R v Famiglietti

[2005] SASC 489

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Application)

R v FAMIGLIETTI

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Anderson)

22 December 2005

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - PROBATION ORDERS AND SUSPENSION OF SENTENCE - DISCRETION OF COURT

Crown application for leave to appeal against sentence – respondent sentenced to imprisonment for one year eight months suspended upon entry into good behaviour bond in respect of one count of possession of cannabis for sale – leave to appeal sought on grounds that sentence imposed was manifestly inadequate and sentencing judge erred in suspending the term of imprisonment.

Discussion of principles regarding discretion to suspend sentences pursuant to section 38 of the Criminal Law (Sentencing) Act 1988 (SA).

Held: Sentence imposed was within the range of appropriate sentences open to the sentencing judge and was not manifestly inadequate – judge did not err in exercise of discretion to suspend the sentence – application for leave refused.

Controlled Substances Act 1984 (SA) s 32(1)(e); Criminal Law (Sentencing) Act 1988 (SA) s 38, referred to.
R v Manglesdorf (1995) 66 SASR 160; R v Harris (2001) 122 A Crim R 241; R v Stamos, Williams, Stanton and Kapovic [2004] SASC 132; R v Kane [2003] SASC 237; R v Hill [2005] SASC 380; R v Tran (2000) 211 LSJS 479; R v Proom (2003) 85 SASR 120; R v Di Maria (1996) 67 SASR 466; R v Nguyen [2005] SASC 329; R v Harris (2001) 122 A Crim R 241; Everett v The Queen (1994) 181 CLR 295; Police v Cadd (1997) 69 SASR 150; R v Errigo (2005) 92 SASR 562; R v Nemer (2003) 87 SASR 168; Dinsdale v Queen (2000) 202 CLR 321; Elliot v Harris (No 2) (1976) 13 SASR 516; R v Regan [2003] SASC 287; Vartzokas v Zanker (1989) 51 SASR 277; R v Jarrett (1992) 58 SASR 457; R v Gjoka (unreported, Court of Criminal Appeal, SA, No S6211 of 1997, 1 July 1997); R v Hill [2005] SASC 380; Bohdan Weiss v The Queen [2005] HCA 81; Ogden Industries Pty Ltd v Lucas [1970] AC 113; Damjanovic & Sons Pty Ltd v Commonwealth (1968) 117 CLR 390; R v Morton (1987) 136 LSJS 182; Markarian v R (2005) 215 ALR 213; Griffiths v The Queen (1977) 137 CLR 293; Malvaso v The Queen (1989) 168 CLR 227; R v Osenkowski (1982) 30 SASR 212, considered.

R v FAMIGLIETTI
[2005] SASC 489

Court of Criminal Appeal:       Gray, Vanstone and Anderson JJ

GRAY J

Introduction

1. This is a Crown application for leave to appeal against sentence.

2. On 6 June 2005, the respondent, Roberto Natalino Famiglietti, pleaded guilty on arraignment to one count of possessing cannabis for sale.[1]  The maximum penalty for the offence is a fine of $50,000 or imprisonment for up to 10 years or both.

   [1] Controlled Substances Act 1984 (SA), section 32(1)(e).

3. On 13 October 2005, the respondent was sentenced by a judge of the District Court to imprisonment for one year and eight months.  The sentence was suspended upon the respondent entering into a bond to be of good behaviour for a period of two years.

4. The Crown applies for leave on the grounds that the sentence imposed was manifestly inadequate and that the sentencing judge erred in exercising his discretion to suspend the sentence.

   Circumstances of the offending

5. The respondent was apprehended on 25 February 2005 following a police search of the bus on which he was travelling from Adelaide to Darwin.  A police officer searched the cargo hold of the bus and located 16 vacuum-sealed plastic bags containing cannabis in a suitcase that belonged to the respondent.  Each vacuum bag contained approximately 450 grams of cannabis.  The total amount of cannabis located in the suitcase weighed approximately seven kilograms. 

6. Initially the respondent acknowledged that the suitcase was his.  He subsequently refused to confirm this when interviewed and did not identify any other persons associated in the enterprise. 

7. The sentencing judge found that the respondent was acting as a courier to convey the drugs to Darwin.  The judge summarised the circumstances that led to the respondent’s involvement in the drug trafficking enterprise in the following terms:

   You had been unemployed for about six months prior to your offending, and you had got into financial difficulties. You had been a user of cannabis for many years, and that fact, no doubt, contributed to your financial difficulties. You became depressed about things and you were quite unwell.

