R v Filipponi - [2016] SASCFC 148

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FILIPPONI
[2016] SASCFC 148
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Nicholson)
20 December 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - OTHER TYPES OF ORDER
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
Application for permission to appeal by the Director of Public Prosecutions.
On 2 April 2013, the police searched the respondent’s truck and found a large amount of cocaine and drug related paraphernalia (including a tick list of sales and a substantial amount of cash). The circumstances of this offending resulted in a charge of one count of trafficking cocaine. The amount of cocaine the subject of that charge was 169 grams, which on the basis of the evidence led was worth between $67,600 and $118,300 yet could have been cut further which would have doubled the value.
The respondent pleaded not guilty when he was first arraigned in the District Court. Only later, after an unsuccessful application to have the evidence of the search of the truck excluded, did he plead guilty.
The respondent was sentenced as a recreational user of cocaine who was not physiologically addicted to cocaine. The sentencing Judge strongly doubted the respondent’s submission that he sold the drugs on behalf of another and only received a small profit. The respondent was sentenced on the basis that he trafficked a relatively large quantity of high value cocaine which was still within the lower trafficable range, and in the context of a history of substantial trading.
The respondent was sentenced to four years and nine months imprisonment, reduced by five per cent from a starting point of five years accounting for the appellant’s guilty plea. The sentencing Judge did not suspend the sentence. However, the Judge ordered that the sentence be served on home detention.
The Director of Public Prosecutions applies for permission to appeal that sentence as manifestly inadequate.
Held per Kourakis CJ (Vanstone and Nicholson JJ agreeing) allowing permission to appeal and allowing the appeal:
1.     General deterrence is of great importance when sentencing drug traffickers.
2.     When considering whether to impose a home detention order, the safety of the community is the paramount consideration.
3.     In the case of serious drug trafficking, if it is not suitable to suspend a sentence of imprisonment, then in the ordinary case, it is unlikely that the purposes of sentencing will be met by imposing a home detention order.
4.     In the circumstances of this case, the seriousness of the offence called for strong general and personal deterrence. An order for home detention did not meet the purposes of sentencing, and it was not open to the sentencing Judge to make such an order.
5.     Sentence imposed in the District Court set aside.
6.     Allowing an appeal by the DPP and imposing a sentence of imprisonment where it was otherwise avoided can have a great effect on a respondent.
7.     A new sentence of four years, six months and two weeks is imposed and a non-parole period of two years and nine months is fixed.
Criminal Law (Consolidation) Act 1935 (SA) s 340; Criminal Law (Sentencing) Act 1988 (SA) s 33BB, s 33BC, referred to.
R v Kong (2013) 115 SASR 425, applied.
Green v The Queen (2011) 244 CLR 462; R v Hicks (1987) 45 SASR 270; R v Mangelsdorf (1995) 66 SASR 60, discussed.

R v FILIPPONI
[2016] SASCFC 148
Court of Criminal Appeal: Kourakis CJ, Vanstone and Nicholson JJ

KOURAKIS CJ: This is an application by the Director of Public Prosecutions (the Director) for permission to appeal against an order that the respondent, Giovanni Filipponi (Mr Filipponi), serve a sentence of four years and nine months, with a non-parole period of three years, on home detention pursuant to s 33BB(1) of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act). The sentence was imposed on Mr Filipponi’s conviction on one count of trafficking in cocaine.
I would allow the appeal and quash the order made pursuant to s 33B(1) of the Sentencing Act. A favourable exercise of the discretion was not open in the circumstances of this case because of the relatively great weight which must be given to general deterrence in sentencing serious drug traffickers. The resulting sentence imposed was manifestly inadequate. Permission to appeal should be granted to ensure that sentencing standards for drug trafficking are not substantially eroded by the manifestly unreasonable exercise of this newly conferred sentencing option.
Circumstances of the offence
On 2 August 2013 police searched Mr Filipponi’s truck when it was being driven in suburban Adelaide and found:
·169 grams of mixed drug which contained 96.2 grams of pure cocaine in a Tupperware container;
·27.5 grams of mixed drug containing 15.5 grams of pure cocaine in a plastic bag;
·8.19 grams of mixed drug containing 4.56 grams of pure cocaine in another Tupperware container.
Scales and small plastic resealable bags were also found in the truck. Police found $9,020 in cash and a list of sales of cocaine Mr Filipponi had made (a tick list) in his wallet. The offence of which Mr Filipponi was convicted was limited to the 169 grams of cocaine in one of the Tupperware containers.
