R v Ford - [2008] SASC 46

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FORD
[2008] SASC 46
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
29 February 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - PROBATION ORDERS AND SUSPENSION OF SENTENCE - DISCRETION OF COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
Application for permission to appeal against sentence – applicant pleaded guilty to selling and possessing methylamphetamine contrary to section 32(1)(c) of the Controlled Substances Act 1984 (SA) – applicant claimed offending was motivated by financial difficulties caused by misappropriation of mortgage repayments by her de facto partner – applicant sentenced to 18 months’ head sentence with 12 months non-parole period – applicant ordered to forfeit to Crown sum of $25,000 pursuant to section 47 of the Criminal Assets Confiscation Act 2005 (SA) – section 10(1)(ka) of the Criminal Law (Sentencing) Act 1988 (SA) requires a court to have regard to nature and extent of forfeiture that does not merely neutralise benefit from offending – applicant submitted that sentence of imprisonment should be suspended – section 38(1) of the Criminal Law (Sentencing) Act provides that sentence may be suspended where “good reason exists” – applicant submitted that her minor antecedent history, obligations as a caregiver, forfeiture sum, employment prospects and motive for the offending amounted to “good reason” to suspend – whether “good reason” existed to suspend sentence – whether sentence manifestly excessive.
Held: Permission to appeal refused – sentence imposed and decision not to suspend was appropriate and within sentencing discretion – no “good reason” identified to justify suspension – no appealable sentencing error established – methylamphetamine will continue to be characterised as a drug in the middle range of seriousness in the absence of evidence from the Director of Public Prosecutions to the contrary.
Controlled Substances Act 1984 (SA) s 32(1)(b) and s 32(1)(c); Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(ka), s 18A, s 29A and s 38(1); Criminal Assets Confiscation Act 2005 (SA) s 224; Drugs Misuse Act 1986 (Qld); Drugs Misuse Amendment Regulation (No 2) 2001 (Qld); Drugs Misuse Amendment Regulation 1987 (Qld); Drugs Misuse (Amphetamines Offences) Bill 2001 (Qld); Misuse of Drugs Act 1971 (Amendment) Order 2006 (UK); Order Amending Schedule 1 and III to the Controlled Drugs and Substances Act (Methamphetamine) S.C. 1996 c.19, SOR/2005-235; Misuse of Drugs (Changes to Controlled Drugs) Order 2003 (NZ), referred to.
Markarian v The Queen (2005) 228 CLR 357; House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321 at 324; Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; R v Mangelsdorf (1995) 66 SASR 60; R v Cetojevic & Cetojevic (2005) 92 SASR 451; R v Fowler (2006) 243 LSJS 285; R v Sladic (2005) 92 SASR 3; R v Stubberfield [2005] SASC 383; R v Plaister [2001] SASC 383; R v Cronn (1983) 34 SASR 555; R v Pearce (1980) 91 LSJS 443; R v Becker (2005) 91 SASR 498; R v Modra [2006] SASC 106; R v Darwell (1997) 94 A Crim R 35; R v Arthurs [2005] 3 NZLR 739; R v Errigo (2005) 92 SASR 562; R v Harris (2001) 122 A Crim R 241; Police v Cadd and Others (1997) 69 SASR 150; R v Wacyk (1996) 66 SASR 530; Taylor v Attorney-General (SA) (1991) 55 SASR 462; R v Taddeo (1993) A Crim R 338, considered.

R v FORD
[2008] SASC 46
Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ

DOYLE CJ: I agree with the orders proposed by Gray J, and with the reasons that he gives for making those orders. There is nothing that I wish to add.
BLEBY J.
Introduction
The circumstances giving rise to this application for permission to appeal are stated in the reasons of Gray J, with which I generally agree. I will not repeat them. I will merely refer to them where necessary for the purpose of these supplementary reasons.
