R v Farquhar
[2023] SASCA 98
•21 September 2023
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v FARQUHAR
[2023] SASCA 98
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice David and the Honourable Justice Nicholson)
21 September 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING
This is a Crown appeal against sentence.
The respondent pleaded guilty to four counts of trafficking in a large commercial quantity of a controlled drug, and three counts of trafficking in a commercial quantity of a controlled drug. On 3 August 2022, pursuant to section 26 of the Sentencing Act 2017 (SA), the sentencing Judge imposed a single penalty for all seven offences of imprisonment for four years, six months and 19 days. A non-parole period of three years, seven months and 22 days was fixed.
The respondent was a participant in a substantial drug trafficking syndicate which was infiltrated and ultimately undone by the Australian Federal Police in Operation Ironside. The respondent acted in the role of courier with respect to each of the seven charged offences involving the trafficking of heroin and methamphetamine obtained for sale throughout 2020 and 2021.
The Director of Public Prosecutions (SA) sought permission to appeal on the ground of manifest inadequacy.
Held (per Lovell and David JJA) granting permission to appeal and allowing the appeal:
1.The sentence imposed was manifestly inadequate. To allow the sentence to stand would undermine public confidence in the administration of justice notwithstanding the hardship to the respondent in being re-sentenced to a significantly lengthier sentence.
2.Pursuant to s 26 of the Sentencing Act 2017 (SA), the respondent is re-sentenced to a term of imprisonment for 13 years and 6 months reduced by 35 per cent on account of his guilty pleas to eight years, nine months and ten days. A non-parole period of seven years and eight days is fixed, that being four-fifths of the head sentence. The sentence is to commence on 7 June 2021.
Held (per Nicholson AJA) refusing leave to appeal:
1.The sentence imposed by the sentencing Judge was manifestly inadequate.
2.However, the public policy considerations in favour of avoiding the respondent from being seriously twice vexed are such that permission to appeal should be refused.
Controlled Substances Act 1984 (SA) ss 32(1), 32(2); Criminal Law (Sentencing) Act 1988 (SA) s 18A(1); Criminal Law Consolidation Act 1935 (SA) ss 340, 353(4)(a)(i); Criminal Procedure Act 1921 (SA) ss 150, 158(7); Sentencing Act 2017 (SA) ss 26, 26(2a), 40(3)(a)(ii), 53, 54; Statutes Amendment (Child Sexual Abuse) Act 2021, No 57, referred to.
R v Cao [2012] SASCFC 32; R v Kong (2013) 115 SASR 425; R v Mema [2011] SASCFC 56; R v Mustac (2013) 115 SASR 461; R v Nemer (2003) 87 SASR 168; R v Yavuz; R v Soyler; R v Bayraktar (2018) 130 SASR 231; R v Young (2016) 126 SASR 41, discussed.
Attorney-General v Tichy (1982) 30 SASR 84; Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; Cuong v The Queen [2021] SASCA 89; Everett v The Queen (1994) 181 CLR 295; Hili v The Queen (2010) 242 CLR 520; R v Buttigieg [2020] SASCFC 38; R v CAB [2020] SASCFC 33; R v Harkin [2011] SASCFC 24; R v Harradine [2019] SASCFC 144; R v Harris (2001) 122 A Crim R 241; R v Henderson [2023] SASCA 42; R v Hunter [2022] SASCA 136; R v Kelly [2023] SASCA 22; R v Keut [2021] SASCA 39; R v Lumsden [2020] SASCFC 3; R v McPartland & Polkinghorne [2014] SASCFC 84; R v Morse (1979) 23 SASR 98; R v Morton (1987) 28 A Crim R 409; R v Nguyen [2022] SASCA 124; R v Payne (2004) 89 SASR 49; R v Rombola [2020] SASCFC 76; R v Yaroslavceff [2022] SASCA 123, considered.
R v FARQUHAR
[2023] SASCA 98Court of Appeal – Criminal: Lovell and David JJA and Nicholson AJA
LOVELL AND DAVID JJA: This is an application for permission to appeal against sentence by the Director of Public Prosecutions (SA) (‘the Director’).
Stuart Farquhar, the respondent, pleaded guilty to seven counts of serious commercial drug trafficking: four counts of trafficking in a large commercial quantity of a controlled drug, contrary to s 32(1) of the Controlled Substances Act (1984) SA (‘the CSA’), for which the maximum penalty is life imprisonment or a fine of $1,000,000 or both; and three counts of trafficking in a commercial quantity of a controlled drug, contrary to s 32(2) of the CSA, for which the maximum penalty is 25 years imprisonment or a fine of $200,000 or both. The offences were committed over about six to seven months from November 2020 to June 2021, and involved the respondent taking possession of, and transporting, large quantities of methylamphetamine and heroin on the behalf of a lucrative drug syndicate who communicated via the AN0M platform.
On 3 August 2022, the sentencing Judge proceeded pursuant to s 26 of the Sentencing Act2017 (SA) (‘the Sentencing Act’) and imposed a single penalty for all seven offences. A starting point of imprisonment for seven years was adopted which was reduced by 35 per cent on account of the respondent’s guilty pleas to a head sentence of four years, six months, and 19 days. The respondent was sentenced as a serious repeat offender. Accordingly, a non-parole period of three years, seven months, and 22 days was fixed, that being four-fifths of the head sentence.
The sole ground of appeal is that the sentence was manifestly inadequate. The Director contended that the head sentence and non-parole period required correction in accordance with well-established principles, primarily to maintain sentencing standards for serious drug trafficking committed in the context of a highly organised drug syndicate. Whilst the sole ground of appeal is the adequacy of the sentence, the Director submitted that it is likely the ‘outcome error’ was the result of the inadequacy of the nominal sentences adopted for each individual offence, and an erroneous approach to concurrency of the notional head sentences. The Director contended that these matters explained the manner in which the sentencing Judge reached a manifestly inadequate sentence.
Factual circumstances of the offending
The respondent fell to be sentenced for seven offences which were charged on four separate files. They were as follows:
a.File DCCRM-21-1058 – one count of trafficking in a large commercial quantity of a controlled drug (2.377 kilograms of methylamphetamine) and one count of trafficking in a commercial quantity of a controlled drug (686 grams of heroin). The offending occurred on 7 June 2021.
b.File DCCRM-22-167 – two counts of trafficking in a large commercial quantity of a controlled drug (20 kilograms of methylamphetamine on 4 January 2021, and a further 10 kilograms of methylamphetamine on 24 March 2021).
c.File DCCRM-22-207 – one count of trafficking in a large commercial quantity of a controlled drug (5 kilograms of heroin) on 15 November 2020.
d.File DCCRM-22-208 – two counts of trafficking in a commercial quantity of a controlled drug (each count relating to 350 grams of heroin). The offending the subject of Count 1 occurred between 26 and 29 January 2021 and the offending the subject of Count 2 occurred between 30 March and 23 April 2021.
Between June 2020 and June 2021, the respondent participated in a lucrative and highly organised drug trafficking syndicate undertaking the role, primarily, of a courier. He acted upon the directions of those leading the syndicate. He was in possession of an AN0M device which he used to communicate with other members of the syndicate. Shortly after he was engaged by the syndicate in June 2020, he purchased a specific vehicle fitted with a hidden compartment so that illicit drugs and money could be secreted while in transit. He also stored illicit drugs and money at his home pending transit and was responsible, on occasion, for dividing the drugs into quantities for further adulteration and distribution by other members of the syndicate. He was entrusted with large sums of cash to pay other persons working for the drug syndicate.
The charged offences were not isolated but occurred against a background of other similar uncharged acts. It is evident from communications on the AN0M device that the respondent collected wholesale amounts of methylamphetamine and heroin from interstate sources on behalf of leaders of the syndicate, carried out internal deliveries to syndicate members, and acted as a delivery driver to facilitate sales to third parties.
More specifically, the factual circumstances of the charged offending were as follows.
File DCCRM-21-1058
These offences were the last in time. Police attended at the respondent’s home on 7 June 2021. It was one of many police attendances that day at various premises across South Australia as part of a broader police investigation known as ‘Operation Ironside’. Upon a search of the respondent’s premises, police seized methylamphetamine, heroin, cash, a set of digital scales, several mobile telephones (including the AN0M device) and an ice pipe.
Count 1 related to 2.377 kilograms of methylamphetamine located in the respondent’s bedroom in a locked metal container. This quantity was not associated with any other charged act of drug trafficking but rather, was a separate and distinct consignment (not related to other charges).
Count 2 related to 686 grams of heroin located in the same bedroom, and in the same locked metal container. This quantity of heroin was what remained of 1.5 kilograms of ‘white’ heroin imported by the drug syndicate on 13 January 2021 (uncharged). The respondent’s dealings in respect of that quantity of heroin (being the 1.5 kilograms less the remaining 686 grams) is the subject of separate charges on file DCRRM– 22-208.
File DCCRM-22-167
These charges were drawn from communications had over the AN0M device. On 4 January 2021, the respondent met a truck travelling from New South Wales to Adelaide and took possession of 20 kilograms of methylamphetamine. He gave $37,500 in cash to the driver, that money having been provided earlier by leaders of the drug syndicate. The same day, the respondent delivered five kilograms of methylamphetamine to other members of the drug syndicate who were responsible for adulterating it and distributing it more broadly. (Count 1) On 5, 8 and 18 January 2021, at the direction of drug syndicate leaders, the respondent made similar, separate deliveries of five kilograms of methylamphetamine on each occasion, as well as transporting quantities of cash paid for the drugs back to the syndicate leaders.
