detect and that any penalty concerning the illicit drug trade must be one likely to deter generally.[18]

   [18]R v Riddell (2009) 194 A Crim R 524 at [57]-[58] (Beazley JA).

4. The Commonwealth Director referred the sentencing Judge and this Court to two cases – DPP v Vestic[19] and DPP v Edge.[20] In Edge, the Commonwealth Director proposed a range of between three and four and a half years of imprisonment with a minimum term of between two and three years for a course of conduct of serious drug offending, including importation of a marketable quantity of a border controlled precursor. Priest JA said:[21]

   Provided with the appellants’ submissions was a schedule, ‘Comparative Cases for Commonwealth Offence (Charge 1)’. It was a table of comparative sentences passed by the County Court, and the District Courts of South Australia and Western Australia, together with a reference to a sentence appeal determined by this Court, between 7 February 2008 and 13 April 2012, concerning the importation of the border controlled precursor, pseudoephedrine. Maximum sentences ranged from 12 months’ imprisonment to three (3) years’ imprisonment. Minimum terms varied between six (6) months and 18 months. Amounts of pseudoephedrine imported fell between 276 grams and 854.7 grams.

   The appeal determined by this Court referred to in the schedule was DPP (Cth) v Vestic, an appeal by the Commonwealth Director. Vestic was a 42 year old male who, together with a co-accused, had played an important role in the importation of 854.7 grams of pure pseudoephedrine from Malaysia. He had one minor prior conviction, but had otherwise been of good behaviour. A County Court judge had sentenced him to be imprisoned for 12 months, to be released on recognisance after serving six (6) months. This Court determined that the sentence passed was manifestly inadequate but, in the exercise of discretion, dismissed the appeal. (The exercise of discretion was animated principally by considerations of parity with the sentence passed on the co-accused, a factor which, of course, can have no application to the present case.)

   In my view, generally there is little utility in comparing sentences passed in other cases in order to determine whether a sentence under appellate review is or is not adequate. Each case must turn on the facts peculiar to it. It might be observed, however, that the sentence under review – although undoubtedly lenient – does not appear egregiously out of kilter with sentences passed previously for the offence of importing the precursor, pseudoephedrine. …

   [19][2008] VSCA 12.

   [20][2012] VSCA 289.

   [21]DPP v Edge [2012] VSCA 289 at [58]-[60].

5. Mr Edge had been sentenced to a total effective sentence of 24 months of imprisonment with a minimum term of 10 months for four offences; one count of importing a marketable quantity of a border controlled precursor, two counts of possessing a drug of dependence and one count of possessing a substance, material, document and equipment with the intention of using them for the purposes of trafficking in a drug of dependence. In respect of the importation offence, the defendant was sentenced to 20 months of imprisonment, to be released on a recognisance order after serving six months. The importation offence concerned a consignment of a package containing 597.5 grams of pseudoephedrine with a pure weight of 488.76 grams flown using DHL Express from New Delhi to Melbourne. Upon searching the respondent’s home, Customs and Victoria police found a clandestine amphetamine laboratory in his bedroom. The potential street value of methylamphetamine produced from the pseudoephedrine was between $227,710 and $521,300. Clearly DPP v Edge is a very different case to that before us. So too is Vestic. As noted by Priest JA in the paragraph from Edge reproduced above, Vestic concerned a 42 year old male who imported eight times the amount imported by the applicant and played a major role in that importation.

6. We have also had the benefit of a comparative sentencing schedule for the offence of importing a marketable quantity of a border controlled precursor prepared by the Commonwealth Director. Counsel for the Commonwealth Director was rightly guarded about the use this Court could make of the schedule. We bear in mind the limitations that such a schedule and the cases to which it refers have as a guide to the appropriate sentence in this case. In this regard, we have reminded ourselves of what fell from the High Court in Barbaro v The Queen[22] and Hili v The Queen; Jones v The Queen.[23] We also remind ourselves that sentencing is not a mathematical exercise, but requires the synthesis of all relevant factors,[24] and that consistency is achieved in the consistent and correct application of the relevant legal principles.[25]

   [22](2014) 253 CLR 58 at [41] (French CJ, Hayne, Kiefel and Bell JJ).

