R v Curran
[2019] SASCFC 14
•22 February 2019
Supreme Court of South Australia
(Court of Criminal Appeal)
R v CURRAN
[2019] SASCFC 14
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bampton, The Honourable Justice Parker and The Honourable Auxiliary Justice Chivell)
22 February 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
Application for permission to appeal against a sentence of two years 10 months imprisonment (reduced by 30% from four years for guilty plea) for cultivating a commercial quantity of cannabis for sale.
Grounds of appeal: (1) that the sentence was manifestly excessive; (2) that an injustice occurred because home detention was ordered instead of suspension; (3), (4) and (5) that the home detention conditions of community service, preclusion from weekend work and preclusion from attending appointments such as medical appointments for his pregnant partner, were excessive.
Held per Chivell AJ (Bampton and Parker JJ agreeing):
As to ground (1), in all the circumstances, a sentence with a starting point of four years was manifestly excessive. Permission to appeal granted and the appeal allowed. Applicant resentenced to imprisonment for two years, one month and six days, with a non-parole period of 14 months, to be served on home detention with different conditions.
As to the remaining grounds, permission to appeal refused.
Controlled Substances Act 1984 (SA) s 4(c)(i), s 33B(2), s 33LA, s 44; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) Schedule 3, Part 2; Criminal Law (Sentencing) Act 1988 (SA) s 72, s 96; Criminal Procedure Act 1921 (SA) s 5(3)(b), s 116(1); Electricity Act 1996 (SA) s 85(1)(a); Sentencing Act 2017 (SA) s 71, s 73 s 96(1), s 105, s 115; Supreme Court Criminal Rules 2014 (SA) r 120(1); R v Lyberopoulos [2017] SASCFC 139; Markarian v The Queen (2005) 228 CLR 357; R v Yavuz [2018] SASCFC 24; R v Tsonis [2018] SASCFC 86; R v Standley [2016] SASCFC 141; R v Gjoni [2012] SASCFC 48; R v Campbell [2007] SASC 203; R v Hill [2005] SASC 380; R v Kuci [2016] SASCFC 136; R v Morse (1979) 23 SASR 98; House v The King (1936) 55 CLR 499; R v Horstmann [2010] SASC 103; R v Kreutzer [2013] SASCFC 130; R v Dell (2016) 126 SASR 571; Wessling v Police (2004) 88 SASR 57; R v O'Toole [2013] SASCFC 18; R v Kong (2013) 115 SASR 425, referred to.
R v CURRAN
[2019] SASCFC 14Court of Criminal Appeal: Bampton and Parker JJ, Chivell AJ
BAMPTON J: I agree with the reasons of Chivell AJ and the orders he proposes.
PARKER J: I agree with the reasons of Chivell AJ and the orders he proposes.
CHIVELL AJ: This is an application for permission to appeal against a sentence imposed by a Magistrate on 19 July 2018. The applicant had pleaded guilty to cultivating a commercial quantity of a controlled plant, namely cannabis, for sale,[1] possessing prescribed equipment,[2] and diversion of electricity.[3]
[1] Controlled Substances Act 1984 (SA), s 33B(2). Maximum penalty $200,000 or 25 years imprisonment or both.
[2] Controlled Substances Act, s 33LA. Maximum penalty $10,000 or two years imprisonment or both.
[3] Electricity Act 1996 (SA), s 85(1)(a). Maximum penalty $20,000 or two years imprisonment.
The first of those charges was a major indictable offence.[4] The Magistrate dealt with the charges with the consent of the prosecution and the defence.[5]
[4] Criminal Procedure Act 1921 (SA), s 5(3)(b).
[5] Criminal Procedure Act, s 116(1).
Permission to appeal was refused by a Judge of this Court on 3 September 2018. The application was referred to the Full Court at the request of the defendant on 6 September 2018.[6]
[6] Supreme Court Criminal Rules 2014 (SA), r 120(1).
On 19 July 2017, the police attended at the applicant’s residence. A search revealed the presence of a ‘grow room’ in a garage on the property. Cannabis had been cultivated in a hydroponic set-up, involving lamps, ballast boxes and a carbon filter. There were six mature plants and 18 cuttings. Only the mature plants were producing useable cannabis, but because there was a total of 24 plants, this constituted a ‘commercial quantity’. A commercial quantity is constituted by 20 plants or more.[7]
[7] Controlled Substances Act 1984 (SA), s 4(c)(i) & Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA), Schedule 3, Part 2.
