R v Dell - [2016] SASCFC 156

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DELL; R v DELL
[2016] SASCFC 156
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Parker and The Honourable Justice Doyle)
23 December 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - OTHER TYPES OF ORDER
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
The appellants are father and son. They were each convicted by a jury of one count of cultivating a commercial quantity of cannabis plants for sale and two counts of trafficking in a large commercial quantity of cannabis. They were each sentenced to three years and six months imprisonment, with a non-parole period of 18 months. The Judge declined to suspend their sentences of imprisonment and also declined to order that they serve their sentences on home detention.
The first appellant appealed on a number of grounds, in essence contending that the Judge erred in failing to identify the factual basis upon which he was sentenced, and that the Judge erred in not ordering that he serve his sentence on home detention. The second appellant also appealed on the ground that the Judge erred in not ordering that he serve his sentence on home detention.
Held per Doyle J (with Kelly and Parker JJ agreeing), dismissing the appeal:
1. The Judge was entitled to, and did, sentence the first appellant on the basis that he was personally involved in the cultivation and trafficking.
2. Consideration of the approach to home detention orders under s 33BB of the Criminal Law (Sentencing) Act 1988 (SA).
3. There was no error in the Judge declining to make a home detention order in respect of either appellant.
Criminal Law (Sentencing) Act 1988 (SA) s 33B, 38(2)(c), 38(2ba); Controlled Substances Act 1984 (SA) s 32(1), s 32(3), s 33B(2), s 44(1), referred to.
R v Filipponi [2016] SASCFC 148, applied.
R v Koumis (2008) 18 VR 434; Markarian v The Queen (2005) 228 CLR 357; R v Stehbens (1976) 14 SASR 240; R v Clancy [2013] SASCFC 63; R v Harris [1961] VR 236; R v Ninnes (2007) 96 SASR 443; Wessling v Police (2004) 88 SASR 57; R v O’Toole [2013] SASCFC 18; R v Skinner (2016) 126 SASR 120; R v Jurisic (1998) 45 NSWLR 209, considered.

R v DELL; R v DELL
[2016] SASCFC 156
Court of Criminal Appeal: Kelly, Parker and Doyle JJ

KELLY J: I agree.
PARKER J: I agree with the reasons of Doyle J and the orders he proposes.
DOYLE J: The appellants, Karl Dell and Jimmy Dell, are father and son. They were each convicted by a jury of one count of cultivating a commercial quantity of cannabis plants for sale and two counts of trafficking in a large commercial quantity of cannabis. They were each sentenced to three years and six months imprisonment, with a non-parole period of 18 months. The Judge declined to suspend their sentences of imprisonment, and also declined to order that they serve their sentences on home detention.
In Karl Dell’s appeal against sentence, he contends that the Judge erred:[1]
·    in failing to make findings as to the factual basis upon which he was sentenced when alternative bases for conviction were left to the jury which carried different degrees of culpability (ground 1);
·    in finding that there was no reason to differentiate between Karl Dell and Jimmy Dell in the sentences he imposed, when the evidence did not prove the former’s guilt except on the basis he had allowed his premises to be used by others to commit the offences (ground 2);
· in failing to take into account matters that s 44(1) of the Controlled Substances Act 1984 (SA) required him to take into account, namely Karl Dell’s commercial or other motives in committing the offences and the financial gain likely to have accrued to him as a result of the commission of the offences (ground 3);
· in not ordering that he serve his sentence on home detention under s 33BB(1) of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) (ground 5); and
·    in imposing a sentence of imprisonment that was manifestly excessive both as to the head sentence and the non-parole period (ground 6).
[1]    Proposed ground of appeal 4 was abandoned during the course of the application for leave to appeal.
In Jimmy Dell’s appeal against sentence, his sole ground of appeal is that the Judge erred in not ordering that he serve his sentence on home detention.[2]
[2] Proposed ground of appeal 2 was abandoned during the course of the application for leave to appeal.
Background
Karl Dell and Jimmy Dell, together with Karl’s estranged wife (Karin Dell) and Jimmy’s partner (Karlie Mohr), were jointly charged with having committed the following offences between 16 November 2013 and 16 December 2013 at a semi-rural property in Salisbury Heights:
· one count of cultivating a commercial quantity of a controlled plant (cannabis) for sale, contrary to s 33B(2) of the Controlled Substances Act (maximum penalty $200,000 or imprisonment for 25 years, or both) (count 1, the cultivation count);
· two counts of trafficking in a large commercial quantity of a controlled drug (cannabis), contrary to s 32(1) of the Controlled Substances Act (maximum penalty $500,000 or imprisonment for life, or both) (counts 2 and 3, the trafficking counts); and
· one count of trafficking in a controlled drug (methylamphetamine), contrary to s 32(3) of the Controlled Substances Act (maximum penalty $50,000 or imprisonment for 10 years or both) (count 4).
After a trial before judge and jury, the jury convicted Karl and Jimmy Dell of counts 1, 2 and 3, but found them not guilty of count 4. Karlie Mohr was found guilty of count 2 and the alternative offence of simple possession in respect of the methylamphetamine the subject of count 4. She was found not guilty of counts 1 and 3. Karin Dell was found not guilty on all counts.
Utilising s 18A of the Sentencing Act, the Judge imposed the sentences for Karl and Jimmy Dell mentioned at the outset of these reasons. As counts 2 and 3 were serious and organised crime offences for the purposes of ss 38(2)(c) and 38(2ba) of the Sentencing Act, suspension of the sentences of imprisonment imposed was only open if the Judge was satisfied that exceptional circumstances existed. The Judge was not satisfied of this in respect of either Karl or Jimmy Dell.
