R v DANG - [2015] SASCFC 89

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DANG
[2015] SASCFC 89
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Nicholson)
13 July 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CONCURRENT SENTENCES
Appeal against sentence - the appellant pleaded guilty to the offence of trafficking in a controlled drug.
A judge of the District Court imposed a sentence of four years imprisonment, reduced from six and a half years on account of the early plea. The sentence was ordered to be served partially concurrently with a term of imprisonment of three and a half years with a non-parole period of two years, for other drug offences, which the appellant was serving at the time she pleaded guilty to the subject offence. After allowing for six months concurrency, the appellant became subject, in effect, to a total head sentence of seven years imprisonment for all offences. The judge extended the non-parole period from two years to four years.
The grounds of appeal are that the head sentence and the non-parole period are manifestly excessive, that the judge failed to give adequate consideration to totality, and that the judge failed to give adequate consideration to concurrency.
Held per Nicholson J (Kourakis CJ and Sulan J agreeing):
1. Appeal dismissed.
2. Neither the head sentence nor the non-parole period was manifestly excessive.
3. In the circumstances, the principle of totality has no application.
4. The judge’s exercise of discretion with respect to concurrency had not miscarried.
Controlled Substances Act 1984 (SA) s32; Criminal Law (Sentencing) Act 1988 (SA) s10C, s31; Criminal Law Consolidation Act 1935 (SA) s353, referred to.
Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357; R v Mangelsdorf (1995) 66 SASR 60; The Attorney-General v Tichy (1982) 30 SASR 84, discussed.
R v Nemer [2003] SASC 375, (2003) 87 SASR 168; House v The King (1936) 55 CLR 499; R v Kong [2013] SASCFC 15; R v Place [2002] SASC 101, (2002) 81 SASR 395; R v Dorning (1981) 27 SASR 481; R v Copeland (No 2) [2010] SASC 61, (2010) 108 SASR 398; R v Bagnato [2011] SASCFC 161, (2011) 112 SASR 39, considered.

R v DANG
[2015] SASCFC 89
Court of Criminal Appeal: Kourakis CJ, Sulan & Nicholson JJ
KOURAKIS CJ.

I would dismiss the appeal for the reasons given by Nicholson J.
SULAN J.
I would dismiss the appeal. I agree with the reasons of Nicholson J.
NICHOLSON J.
Introduction
The appellant has appealed against a sentence imposed by a Judge of the District Court (“the Judge”) on 23 March 2015 for the offence of trafficking in a controlled drug[1] (heroin) which she committed on 17 April 2013. The appellant was sentenced to four years imprisonment, to be served partially concurrently (with respect to six months thereof) with a term of imprisonment then being served, also in relation to drug trafficking offences (“the earlier sentence”).
[1] Section 32(3) of the Controlled Substances Act 1984.
The earlier sentence, of three and a half years imprisonment with a non-parole period of two years, had been imposed by a different District Court Judge (“the earlier Judge”) but with reference to offending that both pre-dated and post-dated the offending the subject of the sentence now under appeal. The appellant commenced to serve the earlier sentence on 19 February 2014. In order to give effect to the partial concurrency, the head sentence of four years, now under appeal, was ordered to commence 19 February 2017.
In the result, the appellant became subject, in effect, to a total head sentence of seven years commencing 19 February 2014. The Judge extended the original non-parole period of two years, which had also commenced on 19 February 2014, to four years.
In the notice of appeal originally filed, on 13 April 2015, the appellant raised the following grounds with respect to which permission to appeal was sought.
1.The non-parole period was manifestly excessive.
2.The learned sentencing Judge erred by giving inadequate consideration to the applicant’s cooperation with authorities.
3.The learned sentencing Judge erred by giving inadequate consideration to the principle of totality in light of the other sentence being served.
4.The learned sentencing Judge erred in failing to impose the full 40% discount for the applicant’s early guilty plea.
The orders sought in the original notice of appeal were:
1.     The existing non-parole period be set aside.
2.     A fresh non-parole period be imposed.
During the permission hearing before a single Judge of this Court an additional ground of appeal was formulated.