The statement of Detective Hunt of the Drug and Organised Crime Task Force established that in 2013 the price for cocaine in South Australia was:
·one gram $400-$800;
·eight ball (3.5 grams) $1,500-$1,800;
·one ounce (28 grams) $9,000.
His statement established that the value of all of the cocaine found in Mr Filipponi’s truck was between $81,600 and $163,200 if sold in one gram deals. The concentration of the cocaine in Mr Filipponi’s truck was higher than that found in other South Australian cocaine seizures and could have been mixed further, or ‘cut’ by another 50 per cent. If so cut, the value was between $163,200 and $326,400. The statement of Detective Brevet Sergeant Parker recorded the slightly lower maximum price for cocaine of $700 per grams. On the basis of that statement, the value of the 169 grams alone was between $67,600 and $118,300 and twice those amounts if cut further.
Personal antecedents
Mr Filipponi is 47 years of age. He is married with two daughters aged 13 and 10. He is one of two equal partners in a marble and granite product supply business. The business has operated since 2000 and employs four persons and engages two independent contractors.
The sentencing
Mr Filipponi pleaded not guilty when he was arraigned in the District Court. A trial listed in September 2014 was not reached. The trial was relisted for 3 August 2015. On that day a judge ruled against Mr Filipponi’s application to exclude the evidence of the search of the truck on the grounds that the search was unlawful. The trial commenced but there was a mistrial and the jury was discharged. The trial was once again relisted to commence on 6 June 2016. Mr Filipponi confirmed his not guilty plea at a callover about a month before that date. On 7 June 2016 Mr Filipponi pleaded guilty.
In light of that history the sentencing Judge correctly rejected Mr Filipponi’s submission that the guilty plea manifested some contrition.
The Judge was asked to sentence Mr Filipponi on the basis that he:
·sold cocaine to support his own cocaine habit;
·spent about $1,000 weekly on his habit;
·made a small profit over and above that amount.
In submissions the Judge was told that in 2013, Mr Filipponi was ‘a regular user of cocaine; initially in a social setting and subsequently his use increased and that is how he got involved in trading’. Mr Filipponi told the author of the pre-sentence report received by the Judge that he consumed ‘a couple grams or more in a sitting and consumed approximately $1,000 worth of cocaine per week’ but that his wife ‘although suspicious, was unaware that he was using cocaine’. Mr Filipponi told the report writer that he had not used any cocaine after his arrest.
Before the Judge, Mr Filipponi never claimed that he was addicted to cocaine. The fact that his wife was unaware that he took cocaine and that he was able to stop taking any cocaine immediately after his arrest, casts some doubt on his claim to have been a heavy user.
Mr Filipponi therefore fell to be sentenced as a recreational user who was habitually accustomed to take, but not physiologically addicted to, cocaine. He chose to trade in cocaine to support his indulgent lifestyle and make some incidental profit.
Mr Filipponi’s counsel submitted that the respondent sold the cocaine on behalf of another person and received a six per cent commission on his sales. The Judge expressed ‘considerable reservations’ about that submission. Mr Filipponi’s counsel also submitted that 60 per cent of the cocaine in the truck was to be sold to a single customer for about $36,000 to consume at a party. It was submitted that the cash found in Mr Filipponi’s wallet was received as payment of invoices issued in the course of his marble and granite business.
The Judge strongly doubted Mr Filipponi’s claim that he was selling cocaine on behalf of another for a small percentage. The Judge had good reason to reject that submission. Mr Filipponi had access to large amounts of cash in the course of his granite and marble supply business. So much is clear from the submission that the cash in his wallet was from that business. The table of cocaine prices in the statement of the Detective Hunt shows that the potential profit in purchasing a bulk quantity and cutting and re-selling it in smaller quantities is in the order of 50 per cent. It is inherently unlikely that a person with access to cash to purchase a bulk quantity of cocaine would take the risk of trafficking on consignment for such a small percentage.