   [23](2010) 242 CLR 520 at [53]-[54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

   [24]   Markarian v The Queen (2005) 228 CLR 357 at [36]-[39] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

   [25]   Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 at [46]-[49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

7. With this in mind, we have considered the sentences imposed in those cases included within the Commonwealth Director’s schedule. The range in quantity of precursor that defines the limit of the offence created by s 307.12(1), the variability in the amount of precursor involved from one case to the next, the variability across cases in the method of importation, the offender’s role, the offender’s expected gain, and the estimated quantity of drug that may be produced using the precursor, render sentences imposed in other cases of only the most general assistance.

8. We note that the sentences recorded relate to cases where the offence was committed during the period between 2008 and 2013 and were imposed by courts in this State, Queensland, New South Wales and the Northern Territory. Further, aside from one, those offences were actually completed. However, this does not render those sentences irrelevant to the sentencing task, as s 11.1(1) of the Code dictates that a “person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.”

9. Further, bearing in mind that there is little if any difference in the moral blameworthiness of the successful importer of a precursor on the one hand and the would-be-importer who does all he or she can to secure the importation of the precursor on the other, it can only be expected that sentences imposed in relation to the former will bear close relation to those imposed in relation to the latter.

10. The heaviest sentence recorded in the schedule is imprisonment for three years and three months imposed for two counts involving a total quantity of 84.31 grams of pseudoephedrine.[26] The relevant offending was committed whilst the defendant was on parole resulting in her also having to serve an unexpired portion of a previous sentence of one year, five months and seven days. A fresh non-parole period of two years and eight months was fixed. The two importations were effected by concealing the precursor in a book and a photo album respectively and then posting the same to Australia from Malaysia. The sentence for the importation offences was imposed after a discount of 20 per cent was awarded in consequence of the defendant’s pleas of guilty. The defendant was 36 years old, suffered a personality disorder with marked dependent and borderline features, had antecedents including taking part in the manufacture of methamphetamine, possessing methylamphetamine for sale, importing pseudoephedrine and dealing with the proceeds of crime. In fact, the suspended sentence bond that was revoked had been imposed for offending that included two counts of importing pseudoephedrine in 2005; 940 grams on the first occasion and 511 grams on the second. The defendant also admitted to being part of a wider importation scheme involving outlaw motorcycle gangs.

    [26]   R v Paraga (Unreported sentencing remarks, District Court of South Australia, His Honour Judge Rice, 29 June 2012).

11. One of the lightest sentences recorded was six months of imprisonment with the defendant to be released immediately on a $2000 recognisance to be of good behaviour for 12 months.[27] This sentence was imposed for five importations totalling 90 grams of pseudoephedrine that could have been used to manufacture 80 grams of methylamphetamine valued at between $20,000 and $40,000. The defendant was in a relationship with a man who was the architect of a scheme to import pseudoephedrine lawfully purchased in Canada. It was in the course of this relationship that the defendant was introduced to amphetamine. She became addicted. With her arrest the relationship ceased, as did her drug use, and significant steps were then taken in self-rehabilitation. The defendant had no criminal history.

    [27]   R v Ninos (Unreported sentencing remarks, District Court of South Australia, His Honour Judge Soulio, 13 October 2011).

12. In a third case, the defendant imported 108 grams of pseudoephedrine as part of the same Canadian importation scheme referred to in the case above.[28] That 108 grams could be used to manufacture 97 grams of methylamphetamine with a street value of between $25,000 and $50,000.  The defendant was 50 years old, pleaded guilty, and was a user of methylamphetamine but had ceased use by the time of sentencing. Other than a number of fines for possession of cannabis, the defendant’s only prior convictions were for minor offences committed over 30 years prior to the subject offending. He was sentenced to eight months imprisonment but ordered to be released immediately upon his entering into a recognisance to be of good behaviour for two years.