There is an AN0M message which related to the profit made by the drug syndicate from the sale of the abovementioned 20 kilograms of methylamphetamine. It is to the effect of a financial reconciliation or profit/loss statement and says:
TOTAL IN: 2,850.00
LESS COST: 2,200.00
LESS WAGES: 72.00
TOTAL: 578.00 /3 = 192.65
COST: 2,200.00
PROF: 385.30
TOTAL: 2,585.30
PAID: 1,861.50
BALANCE: 723.80
In short, this message revealed that: the cost of the 20 kilograms of methylamphetamine was $2.2 million; it was on-sold (after adulteration) for $2.85 million; the drug syndicate spent $72,000 on wages resulting in a total profit of $578,000; and the profit was to be divided three ways amongst the leaders of the drug syndicate (not the respondent), with each individual profit being about $192,666. Presumably, the respondent was paid some of the amount referred to as ‘wages’ for his role in the distribution of the drugs.
On 24 January 2021, the respondent met with another truck driver and took possession of 10 kilograms of methylamphetamine (Count 2). He confirmed that he was in possession of the drug by sending a photograph of it to others in the drug syndicate. On 25 March, 8 April, and 4 May 2021, the respondent delivered smaller portions of this methylamphetamine to other drug syndicate members responsible for adulterating it and distributing the drug more widely.
File DCCRM-22-207
This charge relates to five kilograms of ‘brown’ heroin which was obtained by the syndicate for the purposes of sale on, or about, 15 November 2020. Due to its poor quality, the syndicate was unable to on-sell the drug in November and December 2020, and it was returned to the supplier. This quantity of heroin does not relate to any other charged quantity.
File DCCRM-22-208
On 13 January 2021, other members of the syndicate imported 1.5 kilogram of ‘white’ heroin. On that date, the respondent took possession of the heroin from other syndicate members and stored it at his home until 28 January 2021, at which time, at the instruction of the syndicate leaders, he weighed it into 350 gram portions and transported it to a café on Prospect Road, where he delivered it to another syndicate member (Count 1).
On 31 March 2021, the respondent was directed to divide another 350 grams of heroin (originally a part of the imported 1.5 kilograms) into two, 175 gram portions. At the direction of syndicate members, he delivered the two, 175 gram portions to an unknown person and collected $70,000 (Count 2). The respondent then confirmed with syndicate leaders via his AN0M device that the transaction was complete and sent them a photograph of the remaining quantity of heroin on a set of scales. That image disclosed 686 grams of heroin (which is the subject of Count 2 on File DCRRM-22-1058).
It is evident from a recitation of the factual circumstances of the charged offending, and indeed on reviewing the AN0M device material, that the respondent was a trusted member of this drug syndicate; he was not only responsible for collecting and transporting large quantities of drugs on their behalf but was also, on occasion, provided with large sums of cash to pay other persons for their involvement in trafficking drugs. He received cash from wholesale purchasers of the drugs on behalf of leaders of the syndicate. The respondent was trusted by the syndicate to store vast amounts of methylamphetamine and heroin at his home, for weeks and months, before transporting the drugs to other syndicate members for adulteration and further distribution.
Whilst the respondent did not receive a share of the profits of the sale of the drugs, he received financial payment or ‘wages’ for his role in the syndicate. His role was an integral and necessary part of a highly organised, lucrative syndicate, responsible for distributing vast amounts of methylamphetamine and heroin in South Australia.
The respondent’s personal circumstances
The respondent was aged between 29 and 30 at the time of the offending; he was 31 at the time of sentence. He has no prior convictions.
The respondent had an unremarkable childhood, although he had a difficult relationship with his father, who suffered from alcoholism and poor mental health. He was living with his mother at the time of this offending, and he continues to have a close relationship with her. He has four siblings (one of whom is jointly charged with the offending) with whom he is on good terms. They are a close family.
The respondent left school in year 11, aged 16 years old. Since leaving school he has been largely unemployed, and in receipt of government benefits. The respondent started using cannabis as a teenager and developed an addiction to methylamphetamine when he was about 27 years old. At the time of the offending, he was using up to 2 grams of methylamphetamine or ice, and 0.5 grams of cocaine per day.
The respondent, at the age of 16 years, was diagnosed with obsessive compulsive disorder (‘OCD’). This causes him to suffer distressing intrusive thoughts about harming others and himself. Since being remanded in custody he has been prescribed Paroxetine which has been beneficial in stabilising his mental health. He has also, in the past, been diagnosed with a Bipolar Affective Disorder Type II and is prone to depression and anxiety. He has a history of parasuicidal behaviour by taking excessive doses of illicit drugs.
In a psychological report dated 31 March 2023, Mr Richard Balfour, considered that the respondent’s offending could be characterised as ‘a strategy to support (his) severe drug addictions. There is no suggestion that he has led an opulent lifestyle, or gone on an extravagant spending spree.’ The respondent reported to Mr Balfour that he engaged in the charged offending to pay for his drug addiction and that illicit drug use helped him cope with his mental health issues. To that extent, the respondent’s offending was connected to his poor mental health. Mr Balfour considered that without the assistance of a supervised, structured rehabilitation program, the respondent’s prognosis to cease offending was poor, and his rehabilitation was linked to the successful treatment of his mental health. He considered any process of rehabilitation will be lengthy (two to three years).
Mr Balfour also noted that the respondent expressed remorse for his offending and demonstrated some insight into the adverse effects of illicit drugs, and his offending, on the broader community.
Sentencing remarks
The sentencing Judge, in his remarks, set out the factual circumstances of the offending in similar terms as above. His Honour noted that the offending took place over four months (when in fact it occurred over six to seven months), and that the respondent was in possession of an AN0M device which he used to communicate with other members of the syndicate. Further, he purchased a specific vehicle to undertake his courier duties which was fitted with a hidden compartment to secrete illicit drugs. He also stored controlled drugs and money at his home pending transit.
The sentencing Judge outlined the respondent’s personal circumstances.
His Honour then turned to sentence, referring to the respondent’s role in the drug syndicate noting that, ‘while he was acting [as] a courier and an assistant to major drug figures, he must have known the extent to which his involvement was providing assistance to those much higher in the pecking order of drug traders.’ His Honour also referred to the authorities of R v Harris[1] and R v Morton,[2] where the Court of Criminal Appeal emphasised that a drug courier is an important link in the overall chain of drug dealing.
[1] (2001) 122 A Crim R 241.
[2] (1987) 28 A Crim R 409.
The sentencing Judge noted that the respondent was ‘an individual motivated by financing a drug addiction but one who is a significant assistant in a very serious drug trafficking syndicate, the size and extent of which he must have been aware of through his involvement.’ After referring to R v Young,[3] his Honour said, ‘it is difficult to see how a range could be applicable which is less than the four to seven years thought by the majority to be appropriate for a street dealer motivated to a greater or lesser extent by profit.’
[3] (2016) 126 SASR 41.
His Honour then proceeded to indicate the following notional sentences for each offence in accordance with s 26(2a) of the Sentencing Act:
Court file no Count Offence Weight Notional sentence DCCRM-21-1058 1 Trafficking in a Large Commercial Quantity (methylamphetamine) 2.377kg 6 years
(wholly concurrent)2 Trafficking in a Commercial Quantity (heroin) 686g 4 years
(wholly concurrent)DCCRM-22-167 1 Trafficking in a Large Commercial Quantity (methylamphetamine) 20kg 3 years
(wholly concurrent)2 Trafficking in a Large Commercial Quantity
(methylamphetamine)10kg 3 years
(1 year cumulative)DCCRM-22-207 1 Trafficking in a Large Commercial Quantity (heroin) 5kg 3 years
(wholly concurrent)DCCRM-22-208 1 Trafficking in a Commercial Quantity (heroin) 350g 3 years
(wholly concurrent)2 Trafficking in a Commercial Quantity (heroin) 350g 3 years
(wholly concurrent)
Pursuant to s 26 of the Sentencing Act, his Honour adopted a starting point of seven years imprisonment for all offences which was reduced by approximately 35 per cent on account of the respondent’s guilty plea to four years, six months, and 19 days. A non-parole period of three years, seven months and 22 days was fixed, that being four-fifths of the head sentence, as the respondent was a serious repeat offender. His Honour ordered the sentence to commence on 8 June 2021, when the respondent was taken into custody.[4]
[4] It is to be noted that the sentence ought to have been backdated one day earlier, to 7 June 2021, being the date of the respondent’s arrest. In relation to this appeal, it is jointly submitted that should the respondent be resentenced, the term of imprisonment be backdated to commence on 7 June 2021.
Manifest inadequacy
The Director’s overarching submission was that the ultimate sentence imposed pursuant to s 26 of the Sentencing Act was so low that it fell outside the permissible range of sentences for the overall offending. The Director also contended that the notional sentence imposed for each offence was also so low as to reveal error, having regard to the standard referred to in R v Young, and that it was inappropriate to order that the sentences be served largely concurrently.
In R v Young, Blue J outlined the features relevant to an evaluation of the seriousness of drug trafficking offences. His Honour said:[5]
… the quantity, purity and varieties of the drug or drugs involved; the defendant's position in the drug trafficking hierarchy; the defendant's role in the trafficking (eg principal/sole trader, courier, handler, assistant etc); the level of reward the defendant may be expected to have received as a result of the trafficking; whether the trafficking was undertaken solely for profit or solely to support a drug addiction or a combination; whether the offending was an isolated transaction or part of a course of conduct and in the latter case the period over which the defendant undertook the trafficking. The relevance of these features follow from the legislature's prescription of relevant factors in section 44 of the Act.
[5] R v Young (2016) 126 SASR 41 at [216] per Blue J (with whom Doyle J agreed).
In separate reasons, Kourakis CJ considered that whilst a sentence in the range of four to seven years is appropriate for street level dealers who are motivated to a greater or lesser degree by profit, a more significant sentence is required for offenders whose offending can be characterised as mid-level:[6]
Sentences approaching the 10-year maximum for the base trafficking offence must be reserved for those middle order dealers, and persistent, recidivist street dealers.
