R v Devries - [2018] SASCFC 101

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DEVRIES
[2018] SASCFC 101
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Hinton and The Honourable Justice Hughes)
28 September 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - PRODUCING OR CULTIVATING - CANNABIS
The appellant pleaded guilty to trafficking in a large commercial quantity of cannabis, cultivating cannabis, possessing prescribed equipment and interfering with a supply of electricity.
The appellant was sentenced to three years and six months imprisonment with a non-parole period of two years and four months. The sentencing Judge declined to order that the sentence be suspended or served on home detention.
Permission to appeal against the sentence was granted on the ground that the non-parole period was manifestly excessive as a result of the head sentence being manifestly excessive or as a percentage of the head sentence.
Held, per Hughes J (Kourakis CJ agreeing) allowing the appeal against sentence:
1.       The non-parole period as a proportion of the head sentence is manifestly excessive.
2.       The sentencing Judge erred by fixing a non-parole period that did not reflect the matters relevant to the sentencing exercise.
3.       Appeal allowed. Appellant resentenced.
Held, per Hinton J dissenting, the non-parole period does not fall outside the permissible range such that it can be said to be plainly wrong.
Controlled Substances Act 1984 (SA) ss 32, 33B, 33LA; Criminal Law Consolidation Act 1935 (SA) 353; Criminal Law (Sentencing) Act 1988 (SA) s 10C; Criminal Procedure Act 1921 (SA) s 158; Electricity Act 1996 (SA) s 84; Sentencing Act 2017 (SA) s 40, referred to.
R v Jongewaard [2009] SASC 346; R v Palmer [2016] SASCFC 34, applied.
Markarian v The Queen (2005) 228 CLR 357; R v Creed (1985) 37 SASR 566; R v Gridley [2013] SASCFC 29; Bugmy v The Queen (1990) 169 CLR 525; R v Williams [2018] SASCFC 14; Power v The Queen (1973) 131 CLR 623; Hili v The Queen (2010) 242 CLR 520; R v Wakefield [2018] SASCFC 85; R v Wheeler [2015] SASCFC 83; R v Kreutzer (2013) 118 SASR 211; The Queen v Shrestha (1991) 173 CLR 48; R v R, AW (2012) 113 SASR 179; Deakin v The Queen (1984) 58 ALJR 367; Bugmy v The Queen (1990) 169 CLR 525; The Queen v Tait (1979) 46 FLR 386; Kumova v R (2012) 37 VR 538; R v Sarandoglou (2010) 107 SASR 396, considered.

R v DEVRIES
[2018] SASCFC 101
Court of Criminal Appeal: Kourakis CJ, Hinton and Hughes JJ

KOURAKIS CJ:I agree that the appeal should be allowed and the non-parole period reduced to one year and 10 months for the reasons given by Hughes J.
HINTON J: I have had the benefit of reading the reasons of Hughes J in draft. I gratefully adopt Hughes J’s summary of the circumstances of the appellant’s offending and of his personal circumstances. For the reasons that follow I would dismiss the appeal.
After identifying the maximum penalties applicable to the offences for which the appellant and Mr Stone were to be sentenced, the sentencing Judge set out the circumstances of the offending. He concluded:
It was a significantly well-planned operation using the front of a legitimate business operation. It had been in operation for some time prior to the arrest of the offenders. In fact text messages show that drug dealing was proceeding from the end of June 2016 up until the time of arrest in December 2016, a period of some six months.
Essentially the enterprise was for financial gain and would have continued into the future were it not for police intervention.
The Judge then stated:
I see no reason to differentiate between the offenders in relation to their involvement in this offending, although I will differentiate, based on the fact that Stone has four further convictions for trafficking.
The first part of this statement was made in response to a submission by counsel for the appellant to the effect that Mr Devries’ blameworthiness in relation to the joint charges was less than that of Mr Stone because the idea of becoming involved in cannabis cultivation and trafficking was Mr Stone’s. Having read the text messages, the Judge was right to reject that submission.
Next the Judge summarised the personal circumstances of Mr Stone. In bringing that summary to an end he said:
He is back in Renmark, as I observed, and given his age, I will impose a modest non-parole period so that if he is serious about rehabilitating himself, he will be able to do so.
Two points fall to be made here. First, the observation is particular to Mr Stone. Second, it is made in response to a submission made by his counsel that, having regard to the psychological report tendered, to Mr Stone’s work history, his limited antecedents and age, he was “capable of rehabilitation and perhaps a low non-parole period is appropriate in relation to this matter to allow him to rehabilitate.”
The Judge then turned to deal with Mr Devries’ personal circumstances. Those circumstances are set out in the judgment of Hughes J. The Judge brought this section of his remarks to a conclusion saying:
I do not see any reason, as I have said, to differentiate between either offender in relation to the seriousness of the offending at Wingfield, their criminal record or in relation to their antecedents when growing up. Stone, however, has some extra offending to be dealt with.
Like in the case of Stone, I have turned my mind to the question of a suspended sentence. Again, the legislative restriction on imposing a suspended sentence in relation to the charge of trafficking in a large commercial quantity of cannabis means that I am unable to find exceptional circumstances necessary to suspend any sentence that I might impose.