3a.The learned sentencing Judge erred by failing to take into account sufficiently the principle of concurrency when imposing the sentence.[2]
[2]    This was the formulation of this ground as suggested by the permission Judge. However, the word “sufficiently” did not find its way into the appellant’s amended grounds of appeal filed on 12 June 2015. This was an administrative error. It is clear on the face of the Judge’s sentencing remarks that he did take account of the question of concurrency; the only complaint can be that he failed to do so sufficiently.
The permission Judge granted permission to appeal on grounds 1, 3 and 3a but refused permission on grounds 2 and 4. The appellant has not pressed this Court to reconsider the permission question with respect to grounds 2 and 4.
At the commencement of the appeal hearing, Counsel for the appellant sought permission to amend the first ground so as to argue that the non-parole period and the head sentence were manifestly excessive and to amend the notice of appeal as filed, with respect to the orders sought. Permission to amend was not opposed by the Crown. For the following reasons, I would dismiss the appeal.
Chronology
A slightly more detailed chronology will assist in understanding how the sentence under appeal was constructed.
On 1 June 2012, the appellant committed two offences of trafficking in a controlled drug. Following a search of the premises in which she was living, police found rock material and powder which weighed 56.9 grams and contained 7.18 grams of heroin (first count) and also rocks and powder which weighed 9.65 grams and which contained 7.96 grams of methylamphetamine (second count). Other drug paraphernalia and a substantial sum of money also were located and seized.
On 17 April 2013, and whilst the appellant was on bail for the 1 June 2012 offences, the police found in the appellant’s sister’s house three packages of powder which weighed (in total) 44.1 grams, approximately 25 per cent of which was pure heroin. However, initially only the sister and her domestic partner were charged. It was not until 27 May 2014 that the appellant was charged with the one offence of trafficking in a controlled drug referable to these three packages.
On 9 May 2013, and whilst on bail for the 1 June 2012 offences, the appellant committed two further offences of trafficking in a controlled drug. One such offence related to 0.93 grams of methylamphetamine found in a plastic re-sealable bag and the other offence related to a balloon containing 12.4 grams of powder which contained 3.57 grams of heroin. The appellant also committed the offence of possessing prescribed equipment on that occasion.
As it happened, the appellant’s involvement in the 17 April 2013 offending did not come to the attention of the police until after the appellant had been dealt with by the earlier Judge for the June 2012 and May 2013 offences. The three packages of heroin powder found by police on 17 April 2013 had been located following a search of the house in which the appellant’s sister and her partner were living. At first, only those two were charged. They pleaded not guilty and were committed for trial in the District Court.
On 19 February 2014, the appellant received and commenced to serve the earlier sentence described above. At this point, the proceedings against the sister and her partner were in train and, it would appear, the police had no interest in the appellant with respect to the April 2013 offending.[3] However, according to the sentencing Judge’s finding, as a result of “... conscience... family pressure and perhaps because [she] had gone to gaol anyway...”, the appellant contacted the police and confessed to her involvement. During an interview, she insisted that the April 2013 heroin was all hers and that her sister and her partner had nothing to do with it.
[3] Or, if interested, they had no basis on which to charge her.
Following the appellant’s confession, an ex-officio information, jointly charging all three with the 17 April 2013 offence, was presented in the District Court on 27 May 2014. On arraignment, the appellant pleaded guilty but the two co-accused proceeded to trial. Sentencing submissions for the appellant were stood over pending the outcome of the trial.
In January 2015, the two co-accused were acquitted of the 17 April 2013 trafficking offence. On 23 March 2015, the appellant was sentenced by the Judge, as the sole offender, and in the manner earlier described.
Before considering the appellant’s particular criticisms of the sentence under appeal one further matter should be noted at this stage. Not only was the April 2013 offending committed while the appellant was on bail for the June 2012 offending, but the appellant has a quite material prior conviction. The appellant was sentenced in 2008 for offences, committed in 2005, of possessing heroin, possessing ecstasy and taking part in the sale of heroin (two counts). The appellant was sentenced to imprisonment for three years, five months and 26 days, with a non-parole period of 18 months. In the circumstances, any scope for leniency when formulating the sentence under appeal was greatly reduced.