[6] R v Young (2016) 126 SASR 41 at [68] per Kourakis CJ (with whom Vanstone and Stanley JJ agreed).
In the present case, the respondent fell to be sentenced as a member of a highly organised and lucrative drug syndicate within which his role was to collect and transport large quantities of methylamphetamine and heroin to other members of the syndicate to further distribute, as well as to courier drugs to third parties such as wholesale purchasers of the drugs, and, on occasion, to store and divide the drugs at his residential premises. He was also entrusted with large amounts of cash on behalf of the syndicate. The respondent was paid for his services. It is evident that the respondent’s role was more than a ‘mere courier’.
The Director relied on recent authorities of this Court involving the trafficking of large amounts of methylamphetamine.[7] However, while providing general guidance as to the application of the standard enunciated in R v Young, these authorities do not concern offenders with a similar role in the drug trafficking hierarchy as that of the respondent.
[7] R v Rombola [2020] SASCFC 76; R v Keut [2021] SASCA 39; Cuong v The Queen [2021] SASCA 89; R v Nguyen [2022] SASCA 124; R v Hunter [2022] SASCA 136.
The Court of Criminal Appeal has considered numerous sentence appeals involving drug trafficking offences where the offender was acting in the role of a courier or a role similar, but more serious, than a courier. However, these matters generally involve the drug cannabis rather than the more serious drugs of heroin and methylamphetamine.
In R v Mema,[8] the applicant pleaded guilty to two counts of trafficking in a large commercial quantity of cannabis. His role was to package and load the cannabis for transport to New South Wales for wholesale purchase by persons intending to on-sell the drugs. The first count involved 15 kilograms of cannabis, and the second count involved 7.3 kilograms of cannabis. The sentencing judge adopted a starting point of six and a half years imprisonment for both offences. The Court dismissed the appeal against sentence and characterised the sentence as ‘moderate’.
[8] [2011] SASCFC 56.
In R v Mustac,[9] the Director of Public Prosecutions (SA) sought permission to appeal against a sentence imposed in the District Court for one count of trafficking in a large commercial quantity of cannabis, namely 20.9 kilograms. The respondent was sentenced to imprisonment for three years with a non-parole period of one year. He acquired a vehicle with a secret compartment, travelled from New South Wales to South Australia, sourced the cannabis and was apprehended during his return trip to New South Wales. He was sentenced on the basis that he was a ‘middleman’ in an interstate cannabis drug syndicate. He had a prior conviction for supplying a commercial quantity of cannabis. The Court allowed the appeal, and in re-sentencing the respondent adopted a starting point of eight years imprisonment reduced to seven years and six months on account of his guilty plea with a non-parole period of five years.
[9] (2013) 115 SASR 461.
In R v Yavuz; R v Soyler; R v Bayraktar[10] each of the appellants pleaded guilty to two counts of trafficking in a large commercial quantity of cannabis. Soyler’s offending was confined to his participation in the transportation of two consignments from South Australia to Western Australia. The two consignments involved a total of 32 pounds of cannabis with a wholesale value of about $128,000. The appellant became involved in the offending through his friendship with the co-offender Yavuz. In relation to the first consignment, he was sentenced on the basis that he did not know of the presence of cannabis in the vehicle in which he was travelling with an employee until after they had left Adelaide. However, he remained in Western Australia and assisted others with distributing the cannabis. He took part in the second consignment for purely financial reasons. The sentencing Judge adopted a starting point of eight years imprisonment (reduced to six years and nine months imprisonment on account of Soyler’s guilty plea) and fixed a non-parole period of three years. The Court of Criminal Appeal held that an overall starting point of eight years was not manifestly excessive. However, the appeal was allowed on the basis that there was disparity between the sentence imposed upon Soyler, when compared with the sentence imposed on Yavuz, such that it gave rise to a justifiable sense of grievance given the more serious role of Yavuz. The head sentence was reduced to five years and 11 months with a non-parole period of two years and 11 months.
[10] (2018) 130 SASR 231.
In R v Cao,[11] the appellant was sentenced for the basic offence of trafficking in a controlled drug. His co-offender, Lam, was apprehended by police travelling from Melbourne to Adelaide. He was found with heroin and methylamphetamine secreted in his vehicle. Lam pleaded guilty to one count of trafficking in a commercial quantity of heroin and one count of trafficking in methylamphetamine. Lam was sentenced on the basis he had travelled to Melbourne pursuant to an arrangement with Cao to obtain drugs and transport them back to Adelaide. Cao entrusted Lam with $99,000 to complete the transaction. The drugs were intended for sale by Cao and others in South Australia at a significant profit. For payment, Lam was to be released from a debt of $10,000. It was accepted that this was an isolated transaction. Cao was found guilty after a trial.
[11] [2012] SASCFC 32.
For Lam, the sentencing Judge imposed one penalty for the two offences and adopted a starting point of imprisonment for seven years which was reduced to five years and six months on account of his guilty plea. A non-parole period of three years and six months was fixed. There was no appeal against that sentence. For Cao, the sentencing Judge imposed a sentence of about six years and six months (after deductions for time served in custody), which was ordered to be served cumulatively on unexpired parole. Cao appealed against his sentence on the basis it was manifestly excessive. He contended there was a lack of parity between his sentence and the sentence imposed on Lam given Lam pleaded guilty to two offences rather than one basic trafficking offence. The appeal was dismissed.
The cases of R v Mustac and R v Soyler provide some assistance as the offending in each matter involved conduct more serious than a mere courier, although in R v Mustac, the offender had a prior conviction for supplying cannabis and the drugs involved were cannabis rather than the more serious drugs of heroin and methylamphetamine. The facts of R v Soyler are also less serious than in the present matter, as the offender was involved in two consignments only and had no other ongoing involvement in the drug syndicate. The cases of Mema and Cao are of less assistance as the Court of Criminal Appeal did not re-sentence either appellant. Notwithstanding the difficulties in making any direct comparisons or drawing too much from those authorities, they do suggest that the notional starting points adopted by the sentencing Judge for each offence, and the sentence ultimately imposed for all offences, was erroneously low.
In the present case, the respondent pleaded guilty to four counts of trafficking in a large commercial quantity of controlled drugs (methylamphetamine and heroin); and three counts of trafficking in a commercial quantity of a controlled drug (methylamphetamine and heroin). He fell to be sentenced as more than a mere courier. As outlined earlier, in addition to transporting large quantities of drugs to other members of the syndicate (for adulteration and distribution), and transporting drugs directly to wholesale purchasers, the respondent was entrusted to store drugs and large sums of money at his home. His offending was in no way spontaneous; it was well thought out and contrived given he purchased a vehicle specifically fitted to secrete drugs and money, and he was provided with an AN0M device which he used to communicate with other members of the drug syndicate. The charged offending occurred over about a six to seven-month period. It was not isolated, but rather, occurred against a background of similar uncharged conduct over a 12-month period. Thus, there was less scope for leniency in sentence.
The respondent was an integral and important part of a highly organised and lucrative drug syndicate. The respondent was responsible (with others) for trafficking vast amount of dangerous drugs (heroin and methylamphetamine) throughout the community, resulting in significant profit to leaders of the drug syndicate. The AN0M message referable to Count 1 on DCCRM-22-167 alone, as to 20 kilograms of methylamphetamine purchased for $2.2 million and on-sold for $2.85 million, demonstrated the significant nature of the business and its profits. Whilst the respondent did not share in the profits as a principal, his motivation was a financial one, albeit to defray the cost of his drug addiction; and he was financially rewarded for his role. His actions were necessary to the success of the drug syndicate.
The harm caused to society by the proliferation of illegal drugs by criminal syndicates such as this one, of which the respondent was an integral part, cannot be overstated. The following observations of the Court of Criminal Appeal in R v Kong[12] remain no less relevant today:[13]
There continues to be concern about the prevalence of drug abuse in our community. Since Mangelsdorf, the variety of illicit drugs available has increased. Twenty years ago, heroin was a primary concern and was considered to be the most harmful of illicit drugs. The position has changed with the promotion of methylamphetamine and the availability of a variety of illicit drugs, all of which are addictive and have very harmful effects. Research and knowledge about the effects of drugs known as “speed” and “ice” has developed. The so-called party drugs are readily available. The manufacture and importation of drugs is prevalent. The abuse of illicit drugs causes great social harm. The treatment and the management of drug addiction places a substantial financial burden on the health budgets of this State and the Commonwealth. The crimes committed by addicts to support their habits cause much loss and suffering to the community. Those who organise and participate in the distribution of illicit drugs create a serious risk of collateral injury to innocent members of the public. It is, therefore, nor surprising that in an effort to tackle the social harm caused by the abuse of illicit drugs, Parliament has imposed substantial penalties for dealing in commercial drugs to both punish and deter those who are attracted by the large profits that dealing can generate. For those reasons, general deterrence must be given great weight in the balancing of the competing sentencing objectives in the case of commercial drug dealers.
There is a recognition that, in addition to penal penalties, it is necessary to assist addicts and to provide rehabilitation programs. Rehabilitation is an important part of the sentencing process.
The range of penalties for drug offences must recognise that there is a concern in the community about the effect of illicit drug consumption, particularly upon the younger generation. Further, many of those who are involved at the higher end of drug trafficking are also involved in other criminal conduct. Many crimes of violence are committed in a background of drug offending. It follows that this Court should give guidance as to the range of penalties that might apply to drug offending.
[12] (2013) 115 SASR 425.
[13] R v Kong (2013) 115 SASR 425 at [90]-[92] per Kourakis CJ, Sulan and David JJ.
