R v Farrugia

[2018] SASCFC 73

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v FARRUGIA

[2018] SASCFC 73

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Bampton and The Honourable Justice Doyle)

5 July 2018

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING CANNABIS, INDIAN HEMP OR HASHISH

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS

Appeal against sentence.

The appellant was sentenced by a Judge of the District Court to four years and seven months’ imprisonment with a non-parole period of 22 months following his guilty plea to trafficking in a large commercial quantity of cannabis.

The appellant appeals on the grounds that the sentence is manifestly excessive and that the Judge erred in concluding that exceptional circumstances did not exist such that he could order suspension of the sentence.

Held: Appeal dismissed.

1.  The sentence imposed is well within the available range of sentences for offending of its type.

2. There is nothing exceptional about the appellant’s offending and personal circumstances such that the sentence could be suspended under s 96 of the Sentencing Act 2017 (SA).

3.  The sentence is moderate and the Judge did not err in not suspending it.

Controlled Substances Act 1984 (SA) s 32, s 33; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) reg 6; Firearms Act 1977 (SA) s 11, s 14; Sentencing Act 2017 (SA) s 96, referred to.
R v Standley [2016] SASCFC 141; R v Hucks [2016] SASCFC 92; R v Mustac (2013) 115 SASR 461; R v Young (2016) 126 SASR 41; R v Lyberopoulos [2017] SASCFC 139, applied.

R v FARRUGIA
[2018] SASCFC 73

Court of Criminal Appeal:       Kourakis CJ, Bampton and Doyle JJ

1. KOURAKIS CJ:    I would dismiss the appeal.  I agree with the reasons of Bampton J.

2. BAMPTON J:      Matthew Farrugia collected George Nikolic from the Royal Adelaide Hospital (“RAH”) at 8.45am on 2 September 2015.  En route to the Calvin Grove Airstrip at Virginia, Mr Farrugia realised that he had become embroiled in an illegal activity.  He stopped his van at Mr Nikolic’s request to collect 100 pounds of cannabis and then drove to Virginia.  The cannabis was loaded, together with a quantity of a precursor, onto a waiting plane and flown high to Deniliquin in New South Wales.  By late afternoon on 2 September 2015, Mr Farrugia, Mr Nikolic, and three others were arrested.  They were subsequently charged with commercial drug trafficking offences.

3. Mr Nikolic died in mid-2017 before finalisation of the charges laid against him.  Mr Farrugia was sentenced to four years and seven months’ imprisonment with a non-parole period of 22 months following his guilty plea to trafficking in a large commercial quantity of cannabis.

4. Mr Farrugia appeals his sentence with permission on the following grounds:

   1.The sentence imposed is manifestly excessive.  In particular, he complains that there is a disparity between the sentence he received and the sentences imposed on other co-offenders; and

   2.The Judge erred in concluding that exceptional circumstances did not exist such that he could order suspension of the sentence.

   Background to the offending

5. In 2015, Mr Farrugia was in a de facto relationship with Mr Nikolic’s daughter, Natasha Nikolic.  Mr Nikolic was the architect of a large commercial drug trafficking enterprise intercepted by South Australia Police (“SAPOL”) in 2015. 

6. Mr Nikolic was admitted to the RAH on 26 August 2015 and remained an inpatient until his arrest on 2 September 2015.  Mr Nikolic suffered gangrene as a complication of his diabetic condition.  He was advised during his admission that his leg was gangrenous and required amputation.  As a result of his incapacity, he relied on others to drive him to appointments.

   Agreed factual basis for sentencing

7. According to an agreed factual basis for sentencing, on 20 August 2015, Mr Nikolic, Nicholas Mavromatis, and John White met two undercover police officers at a café in North Adelaide (“the café”).  During that meeting, it was agreed that Mr Nikolic would sell 100 pounds of cannabis to “George”, one of the undercover operatives who posed as a person involved in the drug trade from New South Wales.  Mr White agreed to fly his private plane to South Australia to collect the cannabis and deliver it to “George” at Deniliquin in New South Wales.