In this case a more convenient way to proceed would have been for the one Judge to impose just the one sentence for all three sets of offending (June 2012, April 2013 and May 2013) and to deal with the matter on the basis of an ongoing course of conduct over a period of 11 months or so. As the chronology demonstrates, this was not open to either of the Judges involved. However, it does suggest a means of checking whether the final outcome arrived at was or was not manifestly excessive.
The Judge’s sentencing remarks
His Honour commenced by identifying the offending that he was required to deal with and also by placing that offending in its chronological context. His Honour observed that the quantity of drugs seized from the appellant’s sister’s house in April 2013 would have been worth up to $44,000 if converted to single deals and sold at street level; but, depending upon the extent to which it might be cut, its value could be higher.
His Honour described the April 2013 offence as a serious offence and as one that involved the appellant in supplying a number of street dealers. “Accordingly, you were involved in a more serious level than street dealing, distributing quantities of drugs to a number of street dealers...”.
The Judge identified the appellant’s motivation as primarily financial, following an unsuccessful restaurant venture. His Honour noted that at some stage the appellant began to take drugs which also became part of her motivation. The Judge appeared to accept that some of the money made from the trafficking was used to reduce ongoing debts to other persons involved in the drug world. His Honour briefly outlined the appellant’s personal circumstances after noting that they had been dealt with in more detail in the earlier Judge’s sentencing remarks with respect to the June 2012 and May 2013 offending. His Honour summarised the position as follows:
You were born in Vietnam, leaving that country with some of your family at the age of 12. You spent some time in a Thai refugee camp until, when you were about 17, the family was resettled in Australia. The family endured a number of hardships and difficulties in Vietnam, in particular, on the trip to Thailand itself and in the refugee camp, which the court has heard much detail about and had regard to. Much of that was upsetting. I do not repeat it again here.
Your father followed the family later, but after a time did not ultimately stay with the family. Your mother ultimately remarried.
In Australia your mother worked and you studied English. You formed a relationship and had two children in 1997 and 2001 respectively, but there was increasing conflict with the father and your relationship with him broke down in 2002. Ultimately you took custody and responsibility for the children.
With other family members you set up and successfully ran a snack bar, which was then sold at a profit. I am told that you were still upset about the ending of your relationship and were going out a lot and at that stage started to take drugs.
You then worked in a restaurant for three years, but when that closed your counsel informed the court that you soon ran out of money and began trafficking drugs to make money, and hence your 2005 offending.
I understand that your mother has and does play a significant ongoing role in the care and raising of your children. You are very fortunate that she does that.
You told [the sentencing Judge in 2008] that your arrest had a great impact upon you, that you then gave up drugs, had learned from your mistakes and were motivated and committed to your children and to not reoffending. Apparently supportive references or a reference was tendered.
As previously mentioned you were released after only nine months of your 18 month non-parole period and as observed by [the earlier Judge], you recommenced using drugs at some stage.
Your counsel told the court that you were still in debt to people involved in the drug world and after a time did recommence your involvement with them allowing them to use your house for drug purposes and also trafficking yourself.
Before [the earlier Judge] you told the court that you had made efforts to pull your life together and to stop taking drugs and your counsel made similar submissions before this court. He tendered materials to indicate that you have been receiving drug counselling over an extended period and are undertaking some TAFE study and have been working well in the prison kitchen for the last few months. Also you have written to the court expressing remorse and a desire to be a better mother.
The Judge again referred to the offending as being a serious example of this category of offending “as you are not just a street dealer, rather, you were distributing considerable quantities of a very harmful drug to street dealers”. His Honour noted that the appellant had committed the offence whilst on bail for similar offending and notwithstanding having been previously imprisoned for the same kind of offending. His Honour, correctly with respect, observed that personal and general deterrence had to play a “significant role” in any sentencing.
The Judge described the April 2013 offending as quite separate from and, in his Honour’s view, more serious than the offending committed in June 2012 and May 2013. As such, his Honour observed that the sentence he was to set should be served predominantly cumulatively on the earlier sentence. His Honour then imposed the sentence as earlier described.