A number of circumstances were relied on in support of suspension of the sentence of imprisonment imposed on the applicant. She had lost her job in 2006. She was suffering the after-effects of a work injury to her hand, and of a savage personal attack, shortly before being dismissed from her employment. She then found that she was facing the sale of her house by the mortgagee, brought about by default in the mortgage payments. That was apparently caused by the misappropriation by her then partner of funds which she had provided to make the mortgage payments. She began trading in methylamphetamine in an attempt to assist in repaying the mortgage on her house and to pay for the drug which she used from time to time for personal consumption. The house was nevertheless sold by the mortgagee and the proceeds of that sale became the subject, initially of a restraining order under the provisions of the Criminal Assets Confiscation Act 2005, and subsequently of a forfeiture order to the extent of $25,000 plus interest accrued on the sum which, by then, had been paid into court.
The loss of the applicant’s house, while it was one of the adverse circumstances she was facing, had no connection with the offending. It would have occurred in any event, along with her other personal adversities. It was because of the financial pressure under which she was placed that the applicant took to selling methylamphetamine. That may have been an explanation. It was not an excuse.
The sentencing Judge was informed that, upon sale of the house, the applicant’s equity in the house was approximately $100,000. Negotiations were conducted with the Director of Public Prosecutions, resulting in the consent forfeiture order of $25,000 out of that sum.
The Effect of the Forfeiture Order
Where a person has been convicted of a serious offence, as defined, a forfeiture order under s 47 of the Criminal Assets Confiscation Act 2005 can be made if the property in question is, or represents the proceeds of one or more of the offences. A forfeiture order may also be made if the property is an “instrument” of one or more of the offences, or is subject to an instrument substitution declaration under s 48 of the Act. No other property can be the subject of a forfeiture order. Section 7 defines property as proceeds of an offence if it is wholly or partly “derived or realised, whether directly or indirectly, from the commission of the offence”. The same section defines property as being an instrument of an offence if it is used or intended to be used “in, or in connection with, the commission of an offence”.
As Gray J has pointed out, the combined effect of s 224 of the Criminal Assets Confiscation Act 2005 and s 10(1)(ka) of the Criminal Law (Sentencing) Act 1988 requires that in determining or passing sentence on a person in respect of a conviction for a serious offence, which these were, the court must have regard to the forfeiture order to the extent that the order forfeits property other than the proceeds of an offence.
It was not suggested that the applicant’s interest in her house was, or represented, the proceeds of an offence. It was conceded by the Director of Public Prosecutions that the applicant’s interest in the house was property which was an instrument of an offence, and that the forfeiture order was therefore required to be brought into account. As it was the house in which the various sales had taken place, it seems that that concession was rightly made, the house having been used “in connection with” the commission of the offences.[1]
[1] See Taylor v Attorney-General (SA) (1991) 55 SASR 462.
Under s 224 of the Criminal Assets Confiscation Act 2005 a court “passing sentence on a person” must have regard to the forfeiture order. Under s 10 of the Criminal Law (Sentencing) Act 1988 a court, “in determining sentence for an offence”, should have regard to such forfeiture.
“Sentence” is not defined in the Criminal Assets Confiscation Act 2005. It is defined in s 3 of the Criminal Law (Sentencing) Act 1988. At the time of sentencing, “sentence” was defined as meaning:
(a)     the imposition of a penalty; or
(b)     the decision of a court to offer a defendant an opportunity to enter into a bond; or
(c)     the fixing, extending or negating of a non-parole period; or
(d)     the making of any other order or direction affecting penalty.
That definition is sufficiently wide to cover a decision to suspend a sentence. Forfeiture of an instrument of an offence is therefore relevant also to the question of suspension.
As to how it should be brought into account, there can be no precise formula. The court will take account of the forfeiture as one of the many relevant factors but it cannot do so in any precise way.[2]
[2] See the observations of Doyle CJ in R v Carpentieri (2001) 81 SASR 164, 171-172, [2001] SASC 420, [38], and in R v Errigo (2005) 92 SASR 562, 568.