8. At a later meeting at the café on 26 August 2015 between Mr Nikolic, Mr Mavromatis, James Pitt, and the two undercover officers, the sourcing, sale and transportation of the cannabis to New South Wales was confirmed.  The date for the operation was 2 September 2015.

9. Mr Farrugia was not present at the café meetings in August 2015.  The meetings were recorded by the undercover police officers and no reference is made in either of the recordings to Mr Farrugia.

   Telephone interceptions

10. SAPOL obtained telephone interception warrants in relation to Mr Nikolic, Mr Mavromatis and Mr White.  No warrant was sought or issued in relation to Mr Farrugia. 

    1 September 2015 – Mr Nikolic’s telephone requests to be driven to Virginia

11. In the afternoon of 1 September 2015, Mr Nikolic called Mr Mavromatis and asked him to pick him up from the RAH the following morning because they needed to meet one of the undercover officers at 10.00 am.  Mr Mavromatis was non-committal about collecting Mr Nikolic and said he would call him back.  Mr Nikolic called Mr Mavromatis later that evening.  It is evident from that intercepted conversation that Mr Mavromatis was not going to pick up Mr Nikolic, but that they would meet up later on 2 September.

12. Mr Nikolic then called Mr Farrugia at just before 9.00 pm and asked him if he could pick him up from the RAH the following morning at 8.45 am.  Mr Nikolic said that they needed to meet “boofhead”, go to Virginia and then go to North Adelaide.  Mr Farrugia can be heard on the intercepted telephone call checking with Ms Nikolic about whether he could pick up his father-in-law as he had to drop off his children to school and childcare.  Mr Farrugia only agreed to Mr Nikolic’s request after discussion with Ms Nikolic. 

13. It is agreed that this was the first call featuring Mr Farrugia in any of the intercepted calls in relation to the subject matter of the charge.

    2 September 2015 – Calvin Grove Airstrip

14. On 2 September 2015, Mr Nikolic was collected from the RAH by Mr Farrugia who drove him to the Calvin Grove Airstrip at Virginia.  On the way to the airstrip, they collected 100 pounds of cannabis which Mr Nikolic had sourced and was selling to “George” in New South Wales.  Mr Farrugia’s counsel told the Court during sentencing submissions that it was whilst driving Mr Nikolic that Mr Farrugia “was informed in vague but terms [which Mr Farrugia understood] to now have him involved in the true purpose of the journey.  He admits that he became aware that he was at that point involved in illegal activity”.

15. Surveillance recorded that Mr White and Mr Pitt were already present at Mr White’s plane when Mr Farrugia’s van arrived at the airstrip around 10.00 am.  Mr Farrugia was seen handing some bags to Mr Pitt from the rear of his van.  Mr Pitt handed the bags to Mr White, who packed them into the plane.

    First meeting at the café

16. Mr Farrugia then drove Mr Nikolic to the café to meet an undercover police officer, arriving at 10.53 am.  The undercover officer took Mr Nikolic to his car, parked in Barton Terrace, and showed him $485,000 in the boot of his car whilst Mr Farrugia remained at the café, eating breakfast.

17. Mr Pitt and Mr White then arrived at the café, followed by Mr Mavromatis.  Mr Nikolic, Mr Mavromatis and the undercover officer went to meet Mr Bakirtzakis who was in a car parked in Barton Terrace.  Once at the car, there was a discussion about nine pounds of cannabis and 3.6 kilograms of 1‑phenyl-1, 2‑propanedione.  Mr Farrugia remained at the café with Mr White and Mr Pitt.

18. The meeting, which was covertly recorded by the undercover officer, ended at 12.20 pm.

    Surveillance at the Calvin Grove Airstrip

19. Surveillance observed Mr White’s plane taking off from the Calvin Grove Airstrip at 12.58 pm.  The plane was carrying 100 pounds of cannabis and 3.6 kilograms of the methylamphetamine precursor 1-phenyl-1, 2‑propanedione.  The plane arrived at Deniliquin in New South Wales at 4.24 pm Eastern Standard Time.