Was either the head sentence or the non-parole period manifestly excessive (ground 1)?
The head sentence and the effective non-parole period imposed by the Judge for the offending before him were four years and two years imprisonment respectively. The question of manifest excess is to be considered, in the first instance, with respect to this sentence as imposed by the Judge. However, the question of manifest excess will also need to be considered with respect to the total head sentence and extended non-parole period, as ultimately ordered by the Judge. However, this, largely, will be informed by the view the Court takes with respect to the questions of concurrency and totality (grounds 3 and 3a).
In R v Nemer[4] Doyle CJ (with whose remarks, in this respect, both Prior and Vanstone JJ agreed) summarised the purposes of punishment and the broad objectives of the sentencing process.
The sentencing of offenders who have committed serious crimes is difficult.
The judge must impose a sentence arrived at by following the requirements of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”). This requires consideration, putting things generally, of the penalty fixed by Parliament (usually a maximum only is specified), of the circumstances of the offence and of all of the matters affecting the sentence that are found in the Sentencing Act.
The sentence imposed in a particular case should reflect certain broad objectives of sentencing. These do not replace the provisions of the Sentencing Act. They describe in broad terms the main objectives of the various requirements in the Sentencing Act. These objectives are the punishment of the offender or retribution (to reflect society’s disapproval and rejection of the conduct in question); deterrence of the offender from further offending; deterrence of other persons from offending, and rehabilitation or reform (that is, encouraging the offender to reform and to behave in accordance with the law). Sometimes it is said that these are the means by which the court protects the community.
In different cases these considerations will operate in different ways and to differing degrees. As has been said, these considerations are no more than guideposts to the appropriate sentence, and sometimes they point in different directions: Veen v The Queen [No 2] (1988) 164 CLR 465 at 476. In a given case considerations of deterrence might point towards a heavier sentence, while considerations of reform might point towards a lenient sentence. Arriving at a sentence in a particular case involves a balancing of all of the matters identified in the Sentencing Act, and the exercise of a judgment in the light of all relevant matters.
[4] [2003] SASC 375; (2003) 87 SASR 168 at [4]-[7].
In the present case, the offence before the Judge attracted a maximum penalty of ten years imprisonment or a fine of $50,000 or both. However, the quantity and the value of the heroin involved was such as to characterise the appellant’s conduct as a very serious example of the offence of trafficking in a controlled drug. In addition, the appellant had a significant prior history, in particular, the trafficking and other offences for which she was sentenced to a lengthy term of imprisonment in 2008 and the fact that she committed the offence presently under consideration whilst on bail for earlier, similarly serious drug trafficking.
As a consequence, the scope for leniency on this occasion was much reduced notwithstanding the appellant’s personal circumstances, as identified and summarised by the Judge. One must be guarded, at best, about the prospects for the appellant’s continued rehabilitation with respect to her drug addiction and about the possibility of her future involvement in similar criminal conduct. This was a case where considerations of personal deterrence and general deterrence were very significant to the imposition of a proper penalty. Condign punishment was called for.

The question of whether or not a sentence is manifestly excessive is to be determined by asking whether, upon the facts, the sentence imposed was unreasonable or plainly unjust. In Markarian v The Queen[5] a plurality in the High Court characterised the inquiry in this way.
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King[6], itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
[5] [2005] HCA 25; (2005) 228 CLR 357 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[6] (1936) 55 CLR 499 at 504-505.
The Judge started with a head sentence of six years and six months imprisonment. His Honour reduced that by approximately 40 per cent to four years imprisonment on account of the appellant’s very early plea of guilty. The discount for the plea was, to all intents and purposes, the maximum discount available in accordance with the applicable legislative regime.[7] No complaint is made with respect to the discount for the plea. In addition, the Judge, effectively, reduced the resulting head sentence of four years by a further six months to accommodate his Honour’s finding of a need for partial concurrency with respect to the earlier sentence.
[7] Section 10C of the Criminal Law (Sentencing) Act 1988.
Nevertheless, when considering whether or not the sentence imposed by the Judge for the April 2013 offence is manifestly excessive, attention must be directed to the starting point of six years and six months.