In respect of Karlie Mohr, the Judge imposed a sentence of two years and six months imprisonment, with a non-parole period of 12 months. The sentence was not suspended, but an order was made that it be served on home detention.
Circumstances of the offending
On 16 December 2013, the police conducted a search at an address in Salisbury Heights. Karl Dell, his estranged wife Karin Dell, his son Jimmy Dell, and Jimmy’s partner Karlie Mohr were all present at the premises when the police arrived.
Karl and Karin Dell were the registered owners of the property. It was agreed at trial that Karin Dell, Jimmy Dell and Karlie Mohr all resided there. The prosecution case was that Karl Dell also resided at the property. Karl Dell did not accept that he resided at the property.
The property consisted of a two storey house (‘the main house’), a separate dwelling which was attached to the main house and accessible from it (referred to in the evidence as ‘the adjacent house’), a group of transportable buildings (used as an office, bathroom and sleeping quarters[3]) in the rear yard, and a number of shipping containers and sheds. Jimmy Dell and Karlie Mohr lived in the adjacent house. The prosecution case was that Karl Dell lived in, and ran his business from, the transportable buildings.
[3] A bed, television, male clothing and toiletries were located in the sleeping quarters and bathroom. There was also a small kitchen adjacent to the office area.
The police searched the property and found cannabis as well as a number of other items associated with the use, cultivation and sale of cannabis in various locations within the main house, the adjacent house and two of the shipping containers. These included a cryovac machine, which could be used for sealing packages of cannabis, and was located in the laundry of the main house.
The police located 20 growing cannabis plants (count 1), consisting of 13 small plants growing in the ceiling space in the main house and seven plants growing hydroponically in two of the shipping containers. They also located 7.93 kg of dried cannabis consisting of 4.32 kg of cannabis bagged and in jars located in the main house and adjacent house (count 2) and 3.61 kg of cannabis drying on the clothes airers in the adjacent house (count 3). For the purposes of the cultivation count, a commercial quantity was 20 plants. For the purposes of the trafficking counts, a large commercial quantity was 2 kg.
The case against Karl Dell
In his summing up, the Judge outlined the matters set out above, which were relevant to the prosecution case against all four accused. In relation to the case against Karl Dell, the Judge summarised it in the following terms:
I turn to the case against Karl Dell. Again, the Crown relies upon the general matters to which I have already referred and upon the circumstances that Mr Karl Dell is a proprietor of the premises at Target Hill Road.
In its case against Karl Dell, for cultivation of a large commercial quantity of cannabis, the prosecution relies particularly upon the circumstance that Karl Dell produced the keys to each of the shipping containers which contained the cannabis. That’s the police officer’s evidence. You will remember the evidence: he produced one of those keys from his pocket and the other was found on a set of keys which he gave to police officers before he was taken away to the police station. The circumstance that he had possession of the keys to the locked container is, on the Crown case, evidence from which you can infer that he was growing cannabis on the property, in particular the cannabis in the containers.
The prosecution also relies upon the circumstance that there was found above the roof space in Mrs Karin Dell’s downstairs lounge a number of documents addressed to Karl Dell, which included an invoice for growing cannabis, an invoice referring to ‘Leda Uno’, which corresponds to what was found on the boxes of cannabis growing in the roof space and an envelope addressed to Karl Dell, which contained cannabis seeds.
I have already said that the prosecution relies upon the fact that Karl Dell is the owner of the property and also relies on the fact that his business is registered to that address and his driver’s licence records him as living there. Those circumstances, on the Crown case, tend to show that he was a resident at 190 Target Hill Road.
Ladies and gentlemen, if you are not satisfied that Mr Karl Dell possessed any of the cannabis or the methylamphetamine for sale, that it was not in his possession in the sense I directed you, you should then consider whether he has taken part in the step of a process of sale by allowing his premises to be used for the purposes of selling cannabis or methylamphetamine.
Factual basis for Karl Dell’s sentence
At trial, the Judge thus directed the jury in his summing up that Karl Dell could be found guilty of counts 1, 2 and 3 on two distinct factual bases. The first was if they found it proven that he personally cultivated the plants and possessed the dried cannabis for sale. The second was if they found it proven that he knowingly allowed the premises (of which he and Karin Dell were the registered proprietors) to be used by other persons to commit the offences.
In his sentencing remarks, the Judge mentioned the matters of relevance to all defendants, being the ownership and layout of the property, the cannabis and cannabis related items located by the police, and that each of the defendants were present and living at the property. So far as Karl Dell was concerned, the Judge observed that he was separated from his wife and “lived in an office area detached from the house”, adding that he conducted a transport business from the property. His Honour did not then set out findings made as to the nature of the individual role or involvement in the cultivation and trafficking offences of either Karl Dell or Jimmy Dell. However, towards the end of his sentencing remarks, when ultimately passing sentence, the Judge stated that he saw no reason to differentiate between the two men.
Taking grounds 1 and 2 of his appeal together, Karl Dell contends that the Judge erred in not making any express finding as to his role or involvement in the offending, and hence as to his level of culpability. Alternatively, and to the extent that his Honour implicitly found that he was personally involved in the cultivation and trafficking, Karl Dell contends that his Honour erred in sentencing him on this basis. He contends that the evidence was not capable of sustaining a finding to this effect; that it was capable only of sustaining an inference that he knowingly allowed the premises owned by him and his wife to be used by others to commit the offences. In either event, Karl Dell contends that this Court should exercise the sentencing discretion afresh.