    Second meeting at the café

20. A second meeting was planned at the café, where the undercover officer would hand over the money once he had received a call from “George” in Deniliquin to say that Mr White’s plane had landed and “George” had been handed the drugs.  Mr Nikolic had advised the undercover officer at the first meeting at the café on 2 September 2015 that he had to return to the RAH that afternoon and he would send Mr Farrugia to the second meeting in his place.  It was agreed that once the undercover officer had received confirmation that Mr White’s plane had landed, he would hand the money to Mr Farrugia who would then deliver it to Mr Nikolic at the RAH.

21. There are multiple intercepted calls between Mr Nikolic and an unknown eastern-European male, from whom he sourced the 100 pounds of cannabis, to the effect that “the papers” (the money) would be with him at the RAH. 

22. Mr Farrugia, together with his three year old son, attended the second meeting with the undercover officer at the café at 3.00 pm.  Mr Mavromatis and Mr Bakirtzakis also attended the meeting, waiting for the call from “George”.  This meeting was covertly recorded by the undercover officer.

23. Police arrested Mr Farrugia at the café at 4.09 pm.

    The sentences imposed on Mr Farrugia and his co-offenders

24. Mr Farrugia and his other co-offenders were sentenced as follows.

    Mr Farrugia

    District Court file number 263 of 2017

25. Mr Farrugia pleaded guilty on the morning of trial in the District Court on 8 March 2018 to trafficking in a large commercial quantity of cannabis (100 pounds)[1] charged on file number 263 of 2017.

    District Court file number 234 of 2017

    [1] Contrary to s 32(1) of the Controlled Substances Act 1984 (SA). The maximum penalty is a fine of $500,000 or imprisonment for life, or both.

26. At arraignment on 24 March 2017, Mr Farrugia had pleaded guilty to aggravated possessing a firearm without a licence,[2] failing to keep a firearm secured, failing to securely store ammunition, aggravated possessing a silencer,[3] and possessing a prescription drug charged on file number 234 of 2017.

    [2] Contrary to s 11(1) of the Firearms Act 1977 (SA). The maximum penalty is a fine of $35,000 or imprisonment for seven years. The circumstance of aggravation was that the firearm was loaded.

    [3]    The circumstance of aggravation was that the silencer was fitted to the firearm.

27. In sentencing Mr Farrugia for the trafficking offence, the sentencing Judge took a starting point of five years and six months’ imprisonment.  The Judge reduced this starting point by 10 percent on account of Mr Farrugia’s guilty plea to four years, 11 months, one week and five days.  A further four months, one week and five days were deducted on account of time in custody and an allowance for home detention bail.  The resulting sentence was four years and seven months’ imprisonment.  A non-parole period of 22 months was fixed.

28. Mr Farrugia was sentenced to six months’ imprisonment for the offence of aggravated possessing a firearm without a licence, reduced by 20 percent on account of his guilty plea to four months, three weeks and three days.  This sentence was ordered to be served concurrently with the sentence imposed for the trafficking offence.

29. Mr Farrugia was convicted without further penalty in respect of each of the four other offences charged on file number 234 of 2017.  It was accepted that the firearm offending was unrelated to the drug offending.

    Mr Mavromatis

    District Court file number 263 of 2017

30. Mr Mavromatis was sentenced to three years and six months’ imprisonment reduced by 40 percent[4] on account of his guilty plea to two years, one month and six days for attempted manufacture of a controlled drug, namely methylamphetamine, in relation to the 3.6 kilograms of the precursor 1-phenyl-1, 2‑propanedione.[5]

    Magistrates Court Information 17/BR02319

    [4]    Mr Mavromatis was originally charged on an Information dated 24 March 2017 on District Court file number 263 of 2017 with supplying a prescribed quantity of a controlled precursor, and jointly charged with Mr Bakirtzakis and others with selling a large commercial quantity of a controlled precursor for the purpose of manufacturing a controlled drug.  These counts were not proceeded with upon the filing of a new Information dated 5 March 2018 charging only Mr Mavromatis and Mr Bakirtzakis with attempted manufacturing a controlled drug, namely methylamphetamine (3.6 kilograms of 1-phenyl-1, 2-propanedione).  Mr Mavromatis and Mr Bakirtzakis pleaded guilty to this offence on 8 March 2015.  The sentence each received was reduced by 40 percent on account of their guilty pleas.