The factual basis on which Mr Filipponi was to be sentenced was that he had trafficked a relatively large quantity (169 grams) within the lower trafficable range (200 grams) of high value cocaine in the context of a history of substantial trading. Mr Filipponi must have trafficked a substantial amount of the drug. There are two alternate reasons for this finding. First, if Mr Filipponi was only earning 6 per cent commission on sales he needed to sell a large amount to support his habit. Alternatively, the high value of many of the sales the tick list are evidence of substantial trading. Mr Filipponi must only be sentenced for the single offence of which he is convicted but the substantiality of his prior trading shows that, despite his otherwise prior good character, personal deterrence remains an important consideration in his sentencing. Moreover his access to large amounts of high quality cocaine, and the fact that he was supplied that cocaine on credit, shows that he occupied a trusted, relatively high, position in the Adelaide cocaine distribution network.
The Judge fixed the sentence of four years and nine months from a starting point of five years, reduced by five per cent for Mr Filipponi’s plea of guilty. The Judge declined to suspend the sentence.
The Judge decided that Mr Filipponi’s home was a suitable residence for home detention purposes and that adequate resources existed for monitoring him whilst on home detention. The Judge gave the following reasons for exercising his discretion to order that the sentence be served on home detention:
It seems to me that this legislation has placed upon me the responsibility of balancing competing considerations: firstly, the fact that, as I find here, you do not present a potential threat to the safety of the community. Having regard to all of the matters that you have put before the court, I find it unlikely that you will reoffend; but, secondly, the extent to which the safety of the community is protected by general deterrence, that is, the deterrence of others who might be minded to commit similar serious crimes from so doing.
I must say, I have not found this an easy exercise. The obvious policy of the legislation is to provide the court with an option when sentencing a person for serious offences which did not previously exist. Having decided that the need for general deterrence prohibits me from imposing a suspended sentence, I am then provided with an option of an order that you serve this sentence on home detention. It seems to me that I should do so unless there are grounds for thinking that community safety will thereby be put at risk.
The Judge then made an order for home detention on the following conditions (leaving aside machinery provisions):
1.I will not leave the State for any reason without the lawful permission of the court.
2.I will place myself under the supervision of a home detention officer. I will be of good behaviour and comply with the lawful directions of that officer.
3.I will wear an electronic transmitter and comply with the rules of electronic monitoring including the requirement to fully charge the transmitter daily for the term of the agreement.
4.I will remain at […] throughout the period of home detention and must not leave that address at any time except for the purposes of undertaking employment deemed suitable by my home detention officer, unless I have the prior permission of an assigned home detention officer to be absent for a particular purpose or to avert the risk of injury or death to myself or others or to obtain urgent essential medical treatment.
5.I will provide and maintain in operable condition an active mobile telephone service with the appropriate mobile communication device and give the contact details to the Department for Correctional Services so that they may use it to communicate with me at all times whilst on home detention.
6.I will not consume alcohol or any other drug which is not medically prescribed or otherwise legally available, then only at the prescribed or recommended dosage, and I will submit to any alcohol and drug testing as directed by a home detention officer and sign all required forms and comply with the requirements of the testing procedures.
…
9.I will be subject to home detention and obey all the lawful directions of my home detention officer.
…
11.If I am not engaged in any employment or study, I must attend for community service at the discretion of a home detention officer.
Sentencing principles for drug trafficking
The Court has often emphasised the importance of general deterrence in sentencing for drug traffickers.
In R v Kong,[1] this Court said:
[90]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.
[1] (2013) 115 SASR 425 at [90].
General deterrence militates strongly against a favourable exercise of the discretion to suspend a sentence of imprisonment imposed for trafficking. In R v Mangelsdorf,[2] Doyle CJ said:
[70] That leaves the question of suspension. Suspension was opposed by counsel for the Director of Public Prosecutions in submissions to the sentencing judge. In my opinion it was wrong to suspend the sentence. For offences of such seriousness, suspension must be rare indeed. In my opinion the circumstances of this case, cogent as they are, do not justify the decision which the judge made. To allow suspension of the sentence in such a case would, in my opinion, tend to erode the standard of punishment which this Court has set as appropriate for this offence. As King CJ said in R v Taddeo (1993) 67 A Crim R 338 at 340 in words equally applicable to the heroin trade:
It would send an entirely wrong signal to people who are tempted to engage in cannabis trading and could only tend to weaken the defences which the community expects to be erected and maintained against the drug trade.
The evidence in this case showed that even though cocaine is not as prevalent in South Australia as other illicit drugs, discoveries of the drug in this State are increasing.
[2] (1995) 66 SASR 60 at 70-71.