The Exercise of the Sentencing Judge’s Discretion
The sentencing Judge clearly took the forfeiture into account in determining the head sentence and non-parole period. But for the forfeiture, the sentence of imprisonment would have been significantly greater. There is nothing to suggest that the Judge did not also give it appropriate weight in determining whether or not to suspend the sentence. In deciding whether to suspend, the Judge merely said:
In my view, taking into account all of your background but putting it against the circumstances of this offending, there are not good grounds to suspend the sentence.
There was nothing to prevent the Judge from giving greater emphasis to the forfeiture in fixing the term of the sentence than in deciding whether good reason[3] existed to suspend. There were cogent reasons not to suspend the sentence.
[3] Criminal Law (Sentencing) Act 1988, s 38(1).
The applicant was involved in the commercial operation of selling methylamphetamine. For the time being, it must be regarded as a drug in the middle range of seriousness,[4] although its use is becoming increasingly prevalent and problematic. However, that is a question for another day. The offences were serious and were motivated by financial gain. Notwithstanding the forfeiture order, suspension of a sentence for that type of offending would not adequately reflect the gravity of the offence.[5]
[4] See R v Mangelsdorf (1995) 66 SASR 60.
[5] Ibid 72.
In relation to cannabis trading, King CJ said in R v Taddeo:[6]
I think that to allow the suspension to stand would tend to erode the standards of punishment that are necessary to operate as a deterrent to persons who are inclined to engage in commercial activity with respect to cannabis. To allow this suspension to stand 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.
[6] (1993) 67 A Crim R 338, 340.
The argument against suspension is all the stronger in the case of methylamphetamine.
It will be rare indeed for offences of this nature to justify a suspended sentence. It might be different if the applicant had shown a complete turnaround in her life and had taken positive steps towards rehabilitation and rejection of the drug culture, although I should not be taken as indicating that such a course would necessarily justify suspension. In this case, however, besides her trading activities, the applicant had been using small amounts of methylamphetamine for almost 25 years with the level of ingestion increasing after her dismissal from her employment.
She continues to use small quantities of methylamphetamine in an attempt to self-medicate her ongoing psychological distress. As the clinical forensic psychologist who provided a pre-sentence report observed, this is not the most effective stress management technique.
If the applicant were placed on a good behaviour bond, it would almost certainly have to include a condition of abstinence from drug-taking. It is evident that the prospects of such a condition being observed would be remote.
I agree that no basis to interfere with the exercise of the Judge’s discretion has been made out and that the decision not to suspend was appropriate. The application for permission to appeal should be dismissed.
GRAY J.
Introduction
This is an application for permission to appeal against sentence.
The applicant, Deborah Ann Ford, was refused permission to appeal by a judge of this Court. She has renewed her application for permission to appeal to this Court. In accordance with the practice of this Court, full submissions were advanced on the application, so that in the event of a grant of permission, there would be no need to hear further argument.
The applicant pleaded guilty to six counts of selling methylamphetamine and to one count of possessing methylamphetamine for sale, contrary to section 32(1)(c) of the Controlled Substances Act 1984 (SA). The maximum penalty for each offence was imprisonment for 25 years or a fine of $200,000, or both. The applicant was sentenced in the District Court to the one sentence pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA). A term of imprisonment of 18 months was imposed. A non-parole period of 12 months was fixed. The sentencing Judge declined to exercise his discretion to suspend sentence.
The Judge described the circumstances of the offending in the following terms:
On six occasions you sold methylamphetamine to an undercover police officer and when police eventually attended at your house to arrest you they found a plastic bag which contained a small quantity of methylamphetamine. The total quantity of the drug sold to the police officer was 1.2 g for which he paid you a total of $1,230.
I regard your offending as very serious. Although only a small quantity of the drug was involved, you sold it on six separate occasions. You were in the business of selling methylamphetamine. Your motive was commercial and I shall come back to that.