   When you were persistently asked by your cannabis supplier whether you might be interested in conveying some cannabis for him interstate, you eventually succumbed. You found yourself tempted by the down payment of $500 and the promise of $1,000 upon arrival in Darwin. The $500 you were paid was largely spent in purchasing your bus ticket. The promised $1,000 (which was never received) was expected by you to go towards solving your financial problems.

   The sentence

8. In considering the appropriate sentence to impose, the sentencing judge had regard to a number of recent legal authorities including Manglesdorf,[2] Harris,[3] Stamos,[4] Kane[5] and Hill.[6]  The judge acknowledged that each of the authorities, although involving different circumstances from the present offending, was of assistance by way of providing guidance as to sentencing principle.  The judge considered that each case was distinguishable from the circumstances of the respondent’s offending.

   [2] R v Manglesdorf (1995) 66 SASR 160.

   [3] R v Harris (2001) 122 A Crim R 241.

   [4] R v Stamos, Williams, Stanton and Kapovic [2004] SASC 132.

   [5] R v Kane [2003] SASC 237.

   [6] R v Hill [2005] SASC 380.

9. In light of the authorities referred to above, the sentencing judge concluded that this was a “borderline” case in terms of the court’s discretion to order that the prison sentence to be imposed be suspended.  The judge listed the following factors as militating against suspension:

   -The gravity of your offence, albeit as a courier and not as a trader, as revealed by the substantial weight, the quality, the packaging and the value of the cannabis located in your possession: 7.165 kg of female flowering heads in 16 plastic bags each weighing between 442.9 and 462.9 grams of a substantial total potential value in the order of about $40,000.

   -The need to emphasise in the sentencing process the elements of general and personal deterrence. (see R v Morton).

   -      The prevalence of offences of this kind.

   -The existence of a profit motive, albeit a fee in the order of about $1,000 plus travel costs.

   -      Your maturity as an adult.

   -The clear implication that the cannabis was to be sold, albeit not by you, interstate or in Darwin, after your task as courier was expected to have been completed.

   -      The maximum penalty which is to be used as a yardstick (see  Markarian).

   The judge then went on to set out the factors militating in favour of suspension as follows:

   -The absence of any evidence to show a background of involvement, on your part, in commercial trading or dealing.

   -The absence of any evidence to suggest an intention, on your part, to engage in trading or commercial drug dealing.

   -      The isolated nature of this offence.

   -      The relatively small financial gain for you.

   -The absence of any evidence to show that you played any ongoing role (see Kapovic).

   -      The minor role you appear to have played.

   -The absence of any relevant and significant antecedent history, except for drink-driving offences in the period from 1984 to 1996 and for one conviction for a minor prescription drug offence, the circumstances of which were adequately explained by your counsel.

   -Your otherwise good character, as revealed by the character and work references that were tendered.

   -The relatively prompt plea of guilty, at arraignment on 6 June 2005, the signs of contrition (belated), and the minimal amount of cooperation with the authorities that you provided.

   -The progress made by you along the road to achieving a rehabilitation, including giving up the use of cannabis, the finding of work with future prospects, and the adoption by you of a generally commendable attitude.

   -      The time spent in custody (four days, a salutary experience for you).

   -Your difficult personal circumstances, as have been fully explained by your counsel and as are referred to in considerable detail by the psychologist in her report.

   -Your good work record before the period of unemployment which preceded this offending and since your remand on bail, your strong work ethic, and your good work prospects.

   -The explanation for your offending as revealed in the psychological report prepared by Dr Marie O’Neil. In this context, I emphasise those portions of her report headed ‘Presentation’, ‘Personal Background’, ‘Educational Background’, ‘Occupational History’, ‘Drug and Alcohol Usage’, ‘Health History’, ‘Clinical Interview’ and ‘In Brief’.

   -      The absence of any likelihood of you reoffending.

   Having weighed these factors, the judge then concluded:

   In my judgment, ‘good reason’ does exist for me to direct that the prison sentence, which is called for here, be suspended. A sentence emphasising both deterrence and rehabilitation is appropriate.

10. The sentencing judge commenced with a provisional sentence of two years and one month.  He then reduced that provisional sentence by 20% on account of the plea and contrition, to impose a head sentence of one year and eight months.  He fixed a non-parole period of one year.  The judge then ordered that the sentence be suspended upon the respondent’s entry into a bond in the sum of $500 to be of good behaviour for two years upon condition that he be supervised by a community corrections officer. 