    [28]   R v Sabatino (Unreported sentencing remarks, District Court of South Australia, His Honour Judge Soulio, 12 October 2011).

13. A fourth case concerned two young women, Ms Smith and Ms Page, who travelled to Bali and mailed back to Australia six parcels containing 108 grams of pseudoephedrine.[29] Like the applicant, both women imported the drug for the purposes of assisting another to manufacture methylamphetamine. In fact, the purpose of the trip to Bali, which was funded by another, was to buy pills for that other. Both women were drug users and appeared to have no relevant criminal history. Both pleaded guilty. One distinguishing feature was that, when these two women arrived at Sydney airport upon their return from Bali, Ms Smith was found to have an additional 38 grams of pseudoephedrine in her luggage. Ms Page was sentenced to one year and three months of imprisonment reduced to 11 months in consequence of her plea of guilty and remorse. She was released immediately upon entering into a recognisance in the sum of $1000 to be of good behaviour for a period of two years. Ms Smith was sentenced to two years of imprisonment reduced to one year and six months in consequence of her plea of guilty and remorse. She too was released immediately upon entering into a recognisance in the sum of $1000 to be of good behaviour for a period of two years.

    [29]   R v Smith and Page (Unreported sentencing remarks, District Court of South Australia, His Honour Chief Judge Mueke, 25 September 2013).

14. Common features of the last three cases is that they all involve importation of about 100 grams of pseudoephedrine, the offenders were lower down the hierarchy of the importation scheme, they were all remorseful, showed good prospects of rehabilitation and had all made progress in overcoming their drug addiction. In all cases, the offenders were released on recognisance orders without serving an immediate period of imprisonment. We note that these offenders had no relevant criminal history of drug offending which, on the face of the remarks, is the only major factor that sets the applicant in this case apart.

    Hardship and sentencing

15. Section 16A(1) of the Crimes Act imposes a duty upon a court in determining a sentence to be passed, or order to be made, in respect of any person who has committed a federal offence to “impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence”. That duty is engaged in this case in relation to the Commonwealth offences. In the discharge of that duty, s 16A(2) requires a sentencing court to take into account the factors there listed as are “relevant and known to the court”. Section 10(1) of the Sentencing Act contains a similar list of factors and, in combination with the common law, imposes the same duty in relation to sentences, defined to include any other order or direction affecting penalty (for example, the revocation of a suspended sentence and the powers contained in s 58(4) of the Sentencing Act), imposed for State offences. In the case of both the Crimes Act and the Sentencing Act, the diversity of the factors identified and the necessary tension they introduce to sentencing reflects the discretionary nature of the task.

16. In this case of particular relevance is s 16A(2)(p) and s 10(1)(n) of the Crimes Act and the Sentencing Act respectively. They provide:

    (p)the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.

    (n) the probable effect any sentence under consideration would have on dependants of the defendant.

17. Both s 16A(2)(p) and s 10(1)(n) oblige the sentencing court to consider the probable effect of any sentence under consideration on the defendant’s family or dependants and both contemplate that such a factor may have an influence upon the determination of the appropriate penalty. Thus the State and Commonwealth Legislatures must be taken to have contemplated different sentences being imposed upon defendants whose offending and circumstances are not materially different save that one has family or dependants upon whom the probable effect of the sentence is such that the sentence should be adjusted and the other does not. That is, it is necessarily contemplated that the effect of a sentence under consideration on dependants is a factor upon which a sentencing court may distinguish one defendant from another in terms of the sentence imposed. At a high level of abstraction, to distinguish between two offenders whose circumstances are otherwise equal save one has a family who will be adversely effected by his or her punishment, is to draw a distinction on arbitrary grounds. The same applies where both have families but the effect on one family is by happenstance less than the other.