The starting point was more than fifty per cent of the maximum penalty available of ten years imprisonment. However, it should not be forgotten that this was the third occasion on which the appellant had committed the very serious offence (or offences) of trafficking heroin (and she was to go on to offend a fourth time). The appellant had received two “warnings”; the immediate term of imprisonment imposed in 2008 and her arrest and remand on bail for the June 2012 offending. She was also at a level in the hierarchy, greater than that of a street dealer.
In R v Mangelsdorf,[8] the Court of Criminal Appeal (Doyle CJ with whose reasons Prior and Williams JJ agreed) indicated a range for the starting point, for a street trader of heroin (involving a course of dealing of this nature), of four to seven years. This was said to be appropriate even for a person with no prior conviction and who otherwise was of good character. The maximum penalty for possessing heroin for sale, even at the street trading level, at the time of Mangelsdorf was 25 years imprisonment. For this and for other reasons, as explained in R v Kong,[9] the approaches advocated in Mangelsdorf cannot today be applied uncritically. Nevertheless, the approach in Mangelsdorf still offers guidance as to the seriousness with which a course of street trading in drugs such as heroin (and now methylamphetamine and its variants) is to be treated. In the present case, the appellant’s April 2013 offending was more serious than street trading although, and notwithstanding the amount of heroin found in her possession, her offending has attracted a lower maximum penalty.
[8] (1995) 66 SASR 60.
[9] [2013] SASCFC 15 at [61]-[93] (the Court: Kourakis CJ, Sulan and David JJ).
In all the circumstances, I am not satisfied that the Judge’s starting point fell outside the available range. It was not unreasonable or plainly unjust to have started with a term of six and a half years imprisonment for the April 2013 offending standing alone and after taking into account (on the question of leniency) the appellant’s antecedents.
The Judge, after reducing this starting point to four years for the plea, indicated[10] an effective non-parole period of two years. An effective non-parole period of 50 per cent of the head sentence is not manifestly excessive in the circumstances of this case.
[10] His Honour extended the then existing non-parole period of two years to four years.
Totality and concurrency (grounds 3 and 3a)
This is not a case that calls for the application of the doctrine of totality. The doctrine of totality operates as a last check once a proper sentence, determined according to law, has been fixed upon. There will be occasions when a sentence, so determined, is nevertheless such as would be crushing, so as to call for the merciful intervention of the Court. The Court of Criminal Appeal in R v Place[11] made the following observations concerning the principle of totality and its application.
[11] [2002] SASC 101; (2002) 81 SASR 395 at [85]-[89] (Doyle CJ, Prior, Lander and Martin JJ with whose reasons Gray J agreed).
In R v Knight (1981) 26 SASR 573, this Court had occasion to consider the question of totality in circumstances where one of three sentences was ordered to be served cumulatively upon two concurrent sentences. As to the principle of totality, the court said (p 576):
“To use the language of Lord Parker L.C.J. in Reg. v Faulkner [(1972) 56 Cr. App. R. 594 at p.596], “at the end of the day, as one always must, one looks at the totality and asks whether it was too much.”
King CJ described the principle of totality in R v Rossi (1988) 142 LSJS 451 at 453:
“There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect … “
In an earlier judgment, King CJ spoke of the requirement that “at the end of day” a sentencing judge “stand back and look at the overall picture and decide whether the total of what would otherwise be the appropriate sentence is a fair and reasonable total sentence to impose” (R v Creed (1985) 37 SASR 566 at 568). The view that the question of totality is the final step in the sentencing process was confirmed by Doyle CJ and Olsson J in R v Major (1998) 70 SASR 488 at 490 and 497.
The totality principle was considered by the High Court in Mill v The Queen (1988) 166 CLR 59. In a joint judgment, the High Court cited with approval the remarks in Knight to which we have referred and also approved of the following description of the principle in Thomas, Principles of Sentencing, (2nd ed. 1979) at pp 56-57 (omitting references):
“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong [’]; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”
The principle was again considered by the High Court in Postiglione v The Queen (1997) 189 CLR 295. McHugh J spoke of ensuring that the aggregation of sentences appropriate for each offence “is a just and appropriate measure of the total criminality involved” (p 308). Kirby J described the principles of “parity” and “totality” as “in the nature of checks” to be applied after reaching a conclusion as to the appropriate sentence having regard to the objective criminality and personal and other matters of mitigation. His Honour said it was “then” that the sentencing judge must consider whether the resulting sentence needs further adjustment by reason of parity or totality (pp 340-341).