In relation to the sentencing Judge’s indication that he would have ordered the notional sentences be served largely concurrently (but for one year), the Director did not allege a specific error in this regard. However, it is difficult to see how almost complete concurrency of the notional sentences was justified on the facts of this matter. Whilst sentencing judges need to have sufficient flexibility to craft a sentence which is ultimately proportionate to the overall offending, here, there was limited scope for such a significant degree of concurrency as was notionally indicated. The offences were separate incursions into criminal activity; and the respondent undertook different activities in respect of several of the offences, including receiving wholesale quantities of drugs, storing drugs and cash at his home, transporting drugs to other syndicate members (for adulteration and distribution) and transporting drugs externally to wholesale purchasers. The offending involved two different types of drugs. Many of the charges were separated by a considerable amount of time.
It was certainly open to the sentencing Judge to make some of the individual sentences partially concurrent or indicate, pursuant to s 26(2a) of the Sentencing Act, that he would notionally impose partially concurrent sentences. A degree of concurrency could be justified on two bases. First, all the respondent’s offending was an ongoing course of conduct committed as part of a broader drug syndicate, and his principal motivation throughout was to fund the cost of his drug addiction. Second, and more relevantly, a sentence arrived at by accumulative separate sentences will generally exceed that necessary to achieve the sentencing objectives of general and specific deterrence.[14]
[14] R v Copeland (No 2) (2010) 108 SASR 397 at [105] per Kourkis J.
Ultimately, we are satisfied that the sentencing Judge’s notional starting points for each offence, and the final sentence imposed pursuant to s 26 of the Sentencing Act, did not properly reflect the gravity of the offending and fell well below the permissible range for these offences and this offender. The seriousness of the respondent’s offending, and considerations of general and personal deterrence, called for a significant sentence. We are satisfied that the starting point of seven years for all offences (before a reduction of 35 per cent on account of the respondent’s guilty pleas) was well below the appropriate range of sentences for this offending and was manifestly inadequate.
Permission to appeal
The principles governing the grant of permission to appeal on a Crown appeal against sentence are well established. Permission to appeal will only be granted in rare and exceptional cases.[15] Manifest inadequacy in the sentence imposed will not, of itself, justify permission to appeal. However, a grant of permission may be appropriate in order to determine a matter of principle, to establish or maintain adequate sentencing standards, or to correct idiosyncratic views expressed by individual judges regarding particular approaches to offending or sentencing. A grant of permission may also be appropriate in order to correct a sentence which is so inadequate that it would undermine public confidence in the administration of justice.
[15] Everett v The Queen (1994) 181 CLR 295 at 299 per Brennan, Deane, Dawson and Gaudron JJ.
As Doyle CJ said in R v Nemer:[16]
The result of the principles established by the High Court is that to obtain leave to appeal against sentence, the Director must do more than satisfy the court that an error may have occurred. The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”. Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion.
(Citations omitted)
[16] (2003) 87 SASR 168 at [24] per Doyle CJ.
In deciding whether to grant permission to appeal, the public interest in intervening in order to achieve one or more of the above objectives must be weighed against a respondent being twice vexed by facing the prospect of being re-sentenced by an appeal court.[17]
[17] Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638 at [13]-[14] per French CJ, Gummow, Hayne, Kiefel and Bell JJ; R v Yaroslavceff [2022] SASCA 123 at [29], [69] per Livesey P and David JA (Livesey P and David JA), [72] per Doyle JA.
For the reasons outlined earlier, the ultimate sentence imposed pursuant to s 26 of the Sentencing Act, was manifestly inadequate. We are satisfied that a sentence of seven years imprisonment (before a reduction on account of the guilty pleas) for all the offences was so far below the permissible range or appropriate standard that to allow the sentence to stand would undermine public confidence in the administration of justice.
In deciding to intervene, we have not overlooked the hardship to the respondent by being re-sentenced to a significantly lengthier sentence than that imposed at first instance. However, there is no suggestion of any prosecutorial delay in this matter. The respondent has remained in custody since being sentenced and this is not a matter where he is being returned to custody after having been released into the community. Further, for the reasons given, the sentence imposed was so far below the appropriate standard as to require this Court’s intervention to maintain an adequate standard of sentencing for serious drug trafficking. We are satisfied that to allow the sentence to stand would shake public confidence in the administration of justice. It is appropriate that this Court intervene and proceed to re-sentence the respondent.
Re-sentencing
In re-sentencing the respondent, we have had regard to the factual circumstances of the offending and the respondent’s personal circumstances as outlined in these reasons.
We proceed pursuant to s 26 of the Sentencing Act and adopt a starting point of imprisonment for 13 years and six months. In accordance with s 26(2a) of the Sentencing Act, we indicate that we would have imposed the following sentences for each offence committed on a separate occasion had we not utilised s 26 and imposed one penalty for all offences.
In respect of File DCRRM-21-1058 and Count 1 involving 2.377 kilograms of methylamphetamine, we would adopt a starting point of eight years imprisonment. In relation to Count 2 involving 686 grams of heroin, we would adopt a starting point of seven years imprisonment. We would notionally order that the sentences be served concurrently except for one year given the drugs were both located at the respondent’s home on the same occasion and were part of his ongoing involvement in the drug syndicate.
In respect of File DCRRM-22-167 and Count 1 involving 20 kilograms of methylamphetamine, we would adopt a starting point of 10 years imprisonment given the vast amount of the drug. The respondent was also entrusted with $37,500 cash to pay the truck driver who transported the methylamphetamine to South Australia, and on this same occasion he delivered five kilograms of the drug to another member of the syndicate to adulterate and distribute more widely. This offence also occurred against a background of the respondent storing the methylamphetamine for several weeks and then dividing it into a further three, five kilogram quantities and then delivering each quantity of the drug on a separate occasion to other members of the drug syndicate for it to be adulterated and distributed more widely.
In relation to Count 2, involving 10 kilograms of methylamphetamine, we would adopt a starting point of eight years imprisonment given the quantity of the drug and that this offence occurred against a background of the respondent, again, dividing the drug into smaller quantities and delivering it on three separate occasions to other members of the drug syndicate for it to be adulterated and distributed more widely.
We would make the sentences for Counts 1 and 2 partially concurrent except for one year given they occurred within a close time frame to each other, and as part of the respondent’s ongoing role in the syndicate, albeit that they were separate incursions into crime.
We would make the sentence cumulative on the sentence for File DCRRM-21-1058.
In relation to File DCCRM-22-167 and five kilograms of ‘brown’ heroin, we would adopt a starting point of five years imprisonment given the quantity of the drug but noting that it was returned to the supplier without further distribution. We would make this sentence cumulative on the earlier sentences.
In relation to File DCCRM-22-208, and Count 1, involving the respondent taking possession of 1.5 kilograms of white heroin from drug syndicate members, storing it at his home, and then weighing it into 350 grams portions and transporting one portion to another syndicate member, we would adopt a starting point of six years imprisonment. In relation to Count 2, which involved the respondent dividing another 350 grams of heroin (which was originally a part of the imported 1.5 kilograms) into a further two, 175 gram portions and delivering it to an unknown person from whom he collected $70,000, we would adopt a starting point of six years but make the sentence partially concurrent with all but one year on Count 1 but cumulative on the earlier sentences.
That results in an accumulated starting point of 32 years imprisonment which, in our view, is disproportionate to the offending looked at as a whole bearing in mind the respondent’s role, although integral, was confined to transporting, storing, and dividing quantities of methylamphetamine and heroin at the direction of other leaders of the syndicate, and whilst he received financial payment for his role, he did not share in the syndicate’s profits. We consider that such a sentence would also be disproportionate having regard to the respondent’s personal circumstances, in particular his lack of prior convictions, and that he was motivated to commit the offending to defray the cost of his drug addiction which was, in part, a result of his compromised and largely untreated mental health.
Applying the principles of totality, we consider a starting point of imprisonment for 13 years and six months is properly proportionate to the offending, considered as a whole, and the personal circumstances of the offender. We consider there is reason to afford the respondent the full benefit for his guilty pleas and reduce the sentence by 35 per cent to eight years, nine months and ten days. A non-parole period of seven years and eight days is fixed, that being four‑fifths of the head sentence. The sentence is to commence on 7 June 2021, when the respondent was taken into custody.
Orders
1. Permission to appeal is granted.
2. The appeal is allowed.
3. The sentence imposed by the District Court on 3 August 2022 is set aside.
4.
The respondent is re-sentenced to imprisonment for eight years, nine months and 10 days with a non-parole period of seven years and eight days to commence on 7 June 2021.
NICHOLSON J.
Introduction
Stuart Farquhar (the respondent) was convicted in the District Court, on his pleas of guilty, of four counts of trafficking in a large commercial quantity of a controlled drug[18] and three counts of trafficking in a commercial quantity of a controlled drug.[19]
[18] Contrary to subsection 32(1) of the Controlled Substances Act 1984 (SA); the maximum penalty for each such offence is imprisonment for life or a fine of $1 million, or both.
[19] Contrary to subsection 32(2) of the Controlled Substances Act 1984; the maximum penalty for each such offence is imprisonment for 25 years or a fine of $200,000, or both.
On 3 August 2022, and pursuant to section 26 of the Sentencing Act 2017 (SA) the sentencing Judge imposed a single penalty for all seven offences, of imprisonment for four years, six months and 19 days with a non-parole period of three years, seven months and 22 days, to be served. The head sentence was arrived at after allowing a reduction of approximately 35 per cent from a starting figure of seven years. The Director of Public Prosecutions has applied for leave to appeal on the basis that the sentence is manifestly inadequate. There is no challenge to the level of discount or to the process adopted by the Judge to arrive at the starting figure of seven years.[20] However, the process adopted was unorthodox as will briefly be explained.