    Personal antecedents

11. At the time of sentencing, the respondent was 41 years of age.  The sentencing judge did not discuss the respondent’s personal antecedents in any detail.  However, it is clear from the factors set out above that the judge did take the respondent’s personal circumstances and background into account when sentencing.  Moreover, the respondent’s personal history was relayed extensively to the court by defence counsel during sentencing submissions and the judge made it clear in his remarks that he had regard to those submissions. 

12. The respondent grew up in Murray Bridge where he still resides.  His parents divorced when he was eight years old.  As a child he moved between his mother and his father.  The respondent maintained a close relationship with his mother who died in 2004.  He had a difficult relationship with his father who was violent toward the respondent, his mother and his siblings, two older brothers. 

13. The respondent has two sons both of whom live with their mother, from whom the respondent is estranged.  He has largely lost contact with his sons due to difficulty with their mother.  However, he has continued to meet his maintenance obligations. 

14. Prior to his loss of employment six months before the offending, the respondent had, aside from minor breaks, always been gainfully employed.  This included a period as manager of a pizza bar in Murray Bridge where he was responsible for seven staff. 

15. The respondent had previously been a user of marijuana, but at the time of sentencing he had ceased to use the drug. 

    The Appeal

    Prosecution submissions

16. Counsel for the prosecution submitted that the starting point of two years and one month identified by the sentencing judge was manifestly inadequate in that it failed to maintain adequate standards of penalty for offending of this kind. 

17. Counsel further submitted that the suspension of the sentence was inappropriate in the circumstances and, again, failed to maintain adequate standards of punishment. 

18. Counsel drew the Court’s attention to authorities in support of the proposition that in sentencing for drug offences involving commerciality, the question of deterrence is a paramount consideration.  So important is deterrence, it was said, that often lesser weight will be given to the personal circumstances than might otherwise be the case.  Counsel submitted that in such circumstances, there is less scope for leniency.[7]  Counsel contended that a sentencing judge must take great care in such cases before exercising the discretion to suspend terms of imprisonment.  It was said that the discretion could only be properly exercised in the rare and exceptional case where the factors pointing towards suspension significantly outweigh the ordinary need for deterrence to predominate. 

    [7] R v Manglesdorf (1995) 66 SASR 60 at 66 ; R v Tran (2000) 211 LSJS 479 at [29]; R v Proom (2003) 85 SASR 120 at [43], [51]; R v Di Maria (1996) 67 SASR 466 at 476; R v Nguyen [2005] SASC 329 at [35]-[37].

19. With regard to the sentencing judge’s characterisation of the respondent’s offending, counsel submitted that the criminal responsibility of a courier is not necessarily less than that of a seller.  Counsel contended that the judge erred in characterising the respondent’s role as minor and that the judge’s finding that there was no intention on the part of the respondent to engage in trading was an error given that the respondent was in fact engaged in trade and facilitating future trading activities. 

20. Counsel for the prosecution drew the Court’s attention in particular to Harris,[8] where a sentence of two years and three months reduced from a starting point of three years, in recognition of a plea of guilty, for an offence remarkably similar to the present case, committed by an offender with no relevant record and good prospects was regarded as “merciful”.  Counsel submitted that, therefore, the starting point of two years and one month identified by the sentencing judge was manifestly inadequate.

    [8] R v Harris (2001) 122 A Crim R 241 at [21] (Olsson J with whom Perry J agreed).

21. In relation to the sentencing judge’s decision to suspend the sentence, counsel contended that the judge gave insufficient weight to general deterrence and failed to recognise that factors pointing towards suspension must significantly outweigh the ordinarily paramount consideration of general deterrence before a sentence can properly be suspended.  In particular, counsel submitted that the judge erred in finding that the relatively small profit the respondent expected to make and the minimal co-operation given by the respondent were factors pointing toward suspension.

22. Counsel for the prosecution urged this Court to re-sentence the respondent because to allow the sentence imposed by the sentencing judge to stand would tend to erode standards of punishment and public confidence in the administration of justice.