The Judge then outlined the personal antecedents of the applicant:
You are 43 and you have two sons, 15 and 12. You are separated from their father with whom you lived for many years. Your youngest son is living with his father and your eldest son was also living with his father until recently. It seems that they had a falling out and your eldest son has, for a short time now, been living with you in a room in a house of friends of yours. You share that room with your son.
You worked as a nurse for 23 years. You had ended up having difficulty with senior staff at the place where you were employed and you lost your job last year.
At the time you were living in a house which you were buying with a man called Chris. Without your knowledge he was taking money set aside for your mortgage payments. You are now separated from him. Your mortgage debt has falling [sic] into arrears, the bank has sold the house. You expect to receive some money at settlement but have settled a criminal assets confiscation action by the director by forfeiting $25,000 of that money. I take that into account when sentencing you.
You began selling the drug once you got into those financial difficulties. You had used methylamphetamine in small quantities for some years. Your usage increased when you lost your job. You began selling it to relieve financial pressure. I accept that you were depressed at the time, that you are still depressed and that you suffer from post-traumatic stress disorder as a result of a serious assault, of which you were the victim, some time ago. I accept [a forensic psychological] opinion that you need and will continue to need psychiatric and psychological treatment. You particularly need that treatment to help you reunite with your two boys.
The Judge took the view that it was necessary to sentence the applicant to a term of imprisonment:
From the references I have read you have a supportive group of friends and there is work available to you. But I have said that your offending is very serious. You have pleaded guilty, not to an isolated offence, but to a series of offences and that is indicative of the fact that you were running a business selling a drug, and a drug which is treated by the law as a serious one. There is no doubt that I must sentence you to a term of imprisonment.
The Judge then concluded:
I shall fix one sentence pursuant to s.18A. You pleaded guilty upon your first arraignment and I give you credit for that. You will loose [sic] $25,000 from the proceeds of the sale of your house. That is a significant penalty but I have taken that into account also in fixing a lower head sentence and non-parole period than I otherwise would have. But for your pleas of guilty I would have sentenced you to imprisonment for two years. The sentence of the court is that you be imprisoned for 18 months and I fix a non-parole period of 12 months.
In my view, taking into account all of your background but putting it against the circumstances of this offending, there are not good grounds to suspend the sentence. The head sentence and the non-parole period begin today.
A Challenge to the Exercise of Sentencing Discretion
This application seeks to challenge the exercise of a discretion as to sentence. In Markarian,[7] Gleeson CJ, Gummow, Hayne and Callinan JJ summarised the approach to be adopted:[8]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
[7] Markarian v The Queen (2005) 228 CLR 357.
[8] Markarian v The Queen (2005) 228 CLR 357 at [25] (footnotes omitted). See also House v The King (1936) 55 CLR 499 at 504-5; Dinsdale v The Queen (2000) 202 CLR 321 at 324.
In Wong,[9] Gaudron, Gummow and Hayne JJ commented:
Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention 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.
[9] Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 at [58].
There was no challenge to the factual basis on which the Judge proceeded. There was no suggestion that he had regard to any irrelevant consideration. There was no suggestion that he had failed to have regard to any relevant consideration. It was not contended that there was any error of principle in his approach. The complaint in this appeal therefore involves the residuary category of error.
A Commercial Dealing

As the present case involved a commercial dealing in drugs, general guidance as to sentencing is to be found in this Court’s decision in Mangelsdorf.[10] In accordance with that decision and later authorities, a sentencing judge will have regard to whether there was an ongoing commercial enterprise, the extent of that enterprise, and the quantity and nature of the drugs the subject of the charge.[11] Methylamphetamine has been characterised as a drug in the middle range of seriousness.[12]
[10] R v Mangelsdorf (1995) 66 SASR 60.
[11] R v Cetojevic (2005) 92 SASR 451 at [25].