A sentencing judge is generally obliged to make findings as to the basis for a defendant’s criminal liability for the offence or offences for which he or she is sentenced.[4] The rationale for this requirement is to ensure that the instinctive synthesis in the sentencing process is not rendered unfathomable, and does not conceal error. A level of transparency in a sentencing judge’s reasoning is necessary in the interests of the parties, victims, appeal courts and the public.[5]
[4] R v Koumis (2008) 18 VR 434 at [63].
[5] Markarian v The Queen (2005) 228 CLR 357 at [39]; R v Koumis (2008) 18 VR 434 at [62].
In making such findings, the sentencing judge must not form a view which conflicts with the verdict of the jury. While the sentencing judge should give the defendant the benefit of any reasonable doubt arising on the evidence,[6] this does not equate to the Judge being required to take the most lenient view of the facts that would support the jury’s verdict.[7]
[6] R v Stehbens (1976) 14 SASR 240 at 245-246; R v Clancy [2013] SASCFC 63 at [31].
[7] R v Harris [1961] VR 236 at 236-237.
While these general statements of a sentencing judge’s obligations are uncontroversial, their application to a particular case will depend upon the facts and circumstances of the individual case, including the nature of the evidence and the extent to which matters have been put in dispute or are obvious from the manner in which the proceedings have been conducted.
In the present case, having regard to the evidence at trial, the manner in which the sentencing hearing was conducted and the sentencing remarks as a whole, I consider that the Judge was entitled to, and did, sentence Karl Dell on the basis that he, like Jimmy Dell, was personally involved in the cultivation and trafficking. While it would have been preferable if the Judge had spelt out the basis upon which he sentenced Karl Dell more clearly, I am not satisfied that his Honour fell into error in this respect.
In terms of the evidence at trial, while the evidence linking Jimmy Dell to the dried cannabis was stronger than that against Karl Dell, there was nevertheless a body of evidence that not only suggested a greater degree of connection with the property than Karl Dell had conceded, but also justified an inference of personal involvement in the cultivation and trafficking on the part of Karl Dell.
Karl Dell was, together with his estranged wife, a registered proprietor of the property. His business, Karl Dell Haulage, was registered to the property. His driver’s licence recorded him as living at the property. The transportable buildings were set up as a living quarters and contained toiletries and male clothing. He was present on the day the police attended and searched the property.
This evidence (taken together with the additional matters mentioned below) not only established that Karl Dell regularly attended, and ran a business from, the property but also, as the Judge said in his summing up to the jury, tended to show that he lived at the property.
In addition to Karl Dell’s connection with the property (and hence his general presence at and access to the property) and the number of drug related items found in various locations around the property, the prosecution case relied upon additional evidence tending to implicate Karl Dell in the cannabis cultivation and trafficking operation discovered at the property.
This evidence included Karl Dell’s conduct in producing to the police, upon request, the keys that opened the two shipping containers containing the cannabis plants growing hydroponically. One of the keys was produced from his pocket. The other was on a set of keys that he appeared to have located in the office area. While the evidence suggested that Karl Dell had to search for a period before producing the keys, his ability to locate the keys was evidence from which, as the Judge said in his summing up, one might infer some involvement in the cultivation of the cannabis in the shipping containers.
The prosecution also relied upon a number of documents located in the roof cavity of the main house. The documents related to the purchase of seeds and induction lighting suitable for cannabis cultivation, and included invoices addressed to Karl Dell and emails between Karl Dell and third parties. Both the invoices and emails included reference to Karl Dell of Target Hill Road, Salisbury Heights. A blister pack of distinctive design containing cannabis was located inside a padded envelope addressed to “Karl at regional bulk landscaping supplies” in the ceiling cavity of the main house. A similar blister pack containing cannabis was located inside a DVD case in the ceiling cavity.
While counsel for Karl Dell made submissions as to the weight that should be attached to various of these items of evidence, it is of course the cumulative effect of the evidence that is relevant. In my view the evidence at trial was capable of establishing Karl Dell’s personal involvement in the cultivation and trafficking.
Both at trial and on the sentencing hearing, while the evidence relied upon as against the various defendants differed, the prosecution did not seek to differentiate between the defendants in terms of their roles in the cultivation and trafficking. The prosecution case was in effect that they were all participants in a sophisticated cannabis operation.
Significantly for the purposes of this appeal, Karl Dell’s counsel did not make any reference in the course of sentencing submissions to any factual basis upon which Karl Dell ought to be sentenced. In particular, there was no submission made to the Judge that he ought to, or could only, sentence on the basis that Karl Dell had merely allowed his premises to be used for cultivating and selling cannabis.
Against this background, I am satisfied that the Judge was entitled to, and did, sentence Karl Dell on the basis that he, like Jimmy Dell, personally participated in the cultivation and trafficking. While the Judge left the alternative basis to the jury, his Honour’s summing up appeared to proceed on the premise that Karl Dell lived at the property, or at least maintained a regular and significant presence there. Consistently with this, the Judge referred in his sentencing remarks to Karl Dell living in, and running his business from, the transportable buildings on the property. It is clear from this that the Judge rejected Karl Dell’s case at trial that he did not live at the property. This was not inconsistent with the verdict of the jury. Given the scale of the operation, the extent of the cannabis and cannabis related items found at the property, his conduct in handing over the keys to the shipping containers, and the documents connecting him to the premises and drugs, it was but a short step to find that Karl Dell personally participated in the cultivation and trafficking. It is apparent from his Honour’s statement in his sentencing remarks that he saw no reason to distinguish between Karl and Jimmy Dell that his Honour took that short step. I add that it was hardly unexpected that the Judge would do so given the evidence I have set out, and the absence of any suggestion by counsel for Karl Dell that he should not do so.