I should say that in any case, the seriousness of the offending and the degree of planning and organisation, together with the fact that the offending is not an isolated instance but has been proceeding over a period of time, means that I would not regard a suspended sentence as an appropriate penalty even without the legislative restriction.
In the first paragraph of this passage the Judge refers a second time to the primary factor demanding differential treatment in the sentence ultimately to be imposed in relation to each of Mr Stone and Mr Devries.
The Judge then turned to sentence each of Mr Stone and Mr Devries imposing the sentences that Hughes J has set out.
Respectfully, I do not think it can be said that the Judge has imposed a non-parole period in relation to Mr Devries that does not accord with the Judge’s intention. That would mean concluding that the Judge failed to appreciate the portion of the head sentence that the non-parole period imposed in relation to each man represented, or, put slightly differently, failed to appreciate the proportion of the head sentence that the appellant and Mr Stone were obliged to serve before they could be released on parole and, if released at the earliest time, the length of time they would be on parole. I can see no reason to conclude that when the Judge turned to sentence Mr Devries and imposed a head sentence of three years six months, reduced from five years on account of his pleas of guilty, and fixed a non-parole period of two years four months, that he did not intend such outcome. That early in his reasons the Judge indicated an intent to impose a modest non-parole period in Mr Stone’s case and the absence of reason not to treat Mr Devries similarly does not cause me to arrive at any different conclusion. The proportion of the head sentence represented by the non-parole period and the concomitant minimum period the Judge required Mr Devries to serve was obvious. If the Judge did intend to impose a modest non-parole period in relation to Mr Devries, and a non-parole period of 66.67% is not, according to the Judge, modest, then the more likely conclusion is that the Judge changed his mind before arriving at his concluded view.
To so conclude does not dispose of the appeal. The appellant contends that the non-parole period is manifestly excessive. In such circumstances this Court can only interfere if it is satisfied that the outcome falls outside “the permissible range of sentences for the offender and the offence.”[1] Whether or not an outcome falls outside the permissible range is revealed by a “consideration of all of the matters that are relevant to fixing the sentence”.[2]
[1] Kentwell v The Queen (2014) 252 CLR 601 at [35] (French CJ, Hayne, Bell and Keane JJ).
[2] The Queen v Pham (2015) 256 CLR 550 at [28] (French CJ, Keane and Nettle JJ); Hili v The Queen (2010) 242 CLR 520 at [60] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
It is settled that a non-parole period reflects the minimum proportion of the head sentence that must be served to achieve the purposes of the head sentence.[3] In Power v The Queen Barwick CJ, Menzies, Stephen and Mason JJ said with respect to the Parole of Prisoners Ordinance 1971 (ACT), but no less applicable to Part 3 Division 2 of the Sentencing Act 2017 (SA):[4]
To read the legislation in the way we have suggested fulfills the legislative intention to be gathered from the terms of the Act, i.e. to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.
[3] Power v The Queen (1974) 131 CLR 623 at 629 (Barwick CJ, Menzies, Stephen and Mason JJ); Deakin v The Queen (1984) 58 ALJR 367; Bugmy v The Queen (1990) 169 CLR 525 at 531 (Mason CJ and McHugh J), 538 (Dawson, Toohey and Gaudron JJ); The Queen v Shrestha (1991) 173 CLR 48 at 62-63 (Brennan and McHugh JJ), 69 (Deane, Dawson and Toohey JJ); Hili v The Queen (2010) 242 CLR 520 at [40] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Knight v Victoria (2017) 91 ALJR 824 at [8] (The Court).
[4] (1974) 131 CLR 623 at 629.
In Bugmy v The Queen Mason CJ and McHugh J, who were in dissent but not on the question of principle, quoted the passage from Power v The Queen reproduced above, noted its repetition with unanimous approval in Deakin v The Queen,[5] and added:[6]
Accordingly, although the fixing of a minimum term confers a benefit on the prisoner, it serves the interests of the community rather than those of the prisoner: Attorney-General v. Morgan and Morgan. In that case Jenkinson J., with whom Kaye J. agreed, pointed out that considerations relevant to the interests of the community which the imprisonment of offenders is designed to serve, as well as circumstances which mitigate punishment, will be taken into account in determining the head sentence and, again, in fixing the minimum term. At that stage the various interests of the community “will be balanced against the advantages to the community which release on parole is thought likely in the particular circumstances to confer, and against whatever degree of mitigation mercy to the offender may claim without injustice”.
[footnotes omitted]
[5] (1984) 58 ALJR 367.
[6] (1990) 169 CLR 525 at 531.