The home detention sentencing option
Section 33BB of the Sentencing Act provides:
33BB—Home detention orders
(1)Subject to this section, if—
(a)     a court has imposed a sentence of imprisonment on a defendant; and
(b) the court considers that the sentence should not be suspended under Part 5; and
(c)     the court considers that the defendant is a suitable person to serve the sentence on home detention,
the court may suspend the sentence under this Division and order that the defendant serve the sentence on home detention (a home detention order).
(2)A home detention order—
(a)     must not be made—
(i)unless the court is satisfied that the residence the court proposes to specify in its order is suitable and available for the detention of the defendant and that the defendant will be properly maintained and cared for while detained in that place; or
(ii)if the defendant is being sentenced to a sentence of imprisonment that is to be served cumulatively on another term of imprisonment, or concurrently with another term of imprisonment then being served, or about to be served, by the defendant; and
(b)     should not be made if the court is not satisfied that adequate resources exist for the proper monitoring of the defendant while on home detention by a home detention officer.
(3)The paramount consideration of the court when determining whether to make a home detention order must be the safety of the community.
(4)The court must also take the following matters into consideration when determining whether to make a home detention order:
(a)     the impact that the home detention order is likely to have on—
(i)any victim of the offence for which the defendant is being sentenced; and
(ii)any spouse or domestic partner of the defendant; and
(iii)any person residing at the residence at which the prisoner would, if released, be required to reside;
(b)     any report ordered by the court from the CEO or any other person or body for the purpose of assisting the court in determining whether to make a home detention order;
(c)     any other matter the court thinks relevant.

Subparagraphs (a), (b) and (c) of s 33BB(1) of the Sentencing Act are preconditions on the exercise of the discretion conferred on the Court by the words ‘may suspend … and order … home detention’. The reason for subparagraph (a) is self-evident. The purpose of subparagraph (b) is to ensure that the more onerous obligations of home detention are not placed on persons who would otherwise have received a suspended sentence. That precondition has another consequence: the occasion to impose a home detention order will only arise in those cases in which the balance of circumstances weighs against a finding that there is good reason to suspend the sentence, pursuant to Part 5 of the Sentencing Act. It follows that home detention will only be ordered in cases in which the incidents of the home detention regime satisfactorily address those considerations which have precluded a suspended sentence. If the major consideration precluding a suspended sentence is general deterrence, fashioning a home detention regime which operates effectively as such may be difficult.
Subparagraph (c) is directed towards the suitability of the person to serve a sentence on home detention. That criterion addresses primarily the subjective circumstances of the defendant, like his or her capacity to support himself or herself, or be supported by others in private accommodation, and whether he or she is likely to comply with the conditions of home detention.
Once enlivened, the discretion conferred by s 33B(1) of the Sentencing Act to make a home detention order must be exercised having regard to the purposes of sentencing and all relevant considerations. Those purposes importantly include punishment, community protection and both general and personal deterrence on the one hand, and the scope for rehabilitation on the other.
Section 33BB(2)(a)(i) of the Sentencing Act precludes the making of a home detention order in cases in which the court is not satisfied about the suitability of the proposed residence and the maintenance and care of the defendant. There is some overlap between s 33BB(2) and s 33BB(1)(c) of the Sentencing Act.
Section 33BB(2)(a)(ii) of the Sentencing Act which precludes a home detention order when a defendant is already serving another term of imprisonment further limits the occasions on which the s 33BB(1) discretion can be exercised. So too does s 33BB(2)(b) of the Sentencing Act which precludes the court from making a home detention order if the Department of Correctional Services has inadequate resources to monitor the defendant to ensure compliance with the order.
Section 33BB(3) and s 33BB(4) of the Sentencing Act regulate the exercise of discretion once it is enlivened. The former makes the safety of the community the paramount consideration in determining whether to make a home detention order. Here it is to be remembered that the safety of the community is not only threatened by violence. The safety of the community is also threatened by the distribution of illicit drugs.
Section 33BB(4) of the Sentencing Act requires the court to have regard to the effects of a home detention order on others and to consider any report from the Chief Executive Officer of the Department for Correctional Services who may be involved in the management of the home detention order. Section 33BB(4)(c) of the Sentencing Act is a catchall. To the extent that any sentencing consideration is not picked up by the conferral of the discretion in general terms in s 33BB(1), it will be picked up by that subparagraph of subsection (4).