Against this background, I do not consider that the Judge erred in failing to identify the factual basis upon which he sentenced Karl Dell, or in proceeding on the factual basis that he did. I would thus reject grounds of appeal 1 and 2.
Karl Dell’s commercial or other motive
Section 44 of the Controlled Substances Act identifies a number of matters which the Court is required to take into consideration when determining the penalty to be imposed for an offence under that Act. Under ss 44(1)(d)(i) and (ii) they include the defendant’s commercial or other motive in committing the relevant offence, and the financial gain likely to have accrued to him or her as a result of the offence.
Karl Dell contends that this section imposes a mandatory obligation on sentencing judges to consider and take into account these matters, unless they are unable to be ascertained.[8] He also contends that in the circumstances of this case it was not proven that he committed the offences for commercial motives; that a more likely, or at least equally likely, motive was one based on his familial relationships with the co-offenders. Karl Dell contends that the Judge ought to have found that his involvement was not motived by commercial gain and that he was not likely to have received any financial gain as a result of the commission of the offences.
[8] Citing R v Ninnes (2007) 96 SASR 443 at [5]-[10], [41]-[42], [48].
While s 44(1)(d) does require consideration of a defendant’s motivation and financial gain, it does not follow that a failure to expressly refer to these matters in the sentencing remarks will always constitute error. Whether that is so will depend upon the circumstances of the particular case, including the way in which the sentencing hearing was conducted and the matters that were put in dispute. Here, it was obvious from the sophisticated nature of the operation that constituted the proven offending that it was commercially motivated, and that the defendants were likely to reap some financial benefit. There was no suggestion by counsel for Karl Dell on the sentencing hearing that he did not stand to receive any financial benefit. While the prosecutor made reference during the course of sentencing submissions to the potential worth of the dried cannabis if it were all sold (referring to an amount of $60,000), there was no attempt by the prosecutor to be more precise by taking account of the portion of the cannabis that was likely to be unsaleable, or by ascribing any particular value or financial benefit to the individual defendants.
In circumstances where it was obvious from his Honour’s description of the sophisticated nature of the operations that they were commercially motivated, and where it was not possible to (and the prosecutor did not contend that the sentencing judge should) ascribe any particular share or dollar sum to the individual defendants, I do not consider that it was necessary for the Judge to have expressly addressed this issue. It was sufficient for the Judge to proceed on the basis that he apparently did, namely that the offending was commercially motivated, with all defendants likely to share to some extent in the profits to be made.
I would therefore reject ground of appeal 3.
Manifest excess
Karl Dell’s counsel did not advance separate submissions in relation to this ground of appeal. Rather, he acknowledged that it was intended merely to be consequential upon the errors asserted under grounds of appeal 1 to 3. As such, it follows from my rejection of those grounds that the complaint of manifest excess must also fail. I would therefore reject ground of appeal 6.
Home detention orders
The Sentencing Act was amended by the Statutes Amendment (Home Detention) Act 2016 (SA) to insert Division 3A of Part 3 providing for a new sentencing option of home detention orders.
Section 33BB provides:
(1)Subject to this section, if—
(a)a court has imposed a sentence of imprisonment on a defendant; and
(b)the court considers that the sentence should not be suspended under Part 5; and
(c)the court considers that the defendant is a suitable person to serve the sentence on home detention,
the court may suspend the sentence under this Division and order that the defendant serve the sentence on home detention (a home detention order).
(2)A home detention order—
(a)must not be made—
(i)unless the court is satisfied that the residence the court proposes to specify in its order is suitable and available for the detention of the defendant and that the defendant will be properly maintained and cared for while detained in that place; or
(ii)if the defendant is being sentenced to a sentence of imprisonment that is to be served cumulatively on another term of imprisonment, or concurrently with another term of imprisonment then being served, or about to be served, by the defendant; and
(b)should not be made if the court is not satisfied that adequate resources exist for the proper monitoring of the defendant while on home detention by a home detention officer.
(3)The paramount consideration of the court when determining whether to make a home detention order must be the safety of the community.
(4)The court must also take the following matters into consideration when determining whether to make a home detention order:
(a)the impact that the home detention order is likely to have on—
(i)any victim of the offence for which the defendant is being sentenced; and
(ii)any spouse or domestic partner of the defendant; and
(iii)any person residing at the residence at which the prisoner would, if released, be required to reside;
(b)any report ordered by the court from the CEO or any other person or body for the purpose of assisting the court in determining whether to make a home detention order;
(c)any other matter the court thinks relevant.
The power to order that a defendant serve their term of imprisonment on home detention is intended to provide an alternative to custody within a prison. A home detention order sits in the sentencing hierarchy between a suspended sentence under Part 5 and a custodial sentence. That is, it is a more onerous punishment than a Part 5 suspended sentence of imprisonment, but a less onerous punishment than a custodial sentence.
Given the terms and structure of s 33BB(1), 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 (s 33BB(1)(a)), and has decided that the sentence should not be suspended under Part 5 of the Sentencing Act (s 33BB(1)(b)). Once the power is enlivened, the balance of s 33BB(1) provides that if the court considers that the defendant is a “suitable person” to serve the sentence on home detention (s 33BB(1)(c)), then it “may” make a home detention order. Subsections 33BB(2)-(4) then set out various matters to which the court must have regard in determining whether to make a home detention order. Those in s 33BB(2) are in the nature of preconditions to an order being made, preventing the court from making a home detention order in identified circumstances. Those in ss 33BB(3) and (4) are in the nature of matters that must be taken into account, but without necessarily being determinative of whether a home detention order should be made.