[12] R v Fowler (2006) 243 LSJS 285 at [26]; R v Sladic (2005) 92 SASR 36 at [24]-[26]; R v Cetojevic (2005) 92 SASR 451 at [25]; R v Stubberfield [2005] SASC 383 at [16]; R v Plaister [2001] SASC 383 at [25]; R v Cronn (1983) 34 SASR 555 at 556; R v Pearce (1980) 91 LSJS 443.
Reclassification of Methylamphetamine
During the course of submissions, the Director of Public Prosecutions invited the Court to reclassify methylamphetamine as a drug in the high range of seriousness. This submission was said to be supported by the fact that it was now well-known that the distribution and use of methylamphetamine was widespread and increasing, such that, in practical terms, it was recognised as one of the most serious type of drugs. This submission follows earlier attempts by the Director to have the Court reclassify methylamphetamine as a drug in the high range of seriousness.[13] However, on no occasion has evidence been placed before the Court to justify a reclassification.[14]
[13] R v Becker (2005) 91 SASR 498; R v Sladic (2005) 92 SASR 36.
[14] R v Becker (2005) 91 SASR 498; R v Sladic (2005) 92 SASR 36.
The Director sought to justify this approach on the basis that the history of the classification of methylamphetamine as “middle range” by this Court, commencing with the decision in Pearce[15] in 1980, was based upon the taking of judicial notice, and not upon any evidence put before the Court.
[15] R v Pearce (1990) 91 LSJS 443. In this decision the Court described a drug of the same family as methylamphetamine as in the middle range of seriousness.
In Becker,[16] in light of the increase in the use and distribution of recreational drugs (including methylamphetamine), and the considerable advances in knowledge about the effect of these drugs on human behaviour, the Court of Criminal Appeal first ruminated as to whether it was appropriate for the Director to consider whether expert evidence should be put before the sentencing Court for the purpose of considering whether such drugs should be reclassified to a higher range of seriousness:[17]
Since the decision in Mangelsdorf, there have been considerable advances in knowledge of the effect of various drugs upon human behaviour. There is some evidence about the effect of marijuana upon the human brain. Some research suggests that there is a relationship between heavy use of marijuana and schizophrenia in young people. There has been the introduction of so-called “designer drugs”. Their use as recreational drugs has become more common. The long and short-term effect of these drugs on human behaviour has been the subject of a number of studies. It may be that it is time to reconsider the classification of drugs referred to in Mangelsdorf. The time may have come, in the appropriate case, for the Director to consider whether expert evidence should be called to inform the sentencing court of recent research as to the effect of various popular drugs upon users.
[16] R v Becker (2005) 91 SASR 498.
[17] R v Becker (2005) 91 SASR 498 at [64].
This point has been subsequently reiterated by this Court in Sladic[18] and Cetojevic.[19] In Sladic,[20] the Full Court, referring to Becker[21] observed:[22]
This Court has not undertaken the review of the classification of methylamphetamine that has occurred in Western Australia. In that State, the court has reclassified methylamphetamine as a drug in the higher range of seriousness. In Mangelsdorf the Court addressed the established standards for punishment of drug offences. The previous standards were sought to be reinforced. Doyle CJ observed:
In the matters heard by us the Director of Public Prosecutions did not ask the court to review the standards which it has established, with a view to increasing them. The frequency with which offences involving trading in heroin, and indeed in other drugs, come before the courts make me think that it may be necessary to do so in the future.
In the absence of an authoritative review, in this State methylamphetamine should continue to be considered as a “middle-range drug”.
…
We again draw attention to the question of the possible reclassification of drugs for sentencing purposes.
[18] R v Sladic (2005) 92 SASR 36.
[19] R v Cetojevic (2005) 92 SASR 451.
[20] R v Sladic (2005) 92 SASR 36.
[21] R v Becker (2005) 91 SASR 498.
[22] R v Becker (2005) 91 SASR 498 at [26], [28] (footnotes omitted).