Factual basis
[20] This process was criticised by the applicant’s counsel during submissions but no ground of appeal is relied on in this respect.
The nature of the respondent’s involvement in trafficking
The respondent was a participant in a substantial drug trafficking syndicate which was infiltrated by and ultimately brought undone by the Australian Federal Police as a result of what has come to be known as Operation Ironside.
As a result of information received implicating the respondent and his brother, the police, on 7 June 2021, executed a general search warrant at Mount Barker premises occupied by the two men. Evidence then and subsequently acquired established that the respondent’s role was to collect very large quantities of heroin and methylamphetamine arranged by others to arrive by truck from interstate. The respondent then would deliver smaller, but still large, quantities to other persons. The respondent, at all times, operated in accordance with instructions received from others. In short, the respondent participated as a high level (bulk quantities) courier.
The charged offences are to be considered against a background of similar or related uncharged criminal conduct during the period from no later than June 2020 when the respondent purchased a vehicle fitted out with a purpose-built secret compartment until June 2021. However, the nature of the uncharged conduct has been established by the prosecution only in very general terms and, of course, the respondent is only to be sentenced for the charged offences to which he has pleaded guilty, albeit on the basis that these offences were not isolated.
Whilst it has been established that the respondent was in possession of or sought to obtain from his superiors substantial sums of money on occasions, it is not apparent whether any such sums were to be handed over to other participants or represented, in part or whole, payments for services by the respondent. Neither the sentencing Judge nor this Court on appeal was or is able to make a finding as to the value of any benefit, by way of money and/or in kind, received by the respondent on account of his syndicate participation. However, common sense directs that the benefit to the respondent must have been substantial. It is not challenged by the prosecution that the respondent’s primary motivation for his involvement with the syndicate, at least initially, was the need to support his heavy and longstanding drug addiction.
The charged offences
The respondent participated, acting in the role of courier, with respect to each of the seven charged offences. The essential facts underlying the seven counts are, in chronological order, as follows.
A. The count charged on DCCRM-22-207 (File 207)
This count relates to five kilograms (a large commercial quantity) of brown heroin obtained for the purpose of sale on or about 15 November 2020. No sale eventuated and the heroin was returned by the syndicate to the original supplier.
B. Count 1 charged on DCCRM-22-167 (File 167)
Count 1 on File 167 relates to 20 kilograms (a large commercial quantity) of methylamphetamine received on 4 January 2021 from a truck driver at which time the respondent also handed $37,500 to the truck driver. The 20 kilograms cost the syndicate $2.2 million and were subsequently sold in wholesale packages for a total return of $2.85 million. The reason for providing $37,500 to the truck driver has not been established on the evidence.
C. Count 1 charged on DCCRM-22-208 (File 208)
This count relates to 350 grams (a commercial quantity) of white heroin sold by the syndicate between 26 January 2021 and 29 January 2021. This 350 grams was part of 1.5 kilograms of white heroin imported by the syndicate on 13 January 2021 (not charged).
D. Count 2 charged on File 167
This count relates to the obtaining for sale of a further 10 kilograms (a large commercial quantity) of methylamphetamine, imported from New South Wales to South Australia on 24 March 2021.
E. Count 2 charged on File 208
This count relates to a second amount of 350 grams (commercial quantity) of white heroin sold between 30 March 2021 and 23 April 2021, also being part of the uncharged 1.5 kilograms imported on 13 January 2021.
F. Count 1 charged on DCCRM-22-1058 (File 1058)
Count 1 on File 1058 relates to 2.377 kilograms (a large commercial quantity) of methylamphetamine found in the respondent’s premises when searched on 7 June 2021. This was part or all of a consignment separate from the consignments referable to the other counts.
G. Count 2 charged on File 1058
Count 2 on File 1058 relates to 686 grams (a commercial quantity) of white heroin found on 7 June 2021 during the search of the respondent’s premises. It also was part of the 1.5 kilograms imported on 13 January 2021.
The respondent’s personal circumstances
It is sufficient to repeat here the helpful summary of the respondent’s personal circumstances provided in the Judge’s sentencing remarks.
I turn to his personal circumstances.
I have reference to an extensive report on [the respondent] from Mr Richard Balfour, a well-known psychologist, dated 31 March 2022.
I also have a reference from a friend of [the respondent] with whom he attended gym, a report of [the respondent’s] grandparents and a letter from [the respondent] in which he explains how he got to be involved in drugs and requesting leniency in sentencing.
He had an unremarkable childhood. In his words, he had a ‘good’ childhood. He lived in the Port Adelaide and West Lakes area. When he was 10 years old his family relocated to Mount Barker, where they have remained. His schooling was at four different schools, his last school been Mount Gambier High School. He left school at the age of 16 in year 11 having not achieved any particular success, and since leaving school he has been largely unemployed due to medical problems and drug addiction.
He left his mother's home at age 19 to live independently and remains on good terms with her. He is now aged 30 and lives in Mount Barker with his mother. He now has a close relationship with her. His father is aged 58 and has been chronically unemployed due to severe health problems. His mother, aged 57, is a registered nurse. His parents had endured an unhappy de facto relationship for approximately 16 years when his mother terminated the relationship. There are three sons and a daughter of the relationship. Only [the respondent] and his brother have a history of drug and alcohol abuse.
[The respondent] was not exposed to any acute traumatic events in his childhood but was psychologically abused by his father, who has a bipolar disorder brought upon him by alcoholism. He has never participated in drug and alcohol rehabilitation but is motivated to participate. He is currently unable to access rehabilitation programs because he is an unsentenced prisoner.
Since the age of 16 years he has had poor mental health and has been diagnosed with obsessive compulsive disorder. He developed an ongoing addiction to methylamphetamine and codeine in an attempt to self-medicate. He engages in high risk behaviour by pushing the limits with increasingly higher doses of illegal drugs. He suffers some of the traditional static and dynamic criminogenic risk factors which can predispose an individual towards offending behaviour. He socialises with negative peers as a means of obtaining illegal drugs.
He has no prior criminal record but his general criminogenic profile is one of being in the moderate to high risk range.
There is no evidence of an intellectual disability or acquired brain injury or neuro-developmental disorder. He presents as a 30-year-old man of average intelligence who has adequate literacy and numeracy skills but poor budgeting skills, who has barely obtained a year 10 educational standard and has been largely unemployed. He lives with his mother and was using the money which he earned through the drug syndicate he was involved with to fund his personal drug addiction. He is prone to depression and anxiety and has a history of parasuicidal behaviour. He suffers from obsessive compulsive disorder, a severe and debilitating mental disorder including distressing and intrusive thoughts about harming others and himself.
He had a dysfunctional childhood in that his father was a violent alcoholic. He has bipolar affective disorder type II. Dr Balfour opines that without the assistance of a supervised structured rehabilitation program his prognosis is poor. He has complex mental health problems and a history of entrenched drug addiction. These mental health issues have prevented him from being a contributing member of society.
While imprisoned, [the respondent] has used his time productively by participating in the greyhound rehoming program. He claims now to be motivated to participate in drug and alcohol rehabilitation as well as inclined to participate in a Certificate III in Fitness and Certificate II in Horticulture.
As I mentioned, he has no relevant antecedents and he has expressed remorse.
Relevant to the respondent’s personal circumstances are the opinions of the reporting psychologist which have not been challenged by the prosecution, as summarised at the end of Mr Richard Balfour’s report dated 31 March 2022.
1.His primary criminogenic risk factor is his drug addiction that represents a maladaptive coping strategy for his OCD. He has never had optimal treatment for his OCD. He has had limited treatment in the form of some pharmacotherapy consisting of him being prescribed paroxetine which he has found beneficial. He has never had optimal psychological treatment for his OCD. For example, he has never had Danger Ideation Reduction Therapy (DIRT) which is one of the evidence-based treatments of choice for OCD. He would be a suitable candidate. There is much that can be done to treat his OCD that has not previously been tried. I believe the successful treatment of his OCD will significantly reduce the need for him to self‑medicate with illegal drugs.
2.He has a history of polysubstance abuse problems. His main drugs of abuse have been psychostimulants (methamphetamine and cocaine) and depressants (opiates). He does not have a history of intravenous drug administration. He is not in denial regarding his drug addictions. He does not suffer from alcoholism. He has never had an opportunity to participate in assertive treatment for his addictions. There is much that can be done to directly treat his addictions. For example, he clearly has a significant opiate addiction. He could be placed on an opiate maintenance program (i.e., buprenorphine or methadone). There are also maintenance therapy programs for psychostimulant (e.g., the use of modafinil). He has been remanded in custody for the last 7 ½ months. This has had the desirable benefit of forcing him to totally withdraw from all illicit drugs. Consequently, his thinking has improved and he has been able to engage in some productive introspection regarding his problems and his future. He is now motivated to participate in drug and alcohol rehabilitation.
3.His current offending behaviour is very serious. His offending has occurred in the context of him having a pernicious drug addiction. However, he does not have an entrenched prior offending history, or exhibit great offender versatility. In view of the severity of his drug addictions, I would have expected him to have accrued a more significant prior offending history. The seriousness of his current legal circumstances has had a major salutary effect upon him. He is remorseful regarding his current offending behaviour and he has exhibited victim empathy. I believe his remorse is genuine and not self-serving.
4.His family have remained supportive of him. He does not want to further distress them by using drugs and reoffending. His family are now aware of the extent of his drug problem, and they have rallied around him.
5.I believe the type of psychosocial problems that have contributed to his current offending behaviour would respond to strict community supervision and assertive case management by a Community Corrections Officer. For example, I believe on mental health grounds, he clearly would be eligible for a Disability Support Pension because he is clearly medically unfit to work at present. I am surprised that Centrelink have previously declined his application for a DSP. I [sic] Community Corrections Officer could assist him to reapply for a Disability Support Pension.