The sentence imposed on the first count was imprisonment for two years and 10 months. The sentence was reduced, by 30%, from a starting point of four years for Mr Curran’s plea of guilty. A non-parole period of 18 months was fixed. The Magistrate found no good reason to suspend the sentence.[8] Her Honour did, however, order that the sentence be served on home detention.[9] She described the conditions of the home detention order as ‘strict’. I will discuss these conditions later.
[8] Sentencing Act 2017 (SA), s 96(1).
[9] Sentencing Act 2017 (SA), s 71(1).
On count 2 the Magistrate imposed a fine of $800, and on count 3 a fine of $2,800. Both fines had also been reduced for the pleas of guilty.
Forfeiture of the drugs and prescribed equipment was ordered.
Grounds of Appeal
The grounds set out in the Notice of Appeal are as follows:
1. The sentence was manifestly excessive.
2. The sentence should have been suspended as opposed to home detention.
3. The conditions of 300 hours’ community service within nine months is excessive.
4. To preclude (the applicant) from working on weekends is excessive.
5. To preclude (the applicant) from attending appointments such as medical appointments for his pregnant partner is excessive.
Ground 1 - Manifestly Excessive
The principles to be applied when considering a submission that a sentence is manifestly excessive were outlined by Hinton J in R v Lyberopoulos:[10]
[10] [2017] SASCFC 139 at [5]-[7].
The power of this Court to interfere on an appeal instituted with permission under s 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935 (SA) is contained in s 353(4) of that same Act. That power is conditioned on the Court being satisfied that “the sentence is affected by error”. Sentencing being the quintessential example of the exercise of judicial discretion, the concept of error for the purposes of s 353(4) has long been taken as meaning error in the House v The King sense. That is to say:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
…
As mentioned, the applicant contends that the sentence imposed was manifestly excessive. In Dinsdale v The Queen Gleeson CJ and Hayne J said:
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.
(Citations omitted)
Hinton J also drew attention to the following passage in Markarian v The Queen:[11]
Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.
(footnotes omitted.)
[11] (2005) 228 CLR 357 at [27] per Gleeson CJ, Gummow, Hayne and Callinan JJ.
The sentencing of offenders for drug offences is governed by the Sentencing Act 2017 (SA) (‘the 2017 Act’) and the Controlled Substances Act 1984 (SA). Section 44 of the latter Act provides:
44—Matters to be considered when court fixes penalty
(1) In determining the penalty to be imposed on a person convicted of an indictable or minor indictable offence against this Act, the court must take into consideration—
(a) subject to subsection (2), the nature of the substance or goods involved in the commission of the offence; and
(b) the quantity of the substance or goods involved in the commission of the offence; and
(c) the personal circumstances of the convicted person (being a natural person), including the circumstances relating to the person's use (if at all) of any controlled drug; and
(d) in the case of an offence against Part 5 Division 2 or 3—
(i) the commercial or other motives of the convicted person in committing the offence; and
(ii)the financial gain that is likely to have accrued to the convicted person as a result of the commission of the offence (but this is not to be taken into consideration if that financial gain is the subject of an application under the Criminal Assets Confiscation Act 2005); and
…
(e) any other relevant factor.
There is a ‘tiered structure’ of penalties for cultivation of cannabis for sale, the tier being determined by whether there has been cultivation, cultivation of a commercial quantity or cultivation of a large commercial quantity of the drug. In R v Yavuz, [12] Kourakis CJ said:
Something more should be said regarding the tiered structure of cultivation for sale offences. In relation to these offences, unlike the trafficking offences, the measure of gravity embodied in the scale of penalties is not the weight (or street value) of the expected yield but the number of plants. Generally speaking the greater the number of plants being cultivated, the greater the penalty. This is reflected in the tiered structure of the offences created by s 33B of the Controlled Substances Act and related maximum penalties and the choice of plant numbers as the relevant discrimen. Of course, regard must be had to the nature of the cultivation and the motivation of the offender. The aim of the tiered offences and related penalties remains the same as that of the trafficking offences (i.e. to strike more strongly at commerciality). Accordingly, it will be important to know whether the venture was a purely commercial enterprise requiring significant capital outlay or was a more modest venture intended in the main to satisfy a personal habit. Was the cultivation part of a broader enterprise involving others and other cultivations? What was the role of the offender in the cultivation? Was the crop comprised of female plants or were the male plants yet to be culled? Were the plants seedlings or mature female plants that were flowering? Had the plants been tended in a manner intended to increase the yield per plant, or been left to mature and flower naturally? Was the plant type a variant with a greater cannabinoid or THC level than normal? What was the anticipated yield and related street value? The answers to these questions are all relevant to assessing the gravity of the offending. It is also important, as with trafficking, to note that the number of plants may be a matter of happenstance; circumstantial evidence may reveal the number of plants to be all that remains of a more significant crop or that the crop found is a second or third crop. Of course, the cultivator is only to be punished for those plants being cultivated, but, again, past activity is relevant to any assessment of the leniency that may be extended.