    Respondent’s submissions

23. Counsel for the respondent submitted that the grounds of appeal advanced by the prosecution amounted to no more than particulars of the general complaint that the sentence was manifestly inadequate and that the sentencing judge erred in exercising his discretion to suspend the sentence.  Counsel contended that as the prosecution had failed to point to any specific error in the judge’s sentencing remarks, this Court ought to be very cautious before granting leave.  It was said that the judge had acted within his sentencing discretion.  Counsel submitted that leave to appeal ought to be refused.

    Crown Appeals

24. The principles in relation to granting leave to appeal to the prosecution are well established.  A prosecution appeal against sentence may only be justified in the rare and exceptional case.  This is because it puts in jeopardy the liberty of an offender for a second time.  In accordance with the authority laid down by the High Court in Everett[9] and as applied by the court in Police v Cadd,[10] an appellate court should only intervene in circumstances described in the following terms:[11]

    The function of the Court of Criminal Appeal of a State is to supervise the exercise of sentencing powers by magistrates, by the District Court or its equivalent and by judges of the Supreme Court. A Court of Criminal Appeal of a State is not concerned only with errors of principle, but also with maintaining an appropriate degree of uniformity of sentencing and maintaining adequate sentences.

    [9] Everett v The Queen (1994) 181 CLR 295.

    [10] Police v Cadd (1997) 69 SASR 150.

    [11] Police v Cadd (1997) 69 SASR 150 at 159.

25. When considering a Crown appeal against sentence it is necessary for the Crown to establish error in the sentencing process.  Where error is identified it may be necessary for the appellate court to re-sentence the defendant.  Circumstances may arise in which an error in the sentencing process is established, however, the final sentence imposed remains appropriate.  Such circumstances may arise, for example, where further material is provided to the appellate court during re-sentencing.  In such a case, error of sentencing principle will be established, however, the appeal against sentence will necessarily be dismissed. 

26. It is not sufficient for the prosecution to establish that an error has been made.  Leave to appeal will be granted only if doing so would serve some wider purpose, such as giving the Court an opportunity to establish or clarify a relevant principle, or to establish or maintain adequate standards of sentencing.  Alternatively, the Court will intervene if the sentence is so far below the appropriate range that the sentence reflects an error of principle, and is one that would “shock the public conscience” or would shake public confidence in the administration of justice were it to stand.[12]

    [12] R v Errigo (2005) 92 SASR 562 at [17] (Doyle CJ with whom Bleby and Gray JJ agreed); R v Nemer (2003) 87 SASR 168.

    Manifestly inadequate

27. In determining the appropriate sentence to impose, the sentencing judge had regard to all relevant matters.  The judge did not have regard to any irrelevant matters.  No error of sentencing principle has been identified.[13]  The respondent’s prior good record, his contrition and remorse and his prospects for rehabilitation are factors that the judge correctly considered to favour the adoption of a merciful approach.  The sentence imposed by the sentencing judge is not so low as to warrant interference by this Court.  Although, in light of the authorities referred to above and by the sentencing judge, the sentence can properly be described as merciful, it is not outside the range of appropriate punishments for this type of offending.

    [13] Dinsdale v Queen (2000) 202 CLR 321.

28. I would refuse leave to appeal on this ground.

    Discretion to suspend

29. Pursuant to section 38 of the Criminal Law (Sentencing) Act 1988 (SA), the judge had power to suspend the sentence if he thought that good reason existed for doing so. The statutory provision confers on the Court a power that can be exercised in a wide range of circumstances. Section 38(1) provides:

    Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—

    (a)     to be of good behaviour; and

    (b)     to comply with the other conditions (if any) of the bond.

30. The courts have repeatedly and consistently emphasised that a suspended sentence is a very real punishment.  The first such enunciation was that of Bray CJ in Elliot v Harris (No 2),[14] where his Honour stated: [15]

    So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant’s record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency.  A liability over a period of years to serve and automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, no matter how slight, can hardly be described as no punishment.

    Over the ensuing decades, these remarks have been adopted, applied, reaffirmed and echoed on numerous occasions.[16]

    [14] Elliot v Harris (No 2) (1976) 13 SASR 516.

    [15] Elliot v Harris (No 2) (1976) 13 SASR 516 at 527.

    [16] See for example R v Harris (2001) 122 A Crim R 241 at [42]-[48] (Gray J); R v Regan [2003] SASC 287 at [27], [24]; Vartzokas v Zanker (1989) 51 SASR 277 at 279 (King CJ); R v Jarrett (1992) 58 SASR 457 at 459 (King CJ).