    [5] Contrary to s 33(3) of the Controlled Substances Act 1984 (SA) and s 270A of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty is a fine of $50,000 or 10 years' imprisonment, or both.

31. Mr Mavromatis entered his plea at committal to trafficking in a large commercial quantity of a controlled drug.  This offence concerned the nine pounds (approximately four kilograms) of cannabis located in Mr Bakirtzakis’ vehicle.[6]  He was sentenced for this offence to three years’ imprisonment reduced by 30 percent on account of his guilty plea to two years, one month and six days.

    [6] Contrary to s 32(1) of the Controlled Substances Act 1984 (SA). The maximum penalty is a fine of $500,000 or imprisonment for life, or both.

32. The two sentences were ordered to be served partially concurrently, leaving a head sentence of three years and two months.  The sentence was reduced by five months on account of time spent on home detention bail, resulting in a final head sentence of two years and nine months’ imprisonment.  A non-parole period of one year and 10 months was fixed.

    Mr Bakirtzakis

    District Court file number 263 of 2017

33. Mr Bakirtzakis was sentenced for attempted manufacture of a controlled drug, namely methylamphetamine,[7] to three years reduced by 40 percent[8] on account of his guilty plea to one year, nine months, two weeks and four days’ imprisonment.

    [7] Contrary to s 33(3) of the Controlled Substances Act 1984 (SA) and s 270A of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty is a fine of $50,000 or 10 years' imprisonment, or both.

    [8]    See footnote 4 above.

34. For trafficking in a large commercial quantity of a controlled drug, namely cannabis (this relates to the nine pounds (approximately four kilograms) located in his vehicle),[9] Mr Bakirtzakis was sentenced to three years and six months reduced by 10 percent on account of his guilty plea entered on the day of trial.  The resulting sentence was three years, one month, three weeks and three days.

    [9] Contrary to s 32(1) of the Controlled Substances Act 1984 (SA). The maximum penalty is a fine of $500,000 or imprisonment for life, or both.

35. The two sentences were ordered to be served partially concurrently to the effect of nine months, leaving a head sentence of four years, two months and two weeks.  The head sentence was reduced by four months and two weeks on account of time spent in custody and on home detention bail, resulting in a final head sentence of three years and 10 months.  A non-parole period of 18 months and two weeks was fixed.

    Mr Pitt

    Magistrates Court Information 17/BRO2322

36. Mr Pitt pleaded guilty at committal to trafficking in a large commercial quantity of a controlled drug and trafficking in a prescribed firearm.[10]

    [10] Contrary to s 14(1)(b)(i) of the Firearms Act 1977 (SA). The maximum penalty is a fine of $75,000 or imprisonment for 15 years.

37. For trafficking in a large commercial quantity of a controlled drug, namely cannabis (this relates to the 100 pounds of cannabis loaded onto the plane), Mr Pitt was sentenced to five years and six months reduced by 30 percent on account of his guilty plea to three years, 10 months and six days.  This head sentence was reduced to three years and eight months on account of an allowance for time spent on home detention bail.  A non‑parole period of two years was fixed.

38. Mr Pitt was sentenced to 18 months’ imprisonment reduced by 30 percent on account of the guilty plea to one year, two weeks and four days for trafficking in a firearm.  This sentence was ordered to be served concurrently with the sentence imposed for the trafficking offence.

    Mr Farrugia’s personal circumstances

39. Mr Farrugia is 34 years old.  Mr Farrugia and Ms Nikolic were in a relationship for seven and a half years until they separated soon after Mr Farrugia was arrested.  Ms Nikolic has since prevented Mr Farrugia having contact with his nine year old daughter and six year old son.