As in the case of sentencing for a trafficking offence, in sentencing for an offence of cultivating a controlled plant intending to sell the same, courts must ensure some relativity in the spread of sentences across the three tiers of offence created by s 33B.
(Footnotes omitted)
[12] [2018] SASCFC 24 at [77]-[78].
In that case, the defendants were charged with two counts of large-scale interstate trafficking in cannabis and one count of cultivation. The sentences imposed therefore provide no comparison with the sentence imposed here.
Factors Relevant to Sentence
The factors relevant to the sentence imposed were:
· Mr Curran was 31 years old and in a long-term relationship. His partner was in an advanced stage of pregnancy;
· he operates his own business as an electrician. He works six to seven days a week. The business employs his partner, his father and two apprentices;
· approximately 10 weeks prior to sentencing, he was involved in a motor vehicle accident, and injured his lower back;
· he had been a user of cannabis, but he has not used it since being arrested;
· the cannabis was being cultivated in a ‘grow room’ set-up in a garage. The set-up included nine hydroponic globes and lamps, 10 ballast boxes and one carbon filter. The Magistrate observed that Mr Curran had gone to ‘a fair bit of trouble and expense to set it up and to operate it’;
· he had used his training and skill as an electrician to divert the electrical supply around the meter so the power used would not be recorded, and to conceal the diversion;
· he intended to use some of the cannabis himself, and to sell ‘most’ of it;
· he had a prior court appearance for cultivating cannabis. He was released without conviction in July 2013, on the basis that he was merely assisting others to harvest cannabis;
· he had also received a suspended sentence before, in November 2013, for aggravated assault;
· the number of plants involved was 24, but only six of those were productive. The other 18 plants were cuttings, and were too immature to be productive. The clones were taken into account as evidence of an ‘ongoing interest to cultivate;
· the value of the cannabis was between $2,000 and $2,500. However, if the maximum possible harvest of about 1.2 kilograms or about three pounds was achieved,[13] it could have been worth $6,600 to $8,200. It was possible that the yield could have been higher. It was accepted that it was unlikely that he would have sold the cannabis in small ‘street’ deals and thus earned even higher profits;
· it was a relatively small hydroponic set-up involving six productive plants and a number of clones, some of which might never have reached maturity;
· this was his first foray into cannabis cultivation with a commercial purpose;
· there is no evidence that he was part of a larger criminal organisation.
[13] This was the opinion of the police drug expert.
In R v Tsonis,[14] the defendant was charged with trafficking in a commercial quantity of cannabis, cultivating cannabis for sale and diverting electricity. The cultivation charge was on the bottom tier of penalties for cultivation of cannabis. It involved the cultivation of 12 plants of varying maturity.
[14] [2018] SASCFC 86.
After quoting the above passage from Yavuz, the court in Tsonis observed:[15]
While the appellant focussed upon the reference to the number of plants in the third sentence of this passage, it is important that this sentence be read in the context of the passage a whole. The third sentence does emphasise the relevance of the number of plants, but the second to last sentence also acknowledges that, by analogy with a trafficking offence, it is important to remember that the number of plants may be a matter of happenstance. Further, the balance of the passage also makes it plain that the nature of the cultivation and the motivation of the offender will be relevant, and that these matters are in turn informed by consideration of a range of matters including “the anticipated yield and related street value”.
Consideration of a defendant’s “commercial or other motives”, and the “financial gain that is likely to have accrued … as a result of the commission of the offence”, is also mandated by s 44(1)(d) of the Controlled Substances Act.
[15] At [35]-[36].
This case is an illustration of the point made in Tsonis. The number of plants in this case was higher and put the offence into the second tier of penalties, but the number of productive plants, in this case six, is lower than was the case in Tsonis. In Tsonis, as to the cultivation charge, there were 12 plants of varying maturity, but all were productive and the proceeds of sale could have been as much as $60,000.