Section 33BC of the Sentencing Act regulates the terms on which a home detention order can be conditioned:
33BC—Conditions of home detention order
(1)A home detention order is subject to the following conditions:
(a)     a condition requiring the person to remain at the residence specified by the court throughout the period of the home detention order and not to leave that residence at any time during that period except for the following purposes:
(i)remunerated employment;
(ii)urgent medical or dental treatment for the person;
(iii)attendance at a course of education, training or instruction or any other activity as required by the court or as approved or directed by the home detention officer to whom the person is assigned;
(iv)any other purpose approved or directed by the home detention officer;
(b)     a condition requiring the person to be of good behaviour during the period of the home detention order;
(c)     a condition requiring the person to obey the lawful directions of the home detention officer to whom the person is assigned during the period of the home detention order;
(d)     a condition prohibiting the person from possessing a firearm or ammunition (both within the meaning of the Firearms Act 1977) or any part of a firearm;
(e)     a condition requiring the person to submit to such tests (including testing without notice) for gunshot residue as a home detention officer may reasonably require;
(f)    such other conditions as the court may specify (including, if the court thinks appropriate, a condition that the person be monitored by use of an electronic device).
(2)A person subject to a home detention order will, unless the home detention order is earlier revoked, remain on home detention—
(a)     in the case of a person subject to a non parole period—until he or she is released on parole; or
(b) in the case of any other person—in accordance with Part 4 Division 7 of the Correctional Services Act 1982.
(3)Subject to subsection (4), the court may vary or revoke a condition imposed under this section.
(4)The court may only vary or revoke the conditions imposed by subsection (1)(d) and (e) if the court is satisfied, by evidence given on oath, that—
(a)     there are cogent reasons to do so; and
(b)     the possession of a firearm, ammunition or part of a firearm by the person does not represent an undue risk to the safety of the public.
On its face s 33BC(1) of the Sentencing Act suggests that there is no discretion to modify the conditions it prescribes when the home detention order is first made. That is an unlikely construction. Section 33BC(3) of the Sentencing Act empowers the court to vary or revoke any condition imposed under the section. Subsection (3) is more naturally read to provide a power to vary or revoke conditions at a future time depending on changed conditions and circumstances but the better construction is that it also allows the conditions prescribed by s 33BC(1) of the Sentencing Act to be modified when the order is first made. It should not be necessary for the Court to first make an order containing the conditions prescribed by s 33BC(1) of the Sentencing Act only to immediately, or after a slightly more respectable delay, exercise the power conferred by subsection (3) to impose more appropriate conditions. It is unlikely that the legislature intended such a cumbersome procedure. The power conferred by subsection (3) can be exercised to amend the prescribed conditions when first making the order.
Be that as it may, it is important to observe that s 33BC of the Sentencing Act contemplates that some home detention orders will allow a great deal of social mobility and interaction with the community. That is particularly so if the defendant is in employment. I take remunerated employment to include self-employment. Much employment is now not confined to a particular workplace. It is not uncommon for employees to travel to public places or to private homes to perform their work. The condition allowing a person to leave his or her home for a purpose approved by a home detention officer also allows much scope for community interaction. The effect of such wide conditions is to substantially ameliorate the burden of home detention. The major part of the day for most working people is taken up by obligations such as work, child-minding and household chores. If permission to leave the home for those purposes is allowed a home detention order may not pose much restriction on movement. That is even more the case if permission is granted to leave the home for important family and social occasions or for the purposes of education. It must also be remembered that people can be received and entertained in the home. Even though deprivation of the freedom to come and go at will, to enjoy the outdoors, other public places and to visit others privately is a substantial burden, if the conditions are too relaxed a home detention order may come to approximate a suspended sentence. Yet, because the statutory premise is that a suspended sentence has already been excluded it necessarily follows that the occasions on which a relatively relaxed home detention order can properly be made will be limited. That is all the more the case if suspension pursuant to Part 5 has not been ordered because it would not provide adequate punishment or deterrence.
It can also be observed that as a general rule the longer the period of imprisonment, the greater is the demand for punishment, community protection and general deterrence. Moreover, long sentences with strict home detention conditions may place intolerable strains on the offender and other occupants of the home.
Finally, a long period on home detention with only moderate or light restrictions on movements reduces substantially the degree of community protection a home detention order provides.
For those reasons the occasions when a home detention order will be appropriate for long terms of imprisonment will be limited.
Close attention to these considerations is necessary before making a home detention order. It may be necessary to strictly confine a defendant for all of a shorter sentence, or for the major part of a longer sentence, in order to meet the purposes of punishment, community protection and deterrence. An offender so confined may have to support himself or herself by taking annual or long service leave or by obtaining a loan or selling assets. Social Security may not be available in some cases. Even with close confinement a favourable exercise of the discretion may not be warranted.