Mason CJ and McHugh J then observed that all factors relevant to the determination of the head sentence were, accordingly, relevant to the determination of the non-parole period.[7] That said, the weight to be attached to those factors and their relevance will differ as between the tasks due to the different purposes of each. Their Honours said:[8]
A prisoner’s prospects of rehabilitation will be relevant to the fixing of a minimum term, both by way of mitigation and because the community benefits from the reformation of one of its members. Conversely, the community needs to be protected from a violent offender, especially one whose prospects for rehabilitation are bleak. Likewise, the nature of the crime will be relevant because a more serious offence will warrant a greater minimum term due to its deterrent effect upon others. But the nature of the offence does not assume the importance which it has when the head sentence is determined. There, the sentence must be proportionate to the gravity of the offence Veen v. The Queen [No. 2], whereas the minimum term represents a portion of the head sentence during which the offender will not be considered for parole. In one sense, that portion must itself bear a proportionate relation to the crime. Generally speaking, the perceived prospects of rehabilitation will make a significant difference. Amongst other things, these prospects will affect what is required by way of protection of the community. Release on parole is a concession made when the Parole Board decides that the benefits accruing by way of rehabilitation and the recognition of mitigating factors outweigh the danger to the community of relaxing the requirement of imprisonment.
In fixing a minimum term, a sentencing judge is bound to give close attention to the danger which the offender presents to the community. Naturally, as the length of the minimum term under consideration increases, so does the difficulty of making satisfactory predictions about the future progress of the offender and the danger he or she would present to the community. But that difficulty does not relieve the judge of his or her responsibility to take account of the need to protect the community. Necessarily the judge will be influenced by an assessment of the material before the court as to the prisoner’s prospects of rehabilitation. If the judge’s assessment of those prospects is that they are minimal or bleak, a minimum term should be fixed in the light of that assessment, along with the other factors relevant to the fixing of the minimum term.
[footnote omitted]
[7] Bugmy v The Queen (1990) 169 CLR 525 at 531; see also The Queenv Shrestha (1991) 173 CLR 48 at 68 (Deane, Dawson and Toohey JJ).
[8] Bugmy v The Queen (1990) 169 CLR 525 at 532.
The particular emphasis on protection of the community reflects the fact that Bugmy v The Queen was a case where the offender, who had a lengthy criminal record including convictions for armed robbery, assault and assaulting a prison officer, brutally killed a man in a public toilet hitting him at least twice to the face with an iron bar, taking five dollars from his pocket, and then striking him a further 14 times to the back of the head with the bar, all done so that he would obtain two dollars to pay the entry fee to a nearby hotel. Obviously that emphasis requires adaptation in relation to other offences where the threat posed by the accused is less immediate and less direct, and where general deterrence attracts greater weight than incapacitation and specific deterrence. Drug offences are the obvious case on point. This Court has routinely pointed to the need for the imposition of strongly deterrent sentences upon those who take part in the illicit drug trade for profit.[9] In this connection, and returning to the task of determining the appropriate non-parole period, in The Queen v Shrestha[10] Brennan and McHugh JJ referred to Breuer and Chaney,[11] a case concerning the making of an eligibility-for-parole order in relation to a large scale drug importation, where Burt CJ quoted the following passage from The Queen v Tait:[12]
On the other hand, the deterrent aspect of punishment is of primary importance in cases of this kind. The sentence should demonstrate to others tempted to engage in lawlessness on a vast scale that the punishment to be imposed will be calculated to protect society from the deliberate attack made upon it. When an organized, costly and complex offence is contemplated, the risk of apprehension and the severity of punishment is evaluated; and thus there can be no other class of case in which the deterrent effect of punishment can more confidently be assumed to operate. Those who deliberately choose to run the risk of punishment in order to acquire a profit from the venture cannot point to mitigating circumstances of the sort which stand the chance offender in good stead. The extent to which a sentence recedes from the maximum in cases of this kind is limited by the necessity to impose sentences of unequivocal severity as the most efficient means available to the courts to enforce the relevant prohibition.
[9] R v Yavuz (2018) 130 SASR 231; R v Kong (2013) 115 SASR 425; R v Mangelsdorf (1995) 66 SASR 60; R v Di Maria (1996) 67 SASR 466.
[10] (1991) 173 CLR 48.
[11] (1991) 173 CLR 48 at 66.
[12] Breuer and Chaney (1986) 32 A Crim R 1 at 5-6, quoting The Queen v Tait (1979) 46 FLR 386 at 399 (Brennan, Deane and Gallop JJ).
Whilst approving of these considerations, Brennan and McHugh JJ were quick to acknowledge that in certain cases deterrence may have to yield to rehabilitation especially if the community was likely to derive a benefit from the rehabilitation of the offender.[13] Despite this deterrence was always a factor to be taken into account in making a non-parole/eligibility-for-parole order.[14]
[13] The Queenv Shrestha (1991) 173 CLR 48 at 66.
[14] The Queenv Shrestha (1991) 173 CLR 48 at 66.