18. Here it should also be observed that in many instances, indeed in this case, the State and Commonwealth Legislatures have created offences punishable by imprisonment which, upon imposition, will necessarily mean hardship to dependants. In this regard in The Queen v Wirth, Wells J observed:[30]

    … Hardship to spouse, family, and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a Criminal Court. Again and again, sentencing judges point out that convicted persons should have thought about the likely consequences of what they were doing before they did it – I am, of course, addressing myself to the more serious crimes in which some form of premeditation, wilfulness, or intent, must be proved. It seems to me that courts would often do less than their clear duty – especially, where the element of retribution, deterrence, or protection of society is the predominant consideration – if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause those near and dear to prisoners.

    [30] (1976) 14 SASR 291 at 296.

19. If the appropriate penalty is imprisonment, consequential hardship to dependants will occur and must be taken as contemplated and accepted by both the Commonwealth and State Legislatures. More than that, it is accepted as appropriate by the community which, in many instances, marshals its resources to relieve such hardship where it can. 

20. There is then a tension between the expectation of the Legislatures and the community on the one hand, and the command contained in s 16A(2)(p) and s 10(1)(n) on the other. The question is, what principles are to be applied in determining when it is appropriate to draw the distinction that s 16A(2)(p) and s 10(1)(n) contemplate.

21. Both s 16A(2)(p) and s 10(1)(n) have been construed as being no different in effect to the common law.[31] It has long been accepted that the common law imposes an exceptional circumstances test where hardship to dependants is put in mitigation of penalty. We are bound to apply the exceptional circumstances test.[32] That said, stating the test in such convenient terms runs the risk of masking the analysis to be undertaken. An assertion of exceptional circumstances contemplates a discernible norm – the routine or ordinary outcome – in relation to which the asserted circumstances may be compared and the question determined whether they do in fact answer the description of being exceptional. What is the norm and when is a departure from that norm exceptional?

    [31]   R v Adami (1989) 51 SASR 229; R v Sinclair (1990) 108 FLR 370; R v Matthews (1996) 130 FLR 230; R v Togias (2001) 127 A Crim R 23; R v Hinton (2002) 134 A Crim R 286; Markovic v The Queen (2010) 30 VR 589; R v Huston; Ex parte Commonwealth DPP (2011) 219 A Crim R 209; R v Zefera (2013) 235 A Crim R 265; Huynh v R [2015] NSWCCA 167.

    [32]   No submission was made to the contrary. We note the dissenting judgment of Beech-Jones J in R v Zefera [2013] NSWCCA 222, but, as Spigelman CJ said in R v Togias (2001) 127 A Crim R 23 at [17], “If there is to be any change in position … only the High Court can effect it”.

22. The common law was subject of analysis by the Full Court of this State in The Queen v Wirth.[33] In that case, Bray CJ said:[34]

    It seems to me, as I said in Moore v. Fingleton, that it would be patently unjust if of two people accused of the same crime in the same circumstances with no other differentiating factors one were to receive more lenient treatment than the other simply because of the effect of the sentence on his family.

    [Footnote omitted.]

    [33][1976] 14 SASR 291.

    [34]The Queen v Wirth (1976) 14 SASR 291 at 294.

1. In the joint reasons in Hili v The Queen; Jones v The Queen, six justices of the High Court said:[54]

   In Ruha, the Queensland Court of Appeal went to some lengths to emphasise the cardinal importance of beginning consideration of the sentencing of any federal offender by examining the applicable statutory provisions, particularly Pt IB of the Crimes Act. The Court of Appeal summarised the effect of the relevant provisions of the Crimes Act in three propositions, but neither the summary, nor any of the individual propositions is, or was intended to serve as, a substitute for the statutory language.

   The Court of Appeal in Ruha examined what considerations bear upon fixing the length of a pre-release period under a recognisance release order. As the Court of Appeal rightly said, s 16A(1) and (2) “make it plain that all of the circumstances, including the matters in the non-inclusive list in s 16A(2), must be taken into account in making recognisance release orders just as they must be taken into account in imposing a sentence of imprisonment”. In determining what recognisance release order is to be made, s 16A(1) requires the sentencing court to “make an order that is of a severity appropriate in all the circumstances of the offence”. What is the “severity appropriate” is determined having regard to the general principles identified by this Court in Power v The Queen, Deakin v The Queen and Bugmy v The Queen.