40. The Judge was told that Mr Farrugia’s relationship with Ms Nikolic was an unhappy one and that it was under strain for a number of reasons.  The Judge heard that Mr Nikolic was a powerful and intimidating father-in-law.  Mr Farrugia and Ms Nikolic lived with Mr Nikolic and his wife for about three years after the birth of their first child.  Mr Farrugia left the relationship several times as Mr Nikolic was a demanding and verbally abusive parent-in-law.  Additionally, Ms Nikolic was a manipulative and abusive partner, and there were constant arguments.  It was submitted that this dynamic contributed to Mr Farrugia’s preparedness to help his father-in-law on the day of the illegal activity and his inability to desist and stand up to him.  It was submitted that, but for Mr Nikolic’s incapacity, Mr Farrugia would not have been involved in this drug offending.

41. Mr Farrugia had arranged to have 2 September 2015 off work so that Ms Nikolic could work at the Balaklava Cup.  He had planned to take his children to school, to collect them, to have a haircut, and attend to other tasks on his day off.  As is apparent from the telephone intercept, the arrangement for Mr Farrugia to step in, in lieu of Mr Mavromatis, to drive Mr Nikolic to Virginia and North Adelaide was unscheduled.  He discussed with Ms Nikolic whether or not he would be in a position to respond to Mr Nikolic’s request to pick him up.

42. Mr Farrugia had a very difficult childhood.  He had a violent, alcoholic father and was abandoned by his mother when he was nine years old.  He and his elder brother were sexually abused by an uncle at a very young age.  Notwithstanding these traumas, the Court heard that Mr Farrugia got his first job at 10 years old.  It was submitted that he had been employed continuously until his arrest.  Upon his arrest, he lost the employment he had held for six years as a supervisor with a company involved in the maintenance of fire safety equipment.

43. It was submitted that Mr Farrugia is a man who has had no supports in life until he met his current partner, with whom he has a loving and supportive relationship.  It was submitted that the importance of this relationship in his rehabilitation cannot be underestimated.  After meeting his partner, who practices as a veterinary surgeon, Mr Farrugia started to assist at her veterinary practice, caring for animals, dealing with clients, and attending to handyman work, data entry, banking and finance.

1. The psychologist, Dr Robyn Young, prepared a report following her assessment of Mr Farrugia, which was relied on during sentencing submissions.  Mr Farrugia informed Dr Young that he was diagnosed as having Asperger’s Syndrome when he was 19 years old.  Dr Young reports that Mr Farrugia does not meet the diagnostic criteria for autistic spectrum syndrome, however, he does present with some notable vulnerabilities, particularly regarding friendships and decision-making.  Dr Young considers that Mr Farrugia displays certain psychological traits which may have contributed to or played a role in his offending.  She suggests that he would not have realised the risky situation he became involved in, until it was too late to extricate himself.  Dr Young considers that Mr Farrugia would be responsive and obedient to domineering personalities like Mr Nikolic.  It is suggested that his psychological make up is such that when he was alarmed about the matters that were discussed at the café and having met the undercover police officers, who he thought were interstate drug lords, he did not have the skills to extricate himself from the situation.

2. It was conceded that, whilst there was no discussion between Mr Farrugia and Mr Nikolic about financial reward for his involvement, it was reasonable to conclude that Mr Farrugia would be given something for his trouble.  However, it was submitted that he was never so impertinent as to discuss those sorts of details with Mr Nikolic and there was certainly no profit motive.  It was submitted that he participated because he was prevailed upon by his father-in-law and he did it as a favour for a family member.  He was inveigled into the criminal activity at the last minute and he had no relationship or involvement with the other perpetrators.  The Judge was asked to sentence Mr Farrugia on the basis that he has a very low risk of reoffending, he does not associate with a negative peer group, he does not use illicit substances, and he is greatly respected by a number of people who had provided letters of reference.

3. The Judge was also asked to consider suspending Mr Farrugia’s sentence of imprisonment.  It was submitted that mercy was called for and his demonstrated rehabilitation militated in favour of suspension, even in the light of his serious offending.