6.He was 16 years old when he was diagnosed with OCD by Dr Chaudhary. However, he appears to have fallen through the cracks in mainstream mental health services. For example, he was not referred to the Child and Adolescent Mental Health Services (CAMHS). However, I am not criticizing either Dr Chaudhary or his GP. The ideal intervention is that he should have received intense therapy for his OCD during his adolescence whilst he was in the early stages of developing the disorder. Unfortunately, the reality is he did not receive effective early intervention by being referred to CAMHS. His situation is the equivalent of an adolescent being diagnosed with schizophrenia, but not receiving any long-term follow-up. The end result is that he has been left floundering in the community with a major mental disorder and unnecessarily enduring years of suffering that have not culminated with him coming into serious legal conflict as a result of self-medicating with illegal drugs.
I have italicised particular propositions for emphasis.
The sentence
The Judge commenced this section of his Honour’s remarks with the following observation with which I agree.
The prosecution agrees that [the respondent] acted as a courier and was not a high-standing member within the syndicate. However, syndicates such as these do not function without roles such as a courier. His difficulty is that while he was acting a courier and an assistant to major drug figures, he must have known the extent to which his involvement was providing assistance to those much higher in the pecking order of drug traders. Any sentence that I impose must highlight deterrence to the wider community as well as personal deterrence.
The Judge then referred to certain observations by members of the Court of Criminal Appeal in R v Young[21] not directly applicable to the circumstances of this case, and continued:
[H]ere we have an individual motivated by financing a drug addiction but one who is a significant assistant in a very serious drug trafficking syndicate, the size and extent of which he must have been aware of through his involvement. It is difficult to see how a range could be applicable which is less than the four to seven years thought by the majority to be appropriate for a street dealer motivated to a greater or lesser extent by profit. There is the misery that [the respondent] is helping to circulate among the community by helping his syndicate distribute drugs.
[21] [2016] SASCFC 102.
His Honour proceeded to explain how he had arrived at the single penalty for all seven counts. His Honour recorded individual starting points in the following (albeit, non-chronological) order as follows.
·F (2.377 kilograms, LCQ,[22] methylamphetamine, 7/6/21): six years.
·G (686 grams, CQ,[23] heroin, 7/6/21): four years.
·B (20 kilograms, LCQ, methylamphetamine, 4/1/21): three years to be served concurrently with F.
·D (10 kilograms, LCQ, methylamphetamine, 24/3/21): three years with two years to be served concurrently with F.
·A (5 kilograms, LCQ, heroin, 15/11/20): three years to be served concurrently with F.
·C (350 grams, CQ, heroin,[24] 29/1/21): three years to be served concurrently with F.
·E (350 grams, CQ, heroin, 30/3/21): three years to be served concurrently with F.
[22] Large commercial quantity.
[23] Commercial quantity.
[24] The Judge in his remarks inadvertently referred to 350 grams of methylamphetamine. However, his Honour must have meant heroin.
The Judge ended up with a starting point for all seven offences of imprisonment for seven years. His Honour then allowed a discount of approximately 35 per cent for the early pleas as his Honour was entitled to do,[25] thus giving rise to a single penalty for all offences of four years, six months and 19 days. The respondent, despite having no previous offender history, falls within the definition of a serious repeat offender.[26] As such, the Judge was obliged by virtue of section 54 of the Sentencing Act 2017, to impose a non-parole period of three years, seven months and 22 days, being four‑fifths of the total head sentence.[27] The sentence was backdated to commence on the day the respondent had been taken into custody, 8 June 2021.
[25] In accordance with subsection 40(3)(a)(ii) Sentencing Act 2017 (SA).
[26] Sentencing Act 2017 (SA) section 53.
[27] The four-fifths requirement applies to the total head sentence even though at the time of committing the first two (in time) of the offences the respondent was not, by definition, a serious repeat offender, R v Harradine [2019] SASCFC 144.
With respect and whilst not a ground of appeal, the Judge erred in the manner by which he fashioned the starting point of seven years for the total head sentence. His Honour offered no rationale, and none is readily to be inferred from the circumstances of the offending and this offender,[28] for the various starting points selected, other than perhaps the one six year term, given his Honour’s observation that a range less than the four to seven years appropriate for a street dealer on the approach taken in R v Young would not be appropriate here. No rationale was offered, nor can one be inferred, for the various approaches adopted with respect to concurrency. No explanation was given as to why one of the commercial quantity offences attracted a term of four years but each of the other two, a term of only three years and as to why one of the large commercial quantity offences attracted a term of six years but each of the other three, a term of only three years. In particular, six years for the offence in F (2.33 kilograms of methylamphetamine) but only three years for the offences in A (five kilograms of heroin), B (20 kilograms of methylamphetamine) and D (10 kilograms of methylamphetamine) on their face, cannot be justified except, and to a degree only, on the reasoning that F was committed last in time when the respondent’s criminality had become more entrenched.
[28] References to “this offender” are intended to pick up the respondent’s personal circumstances and Mr Balfour’s opinions, as summarised earlier.
Of importance to the parties and the community, is the final sentence for the whole of the offending. It is this about which the prosecution has complained. What was important to the parties and the community was for the Judge to fix upon a single penalty appropriate for the course of criminal conduct engaged in by this offender and having regard to the circumstances in which the offending occurred. Itemising the components, whatever numbers and approaches to concurrency were to be adopted, for reasons I later explain, was inevitably going to result in artificiality and be of no assistance. The Judge undertook this exercise as obliged to do so by the recently introduced subsection 26(2a) of the Sentencing Act 2017.
Was the sentence imposed manifestly inadequate?
When considering the question of manifest inadequacy, the following observations by the plurality in Hili v The Queen[29] are apposite.
The single ground of appeal advanced by the Director in each appeal to the Court of Criminal Appeal was that the sentences imposed at first instance were manifestly inadequate. That is, the error which the Director asserted that the sentencing judge had made was of the last kind mentioned in House v The King. By asserting manifest inadequacy, the Director alleged that the result embodied in the sentencing judge's orders was “unreasonable or plainly unjust”. The Director did not allege that any specific error could be identified (as would be the case if the sentencing judge were said to have acted upon wrong principle, allowed extraneous or irrelevant matters to guide or affect her, mistaken the facts or not taken into account some material considerations). Rather, the Director asserted that it was to be inferred from the result that there was “a failure properly to exercise the discretion which the law reposes in the court of first instance”.
As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.
The Court of Criminal Appeal also said that “manifest error is fundamentally intuitive”. That is not right. No doubt, as the Court went on to say, manifest error “arises because the sentence imposed is out of the range of sentences that could have been imposed and therefore there must have been error, even though it is impossible to identify it”. But what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence. The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal.
(Footnotes omitted)
[29] [2010] HCA 45; (2010) 242 CLR 520 at [58]-[60] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
In R v Morse,[30] King CJ pithily described the process to be undertaken on appeal where manifest excess is asserted.
There is no suggestion that the learned sentencing Judge made any error of fact or law or that he failed in any way to take into account the relevant considerations. This Court can interfere only if it is convinced that the sentence was manifestly excessive. To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. …
No different approach is required where, as here, the contention is one of manifest inadequacy.
[30] (1979) 23 SASR 98 at 99.
The respondent was not a street dealer as discussed in R v Young[31] and it is difficult to make a realistic comparison of the respondent’s culpability with that of a street dealer; they perform different tasks and have a direct or indirect effect on different numbers of victims. Further, to characterise the respondent simply as a courier does not advance the position much. A street dealer might be caught and charged with their first attempt at dealing a small quantity or after having trafficked thousands of deals. A courier might be caught and charged with their first and only distribution of a small quantity of drugs to a street dealer or, as in the present case, after the distribution or handling of many large quantities had already been effected.
[31] (2016) 126 SASR 41.
I take the view that the respondent must be dealt with more severely than a street dealer, not simply because he was a courier in a very large syndicate higher than a street dealer in the chain of responsibility but because of the circumstances of his own involvement. He fell to be sentenced for seven separate offences, each a very serious one and which attracted a maximum penalty of imprisonment for life or 25 years. The quantities of both methylamphetamine and heroin that the respondent was integral in moving along the chain of distribution were very large indeed. The seven offences were not isolated and the respondent’s involvement continued over a lengthy period. In short, the respondent was an important participant in a large and very lucrative drug syndicate operation that must have brought misery to thousands of users and their families. His contribution manifested a high level of culpability.
Having emphasised the factual seriousness of the respondent’s offending, it should not be overlooked that he was not the principal offender. But for the now very expansive statutory definition of trafficking, the respondent in days gone by probably would have been charged as having aided and abetted the principal offender(s) with his relative moral culpability assessed accordingly. Further, the respondent’s personal circumstances as summarised earlier, particularly his mental health difficulties and the fact that this was his first incursion into criminal activity (notwithstanding his statutory characterisation as a serious repeat offender) do call for some leniency. In addition, whilst the respondent benefited to the extent of being able to support or maintain his serious drug addiction, he was living in modest circumstances when arrested, and the evidence does not disclose the extent to which, if at all, he profited financially from his involvement.
Subsection 26(1) permits a court to impose the one sentence for a number of offences. It is in these terms.
If a person is to be sentenced by a court for a number of offences, the court may sentence the person to the 1 penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.
For reasons developed later, this is the type of case that calls for that approach. I would start with a term of imprisonment for all seven offences of no less than 11 years. This is towards the lower end of the range applicable to the nature and extent of the respondent’s criminal course of conduct. Other Judges might adopt a higher starting figure. However, I would start towards the lower end because of the respondent’s personal circumstances earlier outlined and lack of proven financial benefit.
Applying a discount of a little less than 35 per cent for the pleas would give rise to a single penalty or head sentence of seven years and three months backdated to commence on 8 June 2021. A non-parole period of five years and 10 months would represent a shade over four-fifths of the head sentence.