In determining whether a home detention order should be made, while the matters in ss 33BB(1)-(4) obviously need to be considered, the full range of ordinary sentencing considerations will also be relevant. To the extent this is not otherwise inherent in the nature of the discretion conferred upon the court, it is made express by the requirement in s 33BB(4)(c) that the court take into account “any other matter [it] thinks relevant”. Any matter that is relevant to the overall objectives of the sentencing process will be relevant to the determination of whether a home detention order should be made.
An issue of construction arises as to whether the courts’ discretion to make a home detention order involves a one stage or two stage process. Under the one stage approach, after satisfaction of ss 33BB(1)(a) and (b), the only issue would be whether the defendant is a suitable person to serve the sentence on home detention under s 33BB(1)(c). The matters required to be taken into account (being the matters set out in ss 33BB(2)-(4), and including the full range of ordinary sentencing considerations) would inform this enquiry. Under the two stage approach, the first stage would involve a more narrow enquiry under s 33BB(1)(c) as to the suitability of the defendant for a home detention order, focusing upon the defendant’s personal circumstances. Then, if the court were satisfied that the defendant was a suitable person, the court would proceed to exercise the broader discretion encompassed in the words “the court may suspend the sentence under this Division and order that the defendant serve the sentence on home detention”. Under this approach, the matters to be taken into account under ss 33BB(2)-(4), including the full range of ordinary sentencing considerations, would be relevant at this second stage of the enquiry.
The structure and literal reading of s 33BB(1) supports the two stage approach. However, in the analogous contexts of the “good reason” test for suspension of a sentence in s 38(1) of the Sentencing Act,[9] and the “exceptional circumstances” test for suspension in s 38(2ba) of that Act,[10] this Court has rejected a two stage approach in favour of an approach involving consideration of one issue or question, namely whether having regard to all the relevant sentencing considerations in the particular circumstance of the case, there is good reason to suspend (or there are exceptional circumstances warranting suspension). 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.[11]
[9] Wessling v Police (2004) 88 SASR 57 at [26]-[27]; R v O’Toole [2013] SASCFC 18 at [50].
[10] R v Skinner (2016) 126 SASR 120 at [80]-[82].
[11] R v Skinner (2016) 126 SASR 120 at [81], and the cases referred to therein.
Despite the general analogy with the approach taken to the suspension of sentences in these provisions in Part 5 of the Sentencing Act, I do not consider the one stage approach to be appropriate in the present context. The nature and structure of the approach indicated by s 33BB differs materially from that adopted by the legislature in the contexts of ss 38(1) and 38(2ba). In those latter contexts, the language used (“good reason” and “exceptional circumstances”) is inherently broad and all encompassing. There is no difficulty in those concepts conditioning a discretion that requires taking into account the full range of sentencing considerations. In the context of home detention orders, on the other hand, the language used in s 33BB(1)(c) (“suitable person”) appears narrower in its focus. It is not a natural label for the range of matters that the balance of the section requires or permits the court to take into account, let alone the full range of sentencing considerations. Many of these have nothing to do with the personal circumstances of the defendant, or his or her personal suitability to serve their sentence on home detention, and it is thus difficult to see how they could be relevant to a discretion conditioned by the concept of the defendant being a “suitable person”. While the reference in s 33BB(1)(c) to consideration of whether the defendant is a suitable person to serve “the sentence” on home detention potentially permits a broadening of the scope of the enquiry to focus upon the suitability of the defendant for home detention in the context of the particular sentence in question (and hence the particular offence in question), I consider that a one stage approach involves a significant and unnecessary stretching of the statutory language.
In my view, given the terms and structure of s 33BB, there is no warrant or need for a one stage approach. The language and structure of the section is such that it is more naturally susceptible of the two stage approach that I have outlined. I consider that is the preferable construction of the section. This is consistent with the approach recently taken by this Court in R v Filipponi.[12]
[12] R v Filipponi [2016] SASCFC 148 at [23]-[28]
While it cannot, of course, govern the construction of the present legislation, I observe that the New South Wales regime for home detention orders in Part 6 of the Crimes (Sentencing Procedure) Act 1999 (NSW) adopts a similar approach. Under s 78(1) of that Act, a home detention order may not be made unless the court is satisfied, amongst other things, that the offender is a suitable person to serve the sentence by way of home detention, and that it is otherwise appropriate in all of the circumstances that the sentence be served by way of home detention.
Before addressing the application of s 33BB of the Sentencing Act to the circumstances of the present case, it is appropriate to make some general observations as to the availability of home detention orders.
The first observation is that the determination of whether a defendant is a “suitable person” for the purposes of s 33BB(1)(c) involves a consideration of matters focused upon the personal circumstances of the defendant. This will include matters such as the defendant’s capacity to support himself or herself in private accommodation (or to arrange to be supported by others), and whether he or she is likely to comply with the conditions of home detention.[13] A further significant consideration will be the defendant’s rehabilitation, and in particular the extent to which his or her prospects of rehabilitation (and the Court’s concern to achieve rehabilitation through the sentence imposed) will be enhanced by, or are at least compatible with, an order that they serve their sentence on home detention.
[13] R v Filipponi [2016] SASCFC 148 at [23].
The next observation is that, as I have mentioned, the matters in s 33BB(2) are not only mandatory considerations, but also preconditions to an order being made. They operate to preclude an order for home detention. In this respect, s 33BB(2) differs from ss 33BB(3) and (4). The latter subsections contain considerations that must be taken into account, but they are not necessarily determinative of the exercise of the discretion.