It is important to note that there can be no norm and no prescriptive range (defined as a percentage range of the head sentence) within which all non-parole periods must fall.[15] In fixing a non-parole period the ““severity appropriate” is determined having regard to the general principles identified by this Court in Power v The Queen, Deakin v The Queen and Bugmy v The Queen.”[16] With this in mind it has been said that the use of phrases such as “shorter than usual and longer than usual” in describing a non-parole period or an intended non-parole are unhelpful because they postulate the usual for the offender which does not exist.[17] In Kumova v R Redlich and Osborn JJA explained:[18]
There are recent observations of this court in Wallace,Kneifatiand Borthwickwhich disapprove of the use of the formulation “usual non-parole period,” in this latter more narrow context of the specific sentence that is to be imposed. They make the point that for a judge to say “I propose to give you a shorter than usual non-parole period” is apt to mislead and create false expectations — and lead to misconceived appeals against sentence. What the judge is ordinarily understood to mean in that context is something like: “In view of your strong prospects for rehabilitation [or other special feature], I propose to give you a shorter non-parole period than I would otherwise have done.” Such a statement creates no false expectations and, in particular, cannot give rise to a complaint on appeal that the judge failed to give effect to the stated intention. Ex hypothesi, no one knows what the judge would have done but for the special features of the case at hand. These cases encourage sentencing judges to avoid the first formulation and adopt the second.
[footnotes omitted]
[15]   Hili v The Queen (2010) 242 CLR 520 at [36]-[44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[16]   Hili v The Queen (2010) 242 CLR 520 at [40] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (footnotes omitted).
[17]   Kumova v R (2012) 37 VR 538; Wallace v R (2012) 35 VR 520.
[18] (2012) 37 VR 538 at [34].
That said, observations of the normal range within which non-parole periods generally fall as have been made by this Court from time to time provide the most general guide.[19] Such expression of the range is the product of the experience of the Court. It must be borne in mind, however, that the range so expressed is “no more than an empirical observation that, over a range of cases over a period of years, non-parole periods have tended to range between”[20] 50% and 75% of the head sentence.[21] Invariably the observation is made divorced from any analysis of the sentences that in conjunction support it or of the circumstances relevant to the determination of those sentences. In this regard Redlich and Osborn JJA observed:[22]
The concept of a range of usual non-parole periods expressed as a proportion of the head sentence is an element of sentencing practice which provides a general guide to the sentencing judge. The judge is obliged to have regard to sentencing practice.The judge having considered the individual circumstances of the case and arrived at a minimum sentence may then review the proportion of that sentence to the head sentence in the light of the usual range of non-parole periods. Understood in that way, the practice promotes consistency in sentencing in the application of the principles to which we have referred. But as the joint reasons of the High Court in Hili v Rin speaking of federal sentences state, the usual range of non-parole periods cannot be used as a starting point or norm which will then be adjusted to allow for the special circumstances of the offence and the offender. Such an approach would be to embark upon an impermissible two-tiered sentencing process with the attendant risk that the individual circumstances of the case will not receive their due weight.
[footnotes omitted]
[19]   For example, R v Palmer [2016] SASCFC 34 at [4] (Kourakis CJ); cfR v Creed (1985) 37 SASR 566 at 569. See further, Foley v Police [2008] SASC 338.
[20]   Kumova v R (2012) 37 VR 538 at [12] (Nettle JA).
[21]   R v Palmer [2016] SASCFC 34 at [4] (Kourakis CJ).
[22] (2012) 37 VR 538 at [30].

And Nettle JA said:[23]
… although comparable cases can and do provide guidance, the point of a non-parole period is that it is a sentencing judge’s perception of the minimum time which the offender should spend in gaol before becoming eligible for release. Since each case is unique, and since the setting of a non-parole period is a matter of sentencing discretion, outcomes are likely to vary. To a considerable extent, what is usual or normal is what a sentencing judge considers to be usual or normal for the nature and gravity of the offence in question in all the circumstances of the case, and what is less than normal will accord to that conception.
[footnote omitted]
[23] Kumova v R (2012) 37 VR 538 at [15].
One last observation; it being established that the non-parole period must reflect the minimum time that an offender must spend in prison in order to satisfy the purposes of the head sentence, it necessarily follows that the non-parole period must, no less than the head sentence, reflect the need for retribution or punishment, deterrence, rehabilitation and incapacitation. The relationship between the two was explained by Kourakis J, as he then was, in R v Sarandoglou.[24] The scheme:[25]
… necessarily entails a proportionate relationship between the non-parole period and the head sentence. There is an indissoluble and correlative relationship between the proportion of the head sentence spent in custody and the proportion spent on parole. I find it conceptually impossible to conceive the period of imprisonment which is the minimum necessary for deterrence and punishment without also determining the scope to allow for parole because a view about one will necessarily affect the position taken on the other. Moreover, the same factual circumstances will be relevant to both the head sentence and the non-parole period.
The process which I have just described is, as I observed in Foley v Police,the reason that non-parole periods are often fixed at what is sometimes called the usual proportion.
In R v Shrestha,Deane, Dawson and Toohey JJ explained that:
Except where it is inappropriate that a convicted person should ever be considered for release on parole, the sentencing Judge must formulate an overall sentence, including a non-parole period, at the end of which the parole authority must determine according to the circumstances which then exist, whether the offender should be released on parole.
(Emphasis added.)
It follows that, although a non-parole period is fixed as a certain period of time, it must necessarily reflect a proper proportion of the head sentence. To proceed on any other basis, in my respectful view, distorts the overall sentence. …
[footnotes omitted]
[24] (2010) 107 SASR 396.