The total effective sentence to be served by the appellant, with respect to her entire course of conduct, is seven years with four years non-parole. It cannot be said that this is a crushing sentence that, even if appropriate in law, calls for a further reduction by way of merciful intervention by the Court. The only question is whether the sentence itself is appropriate. I have found the sentence for the April 2013 offending to be within the appropriate range. The only remaining issue is whether sufficient regard has been had to the question of concurrency.
The Judge ordered that the sentence he imposed, of four years, was to be served partially concurrently, as to six months, with the earlier sentence being served. In arriving at the earlier sentence, the earlier Judge, exercising the discretion available under section 18A of the Criminal Law (Sentencing) Act to impose just the one penalty, started with a head sentence of seven years imprisonment. This was reduced by 50 per cent after giving “significant credit for [the appellant’s] pleas of guilty and for other matters put [to the Judge] and after taking into account six days spent in custody on remand.” The “other matters” presumably made a significant contribution to such a high reduction. However, it is not clear, on the face of the sentencing remarks, what they comprised. In any event, there has been no challenge by either party, at the time or now, to the level of discount given. As such, it fell to be regarded by the Judge who sentenced for the April 2013 offending, and is to be regarded by this Court considering the appeal from that sentence, as appropriate.
When considering whether or not there has been a sufficient allowance for concurrency, attention is to be directed to the starting point of seven years for the earlier sentence and the effective starting point of six years for the April 2013 offences (given the Judge’s allowance of six months concurrency) making a total of 13 years. The question before the Court is whether a starting point of 13 years imprisonment, before discounts for pleas, properly reflects the overall criminality involved in the appellant’s course of trafficking conduct during the period June 2012 to May 2013 and pays proper regard to the appellant’s personal circumstances. In other words, should a starting point of 13 years, in the circumstances of this matter, be seen as manifestly excessive.
Section 31(1) of the Criminal Law (Sentencing) Act provides that a court may direct that a sentence imposed be cumulative upon any other sentence or sentences of imprisonment being or to be served by a defendant. The principles underlying the exercise of a sentencing Judge’s discretion whether to order sentences to be served wholly concurrently, partially concurrently or wholly cumulatively have been examined, at some length, by this Court in a number of cases.[12] However, it will be sufficient for present purposes to refer to the remarks of Wells J in The Attorney-General v Tichy.[13]
It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community’s right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.
[12] Including, for example, R v Dorning (1981) 27 SASR 481, The Attorney-General v Tichy (1982) 30 SASR 84, R v Copeland (No 2) [2010] SASC 61; (2010) 108 SASR 398 at [99]-[107] (Kourakis J, as his Honour then was), R v Bagnato [2011] SASCFC 161; (2011) 112 SASR 39 at [68]-[80] (Peek J).
[13] (1982) 30 SASR 84 at 93 (emphasis supplied).
In this case, the appellant’s conduct can be characterised in general terms in two ways. First, the June 2012 offending and the April 2013 offending can be seen as two very, and broadly equally, serious separate incursions into criminal conduct. On this analysis, the May 2013 offending was a third (albeit, less serious) incursion. However, the May 2013 offending had not occurred as at the time of the April 2013 offending the subject of the sentence under review. The June 2012 and April 2013 offences were separated by approximately ten months. Although very similar conduct and broadly similar quantities of heroin were involved, there must have been an active decision to offend in this way a second time, notwithstanding the two “warnings” earlier identified. An analysis along these lines suggests not only that a severe sentence for the April 2013 offending is warranted but that something close to total accumulation can also be justified.