Of course s 33BC(3) may be used to progressively relax conditions over time if circumstances justify that course.
In the case of serious drug trafficking the demands of general deterrence and punishment are such that if these considerations have operated to preclude a suspended sentence then, in the ordinary case, it is unlikely that the purposes of sentencing will be met by imposing a home detention order.
On the other hand cases of trafficking which fall at the very lower end of the range of objective seriousness when combined with strong prospects of rehabilitation may attract a favourable exercise of the discretion.
Suitable accommodation was available to Mr Filipponi and he was said to be likely to comply with his home detention conditions because of his family and business responsibilities. The discretion to impose a home detention order was enlivened. For the same reasons his prospects of rehabilitation were generally good. However the seriousness of his offence called for strong general and personal deterrence and condign punishment. An order for home detention, particularly one as relaxed as that ordered by the Judge, utterly failed to meet these purposes of sentencing. It was not open to the Judge in the circumstances of this case to order home detention.
That Mr Filipponi’s personal relief at avoiding immediate imprisonment would be dashed is a weighty reason to refuse permission to appeal. In R v Hicks[3] King CJ observed:
[3] (1987) 45 SASR 270, 273.
[273]When a person such as the present respondent has been told that he will not have to go to prison, a great load is lifted from his mind. The consequences of reversing that intimation could be devastating.

Similar observations were made by French CJ, Crennan and Kiefel JJ in Green v The Queen:[4]
[43]Other circumstances may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent’s release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent’s rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual.

…
[4] (2011) 244 CLR 462 at [43].

In R v Kong[5] this Court observed:
[102]… There are circumstances which will produce an injustice if a Crown appeal is allowed, even in a case in which the sentence is erroneously lenient. Factors such as a defendant’s personal circumstances, the defendant’s progress towards rehabilitation, the harshness of sentencing a person to custody who has been free in the community and has taken significant steps to rebuild his life are just some of the factors which are relevant to which the exercise of a residual discretion to refuse a Crown appeal.
[103]It would be a crushing reversal of fortune for a man who left the dock nine months ago, believing that he would not be taken rom his family and would be able to continue his rehabilitation in the community, to now be required to serve a lengthy and immediate custodial sentence.
[104]In this case, to grant permission to the Crown to appeal and to allow the appeal would be at too high a cost, in terms of justice, to the defendant. …
[5] (2013) 115 SASR 425 at [102]-[104].
Nonetheless, I have concluded that the Director should be given permission to appeal. The sentencing order in this case, if allowed to stand, would seriously undermine sentencing standards for drug trafficking. It demands appellate intervention.
I would set aside the order that Mr Filipponi serve the sentence on home detention.
Pursuant to s 340 of the Criminal Law Consolidation Act 1935 (SA), this Court may order that the sentence of imprisonment will be taken to have come into effect before the day of its order. This Court is therefore empowered, in this case, to order that the sentence of imprisonment came into effect on 4 October 2016, the day on which the home detention order commenced. Notwithstanding the terms of s 33BB and s 33BC of the Sentencing Act, on the quashing of the order made by the Judge it cannot be said that Mr Filipponi has served any part of the sentence he was ordered to serve on home detention because the sentence is set aside as from the day it was made. However it is open to this Court to either take into account the period spent on home detention and accordingly reduce the term of imprisonment it imposes in lieu of the sentence set aside, or, by ordering that the same sentence commence on 4 October 2016 or on any other date between then and the date of its order.
In order to ameliorate, albeit only a little, Mr Filipponi’s disappointed expectation, I would reduce the sentence of immediate imprisonment from four years nine months to four years six months and two weeks to reflect the period of home detention. I would fix a non-parole period of two years nine months and two weeks. The sentence is to commence on the day Mr Filipponi is taken into custody.
Orders
1Application for permission to appeal granted.
2Appeal allowed.
3Set aside order of home detention imposed in the District Court.
4Order instead that the respondent be imprisoned for a period of four years six months and two weeks with a non-parole period of two years nine months and two weeks commencing on the day Mr Filipponi is taken into custody.
VANSTONE J: I agree with the orders proposed by the Chief Justice and with the reasons he has written.
NICHOLSON J: I agree with the Chief Justice.