It follows that the sentence imposed by the Judge was outside the available range and manifestly inadequate.
Leave to appeal
Notwithstanding the finding of manifest inadequacy, leave for the prosecution to appeal will only be given in rare and exceptional cases. The principle stated by the plurality in Everett v The Queen[32] remains apposite.
An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed. That being so, a “court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified”.
(Footnotes omitted)
[32] [1994] HCA 49; (1994) 181 CLR 295 at 299 (Brennan, Deane, Dawson and Gaudron JJ).
Recently, in R v Henderson[33] I discussed what I consider to be the proper approach where the prosecution applies for leave to appeal against sentence. What follows is a slightly amended version of that discussion.[34]
[33] [2023] SASCA 42 at [125]-[132].
[34] Amended not in terms of principle but to remove reference to the circumstances in Henderson.
In a lengthy exposition in R v Kelly,[35] Lovell JA has provided a distillation of the principles governing an appeal by the Crown against sentence and, in particular, those governing the question of leave or permission to appeal. That exposition is far too long to repeat here, but I wish to acknowledge, with respect, my agreement with it.
[35] [2023] SASCA 22 at [22]-[50] (Lovell JA).
The prosecution has succeeded in establishing error. Were leave to appeal to be given, the appeal would be allowed, the sentence set aside and the respondent re‑sentenced either by this Court or the trial court. When re-sentencing, the court would be obliged to impose the sentence that should have been imposed in the first instance. There is no scope for double jeopardy considerations at the re-sentencing stage.[36] However, the terms of section 150 of the Criminal Procedure Act 1921 (SA) do not affect the conventional common law approach to the question of whether the prosecution should be given leave to appeal from the imposition of a manifestly inadequate sentence. Double jeopardy considerations continue to apply to that question.
[36] Criminal Procedure Act 1921 (SA) section 150, and see R v Harkin [2011] SASCFC 24; (2011) 109 SASR 334 at [33]-[37] with reference to sections 340 and 353(4)(a)(i) of the Criminal Law Consolidation Act 1935, now repealed but reinstated in materially the same form as sections 150 and 158(7) of the Criminal Procedure Act 1921.
The basic principle is that taken from Everett v The Queen[37] set out above. There have been many and repeated attempts by this and other courts to explain or give context to the “rare and exceptional case”.[38] The well accepted and often cited statement by Doyle CJ in R v Nemer[39] remains apposite.
The Director's right to seek leave to appeal against sentence, and the court's power to interfere, are found in s 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935 (SA). Similar provisions exist in other States.
The High Court has determined that the court should grant leave to the Director to appeal against sentence “only in the rare and exceptional case”.
The result of the principles established by the High Court is that, to obtain leave to appeal against sentence, the Director must do more than satisfy the court that an error may have occurred. The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”. Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion.
(Citations omitted) (Emphasis supplied)
[37] (1994) 181 CLR 295.
[38] R v Buttigieg [2020] SASCFC 38 at [39] (Lovell J, Kourakis CJ and Nicholson J agreed). See also R v CAB [2020] SASCFC 33 at [8]-[9] (Livesey J, Kourakis CJ and Doyle J agreed); R v Lumsden [2020] SASCFC 3 at [47] (Bampton, Peek and Lovell JJ agreed); R v Payne (2004) 89 SASR 49 at [86] (Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ).
[39] [2003] SASC 375 at [22]-[24] (Doyle CJ); (2003) 87 SASR 168.
More recently, the Full Court, sitting as the Court of Criminal Appeal, in R v Buttigieg[40] emphasised that the “rare and exceptional” test should be rigorously applied and that:
Both error and strong reasons of public policy are required to justify appellate intervention in a sentence said to be manifestly inadequate. The Crown must persuade the Court that such strong reasons of public policy exist which demand permission to appeal be granted despite the public interest in not twice vexing the respondent.
[40] [2020] SASCFC 38 at [39] (Lovell J).
The notion of twice vexing a defendant is an important one in the present context. Where a defendant has been led to believe that they have received a just sentence according to law and has come to terms with the reality of their future, it is morally problematic, if not wrong and unfair, to disturb that position and impose a more severe penalty simply because the sentencing Judge has erred with no fault of the defendant. Paradoxically, the more egregious the judicial error and the more inadequate the sentence at first instance, the more vexed will be a defendant should a more severe sentence comes to be imposed.
The respondent in this case was sentenced on 3 August 2022. The Director’s notice of appeal was filed promptly, on 23 August 2022. As from that date the respondent, no doubt, has experienced an anxious time awaiting the outcome of the appeal. It is now well into 2023, although the delay in resolving the appeal cannot be said to be the fault of either party or the Court. If leave were given and the appeal allowed, the respondent would be seriously twice vexed. He would face a substantial increase to the head sentence and to the non-parole period; a little under two years and approximately one year and seven months, respectively.
These circumstances highlight the need for the prosecution to point to strong reasons of public policy which demand the giving of leave to appeal in this case.
It was not submitted by the prosecution that sentencing judges are experiencing any difficulty in either identifying or applying the relevant principles in a case involving multiple offences of trafficking. Speaking generally, it would appear that adequate standards for the punishment of this particular criminal course of conduct, by and large, are being maintained. The standard that should have been but was not observed in this case is sufficiently clear from these reasons. No further assistance in this respect would be gained by giving leave to appeal. Of course, to refuse leave in this case would mean that an adequate level of punishment will not have been achieved in this case. But that, of itself, cannot be a reason to give leave – otherwise the prosecution would obtain leave in every case of manifest inadequacy with only lip service being rendered to the Everett principle.[41]
[41] Everett v The Queen (1994) 181 CLR 295 at 299.
The question whether there is a need to correct idiosyncratic views of individual judges with respect to particular crimes or types of crime does not arise in this case. There does not appear to be any such problem with the type of offence now under consideration.
Finally, there is the question of whether the sentence in this case is so far below the appropriate range as to, in the language of earlier authorities, “shock the public conscience”. In this respect, as I did in Henderson,[42] I adhere to the position put by Peek J with which Stanley J and I agreed and the additional observations I made with which Stanley J agreed, in R v McPartland & Polkinghorne.[43]
[42] At [135]-[138].
[43] [2014] SASCFC 84.
Justice Peek said this.[44]
[44] At [23]-[29].
Some years ago now, the phrase “shock the public conscience” was originally used to stress the great height of the hurdle to be overcome before a prosecution appeal could succeed. However, it later came to be used in a rather emotive fashion, such as to be unhelpful to precise analysis. The use of the phrase was positively discouraged by the Court of Criminal Appeal in the decision of R v Siozios where, Perry J (with whom Doyle CJ agreed) stated:[45]
[45] (2004) 236 LSJS 88, 89.
In considering whether it is proper to give leave to the Crown to appeal against sentence, I am not sure that the expression ‘shock the public conscience’ by reference to the sentence under appeal, should now be, or form part of, the appropriate test. There is much evidence to suggest that these days, the public conscience is easily shocked. It is an emotive expression which I tend to think ought no longer to be regarded as an appropriate test to apply in determining whether leave to appeal against sentence should be granted in favour of the Crown.
[Footnotes omitted.]
In both Jones[46] and R, AW,[47] I called attention to those remarks by Perry J and specifically endorsed them. In Jones, I stated:[48]
[46] (2010) 108 SASR 479, 503.
[47] (2012) 113 SASR 179, 190 [42]. Nyland J agreed.
[48] (2010) 108 SASR 479, 503.
Although his Honour was no doubt intending to postulate a very high hurdle to be overcome, the phrase has since come to be used on occasions in a highly emotive fashion which may tend to blur rather than sharpen analysis.
In DPP v Fucile and Tran,[49] the Victorian Court of Criminal Appeal endorsed the above passage in Siozios. The Court noted that counsel for the Victorian Director of Public Prosecutions had used the expression ‘shock the public conscience’ in argument and stated:[50]
[49] [2013] VSCA 312, [99]-[102] (Maxwell P and Weinberg JA); Tate JA agreed.
[50] DPP v Fucile and Tran [2013] VSCA 312, [101]-[102].
It should perhaps be noted that the ‘shock the public conscience’ test has been the subject of judicial criticism.
In R v Siozios, Perry J, with whom Doyle CJ agreed, observed:
In considering whether it is proper to give leave to the Crown to appeal against sentence, I am not sure that the expression ‘shock the public conscience’ by reference to the sentence under appeal, should now be, or form part of, the appropriate test. There is much evidence to suggest that these days, the public conscience is easily shocked. It is an emotive expression which I tend to think ought no longer to be regarded as an appropriate test to apply in determining whether leave to appeal against sentence should be granted in favour of the Crown.
In R v Jones, Peek J endorsed the South Australian Full Court’s earlier disapproval of the use of the phrase ‘shock the public conscience’ as one possible limb of the test for granting leave to appeal. He said:
... although his Honour was no doubt intending to postulate a very high hurdle to be overcome, the phrase has since come to be used on occasions in a highly emotive fashion which may tend to blur rather than sharpen analysis.
On the state of the authorities that bind this Court, Mr Silbert was clearly entitled to invoke the phrase in support of his submission. In our view, however, it should no longer be used in this area of discourse. The very notion of ‘the public conscience’ is itself of uncertain content, and its invocation sheds no light on the task which the appellate court must perform.
The Victorian Court of Criminal Appeal was clearly correct in stating in Fucile and Tran that this notion of “the public conscience” is “itself of uncertain content”. However, one is at least certain that neither the Courts, nor the Office of the Director of Public Prosecutions, nor the South Australian Police, have or claim to have, the role of being “the public conscience”; the respective roles of these institutions are well defined and well known.