[25] R v Sarandoglou (2010) 107 SASR 396 at [33]-[36].
Generally speaking, as a non-parole period approaches 50% of the head sentence more difficult questions arise as to whether it reflects a proper proportion of the head sentence. In some cases that may mean the head sentence is too high.
Mr Devries’ prospects of rehabilitation are reasonable. His explanation for his offending is, however, a common feature in cases of this type that come before the criminal courts. Many before Mr Devries have turned to drug trafficking as a means of making money after the loss of employment. Sentences imposed must deter people from making such choice. Here it must also be borne in mind that the choice made was not driven by need. It was a deliberate choice to break the law.
I accept that Mr Devries’ antecedents are of no relevance to the determination of the appropriate sentence.
What is particularly significant in the present case is the nature of the enterprise. It was an ongoing commercial enterprise described in one of the text messages passing between Mr Stone and Mr Devries as their “full time jobs”. Neither Mr Stone nor Mr Devries could be described as street-level dealers trafficking to support a habit. The text messages reveal that they were invested traffickers, engaged in the regular supply of significant quantities of cannabis. Their motivation was purely profit. The enterprise would have continued but for police intervention. In such circumstances it is difficult to afford leniency to Mr Devries in the course of determining the appropriate sentence for the offences to which he pleaded guilty. The five kilograms of cannabis and the 12 plants could have resulted in a financial benefit in the region of $43,000-$55,900. There is nothing that mitigates Mr Devries’ offending.
I have had regard to the maximum penalties attaching to the offences to which Mr Devries pleaded guilty and to Parliament’s intent as is implicit in those penalties.[26] I have also had regard to sentences imposed in comparable cases as surveyed in R v Hucks[27] and R v Lyberopoulos,[28] to the sentences imposed in those cases, to the sentences imposed by this Court in R v Yavuz[29] and the statements of principle articulated in that case, in addition to the sentence imposed in the recent case of R v Tsonis.[30] In having regard to these cases I bear in mind the limited use to which they may be put.[31]
[26] Count 1: s 32(1) of the Controlled Substances Act 1984 (SA) - $500,000 or imprisonment for life or both.
Count 2: s 33B(3) of the Controlled Substances Act 1984 (SA) - $50,000 or imprisonment for 10 years or both.
Count 4: s 33LA of the Controlled Substances Act 1984 (SA) - $10,000 or imprisonment for 2 years or both.
Count 5: s 84(1)(b) of the Electricity Act 1996 (SA) - $20,000 or imprisonment for 2 years.
Counts 3 and 6 were withdrawn.
[27] [2016] SASCFC 92.
[28] [2017] SASCFC 139.
[29] (2018) 130 SASR 231.
[30] [2018] SASCFC 86.
[31] Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) (2017) 91 ALJR 1063; The Queen v Pham (2015) 256 CLR 550; Barbaro v The Queen (2014) 253 CLR 58; Hili v The Queen (2010) 242 CLR 520.
I have also reminded myself of Mr Devries’ personal circumstances and his prospects of rehabilitation.
This is a case that called for a strongly deterrent sentence, one that marked the community’s detestation of the illicit drug trade. That trade is loathsome and destructive. Those that willingly engage in the illicit drug trade solely for the purposes of financial gain cannot be surprised when they receive a heavy sentence.
In all the circumstances, I am not persuaded that the non-parole period imposed in Mr Devries’ case, being 66.67% of the head sentence, was plainly wrong. It cannot be said that the interests of the community which the imprisonment of Mr Devries serves balanced against the advantages to the community which his release on parole would likely confer, demand a different outcome. It cannot be said that the non-parole period imposed in this case fell outside the permissible range. I would dismiss the appeal.
HUGHES J: This is an appeal against sentence. The sole ground of appeal is that the non-parole period fixed by a Judge of the District Court is manifestly excessive by reference to the relevant circumstances or by reference to its relationship to the head sentence, or both.
The offending
On 29 September 2017, Mr Devries pleaded guilty to four drug-related offences. He was convicted and remanded on 17 November 2017. All of the offending took place in December 2016 at a business premises the appellant leased at Clyde Street, Wingfield (‘the premises’). The offending was committed with a co-accused, Zachary Stone, who pleaded guilty to the same and further offences.
Mr Devries’ offending was comprised of four counts. Count one alleged that he engaged in trafficking a large commercial quantity of cannabis contrary to s 32(1) of the Controlled Substances Act 1984 (SA) (‘CSA’). This offence related to five kilograms of drying cannabis located by police at the premises. The second count concerned cultivating cannabis contrary to s 33B(3) of the CSA and related to 12 cannabis plants located at the premises. The remaining two counts concerned possessing prescribed equipment, namely equipment used in the commercial production of cannabis, contrary to s 33LA of the CSA, and interfering with a supply of electricity contrary to s 84(1)(b) of the Electricity Act 1996 (SA). All of the offending was identified as having occurred on 15 December 2016 when police attended at the premises.