By reason of s 33BB(3), safety of the community is the paramount consideration. There is no reason to take a narrow view of the safety of the community. A significant risk of reoffending will often present a threat to the safety of the community. While the risk of reoffending by those convicted of offences involving violent and sexual misconduct will present the most obvious, and perhaps most immediate and direct, threat to the safety of the community, the risk of reoffending by those convicted of other offences will also often present a relevant threat to the safety of the community. I include within these offences those which involve the production or trafficking of illegal drugs. A significant risk of reoffending by a defendant convicted of involvement in the distribution of illegal drugs presents a significant threat to the safety of the community.[14]
[14] R v Filipponi [2016] SASCFC 148 at [27].
I observe in relation to s 33BB(3) that while the existence of a threat to the safety of the community will often go close to foreclosing an exercise of discretion in favour of a grant of home detention, I do not consider that the converse proposition necessarily holds true. The mere fact that there is limited identifiable risk to the safety of the community may not mean there is a strong case for a home detention order. Put another way, while the considerations in favour of a home detention order will rarely outweigh a significant threat to the safety of the community (given the paramountcy of this consideration), considerations militating against a home detention order may more readily outweigh the absence of any identifiable threat to the safety of the community.
I have mentioned that in exercising the discretion to make a home detention order, the full range of ordinary sentencing considerations will be relevant. Whether this so because it is inherent in the discretion conferred by the concluding words in s 33BB(1), or by reason of the requirement in s 33BB(4)(c) that the court take into account any other matter it considers relevant, the effect is the same. Much like the discretion to suspend a sentence of imprisonment under Part 5 of the Sentencing Act, the requirement to take into account the full range of sentencing considerations will in some cases give the court the ability to attach greater weight to the considerations personal to the defendant than is appropriate at the stage of determining the head sentence. On the other hand, and again like with the discretion to suspend in Part 5 of the Act, the requirement that the full range of sentencing considerations be taken into account means that the Court cannot overlook the need to ensure that the sentence ultimately imposed has adequate regard to not only the rehabilitative objective of sentencing, but also the objectives of punishment, denunciation and general deterrence. These remain important objectives at all stages of the sentencing process. Just as the nature and seriousness of certain types of offending, and consequential weight to be afforded to the need for punishment and general deterrence, can go close to foreclosing the discretion to suspend under Part 5 of the Sentencing Act, so too similar considerations may operate in this way in the context of the discretion to make a home detention order under s 33BB(1).
In this respect, it is important to bear in mind that while serving a term of imprisonment on home detention represents a significant entrenchment upon a defendant’s ordinary liberty and freedom of movement, and is a more onerous form of punishment than a suspended sentence of imprisonment, the reality is that it is a significantly less onerous form of punishment than a requirement that the defendant serve an immediate term of imprisonment within a prison. The New South Wales authorities in relation to the similar regime for home detention orders that exists in that jurisdiction make this plain.[15]
[15] R v Jurisic (1998) 45 NSWLR 209 at 215, 250.
The significance of the less onerous nature of a home detention order is that courts will need to be astute to ensure that the making of such an order – even if it will assist in the rehabilitation of the defendant and provide sufficient personal deterrence – does not inappropriately undermine achievement of the objectives of punishment and general deterrence. The ultimate sentence imposed must always be appropriate having regard to the criminality of the conduct involved, and the Court’s concern to achieve a level of punishment and general deterrence. The greater the weight to be attached to these objectives in an individual case, the less likely it will be appropriate that there be an order for home detention.
It is notable that the legislature has not chosen to circumscribe the courts’ discretion by proscribing a home detention order in respect of any particular category of offence, or in respect of sentences of imprisonment beyond a particular period of length. However, this does not mean that home detention orders will not generally be inappropriate in respect of many types of offences, and in respect of defendants the subject of lengthy terms of imprisonment. To the contrary, there will be many cases in which the nature of the offending is such that the need to ensure achievement of the broader objectives of sentencing will for practical purposes foreclose any exercise of the discretion in favour of home detention. The length of the head sentence that has been imposed will often provide some indication of the weight that it is necessary to attach to the objectives I have mentioned.[16]
[16] R v Filipponi [2016] SASCFC 148 at [32]-[34].

Turning to the present case, both Karl and Jimmy Dell complain that the Judge erred in not making a home detention order in their favour. They challenge both the Judge’s approach and the unfavourable outcome of the discretion.
In his sentencing remarks, the Judge summarised the personal circumstances of both appellants. There is no challenge to the adequacy or accuracy of the Judge’s summaries, and so I set them out in full. In relation to Jimmy Dell, the Judge said:
In dealing with you, Jimmy Dell, I have taken into account the submissions of counsel, your antecedent report, the report and letter from Dr Begg psychiatrist and a letter from your mother.
You do not have a significant criminal record. You have appeared in court charged with cannabis related offences in 2010 but, judging by the penalty, they were not serious offences.
You are a [30]-year-old man who lives in premises owned by your parents. You have lived there for some years now with your partner, Karlie Mohr.
You suffer from a severe dependant personality disorder, a panic disorder and agoraphobia. I shall return shortly to your mental health.
You began year 8 at a normal school but did not last beyond part of that year. Thereafter, you were home schooled but only for a short time. You have very limited employment history. You did some work as a driver in your father’s trucking business but could not keep at that job owing to the anxiety which you felt when meeting people at the times of deliveries.
You do not drink alcohol but have been a user of drugs for some years. I am told that you have not used any drugs for the last two years.
Dr Begg reports that you have an avoidant personality style, that you stay at home and rarely leave your room. When you do go out you never go alone and you usually go only to medical appointments. You have a long history of anxiety but have learned avoidance strategies. Paradoxically, your learning those avoidance strategies acts as a significant barrier to recovery from your problems.