4. The prosecutor pointed out during sentencing submissions that Mr Farrugia’s involvement in the offending was over a seven hour period and that there was ample opportunity for him to desist.  After taking Mr Nikolic back to the RAH, Mr Farrugia returned, with his son, to the second meeting with a man he thought was a drug lord to receive the money on behalf of Mr Nikolic.  It was submitted that he could have simply not turned up at that meeting and that his involvement militates against suspension.

5. In sentencing, the Judge accepted that Mr Farrugia was inveigled into the criminal activity at the last minute and that he had no prior relationship or involvement with any of the other participants.  The Judge pointed out that, against this background of late participation, Mr Farrugia did join in on a significant drug trafficking offence and his role was a significant one.  He, together with Mr Nikolic, collected the cannabis in his van and transported it to the airstrip, where he assisted in loading the plane.  He then attended the second meeting at the café on Mr Nikolic’s behalf in order to collect a very substantial sum of money.

6. The Judge stated that whilst Mr Farrugia’s role in the enterprise was late and brief compared to other participants, it was nonetheless a significant role and he must have known that he was participating in a substantial commercial drug trafficking operation.

7. The Judge noted Mr Farrugia had no relevant antecedents. In response to the request that the sentence be suspended, the Judge noted that the trafficking offence was a serious and organised crime offence. As such, any sentence could only be suspended pursuant to s 96 of the Sentencing Act 2017 (SA) (“the Sentencing Act”) if the Court is satisfied that exceptional circumstances exist.  His Honour did not consider there were exceptional circumstances and said the matters canvassed in submissions in support of suspension would be reflected in a lower non-parole period.

   Arguments on appeal

   Ground 1

8. Mr Farrugia complains that the Judge erred in assessing his overall criminality and placed undue weight on the quantity of cannabis involved as against the totality of the circumstances.  In doing so, he says the Judge failed to have regard to the parity principle in arriving at a manifestly excessive sentence.

9. Mr Farrugia says that the unjustifiable discrepancy in the sentencing of Mr Mavromatis and Mr Bakirtzakis, and the imposition of an identical sentence imposed on Mr Pitt, gives rise to the appearance that justice has not been done.

10. Mr Mavromatis’ and Mr Bakirtzakis’ trafficking offending involved the nine pounds of cannabis found in Mr Bakirtzakis’ car.  The offence of attempt to manufacture concerned the sourcing of the precursor that was loaded onto the plane with the 100 pounds of cannabis.

11. Although Mr Mavromatis and Mr Bakirtzakis were involved in the wider criminal enterprise, their offending is distinguishable from Mr Farrugia’s.  They each pleaded guilty to trafficking in a large commercial quantity of a controlled drug in relation to the nine pounds of cannabis found in Mr Bakirtzakis’ car.  As Mr Mavromatis pleaded at committal, his sentence was reduced by 30 percent from three years to two years, one month and six days.  Mr Bakirtzakis pleaded on the day of trial and his sentence of three years and six months was reduced by 10 percent to three years, one month, three weeks and three days.  Mr Mavromatis had “considerable antecedents” and Mr Bakirtzakis had none.

12. Mr Farrugia, effectively a first offender, pleaded guilty on the day of trial to trafficking in 10 times more cannabis than Mr Mavromatis and Mr Bakirtzakis.  His role in the offending was appropriately characterised by the Judge as late and unplanned but nonetheless significant participation in commercial interstate drug trafficking.  He received a moderate sentence in comparison with the sentences imposed on Mr Mavromatis and Mr Bakirtzakis.  In my view, there is no discernible disparity.

13. The Director concedes that the parity principle is engaged as regards the sentence imposed on Mr Pitt.  The Judge used a starting point of five years and six months for the trafficking offence involving the 100 pounds of cannabis in sentencing both Mr Farrugia and Mr Pitt.  Mr Pitt’s offending is also distinguishable from Mr Farrugia’s.  Mr Pitt was not a principal in the offending.  He was aware of the plan to obtain the cannabis and fly it to New South Wales and he was involved in loading it onto the plane.  The only recompense he expected was drugs to be supplied to him by Mr Nikolic.  By comparison, Mr Farrugia’s criminality encompassed the collection of the cannabis with Mr Nikolic and assisting to load it onto the plane.  He was also trusted by Mr Nikolic to collect the payment for the cannabis and to deliver it to him at the RAH.  Whilst Mr Farrugia did not assist Mr Nikolic for financial reward, he did expect some recompense, although not quantified, for his involvement.