Mr Tsonis was sentenced for trafficking in a commercial quantity of cannabis as well as cultivation. The combination of a greater number of productive plants, the much higher yield and the trafficking in a commercial quantity, made his offending more serious than was the case here.
Surveys of sentences imposed for trafficking in cannabis were undertaken by Blue J in R v Standley[16] and by Hinton J in R v Lyberopoulos (supra). In Lyberopoulos, Hinton J referred to a table of sentences in cannabis trafficking. His Honour said:[17]
I have had regard to the content of the judgments in each of those cases. I have borne in mind the limited utility of a comparative analysis of sentences imposed for similar offending. As French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said in Hili v The Queen:
Next, in seeking consistency, sentencing judges must have regard to what has been done in other cases. In the present matter, the prosecution produced detailed information, for the sentencing judge and for the Court of Criminal Appeal, about sentences that had been passed in other cases arising out of tax evasion as well as cases of customs and excise fraud and social security fraud. Care must be taken, however, in using what has been done in other cases.
In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: “Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.” But the range of sentences that have been imposed in the past does not fix “the boundaries within which future judges must, or even ought, to sentence”. Past sentences “are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence” (emphasis added). When considering past sentences, “it is only by examination of the whole of the circumstances that have given rise to the sentence that ‘unifying principles’ may be discerned”.
…
The circumstances of each of the cases contained in the table are highly variable. They provide only the most general assistance.
(Citations omitted; emphasis in original)
[16] [2016] SASCFC 141.
[17] At [40] and [42].
I consider that the comments of Hinton J quoted above are also apposite to the cases cited in this case as comparators.
In R v Gjoni,[18] the offender had been sentenced for cultivating a commercial quantity of cannabis for sale. He was sentenced to imprisonment for three years. A non-parole period of 15 months was fixed.
[18] [2012] SASCFC 48.
Mr Gjoni’s offence, which was also on the second tier, involved cultivation of 59 plants in a rented house. Vanstone J observed[19] that much of the house appeared to be utilised for the cultivation of cannabis. The value of the crop was described as substantial.
[19] At [2].
The sentencing Judge took a starting point of four years, before reducing it for the plea of guilty and assistance to the police.
The court was unanimous in refusing the application by Mr Gjoni for permission to appeal.
Vanstone J rejected the argument that the sentence was manifestly excessive, observing that the sentence could have been higher.[20]
[20] At [10].
In that case, counsel for the applicant for permission to appeal tendered a table of sentences imposed for this offence between 2009 and 2011. Most of the sentences were of imprisonment for less than three years, and almost all were suspended. Vanstone J observed:[21]
This may well demonstrate that a number of the sentences imposed were merciful, even inadequate, particularly having regard to the significant increase in the maximum penalty effected by the Parliament in 2007. However, it does not demonstrate that the applicant’s sentence was too high. It says even less about whether good reason should have been found in Mr Gjoni’s case to suspend the sentence. Whether good reason is found is dictated by circumstances peculiar to the offender and is very much a matter for the judge’s discretion. I consider that the decision that there was no good reason to suspend the sentence was open to the judge.
[21] At [11].
White J commented to similar effect.[22]
[22] At [16].
I conclude that Gjoni is not a good comparator with this case. The offence involved was more serious, but the sentence was found to have been unduly lenient, and was not suspended. Home detention was not available as a sentencing option at that time.
In R v Campbell,[23] the three offenders were resentenced in this Court after a successful appeal by the Director of Public Prosecutions. These sentences were imposed in March 2007 for offences committed in July 2006. The maximum penalties for the offences were therefore those which applied before the large increase referred to in Gjoni. For that reason, those penalties provide no grounds for comparison with the sentence imposed in this case.
[23] [2007] SASC 203.
R v Hill[24] involved an appeal against a sentence imposed for producing cannabis and possessing cannabis for sale. Mr Hill’s offences were also committed prior to the 2007 increase in the maximum penalty.
[24] [2005] SASC 380.
In R v Kuci,[25] the offender had cultivated two crops of cannabis, one of 14 plants and one of 12 plants, in different ‘grow houses’. All of the plants were described as mature. The hydroponic set-up was described as sophisticated. The sentencing judge also started at four years imprisonment before reduction for pleas of guilty.