1. Counsel for the prosecution referred the Court to Manglesdorf in support of his submission that for offending such as the present, suspension of a term of imprisonment will only be justified in rare and exceptional cases.  Reliance was placed on the remarks of Doyle CJ, where he concluded that for offending involving commercial trading or dealing, “suspension must be rare indeed”:[17]

   The court has also made it clear that a suspended sentence will be justified only in truly exceptional circumstances when the offence is one involving, or committed against, a background of involvement in commercial trading or dealing in the drugs dealt with by s 32.

   [17] R v Manglesdorf (1995) 66 SASR 60 at 63.

2. In Gjoka,[18] Doyle CJ qualified his remarks in Mangledorf by observing:

   The power to suspend a sentence is conferred by s38 of the Sentencing Act. The court may suspend a sentence “…if it thinks that good reason exists for doing so.” That is the statutory criterion, and that is the test to be applied.

   Nevertheless, it is appropriate for this Court in particular cases to determine, as it did in Manglesdorf, that the nature or gravity of an offence is such that suspension will not be appropriate unless exceptional circumstances are present. To do so is not to displace the statutory criterion.  It is to do no more than to indicate that because the statutory criterion has to be applied in light of the circumstances of the case, the seriousness of a certain type of offence and the appropriate approach to punishment for that offence may combine to mean that it will be very difficult to justify suspension.

   [18] R v Gjoka (unreported, Court of Criminal Appeal, SA, No S6211 of 1997, 1 July 1997).

3. The correct test to be applied by a sentencing judge when considering whether or not to suspend a sentence of imprisonment was recently discussed by Layton J in Hill.[19]  Her Honour discussed the question, whether the applicable test was the “exceptional circumstances” test as discussed in Manglesdorf or the “good reason” test established by the legislature. 

   [19] R v Hill [2005] SASC 380 at [45]-[51].

4. There is a substantial and important difference between the two tests.  The “good reason” test established by the legislature requires the sentencing judge to consider all of the circumstances of the individual case before him or her and make an assessment as to whether those circumstances give rise to good reason to suspend the sentence.

5. On the other hand, the “exceptional circumstances” test implies that a sentencing judge ought to compare the circumstances of the instant case with other cases and determine whether there are aspects of the instant case that set it apart from the other cases and thereby justify an exercise of the discretion to suspend.  In this way, the “exceptional circumstances” test represents a significant departure from the test set down by Parliament.

6. It is a well-established principle of statutory construction that it is the words of the statute that ultimately govern and not the many subsequent judicial expositions of that meaning which have sought to express the operation of the provision.[20]  This principle was discussed by the Privy Council in Ogden Industries Pty Ltd v Lucas,[21] where Lord Upjohn, delivering the advice of the judicial committee, observed:[22]

   It is quite clear that judicial statements as to the construction and intention of an Act must never be allowed to supplant or supersede its proper construction and courts must beware of falling into the error of treating the law to be that laid down by the judge in construing the Act rather than found in the words of the Act itself. 

   No doubt a decision on particular words binds inferior courts on the construction of those words on similar facts but beyond that the observations of judges on the construction of statutes may be of the greatest help and guidance but are entitled to no more than respect and cannot absolve the court from its duty of exercising an independent judgement.

   Windeyer J expressed the principle in similar terms in Damjanovic & Sons Pty Ltd v Commonwealth:[23]

   [R]easoning by analogy is a rather different process in the development of the common law from its use in the interpretation and application of a statute or of the Constitution…. The process [interpreting and applying a statute] is then one of deduction and subsumption, rather than of imperfect induction.  The words of the enactment provide the major premise.  The result is not, or ought not to be, the establishment of any secondary principle embodied in new words, but at most the provision of an illustration of the effect in a new setting of the original principle expressed in the original words.

   [20] Bohdan Weiss v The Queen [2005] HCA 81.

   [21] Ogden Industries Pty Ltd v Lucas [1970] AC 113.

   [22] Ogden Industries Pty Ltd v Lucas [1970] AC 113 at 127.

   [23] Damjanovic & Sons Pty Ltd v Commonwealth (1968) 117 CLR 390 at 408-409.