   [Footnotes omitted.]

   [54](2010) 242 CLR 520 at [39]-[40] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

2. Thus in limiting his consideration of the probable effect of any sentence under consideration would have on the applicant’s family or dependants to his consideration of the term of any recognisance release order his Honour erred. Further, having concluded that exceptional circumstances had not been made out, it is difficult to see how, consistent with the correct application of principle, hardship could then be resorted to in the determination of the recognisance release order. If the head sentence is not to be revised down because exceptional circumstances, in the sense that we have explained, are held not to exist, then we cannot see how it can be taken into account in determining the period relating to a recognisance release order.

3. Second, in our view, the Judge erred in failing to consider the fact that imprisonment for the applicant would be significantly more burdensome in the sense described in Markovic v The Queen.[55] The applicant’s rehabilitation, in the main has been achieved through motherhood and, in our view, the Judge failed to consider the impact of removal of her newborn on that continuing rehabilitation. However, we make note of the fact that neither we nor the Judge were provided with any information as to the consequences of removal of a newborn from its mother. 

   [55] (2010) 30 VR 589 at [20].

4. We would set aside the sentence imposed on the Commonwealth offences.

   Conclusion

5. The sentencing Judge had the benefit of Ms Black’s and Mr Fugler’s report. As made plain above, to the extent that those reports address hardship to be caused to the applicant’s family they are limited to the impact of separation upon M. The sentencing Judge did not have the benefit of any report dealing with the impact upon the newborn child of separation from the applicant for the best part of the first 12 months of its life nor what, if any, compounding effect the absence of her mother and introduction of a brother or sister may mean for M. In determining the appropriate sentence in this case, we would benefit from such information.

6. We note the applicant is due to give birth in October. As we have discussed above, it is harsh at any time to separate a newborn child and its mother, but here where motherhood has proven to be the avenue through which rehabilitation has been achieved and in all likelihood will be maintained, it is not only all the more harsh but counterintuitive. That said, we do not lose sight of the seriousness of the offending, we do not overlook the applicant’s antecedents, and we do not overlook the fact that she committed the Commonwealth offences whilst subject of a bond for drug related offending. However, we also bear in mind Ms Black’s report. We have concerns that incarceration of the applicant after she gives birth may be a price too high, considering both the applicant’s dependants and the fact that imprisonment is significantly more burdensome for a woman in South Australia who gives birth whilst in custody.

7. In the circumstances, we considered that the interests of justice would best be served by an order adjourning the applicant’s sentencing on the Commonwealth offences and inviting the parties to provide whatever additional information may be considered of assistance generally and particularly with respect to the impending separation of the applicant and the new baby.

   Orders of the Court

8. For these reasons, on 29 July 2016, the Court made the following orders:

   1.   Permission to appeal is granted.

   2.   The appeal is allowed, the sentencing orders imposed by the District Court Judge are set aside and the applicant is to be resentenced.

   3. Pursuant to s 58(1) of the Sentencing Act the suspension of the sentence imposed by his Honour Judge Rice on 7 June 2012 is revoked.

   4. Pursuant to s 58(4)(a) of the Sentencing Act the term of the sentence imposed by his Honour Judge Rice on 7 June 2012 is reduced in that the head sentence is reduced to 13 months of imprisonment and the non-parole period is reduced to four months of imprisonment.

   5.   The reduced sentence to be served is backdated to commence on 18 April 2016.

   6.   With respect to resentencing for the Commonwealth offences we adjourn the matter for further submissions to Monday the 15th August 2016 at 9.30 am.

   7.   Any bail previously given with respect to the Commonwealth offences insofar as it might be resurrected or otherwise remain in place following our setting aside of the Judge’s sentence for the Commonwealth offences is revoked and the applicant is remanded in custody pending sentence.