[25] [2016] SASCFC 136.
The court rejected Mr Kuci’s contention that the sentence was manifestly excessive.
In that case, the cultivation was considerably more extensive – all 26 plants were mature and high-yielding, and the cultivation took place in two separate houses. Mr Kuci was part of a larger criminal organisation. His offending was more serious than that of Mr Curran.
Having regard to the factors relevant to the applicant’s sentence, and the principles established in the above cases, I consider that a sentence with a starting point of four years is outside the range of ‘sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender’.[26]
[26] See R v Morse (1979) 23 SASR 98 at 99 per King CJ.
I would therefore grant permission to appeal, and allow the appeal on ground 1.
Ground 2 – Suspension
The applicant submits that the sentence ‘should have been suspended as opposed to home detention’.
Counsel for the applicant conceded that he could not identify any specific error of the type described in the passage of House v The King[27] quoted earlier. This has since been described, in R v Horstmann, as a ‘process error’.[28] Instead, the applicant submitted that the failure by the Magistrate to exercise her discretion to suspend the sentence was ‘plainly unjust’, and thus an ‘outcome error’.[29]
[27] (1936) 55 CLR 499.
[28] [2010] SASC 103 at [36], quoted with approval in R v Kreutzer [2013] SASCFC 130 per Kourakis CJ at [10] and in many subsequent cases.
[29] At [37].
In R v Dell,[30] Doyle J (with whom the other members of the court agreed) described the ‘sentencing hierarchy’ under the Criminal Law (Sentencing) Act 1988 (SA), which applied in 2016. The 1988 Act is not, for present purposes, materially different from the 2017 Act. The hierarchy consisted of, at that time, in ascending order of onerousness, a suspended sentence, service of the sentence on home detention and a custodial sentence. ‘Intensive correction orders’ were added to the hierarchy by the 2017 Act.
[30] (2016) 126 SASR 571 at [42].
In Dell, Doyle J said:[31]
… the discretion to make a home detention order is not enlivened unless and until the court has determined to impose a sentence of imprisonment on the defendant … and has decided that the sentence should not be suspended …
[31] At [43].
Section 96(1) of the 2017 Act provides that the test for whether a sentence should be suspended is whether ‘good reason’ exists to do so.
In Wessling v Police,[32] and R v O’Toole,[33] both referred to by Doyle J in Dell,[34] this test involves consideration of only one issue, ‘namely whether having regard to all the relevant sentencing considerations in the particular circumstance of the case, there is good reason to suspend’. Doyle J added:
These decisions reflect an approach, taken in various other contexts, that construes the word “may” as conferring a power which is to be exercised upon the Court being satisfied of a certain matter, and not as conferring a separate or residual discretion as to the exercise of that power.
(Citation omitted)
[32] (2004) 88 SASR 57 at [26]-[27].
[33] [2013] SASCFC 18 at [50].
[34] Supra at [46].
The Magistrate gave a detailed outline of the submissions made on the applicant’s behalf by his counsel. It was conceded that the offending was serious. Her Honour referred to the authorities, and concluded that it would be a ‘relatively rare case which did not result in a custodial penalty’. This was a correct statement of the law.
In R v Kong,[35] Kourakis CJ said:
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, nor 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.
[35] (2013) 115 SASR 425 at [90].
In Gjoni, White J said:[36]
Further, numerous decisions of this Court have indicated that the seriousness of these offences, proper sentencing principles and the need for deterrence will usually make it difficult for a court to find good reason for suspension of a sentence of imprisonment. Those observations apply with even greater force since the increase in the maximum penalty which took effect on 3 December 2007.
[36] [2012] SASCFC 48 at [19].
In Dell, Doyle J observed:[37]
It is well recognised that the need for general deterrence militates strongly against a favourable exercise of the discretion to suspend a sentence of imprisonment imposed for trafficking or cultivation offences.
[37] Supra at [76].
The Magistrate noted that the lenient penalty imposed in 2013 for cultivation of cannabis had failed to deter the applicant from reoffending, as had a suspended sentence imposed in the same year for aggravated assault. Her Honour had regard to all relevant factors, including the applicant’s background, his business and the people who depended upon it, his partner’s pregnancy, his financial obligations and his community activities, including life-saving. She referred to the character references tendered. She referred to the factors in the Sentencing Act and the Controlled Substances Act that she was required to take into account. She concluded:
Having regard to the authorities and the circumstances of this case I consider that there is no good reason to suspend the sentence.