7. Properly understood, Doyle CJ’s remarks in Manglesdorf were intended to convey that in the case of drug-trafficking offences where general deterrence will weigh heavily in the balance of the sentencing judge’s discretion, it will be an exceptional case where good reason can exist to justify suspending a term of imprisonment.  Doyle CJ made this clear in Gjoka by concluding, “[good reason] is the statutory criterion, and that is the test to be applied”.  The remarks in Mangelsdorf do not fetter the sentencing judge’s discretion.  Counsel for the prosecution’s submission that Manglesdorf is authority for the principle that, in relation to drug-trafficking offences, a custodial sentence can only be suspended in exceptional cases, is incorrect.

8. The test for suspension established by the legislature is whether, in the discretion of the court, good reason exists to suspend.  This is the test to be applied by sentencing judge’s in exercise of the discretion to suspend sentences.  To state that, in addition to there being good reason to suspend, a case must also be rare or exceptional before suspension will be justified is to add a gloss to the words of the statute. 

9. The submission of counsel for the prosecution that a particular case must be within a rare and exceptional category before a sentence can be suspended should be rejected.

10. The remarks of the sentencing judge set out above make it abundantly clear that, in exercising his discretion to suspend the term of imprisonment imposed, the judge considered and weighed all relevant factors.  Faced with a remorseful and contrite defendant with no relevant criminal history and good prospects for rehabilitation, it was open to the sentencing judge to impose a suspended sentence of imprisonment. 

11. In the present circumstances, the sentencing judge adopted the view that there was good reason to suspend the term of imprisonment that he imposed.  In the absence of any specific error having been established, it is inappropriate for this Court to interfere with the judge’s exercise of discretion.  I would also refuse leave on this ground.

    Conclusion

12. Leave to appeal should be refused.

13. VANSTONE J:     The Director of Public Prosecutions applies for leave to appeal against a sentence imposed in the District Court for possessing cannabis for sale.  The respondent was found in possession of a little over 7 kg of female plant material, packaged in 16 individual bags of roughly equal weight.  At the time of his arrest he was travelling with the cannabis on a Greyhound bus from Adelaide to Alice Springs and Darwin.  The cannabis was estimated to be worth about $40,000.

14. The respondent pleaded guilty upon his first arraignment.  The maximum penalty for the offence is a fine not exceeding $50,000 or imprisonment for 10 years, or both.  That maximum applies to several offences of a different character, including producing and selling cannabis.  The sentence imposed was one of one year and eight months imprisonment, with a non-parole period of one year, suspended upon entry into a two year good behaviour bond, with supervision.  The Director complains both that the sentence was manifestly inadequate and as to the suspension of it. 

15. The respondent is 41 years of age.  His only prior convictions are for driving offences and are suggestive of alcohol abuse. 

16. It was put to the sentencing judge, and accepted by the prosecutor, that the respondent was acting as a courier, in transporting the cannabis.  He was said to be a longstanding user of cannabis and had agreed to his supplier’s persistent suggestion to carry the cannabis on promise of payment of $1,000, plus an amount for his bus ticket.  The suitcase containing it was said to have been delivered to him in a pre-packaged form.  His apprehension occurred at a checking station, where a sniffer dog examined all luggage on the bus.

17. About six months before the offence the respondent lost his employment.  However, prior to that, his work record was consistent.  References to that effect were presented.  The offence occurred against a background of some health issues, including serious injuries sustained in a motor cycle accident in 2003 and an estrangement, not of his choosing, from his two teenage sons.  A psychologist assessed him a couple of months prior to sentence as suffering from “severe generalised stress and post traumatic stress”.  She noted he had given up cannabis, ceased contact with his former supplier and found casual work pending sentence.  The psychologist through it was unlikely that he would re-offend.

18. The learned sentencing judge heard quite extensive submissions as to the sentence, including from the prosecutor.  He was referred to a number of relevant authorities dealing with sentences for cannabis offences, among them R v Harris (2001) 122 A Crim R 241, to which I shall return in a moment. In his remarks the judge systematically set out the important features of the offence and highlighted the relevant personal factors. His Honour referred to R v Morton (1987) 136 LSJS 182 in which the seriousness of acting as a courier is discussed. His approach or analysis was not in any way flawed. He took as his starting point a sentence of two years and one month, and reduced it by a fifth to reflect the plea of guilty. Although I agree with the applicant that the head sentence was a moderate one, I consider it to be within the range available to the judge. He described the decision as to whether there was good reason to suspend the sentence as “borderline”.