In Cetojevic,[23] the Court of Criminal Appeal,[24] again referring to Becker,[25] stated:[26]
As has been said by this Court previously, in sentencing for dealing in drugs, general deterrence is a primary consideration. A sentencing judge will have regard to whether there was an ongoing commercial enterprise, the extent of that enterprise and the quantity and the nature of the drugs the subject of the charge. PMA and amphetamine are characterised in the middle range of seriousness. The time may have come to reconsider that characterisation. Until the court has been provided with evidence about the effect of different drugs upon users the classification of drugs as low, middle range and high in seriousness as referred to in Mangelsdorf is authoritative.
[23] R v Cetojevic and Cetojevic (2005) 92 SASR 451.
[24] Sulan J, with whom Perry and Duggan JJ agreed.
[25] R v Becker (2005) 91 SASR 498.
[26] R vCetojevic (2005) 92 SASR 451 at [25] (footnotes omitted). See also R v Modra [2006] SASC 106 at [30]-[31].
By way of interstate comparison, it should be noted that in Western Australia[27] and Queensland,[28] methylamphetamine has been reclassified at the high end of the scale of drugs.
[27] See R v Darwell (1997) 94 A Crim R 35.
[28] See Drugs Misuse Amendment Regulation (No 2) 2001 (Qld) which amended the Drugs Misuse Regulation 1987 (Qld) to upgrade methylamphetamine from a Schedule 2 Dangerous Drug to a Schedule 1 Dangerous Drug, increasing the maximum available penalties for trafficking, supplying, producing and possessing the drug. The reclassification came into effect on 21 September 2001.
In Darwell,[29] Malcolm CJ, speaking for the Court of Criminal Appeal of Western Australia, observed:[30]
It is important to note that methylamphetamine is now regarded as being at the high end of the scale of seriousness in the hierarchy of prohibited drugs. If not equated to heroin and cocaine, it is close enough to those drugs to be regarded as in the same category: Calder (unreported, District Court, WA, Hammond CJDC, 7 September 1995); Bellissimo (1996) 84 A Crim R 465; Krakouer (1996) 16 WAR 1 at 33-35 per Anderson J (with whom Rowland and Franklyn JJ agreed); and Calder (unreported, Supreme Court, WA, No 960534, 11 September 1996 per Malcolm CJ).
In Bellissimo, in a passage cited in my judgment in Calder, (with which Franklyn and Owen JJ agreed) Anderson J said:
“The major sentencing considerations for offences of trafficking in dangerous drugs of addiction such as amphetamines, cocaine and heroin are general and personal deterrence, the major objective being to stop people doing it. It is quite obvious to anyone concerned with criminal justice administration that trafficking in amphetamines is rife in this State and part of its tragedy is that very young people in the community are being exposed to it. This has caused widespread community concern. The sentences that have been imposed in the past do not seem to have worked as a deterrent.”
While this case is concerned with MDMA or ecstasy and not methylamphetamine, what Anderson J said has application to amphetamines generally and ecstasy in particular. In my opinion, it may now be appropriate to reconsider the classification of MDMA or ecstasy in the light of additional evidence regarding its deleterious effects. In the meantime, there is every justification for “firming up” on the sentences to be imposed beyond the sentence which was imposed in the present case.
[29] R v Darwell (1997) 94 A Crim R 35.
[30] R v Darwell (1997) 94 A Crim R 35 at 40.
The explanatory notes relevant to the Drugs Misuse Amendment Regulation (No 2) 2001 (Qld) outlined the justification for the reclassification of methylamphetamine as follows:[31]
Amphetamines are an illicit drug of addiction, with consequences of psychosis, aggressive behaviour and suicide.
The level of amphetamine use has increased dramatically in recent years, to the point where there are currently 85,000 amphetamine users in Queensland, compared to 17,000 heroin addicts. Amphetamines are relatively easily manufactured and transported and the industry is now worth an estimated $400 million annually. Queensland has earned the unenviable tag as the amphetamines capital of Australia with the Australian Federal Police reporting that some 74 of the 150 drug labs raided across the nation in 2000 were located in South East Queensland.