You have no confidence in your ability to manage your stress and you have a profound inability to consider yourself as competent or able to manage normal day-to-day life. You have no history of ever having been resilient to the normal stressors of life. Dr Begg is of the view that with appropriate treatment you could be restored to normal health but the likelihood of your recovery is bleak.
In considering how to deal with you I have taken into account all that Dr Begg says. I have particularly taken into account Dr Begg’s opinion at page 4 of his report that, as a result of your low resilience and the anxiety that will come from separation from your family, you will find a custodial sentence initially quite difficult. Your poor ability to socialise with other prisoners would likely see you spend extended periods of time in the high dependency unit for prisoners with special needs. Whilst your anxiety would make it more difficult for you in prison your anxiety is not an absolute contraindication to prison as the structured nature of the environment with the requirement for adherence to rules and outcome would be beneficial and provide an alternative to the support that is already provided by your family. I also note that, should you be required to participate in community type activities, Dr Begg would not have suggested any reduction in your obligation as a result of your anxiety.
I note Dr Begg’s opinion that your family continues to collude in assisting you to avoid anxious situations.
In sentencing you I have also taken into account your mother’s statement that you are on the way to recovery and her plea that she needs you at home to help her with the housework. I include here, although it is relevant to all three of you, that your sister, Namie, is an invalid who requires significant assistance.
In relation to Karl Dell, the Judge said:
I turn to you, Karl Dell. In sentencing you I have taken into account the submissions of counsel, your criminal history and letters from Dr Gehan, psychiatrist.
You are a 60-year-old man whose criminal history comprises two serious drug offences committed many years ago and a number of offences involving motor vehicles. I ignore the motor vehicle offences: I accept that they arose out of your business as the operator of a transport company.
In 1993 you were convicted of two counts of producing cannabis. In respect of one of them the record shows that you were fined $1,000 and sentenced to imprisonment for nine months. In respect of the other you were fined $7,000 and imprisoned for two years. The total head sentence of two years and nine months was suspended upon your entering into a bond to be of good behaviour for three years. You did not breach that bond.
You came to Australia from West Germany with your family in 1968 when you were 13. Here in Australia you began high school and after you left school you went on to complete an apprenticeship as a mechanic. I accept you have been a consistent and a hard worker since leaving school. You ended up owning your own transport business.
You married Karin Dell when you were 21. As I have already mentioned you and she have two children. You have a number of health problems: chronic back pain, chronic generalised anxiety disorder and depression. You take medication for those various conditions. The chronic back pain which causes discomfort both in sleeping and when sitting was caused by a workplace injury many years ago in 1992.
You and your family may now be a precarious financial position owing to this offending.
Turning to the ultimate sentence to be imposed, and the refusal to order home detention, the Judge explained:
In your case Jimmy Karl Dell and Karl Heinz Dell, I see no reason to differentiate between you. The sentence of the court is that each of you be imprisoned for three years and six months. Because your health problems will make your time in custody more difficult than for most prisoners, I fix a lower non-parole period than I would have in other circumstances. In each case I fix a non-parole period of 18 months. There is no basis upon which I can suspend those sentences. I have considered the question of home detention custody but, given your relationships with each other and the circumstances of this serious offending, I do not think that home detention custody is appropriate.
In challenging the Judge’s refusal to make home detention orders, Karl and Jimmy Dell relied upon similar arguments. They contended that they were suitable persons for home detention orders, relying upon reports from the Department for Correctional Services to this effect. They emphasised their respective health problems. They challenged the Judge’s reference to their “relationships with each other” as an irrelevant consideration. They contended that they did not represent a threat to the safety of the community.
There were some considerations that supported a conclusion in this case that the appellants were suitable candidates for home detention. The fact that the reports from the Department for Correctional Services expressed this view was not determinative of the issue. However, the reasoning in each report did support the views expressed and hence a conclusion that the appellants were suitable persons.
In the case of Karl Dell, the opinion expressed by the community corrections officer was that Karl Dell was a suitable candidate for a home detention order given his lack of previous convictions, limited history with the Department for Correctional Services and limited identified criminogenic needs. In the case of Jimmy Dell, the report expressed an opinion as to his suitability in relevantly identical terms. Jimmy Dell also relied upon a report from his psychiatrist, Dr Jules Begg, which detailed his mental health difficulties. The relevant aspects of Dr Begg’s report were summarised by the Judge in the extract from his sentencing remarks relating to Jimmy Dell set out earlier in these reasons.
In my view, both Karl and Jimmy Dell were both suitable persons to serve their sentences on home detention for the purposes of s 33BB(1)(c). Both had reasonable prospects for rehabilitation, and I do not consider that there were any significant personal considerations that militated against them serving their sentences on home detention. The discretion to order home detention was thus enlivened.
The Judge did not make an express finding as to whether the appellants were “suitable persons” for the purposes of s 33BB(1)(c), and hence whether the discretion was enlivened. His Honour only expressed a conclusion on the ultimate issue, namely that he did not consider it appropriate that there be an order for home detention in respect of either defendant. While a conclusion that a defendant is a “suitable person” is a necessary condition of an exercise of the discretion to make a home detention order, I do not think that it will always be necessary to make an express finding on this issue. Bearing in mind the nature of sentencing remarks, and on the assumption that the range of matters relevant to the sentencing process will have been mentioned earlier in the remarks, it will generally be sufficient that the sentencing judge’s remarks make it plain that he or she has turned their mind to the exercise of the discretion under s 33BB(1), and set out the outcome of that exercise. It follows that I do not consider that the Judge in this case erred in not expressing a conclusion as to the suitability of Karl and Jimmy Dell for a home detention order. It was sufficient that the Judge addressed, and expressed a conclusion, in relation to the ultimate issue, namely that it was not appropriate to exercise the discretion to make home detention orders in their favour in this case.