Following his plea of guilty and sentencing submissions, Mr Devries was sentenced on 23 April 2018 by a Judge of the District Court to imprisonment for five years, discounted by 30% to three years and six months for his early plea pursuant to s 10C(3)(b) of the Criminal Law (Sentencing) Act 1988 (SA). A non-parole period of two years and four months was fixed. The sentence was backdated to 1 February 2018 when Mr Devries had been remanded to custody.
Circumstances of offending
Mr Devries met his co-accused, Mr Stone, through the football they both played in Renmark when they were youths. The relationship was re-established in Adelaide in 2016. Mr Devries was living in a unit at Glenelg. Mr Devries became involved in selling cannabis that Mr Stone sourced. With the money they generated, Mr Stone proposed the enterprise of growing and selling cannabis. Text messages from the co-accused’s phone indicated that the enterprise was set up six months prior to the detection of the offending that was the subject of the charges. It was Mr Stone’s idea, and Mr Devries willingly accepted the proposal. There was a third member of the enterprise, who has not been charged, and the three agreed to each have their own ‘patch’ in which to sell the cannabis.
Mr Stone established a company, Westside Auto Dismantlers. Mr Devries leased commercial premises at Wingfield for the company’s operations. The premises bore the appearance of being used for auto-dismantling operations. There was little evidence as to whether the auto-dismantler business actually performed any activities but it was common ground that the premises were also used by the appellant and his co-accused for the conduct of the illegal enterprise of manufacturing and selling cannabis for commercial gain.
The offending was exposed as a result of certain drug sales by Mr Stone to an under-cover police operative. This led to the attendance on 15 December 2016 by police at the premises and the harvested and growing crops being located. Mr Devries was logged onto a computer at the premises and his fingerprints were located on drug dealing paraphernalia at the premises. This led police to Mr Devries, who was arrested that evening at his girlfriend’s house.
In the establishment phase of the enterprise, Mr Devries and Mr Stone had exchanged text messages about their prospects of income. One such message predicted income of a million dollars in a year. When raided, the premises yielded both a harvested crop and a growing crop. Each was estimated to have a value of about $25,000.
Sentencing remarks
The sentencing Judge sentenced Mr Devries and his co-accused together. With the agreement of counsel, the sentencing Judge did not distinguish between the co-accused with respect to those offences in relation to which they were both involved. The sentencing remarks describe the circumstances giving rise to the offending and identified the expectation by Mr Devries and his co-accused of their anticipated financial gain from the enterprise as highly relevant to sentence. His Honour referred to the seriousness of the offending, the degree of planning, the months over which the offending occurred, and the financial gain that the appellants sought to achieve.
It is necessary to refer to the sentencing with respect to the co-accused Mr Stone, as it is evident that at least some of the remarks made with respect to him illuminate the approach taken with respect to Mr Devries. Mr Stone was dealt with first and received the higher sentence, having been convicted of various drug- related offences associated with the under-cover operations on dates leading up to police attendance at the premises on 15 December 2016.
His Honour addressed the personal circumstances of Mr Stone and observed that no exceptional circumstances exist that would result in a sentence of imprisonment being suspended. He concluded, with respect to Mr Stone, “He is back in Renmark, as I observed, and given his age, I will impose a modest non-parole period so that if he is serious about rehabilitating himself, he will be able to do so.” The remarks then turned to Mr Devries. The sentencing Judge referred briefly to Mr Devries’ background and work history. His Honour described Mr Devries’ criminal record as “a fairly modest one”. Returning then to deal with the two offenders, his Honour concluded that there was no basis upon which to differentiate between the offenders with respect to the seriousness of the common offending or their antecedents. He concluded that suspension of a sentence was inappropriate for either of them.
His Honour then imposed a sentence of imprisonment of six years upon Mr Stone, reduced by 30% to four years, two months and one week. A non-parole period of three years was fixed. His Honour then turned his attention to the imposition of the sentence upon Mr Devries and stated, without expansion, “in the case of Devries, I will fix a head sentence of five years, reduced by 30% to three years, six months. I fix a non-parole period of two years four months.”
Mr Devries contends that the non-parole period, which represented approximately 66% of the head sentence, was manifestly excessive in light of the circumstances before the District Court at sentencing.
Approach on appeal
The basis for interference by the Court in appeals relating to sentence is well-established. In R v Jongewaard,[32] Doyle CJ stated:[33]
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
[32] [2009] SASC 346.
[33] Ibid at [40].
The non-parole period set by the sentencing Judge amounted to 66% of the head sentence imposed. Kourakis CJ observed in R v Palmer that a non-parole period will often properly fall between half and three quarters of the head sentence.[34] Both the head sentence and the non-parole period must be properly proportionate to the gravity of the crime.[35] Both must operate as a deterrent to others.[36] The non-parole period must achieve an appropriate balance of the punitive, deterrent and preventative objectives it shares with the head sentence, and the rehabilitative objective to which it is especially directed.
[34] [2016] SASCFC 34 at [4].
[35] R v Creed (1985) 37 SASR 566 at 568 per King CJ.
[36] Ibid.