19. In Harris the Court was concerned with the prisoner’s appeal against an immediate custodial sentence of two years and three months, with a non-parole period of nine months, for a single offence committed in very similar circumstances to this one.  There, the offender was 28 years old, of good character and had an excellent work record.  The quantity of cannabis he was to transport to Sydney, was only slightly more than in the instant case.  Mr Harris had a de facto wife and dependent child.  By majority, (Olsson and Perry JJ) the Court dismissed the appeal.  Olsson J held that in declining to suspend the sentence the sentencing judge was correct.  He said (at 244) that “[g]ood reason to suspend had simply not been made out”.  However, Perry J (also at 244) described the question of suspension as “very much a matter for the discretion of the learned sentencing judge.  His Honour said he would have exercised it in the same way as did the sentencing judge.  Gray J would have suspended the sentence.  In the state of the judgments, the decision is little more than an example of the exercise of a sentencing judge’s discretion being upheld.  It does not dictate any specific approach to sentences for single offences of this type.

20. In submissions on behalf of the applicant, counsel sought to apply remarks made by the Chief Justice in R v Mangelsdorf; Perry & Richards (1995) 66 SASR 60, 63 and argued that “exceptional circumstances” should have been required before the sentence under review was suspended. It is noteworthy that the Chief Justice’s remarks in that matter (at page 63) were directed to cases where “the offence is one involving, or committed against, a background of involvement in commercial trading or dealing in the drugs dealt with by s 32”. This is not such a case.

21. Neither is the heavy maximum penalty faced by the respondents Mangelsdorf and Perry applicable here.  The importance of adverting to the relevant maximum penalty was emphasised in Markarian v R (2005) 215 ALR 213 at [30]-[31] in the joint judgment of Gleeson CJ, Gummow, Hayne and Callinan JJ. The starkly different maxima also distinguishes this case from R v Nguyen [2005] SASC 329 and R v Errigo (2005) 92 SASR 562, upon which counsel also placed reliance.

22. The principles applicable to prosecution appeals are well established.  The court should only grant leave in a “rare and exceptional case” when it is necessary to establish a matter of principle:  Everett v The Queen (1994) 181 CLR 295, 299-300. Where a sentence is so low as to shake public confidence in the administration of justice, it can indicate error or departure from principle: Griffiths v The Queen (1977) 137 CLR 293, 310 per Barwick CJ; R v Nemer (2003) 87 SASR 168, 172 per Doyle CJ. But mere inadequacy of the sentence, even manifest inadequacy, does not, of itself, justify the grant of leave. Careful and distinct consideration must be given to the question of the grant of leave: Malvaso v The Queen (1989) 168 CLR 227, 234-5.

23. In my view there is, in this case, no question of principle at stake.  It must be remembered that the primary responsibility for sentencing is that of the sentencing judge.  The views of those whose almost daily task is the sentencing of prisoners must command respect:  Griffiths at 310. As King CJ observed in R v Osenkowski (1982) 30 SASR 212-213:

    It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges.  There must always be a place of the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case.  There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.

    As I have said, the respondent has no prior convictions of any significance.  Leaving that aside, I consider that those remarks apply with full force to this case.  In my view the sentence was moderate and the respondent was fortunate in its suspension.  However I consider it should stand.  If the respondent justifies the confidence placed in him by the learned sentencing judge then the community’s interests will be advanced.  I do not consider that our declining to intervene in this matter in any way derogates from the strong statements regularly made in this court as to the seriousness of offences such as these, or as to the range of sentences appropriate to them.

24. I would refuse leave to appeal.

25. ANDERSON J      I have read the reasons in draft of both Gray and Vanstone JJ.  I agree that leave to appeal should be refused for the reasons given by Vanstone J.

26. I do not consider in the circumstances of this case that there is a need to consider any test other than the “good reason” test in the exercise of a discretion to suspend the sentence. That is the test set out in s 38(1) of the Criminal Law (Sentencing) Act 1988 (SA). In my view, there was no justification in this case for attempting to elevate that test, as counsel for the prosecution did, to say that suspension of a term of imprisonment should only be justified in rare and exceptional cases.

27. As Vanstone J points out in her reasons, the remarks by Doyle CJ in R v Mangelsdorf; Perry and Richards (1995) 66 SASR 60 were explicitly directed to cases set against a background of commercial trading. I agree with Vanstone J that this is not such a case. I agree also with her Honour as to the difference in maximum penalty applicable in this case compared with those in Mangelsdorf.

28. As previously indicated, I would refuse leave to appeal.