However, given my conclusion that the appellants were suitable persons, and hence that the discretion was enlivened, it remains to be considered whether the Judge fell into error in refusing to make a home detention order in respect of either of these men.
Both appellants contend that they did not pose any threat to the safety of the community and that this was a significant factor in favour of home detention orders being made. I have already explained my view that a risk of reoffending by those engaged in the distribution of illicit drugs may present a threat to the safety of the community. While the likelihood of the present appellants reoffending was relatively low, I do not accept that their release on home detention would present no threat to the safety of the community. The limited threat to the safety of the community in this case was not a significant contraindicator to home detention. Conversely, however, it was not a factor in favour of home detention.
A reason given by the Judge for not making the home detention orders sought by the appellants was their “relationships with each other”. It is apparent that this is a reference to concerns expressed in the reports provided by the Department for Correctional Services. Both appellants (and Karlie Mohr) had nominated the address of 190 Target Hill Road, Salisbury Heights, as the address at which they proposed to live while on home detention. This was the address where they lived at the time of the police search that led to their being charged with the subject offences. The conclusion reached in the reports from the Department for Correctional Services was that the residence was suitable for electronic monitoring but that, in respect of each appellant, “the department is not supportive of someone serving a Home Detention sentence at the same address as their co-offenders, particularly as the defendant’s associations at the time were identified as one of their primary criminogenic risks.”
It will generally be undesirable that a defendant serve a period of home detention at a location where there is a risk that they will be exposed to criminal activity that might present a temptation to reoffend or otherwise jeopardise his or her successful rehabilitation. Likewise, there will be occasions when it will be undesirable that a defendant be exposed to the continuing influence of a person with whom they have been involved in criminal activity. However, whether this is a relevant consideration, and the weight that it should be afforded, will depend upon the circumstances of the particular case.
Here, there were the countervailing considerations that the appellants were family members, and that Jimmy Dell’s mental health difficulties suggested that he would need (and benefit from) the support of his family. For these reasons, I do not think that having Karl and Jimmy Dell living at the same premises was likely to significantly undermine their rehabilitation. Alternatively, consideration might have been given to Karl Dell living at a separate address, or to the imposition of conditions upon any home detention order that would restrict him to the area of the property where he had been living (the transportable buildings located separately from the main house where his estranged wife lived and from the adjacent house where Jimmy Dell lived).
While I accept that the potential risk posed by co-offenders living together is a relevant consideration, if this had been the only matter that stood in the way of a home detention order in favour of one or both of the appellants then I think it would have warranted further consideration. I do not consider that it was an independently sufficient reason to decline an order for home detention in favour of either of the appellants.
However, this was not the only matter relied upon by the Judge. In determining that home detention orders were not appropriate, the Judge relied also upon “the circumstances of this serious offending”. The Judge had earlier referred to the seriousness of the offending. He noted the maximum penalties that the offending in question attracted, being terms of imprisonment for 25 years in the case of the cultivation offence, and life imprisonment in the case of the trafficking offences. He noted the harm caused to the community by cannabis. He concluded that general deterrence is very important in cases such as the present, adding that personal deterrence also remains important.
In my view, the Judge’s observations were apposite. As Kourakis CJ observed in R v Filipponi,[17] this Court has often emphasised the importance of general deterrence in sentencing drug traffickers. His Honour referred, by way of example, to the following passage from R v Kong:[18]
The abuse of illicit drugs causes great social harm. The treatment and management of drug addiction places a substantial financial burden on the health budgets of this State and the Commonwealth. The crimes committed by addicts to support their habits cause much loss and suffering to the community. Those who organise and participate in the distribution of illicit drugs create a serious risk of collateral injury to innocent members of the public. It is, therefore, not surprising that in an effort to tackle the social harm caused by the abuse of illicit drugs, Parliament has imposed substantial penalties for dealing in commercial drugs to both punish and deter those who are attracted by the large profits that dealing can generate. For those reasons, general deterrence must be given great weight in the balancing of the competing sentencing objectives in the case of commercial drugs dealers.
[17] R v Filipponi [2016] SASCFC 148 at [18].
[18] R v Kong (2013) 115 SASR 425 at [90].
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. While the structure of s 33BB(1) assumes that home detentions orders will be made (and, indeed, will only be made) in circumstances where considerations such as the need for general deterrence mean that a suspended sentence is not appropriate, nevertheless similar considerations may also militate against a favourable exercise of the discretion to make a home detention order. As Kourakis CJ observed in R v Filipponi:[19]
In the case of serious drug trafficking the demands of general deterrence and punishment are such that if these considerations have operated to preclude a suspended sentence then, in the ordinary case, it is unlikely that the purposes of sentencing will be met by imposing a home detention order.
On the other hand cases of trafficking which fall at the very lower end of the range of objective seriousness when combined with strong prospects of rehabilitation may attract a favourable exercise of the discretion.
[19] R v Filipponi [2016] SASCFC 148 at [37]-[38].
In summary, the appellants’ offending was serious. It involved a sophisticated commercial operation for the cultivation and sale of large quantities of cannabis. Orders that they serve their sentences on home detention would have tended to undermine the sentencing objectives of punishment and general deterrence. I am not satisfied that the Judge’s decision not to make a home detention order in the case of either appellant involved error in the exercise of his discretion. I would dismiss Karl Dell’s fifth ground of appeal, and Jimmy Dell’s only ground of appeal.
Conclusion
For the reasons I have set out, I would dismiss the appeals of both appellants.