14. Mr Farrugia asserts that the Judge focused on the quantity of the cannabis involved in his offending.  Noting that a large commercial quantity of cannabis is prescribed by regulation to be two kilograms of pure cannabis or greater,[11] Mr Farrugia pleaded guilty to trafficking in over 20 times the amount prescribed as a large commercial quantity.  The Judge did not err in having regard to the fact that Mr Farrugia’s offending, albeit unplanned and brief, was part of a highly remunerative significant interstate enterprise involving a significant quantity of cannabis.

    [11]   Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) reg 6.

15. The cases referred to during the appeal suggest that the sentence imposed in this case is well within, and arguably at the lower end, of the available range of sentences for offending of its type.[12] In R v Young,[13] this Court stated that sentences of four to seven years are appropriate for trafficking offences where offenders are motivated to a greater or lesser extent by profit.  Further, the Court has also made clear that persons who traffic in large commercial quantities of cannabis can expect to receive lengthy custodial sentences that are not suspended.[14]

    [12]   R v Standley [2016] SASCFC 141; R v Hucks [2016] SASCFC 92; R v Mustac (2013) 115 SASR 461.

    [13]   R v Young (2016) 126 SASR 41 at 62 (Kourakis CJ, with Vanstone and Stanley JJ agreeing).

    [14]   R v Lyberopoulos [2017] SASCFC 139; R v Yavuz; R v Soyler; R v Bayraktar [2018] SASCFC 24.

    Ground 2

16. Mr Farrugia submits that his position, as against his co-offenders’, was recognised by the prosecutor during sentencing submissions when he said “Mr Farrugia may well pose the most difficult position for your Honour in terms of sentencing”.  The prosecutor’s comments must be considered in the context of a submission regarding the characterisation of Mr Farrugia’s offending.  The submission concluded with a statement to the effect that Mr Farrugia could have decided not to go to the second meeting to collect the payment for the cannabis and that his seven hour involvement on 2 September 2015 militates against suspension, “but for the reason that my friend has eloquently outlined, your Honour could impose a much shorter than usual non-parole period”.

17. The Judge, in determining that exceptional circumstances did not exist, fixed a lower than usual non-parole period of 40 percent of the length of the sentence.  In my view, the Judge was correct do so.  Mr Farrugia submitted that a significant feature of his case was his mental state at the time of his offending, which resulted in him being more vulnerable to Mr Nikolic’s influence and having an impaired ability to retreat from the situation.

18. There is nothing exceptional about Mr Farrugia’s offending and personal circumstances.  All too many offenders find themselves inveigled for brief periods of time into offending from which they have difficulty extricating themselves.  As the Judge determined, these features of Mr Farrugia’s offending and his personal circumstances do not amount to exceptional circumstances.  Rather, they are matters which can, in the exercise of the sentencing discretion, be appropriately reflected in a lower than usual non-parole period.

19. Neither ground of appeal is made out.

    Conclusion

20. In sentencing Mr Farrugia, the Judge was obliged to have regard to the primary and secondary purposes of sentencing prescribed by the Sentencing Act.  The primary purpose for sentencing Mr Farrugia is to protect the safety of the community.  The secondary purposes are to ensure that he is punished, that he is held accountable to the community for his offending behaviour, to publicly denounce his offending, to publicly recognise any harm done to the community, to deter him and others from such offending and to promote his rehabilitation.

21. The non-parole period of 40 percent of the length of the sentence is merciful and appropriately reflects Mr Farrugia’s role in the offending, lack of criminal antecedents, his low risk of reoffending and other matters personal to him.

22. In all of the circumstances, I consider that the sentence is moderate and the Judge did not err in not suspending it.

23. For the reasons given, I would dismiss the appeal.

24. DOYLE J:      I would dismiss the appeal.  I agree with the reasons of Bampton J.