It was the Crown’s position that, notwithstanding the use of the descriptor “modest”, and that word’s failure to accurately describe the non-parole period expressed as a proportion of the head sentence, the non-parole period arrived at was nevertheless within the proper exercise of the sentencing Judge’s discretion. Indeed, the Crown ventured that a lower non-parole period would “start to become extremely low” and risk failing to properly take account of personal and general deterrence.[37]
[37] Transcript page 13 lines 11-12.
Application of law to facts – an error warranting intervention occurred
The sentencing Judge did not explain the basis upon which the non-parole period was set. As Vanstone J stated in R v Gridley:[38]
Perhaps most appeals against sentence involve an argument that the judge must have proceeded on an incorrect basis because, acting on the correct basis, he or she could not have reached the sentence imposed. However, in other cases the appellant will identify an error which has occurred in the sentencing process and will argue that, because of that error, the process miscarried and the sentence should be reviewed.
[38] [2013] SASCFC 29 per Vanstone J at [26].
Where the Court has a doubt that the exercise of the sentencing discretion has achieved an appropriate outcome, it must be satisfied that there has been an error of principle or results in some manifest injustice.[39] In this case, it is difficult to determine where the error occurred. It may have been an error of principle. It may be that the considerations bearing on the fixing of the head sentence were unduly influential upon the non-parole period.[40] There may have been a mistake in the nature of a calculation of the proportion of the non-parole period to the head sentence prior to the discount. The fact that the sentencing Judge determined not to differentiate between the co-accused, and that he foreshadowed a “modest” non-parole period for Mr Stone, leads to the irresistible conclusion that the non-parole period does not bear the relationship to the head sentence that was intended by the sentencing Judge. However, it is necessary to consider further whether the non-parole period, as fixed, represents a manifest injustice.
[39] Bugmy v The Queen (1990) 169 CLR 525 at 533 per Mason CJ and McHugh J; R v Williams [2018] SASCFC 14 at [67] per Hinton J, Blue and Stanley JJ agreeing.
[40] Bugmy v The Queen (1990) 169 CLR 525 per Dawson, Toohey and Gaudron JJ at 537.
This is not a matter of the appellate Court reaching a conclusion that the non-parole period should be different from that which the sentencing Judge fixed. Rather, when the matters relevant to fixing the non-parole period are placed within the lacuna in the sentencing remarks, the non-parole period fixed is plainly unreasonable, or unjust. It appears not to be what was intended, but determinatively, the non-parole period that was fixed does not reflect the matters relevant to the sentencing exercise.
The failure to refer to any of the factors that are peculiar to the setting of the non-parole period when such factors were the subject of submissions and material before the court, in the context of the imposition of a non-parole period that does not demonstrably account for those factors, constitutes an error.
That the period of two years and four months as a proportion of the head sentence is manifestly excessive is established by a review of the matters relevant to the fixing of the non-parole period in this case, as discussed below.[41]
[41] See Hili v The Queen (2010) 242 CLR 520 at 539 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
Personal circumstances
Mr Devries is now 28 years old and was 27 years old when sentenced. He grew up in Renmark with his parents and two younger sisters. His parents separated while he was still at school in the unhappy circumstances of his father’s alcoholism and abuse of his mother. His mother and two sisters remained in the area. He left school part-way through Year 12 and worked at McDonald’s. He moved to Adelaide when he was about 20 years old and obtained some labouring work whilst living with his grandparents. He obtained a forklift licence and worked for several years at a Coles distribution centre. His primary interest during that period was playing football. He lost his employment and it was during the period of unemployment that the offending occurred.

Mr Devries has no relevant prior convictions. He received a good behaviour bond for a disorderly behaviour offence, for which no conviction was recorded, in 2010. He was convicted of driving under disqualification and fined $200, in 2012. He was convicted in 2017 of failing to comply with the bail agreement entered into in relation to these offences. He was late to report on a particular occasion. No penalty was imposed.
In March 2017, whilst on bail, he found full-time ongoing employment in a timber warehouse as a store-person and his employer confirmed that he remained employed as at November 2017 when the employer’s reference was requested.
The sentencing Judge referred in sentencing to Mr Devries’ references. They indicate that the appellant has been supported by both his grandparents and an employer since his arrest and that he has availed himself of that support. The sentencing Judge observed that these references speak highly of Mr Devries but did not elaborate on their contents nor weight.
His employer, Bianco Construction and Industrial Supplies Pty Ltd, wrote that Mr Devries had obtained ongoing employment since 20 March 2017 and had successfully completed his probationary period and had been granted ongoing employment.
His grandfather supplied a written reference attesting to Mr Devries’ good character and remorse at what he had done. Mr Devries’ grandmother was present in court for the original sentencing and the appeal and provided a reference. It is evident that she has taken great effort to provide support for her grandson and continues to offer it.