The Magistrate’s conclusion that no good reason existed to suspend the sentence was consistent with authority and was not ‘plainly unjust’.
I would refuse permission to appeal on ground 2. It is not reasonably arguable.
Grounds 3, 4 and 5 – The Terms of the Home Detention Order
Since my conclusion as to the outcome of the appeal on ground 1 requires that the applicant be resentenced, it is not necessary to consider the applicant’s complaints in relation to these grounds. The applicant could have applied to the Magistrates Court at any time for an order pursuant to s 72(3) of the 2017 Act for variation or revocation of the conditions of the home detention order.
I would therefore refuse permission to appeal on grounds 3, 4 and 5.
The respondent did not challenge the Magistrate’s order that the applicant serve the sentence on home detention. The Magistrate gave detailed reasons for doing so, and these were not challenged on appeal. For the same reasons, I would allow the sentence of imprisonment to be served on home detention. I am satisfied that the requirements of sections 71(2) and 71(3) of the 2017 Act have been met.
In framing a home detention order, however, it is appropriate to make some observations about the conditions ordered by the Magistrate and to consider whether they should be included in the new home detention conditions.
In addition to the usual conditions of a home detention order, the Magistrate ordered:
·the applicant perform 300 hours of community service;[38]
·the community service was to be performed within the first nine months of the sentence;[39]
·he was permitted to leave the residence for the purpose of ‘remunerated employment’, but only if confirmed and approved by (his) Home Detention Officer, such employment was limited to paid employment as an electrician or in some other capacity if approved by his home detention supervisor;[40]
·he may only be approved to work between the hours of 7 a.m. and 5 p.m.;[41]
·if employment was only available during part of that time, then he was required to return to his residence when work was completed;[42]
·he was not permitted to work on weekends;[43]
·he was permitted to leave the residence for ‘urgent medical or dental treatment’, and to ‘avert or minimise risk of serious injury or death to (himself) or to any other person’.[44] No specific provision was made for the obtaining of medical treatment for the applicant’s pregnant wife;
·he was not permitted ‘to engage in social, sporting or leisure activities outside the residence for the duration of (his) home detention sentence’;[45]
·the community service was to be ‘enforceable’ by imprisonment for 37 days.[46]
[38] Condition 17.
[39] Condition 17.
[40] Condition 3(i).
[41] Condition 3(ii).
[42] Condition 3(iii).
[43] Condition 3(iv).
[44] Conditions 3(b) and (c).
[45] Condition 16.
[46] Condition 18.
The applicant was warned that a failure to complete the community service may also ‘trigger’ an application for breach of the home detention conditions.[47]
[47] Condition 18.
The Magistrate was required by the 2017 Act[48] to specify the number of hours of community service to be performed, and the period within which that community service was to be performed. However, her Honour did not have power to specify a period of imprisonment in default of compliance with the order at that stage. Section 115(1) of the 2017 Act provides that the order is ‘enforceable’ by imprisonment in default of compliance, and s 115(2) provides a formula for calculating a period to be served based on the number of hours of community service ‘remaining to be performed’. Fixing a default period before any default has occurred is not consistent with that statutory scheme.
[48] s 105(a) and (c).
This view is fortified by the provisions of s 115(7) of the 2017 Act, which gives a court further discretions, including to refrain from issuing a warrant of commitment to enforce the default period if the failure to comply was trivial or there are proper grounds to excuse the failure,[49] to extend the period within which the community service is to be performed,[50] to impose a further time for performance if the time has expired,[51] or to cancel the whole or a number of the ‘unperformed hours’ of community service under the order.[52] Further, the court has power to impose a fine in lieu of the community service order.[53]
[49] s 115(7)(a).
[50] s 115(7)(b)(i).
[51] s 115(7)(b)(ii).
[52] s 115(7)(b)(iii).
[53] s 115(8).
A further point is that the Magistrate has chosen to make the performance of community service a condition of the home detention order. As such, the powers of a court to make orders consequent upon a breach of the condition are contained in s 73 of the 2017 Act, rather than in s 115.
Section 73 of the 2017 Act requires the court to revoke the home detention order and order that the balance of the sentence be served in custody,[54] or to refrain from revoking the order if the breach was trivial or if there were proper grounds on which the breach should be excused.[55]
[54] s 73(1).
[55] s 73(2)(a).