A difficulty for the Judge here is that the risk of error will increase in this case the further along the spectrum towards total concurrency the ultimate outcome sits. This is because the overall criminality of the appellant’s conduct was not factored into the earlier sentence for the June 2012 and May 2013 offending. The earlier Judge had no knowledge of the April 2013 incursion into criminal conduct. As Wells J observed in Tichy:[14]
Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under investigation.
For this reason, which arises because two Judges have sentenced independently for the two sets of offending, the separate incursions approach to concurrency has merit.
[14] The Attorney-General v Tichy (1982) 30 SASR 84 at 93.
Nevertheless, there is an artificiality to this first characterisation. A second analysis sees the appellant having engaged in a single course of conduct over at least an 11 month period (June 2012 to May 2013) of heroin trafficking of a serious nature. This course of conduct was underpinned or driven, to a degree, by the appellant’s own addiction. Again, to use the language of Wells J, the appellant has engaged in “one multi-faceted course of criminal conduct”. Should this be the focus of analysis, a more generous approach to concurrency could be adopted.
Ultimately, the extent of concurrency to be applied can only be a matter of judgment after taking into account all of the relevant considerations.
In all the circumstances, and after giving consideration to the second characterisation by way of a check (as the Judge may also have done), I am not satisfied that a starting point of 13 years is unreasonable or plainly unjust so as to be characterised as manifestly excessive. I stress that this is not to be seen as any sort of benchmark starting point for a course of dealing, involving heroin, over 12 months or so. Each case will turn on its own facts. This appellant cannot escape the fact that the April 2013 and May 2013 offending, whilst part of a course of conduct, were also deliberate and separate incursions into very serious offending, committed whilst on bail for similar offending and after having already served a term of imprisonment in the past for similar offending. She cannot escape the fact that she was more than a street dealer. I am unable to conclude that the six months allowed by the Judge in this case and the non-parole period, as extended by the Judge, were not within the discretions available to his Honour.
The final sentence arrived at, seven years with four years non-parole, albeit after allowing for the appellant’s entitlement to reductions for the pleas, is in my view a moderate sentence bearing in mind the nature and extent of the course of offending and the appellant’s personal circumstances.
Conclusion
The appellant also complained, during argument in support of the manifest excess ground but not by way of separate grounds of appeal, that a number of findings by the Judge were “uncharitable” as counsel described them and constituted errors of fact. These included his Honour’s finding that the appellant commenced drug trafficking in 2005 “for primarily financial reasons to make money following an unsuccessful restaurant venture”, his Honour’s characterisation of the reasons why the appellant confessed to the police that it was she and not her sister who was responsible for the April 2013 offending and his Honour’s assertion that apart from the appellant’s confession and attempt at exculpation of her sister, she was otherwise uncooperative with the police. Counsel also complained about the Judge’s observation that the appellant’s actions “resulted in two innocent people being charged with heroin trafficking and taken to trial”.
In my view, each of these findings was, at the least, uncharitable and served to put a gloss on the behaviour of the appellant that was not entirely accurate. However, on my reading of the sentencing remarks as a whole I do not regard them as having any particular influence on the sentencing outcome. I am not satisfied that the Judge, in these respects, committed any error that was material to the outcome.
In any event, section 353(4) of the Criminal Law Consolidation Act 1935 provides:
Subject to subsection (5), on an appeal against sentence, the Full Court must –
(a)if it thinks that a different sentence should have been passed –
(i) quash the sentence passed at the trial and substitute such other sentence as the court thinks ought to have been passed (whether more or less severe); or
(ii) quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b)in any other case – dismiss the appeal.
Neither the final head sentence nor the final extended non-parole period is manifestly excessive nor has the Judge’s exercise of the discretion with respect to concurrency and totality miscarried. Whether or not the Judge misapprehended the facts in any of the ways complained of by the appellant, I am not satisfied that a different sentence should be imposed. As I have indicated, the ultimate outcome of seven years imprisonment with four years non-parole is to be seen as moderate. If I were to sentence the appellant, I would not arrive at either a lower head sentence or a lower non-parole period.

Accordingly, and given that paragraph (a) of subsection 353(4) of the Criminal Law Consolidation Act is not satisfied, I would dismiss the appeal in accordance with paragraph (b).