It was suggested by Mr Charman for Mr Devries that Mr Devries’ youth was a factor that was not adequately reflected in the non-parole period. The Crown submitted that Mr Devries’ age was not such as to be relevant to sentence. Youth is relevant to the fixing of a non-parole period as it tends to indicate greater capacity for rehabilitation. The person’s values and habits and decision-making have had less time to mature and may be amenable to re-direction. Mr Devries’ age, in itself, does not lend itself to the view that his prospects for rehabilitation are strong. He is in his mid-twenties. I do not consider that the lack of a direct reference to Mr Devries’ age by the sentencing Judge amounts to a process error. However, Mr Devries’ age when coupled with his background circumstances, particularly the lack of a relevant criminal history and his country upbringing, reveal naivety that is consistent with the prospects of successful rehabilitation. It is troubling that Mr Devries’ unchallenged prospects of rehabilitation were not alluded to in the sentencing process, when Mr Stone’s attracted qualified acknowledgement.
Mr Devries’ lack of prior offending, his age, family circumstances and actions since arrest provide a basis for a finding that he has good prospects of rehabilitation, and that his rehabilitation had already commenced at the time of sentencing. In particular, the fact that he obtained and maintained full-time work since his arrest signals a return for Mr Devries to the life he was leading prior to his participation in the illegal business venture. On the other hand, there are no factors, referred to or otherwise, that suggested that the non-parole period should align to the middle or higher end of the appropriate range.
Procedural issues: extension of time & legislation to be applied
Mr Devries’ appeal was lodged one day beyond the period of 21 days and permission to extend time was not opposed. Mr Devries notice of appeal was lodged late due to a delay in legal aid funding. To the extent that this was not expressly dealt with on the application for permission, given that the delay was negligible and there being no prejudice occasioned, the extension of time within which to being the appeal is granted.
Since Mr Devries was sentenced on 23 April 2018, the Sentencing Act 2017 (SA) commenced operation. It repealed the Criminal Law (Sentencing) Act 1988 (SA) and parts of the Criminal Law Consolidation Act 1935 (SA), under which Mr Devries was sentenced. There remains a question of which Act is to be applied in this instance, the 2017 Act or the 1988 Act. However, there is no material difference between the Acts in relation to the sentencing principles by which the Court is bound in carrying out the sentencing exercise on these facts. Accordingly, it is unnecessary to decide the point.[42]
[42] I note this is the position taken by this Court in R v Wakefield [2018] SASCFC 85 at [61] per Parker J.
The non-parole period is manifestly excessive
Whilst it has not been possible to identify precisely where an error occurred in the sentencing process, it is evident that the non-parole period that was fixed is not supported by the relevant considerations. It is excessive by reference to the material before the Court that properly bears on the fixing of the non-parole period as a proportion of the head sentence.
This Court’s power to interfere on an appeal against sentence was provided for in s 353(4) of the Criminal Law Consolidation Act 1935 (SA) which relevantly provides:[43]
[43] Section 353 has since been replaced with Criminal Procedure Act 1921 (SA) s 158 on 5 March 2018.
353—Determination of appeals in ordinary cases
…
(4)     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.
Stanley J in R v Wheeler[44] summarised the position as put by Kourakis CJ in R v Kreutzer[45] as follows:
If the error identified by the appeal court is manifest excess or inadequacy (an outcome error), the Full Court will fix the sentence it thinks ought to have been imposed. If the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the Full Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal.
[44] [2015] SASCFC 83 at [20].
[45] (2013) 118 SASR 211 at 214-215.
The non-parole period must be fixed so as to enable the primary objectives of the sentencing process to be achieved.[46] In relation to setting the non-parole period, the High Court has stated:
All of the considerations which are relevant to the sentencing process, including antecedents, criminality, punishment and deterrence, are relevant both at the stage when a sentencing judge is considering whether it is appropriate or inappropriate that the convicted person be eligible for parole at a future time and at the subsequent stage when the parole authority is considering whether the prisoner should actually be released on parole at or after that time.[47]
[46] R v Palmer [2016] SASCFC 334 at [3].
[47] The Queen v Shrestha [1991] HCA 26; (1991) 173 CLR 48 per Deane, Dawson and Toohey JJ at 68-69 (2012) 113 SASR 179 at 192 [53].
In R v R, AW[48] Peek J stated:
Nevertheless, there is a clear difference in emphasis of approach to the two tasks. When fixing a non-parole period, subjective matters personal to the defendant and his or her rehabilitation come into much closer focus and different weight may be given to these subjective factors than when fixing the head sentence.
[48] (2012) 113 SASR 179 at 192 [53].
The appellant has been in custody since 1 February 2018. The head sentence of five years, reduced by 30% on account of his pleas of guilty in accordance with the since repealed s 10C of the Criminal Law (Sentencing) Act 1988 (SA),[49] is not challenged. The offending is conceded to be serious. Considering Mr Devries’ personal circumstances outlined earlier, his prospects of rehabilitation are greater than those of many who come before the Court without such support or whose offending history is repetitive. Those circumstances and prospects lead to the conclusion that the non-parole period should be set closer to half of the head sentence.
[49] Section 10C has since been replaced with Sentencing Act 2017 (SA) s 40(3). There is no material difference between the sections.
Resentencing
The sentencing process miscarried. Mr Devries is re-sentenced to a period of imprisonment, commencing on 1 February 2018, of five years, discounted to three years and six months. The non-parole period is one year and 10 months.