Further, if a home detention order is revoked, the court is required to take into account the period of compliance with the conditions of the home detention order, and the period spent on home detention or in custody pending determination of the proceedings.[56]
[56] s 73(4)(a).
Finally, the court may, if it considers that special circumstances exist, reduce the sentence or direct that it be cumulative on other sentences then being served or to be served.[57]
[57] s 73(4)(b) and (c).
All these provisions contemplate that the period of imprisonment to be served in the event of a breach of a home detention order is to be assessed after the breach has occurred, not at the time of sentencing.
So, for these reasons, the setting of a default period at the time of sentencing was not within power.
As to the applicant’s other objections to the conditions:
·I accept that the order that the applicant perform 300 hours of community service was onerous, and when combined with the prohibition from working on weekends, has caused the applicant some hardship. He has now performed a substantial number of hours in any event. I would not include community service as part of the resentence;
·I see no reason why the applicant should be prohibited from working other than between 7 a.m. and 5 p.m. from Monday to Friday. Nor do I see why he should be prohibited from working on weekends. If his work causes problems for his supervisor, then the supervisor has power to withhold approval and I think it can be left to his or her discretion;
·for the same reason, the prohibition against ‘social, sporting or leisure activities’ can also be left to the supervisor.
At the hearing of the application, counsel for the applicant, Mr Allen, also submitted that the fines imposed on counts 2 and 3, when considered with the sentence on count 1, were excessive. This was not a proposed ground of appeal, and I do not consider that it is appropriate to interfere with the penalties imposed on those counts, having regard to the outcome I propose for count 1.
Resentencing
I consider that a more appropriate starting point for the sentence on count 1 was three years. Reducing that by 30% leads to a sentence of two years, one month and six days.
I would impose that sentence and fix a non-parole period of 14 months. I would order, pursuant to s 71(1)(c) of the 2017 Act, that the sentence be served on home detention.
I would order that the home detention order be subject to the following conditions:
1.That you be of good behaviour, and comply with all of the conditions of this order.
2.That you be under the supervision of a Home Detention Officer for the period of this order and obey the lawful directions given to you by the Home Detention Officer to whom you are assigned.
3.That you reside at the residence specified by the Court, namely [address] throughout the period of the Home Detention Order and will not be absent from that address except for the purposes of:
a. remunerated employment (only if confirmed and approved by the Home Detention Officer);
b. your urgent medical or dental treatment;
c. averting or minimising a risk of serious injury or death to yourself or to any other person;
d. any other purposes as approved or directed by the home detention officer to whom you are assigned.
4.That you travel to the nominated address immediately upon release, and upon arrival you contact the Home Detention Unit of the Department for Correctional Services by telephoning 1300 796 199.
5.If, in the case of an emergency, you obtain permission from the Home Detention Officer to whom you are assigned to reside at a new address, you must make an application to the Court for a variation of your Home Detention Order conditions within two working days, but you can reside at that address until that application for variation is considered by the Court.
6.That you wear an electronic transmitter and comply with the rules of electronic monitoring, including the requirement to fully charge the transmitter daily, for the term of the Home Detention Order.
7.That you provide and maintain in operating condition an active mobile telephone service with an appropriate mobile communication device and give the contact details to the Department for Correctional Services (DCS) so that they may use it to communicate with you at all times while on electronic monitored home detention.
8.That you present yourself at the front door of your nominated address at the request of the Home Detention Officer to whom you are assigned, and respond to any telephone call at that address at any time, unless absent in accordance with these conditions.
9.That you surrender any passport you possess to the Registrar of the District Court at the District Court Registry, and not apply for a passport, nor attend within the boundary of the terminal building at any international airport whilst subject to a Home Detention Order.
10.That you not leave the State without the prior written permission of the Home Detention Officer to whom you are assigned.
11.That you not possess a firearm, or ammunition or any part of a firearm.
12.That you submit to tests (including testing without notice) for gunshot residue as may be reasonably required.
13.That you not consume alcohol or any other drug which is not medically prescribed or otherwise legally available and then only at the prescribed or recommended dosage and that you submit to any drug and alcohol testing as directed by the Home Detention Officer to whom you are assigned and sign all required forms and comply with the requirements of the testing procedures. Random testing is to occur at least once per month.
14.That you authorise the Department for Correctional Services to reveal that you are subject to a Home Detention Order to any person it believes reasonably necessary for the purposes of confirming employment and compliance with the conditions of this order.
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