In so far as other persons or entities may purport to declare the nature or content of “the public conscience”, such declarations will usually be seen, on calm reflection, to be inconsistent both as between the various declarants and as between declarations made on different occasions by the same declarant.
The observations of Doyle CJ directed to the closely related, and equally nebulous, term “the public opinion”, have analogous application to references to “the public conscience”:[51]
The judge can take account of public attitudes to the type of crime in question, and public concern about the prevalence of a type of crime or about its effects. In this general way public opinion is relevant. A sentencing judge can also have regard in a general way to a public expectation that serious crime will attract severe punishment. But it is not lawful for a judge to try to identify and then impose the sentence that the public expect. The judge must sentence according to law, not according to the public expectation. In any event, there is no way of knowing reliably what the public as a whole want or expect in a particular case.
On appeal, the fact that many people have publicly criticised a sentence as inadequate cannot influence the court. If the sentence is within an appropriate range, the court cannot interfere. If the court does interfere, it does so because an error has been made, not because the sentence has been widely criticised.
To be clear then, legal debate as to whether a person who has already been sentenced by a Judge should later have that sentence increased must be conducted in terms that are non-emotive and have substantive content. Terminology such as “shock the public conscience” lacks these essential features. I agree with the Victorian Court of Appeal that this terminology “should no longer be used in this area of discourse”.[52]
[51] R v Nemer (2003) 87 SASR 168 at 171.
[52] [2013] VSCA 312 at [101]-[102].
In McPartland & Polkinghorne, I added the following.[53]
I agree that the Director’s application for leave to appeal should be refused for the reasons given by Peek J. I also am of the view, essentially for the reasons his Honour has given, that the phrase “shock the public conscience” in this area is unhelpful and potentially distracting such that its use should be avoided. I add to the judicial observations on this topic, referred to by Peek J, what I said in R v Nedza.[54]
The proper approach to a Crown appeal against sentence, to be observed by an appellate court, is well settled. Permission to appeal is to be granted only in rare and exceptional circumstances.[55] This State’s Court of Criminal Appeal (consisting of five justices)[56] not so long ago summarised the proper approach in the following terms.[57]
The principles to be applied to applications by the Director of Public Prosecutions for leave to appeal against a sentence are well known. Leave should only be granted to establish some matter of principle, pursuant to which the Court of Criminal Appeal might give guidance to sentencing judges, or if it is necessary for the court to establish and maintain adequate standards of punishment for a crime, or to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that standards of penalty and public confidence in the administration of justice can be maintained: see Everett v The Queen (1994) 181 CLR 295 at 299-300; Griffıths v The Queen (1977) 137 CLR 293; R v Osenkowski (1982) 30 SASR 212 at 212-213.
In many cases, intervention has been said to be justified where a particular sentence is so far below the appropriate range of sentences for a particular crime that, if allowed to stand, it would “shock the public conscience”. One has a general appreciation of that to which this notion is directed. However, I do not find it easy to articulate what it means to “shock the public conscience” given the inherent difficulties in identifying what constitutes the “public” conscience in a way that is not simply a reflection of the views of those persons or groups of persons who happen to make their views known publicly and in a way that separates it from the conscience of the Judge hearing the appeal. I prefer the formulation used in R v Payne which is directed to a sentence that is “so disproportionate to the seriousness of the crime as to require intervention so that… public confidence in the administration of justice can be maintained.
[53] [2014] SASCFC 84 at [46].
[54] [2013] SASCFC 142 at [65]-[66].
[55] Everett v R (1994) 181 CLR 295 at 299-300.
[56] R v Payne (2004) 89 SASR 49, Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ.
[57] At [86].
In applying the less emotive language and bearing in mind the nature of the “public” as a fully informed body politic with no personal connection to the matter at hand, this requirement presents a high barrier for the prosecution to overcome in this case. Notwithstanding that the sentence in this case was plainly wrong, I am not satisfied that this criterion has been satisfied with respect to this offender.
Conclusion with respect to the question of leave
I would refuse leave to appeal. It is not sufficient for the prosecution simply to point to the manifest inadequacy of the sentence at first instance. The prosecution is obliged to persuade the Court on appeal that one of the public policy considerations where double jeopardy considerations might be set aside has been made out. It has not done so in this case.
Given that I would refuse leave to appeal, my resentence indication given earlier is only that, and it is not necessary that I undertake the artificial exercise called for by subsection 26(2a).
An addendum – the overreach that is subsection 26(2a)
Section 26 of the Sentencing Act 2017 (SA) is in these terms.
26—Sentencing for multiple offences
(1)If a person is to be sentenced by a court for a number of offences, the court may sentence the person to the 1 penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.
(2)However, if any of the offences for which the person is being sentenced is a prescribed designated offence, subsection (1) does not apply to the sentencing of the person for that offence (but nothing in this subsection affects the operation of subsection (1) in respect of the other offences).
(2a)If any of the offences in respect of which a single sentence is being imposed under this section—
(a) involve different victims; or
(b) were committed on different occasions,
the court must indicate the sentence that would have been imposed in respect of each such offence had this provision not been applied.
(3)In this section—
prescribed designated offence has the same meaning as in section 96.
Subsection 26(1) replicates in slightly different, but for present purposes immaterial, terms subsection 18A(1) of the former Criminal Law (Sentencing) Act 1988 (SA).[58] A version of subsection 18A(1), again in materially the same terms as subsection 26(1), had been included in the 1988 Act from 1992. The qualification that is subsection 26(2a) was introduced, for the first time, into the Sentencing Act 2017 (SA) from 1 June 2022.[59] Whilst it is early days, I am concerned that it will prove to be a backward step.
[58] Subsection 18A(1) (as from 2014) was in these terms: If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.
[59] Statutes Amendment (Child Sexual Abuse) Act 2021, No 57.
For a lengthy period after subsection 18A(1) was introduced in 1992 a debate took place in the case law concerning whether or not subsection 18A(1) was administrative only in that it permitted the recording of a single penalty but the offender still had to be sentenced separately for each offence. The alternative position which ultimately carried the day was that a sentencing judge could move directly to a single penalty for the course of conduct under consideration without having to identify separate sentences or articulate the mathematical process that had been followed. It remained open to a sentencing judge to give a detailed explanation of how a single penalty had been arrived at by positing separate notional sentences, but it was not of itself an error of law to fail to do so. Some groups of offences particularly where they are unrelated in nature, time and location lend themselves to, indeed might call for, this explanatory approach more readily than others. However, multiple offences of the same nature committed as a course of similar conduct can lead to difficulty with this approach.
Section 26(2a) requires the Court, in effect, to undertake the sentencing task as if the discretion to impose a single penalty did not exist, that is, to revert to the pre-1992 position. I can illustrate this by reference to the present matter involving just seven counts; the artificiality of the process would be exacerbated if the respondent had been charged with a greater number which is not uncommon with trafficking offending.
It is difficult to justify a starting point for each of the seven counts, if sentenced alone but in the context of the course of uncharged conduct, of anything less than six years for each of the four large commercial quantity offences and four and a half years for each of the three commercial quantity offences. After applying to each separate starting point the 35 per cent discount, the starting points would have become 3.9 years and 2.925 years respectively. If nothing for concurrency were to be allowed, the seven sentences would accumulate to 24.375 years. However, on the principles explained by Wells J in Attorney-General v Tichy,[60] substantial concurrency should be allowed in this case. On the view I have taken of this matter, after allowing for the 35 per cent guilty pleas discount available, concurrency and, if necessary, the principles underpinning the doctrine of totality, I would reduce the accumulated total of 24.375 years to seven years and three months, as earlier indicated.
[60] (1982) 30 SASR 84 at 92-93.
Proceeding, as above, in accordance with the requirements of subsection 26(2a) in a case such as the present is artificial, unnecessary and can itself be misleading. Whilst intended to provide some clarity of reasoning it can lead to the opposite. Multiple reductions by way of concurrency allowed for each of many sentences, followed by an overarching reduction for totality[61] often will obscure rather than clarify a Judge’s reasoning for the final result.
[61] Technically, where multiple separate sentences are identified which are then accumulated (with or without allowances for concurrency) any global reduction for totality will have to be distributed across the individual sentences in the manner that concurrency allowances are given. This is because each offence is being separately sentenced and the record must reflect that.
Subsection 26(2a) was introduced in response to recommendation 75 of the report of the Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse tabled in Federal Parliament on 14 August 2017.[62] That recommendation reads as follows.
State and territory governments should introduce legislation to require sentencing courts, when setting a sentence in relation to child sexual abuse offences involving multiple discrete episodes of offending and/or where there are multiple victims, to indicate the sentence that would have been imposed for each offence had separate sentences been imposed.
[62] Criminal Justice Report (2017), p 100.
On a review of the South Australian parliamentary debates,[63] it can be seen that this recommendation was adopted uncritically when legislated as subsection 26(2a) of the Sentencing Act 2017 (SA). The purpose underlying the recommendation was a perceived need to provide clarity and certainty, particularly to victims, when sentencing in relation to multiple offences of child sexual abuse. However, subsection 26(2a) applies to all types of offences. Applied literally, it, in effect, converts subsection 26(1) into an administrative tool. A single sentence embracing all offences can still be imposed but only by way of a mathematical exercise after having, in effect, sentenced separately for each offence. Whether or not subsection 26(2a) where a course of conduct of sexual offending is concerned is warranted, the same is not so clear with respect to other types of offending, particularly multiple acts of drug trafficking. And the subsection is likely to bring with it distinct disadvantages.
[63] South Australia, Parliamentary Debates, Legislative Council, 24 August 2021, 3957; South Australia, Parliamentary Debates, House of Assembly, 23 September 2021, 7742; South Australia, Parliamentary Debates, House of Assembly, 1 December 2021, 8939.
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