The Alcohol and Drug Foundation reports that demand for drug rehabilitation has increased 70% in the past three years, mainly due to increased amphetamine use. Only 275 beds are available in Queensland for treatment of drug addicts.
Up to 80% of crime is attributed to drugs.
[31] These explanatory notes were the explanatory notes to the Drugs Misuse (Amphetamines Offences) Bill 2001 (Qld), which proposed amending both the Drugs Misuse Act 1986 (Qld) and the Drugs Misuse Regulation 1987 (Qld). Although this Bill was not passed by Parliament, the Drugs Misuse Regulation 1987 (Qld) was subsequently amended in the terms suggested by the Bill.
By way of overseas comparison, methylamphetamine has also been reclassified at a higher level of seriousness in the United Kingdom,[32] Canada[33] and New Zealand.[34]
[32] The Misuse of Drugs Act 1971 (Amendment) Order 2006 (UK) reclassifies methylamphetamine, previously a Class B drug, as a Class A drug. The reclassification came into force on 18 January 2007.
[33] The Order Amending Schedules 1 and III to the Controlled Drugs and Substances Act (Methamphetamine) S.C. 1996, c. 19, SOR/2005-235, reclassifies methamphetamine, previously a Schedule III substance, as a Schedule I substance. The reclassification came into force on 10 August 2005.
[34] The Misuse of Drugs (Changes to Controlled Drugs) Order 2003 (NZ) discussed in R v Arthurs [2005] 3 NZLR 739 reclassifies methylamphetamine, previously a Class A controlled drug, as a Class B controlled drug. The reclassification came into force on 30 May 2003.
Notwithstanding the reclassification of methylamphetamine in interstate and overseas jurisdictions, having regard to the authorities of this Court, methylamphetamine should continue to be treated as a drug in the middle range of seriousness. This Court has repeatedly made it clear that before a change to the general classification of methylamphetamine will be considered, evidence will need to be provided to the court to support the application. If the position is as clear as the Director suggests, there should be no difficulty in presenting the relevant material before the Court. As was noted by the Director in the course of submissions, it would be open for the Director to seek a guideline pursuant to section 29A of the Criminal Law (Sentencing) Act.
Relevance of Forfeiture
In the present proceedings property owned by the applicant was liable to forfeiture. The applicant came to an agreement for the payment of a monetary sum by way of forfeiture. The order of forfeiture was in the following terms:
That the defendant forfeit to the Crown the sum of $25,000 (plus interest accrued on that sum) pursuant to section 47 of the Criminal Assets Confiscation Act 2005.
That the sum referred to in paragraph 1 above be paid from the monies held in the Supreme Court of South Australia Suitors Fund (Action No. 87 of 2007) pursuant to the Restraining Order granted on 22 June 2007 by Mr Kleinig SM.
Section 224 of the Criminal Assets Confiscation Act (2005) (SA) authorises a sentencing court to have regard to cooperation that a person may extend to the authorities in resolving confiscation proceedings and requires the Court to have regard to a forfeiture order where that order is made in relation to property other than proceeds within the meaning of the Act. Section 224 provides:
A court passing sentence on a person in respect of the person’s conviction of a serious offence—
(a)may have regard to any cooperation by the person in resolving any action taken against the person under this Act; and
(b)must not have regard to any forfeiture order that relates to the offence, to the extent that the order forfeits proceeds of the offence; and
(c)must have regard to the forfeiture order to the extent that the order forfeits any other property; and
(d)must not have regard to any pecuniary penalty order, or any literary proceeds order, that relates to the offence.
Furthermore, section 10(1)(ka) of the Criminal Law (Sentencing) Act requires a sentencing court to have regard to the nature and extent of forfeiture that does not merely neutralise a benefit from the offending. Section 10(1)(ka) provides:
(1)A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
(ka) if a forfeiture of property (other than a forfeiture that merely neutralises a benefit that has been obtained through the commission of the offence) is, or is to be imposed, as a result of the commission of the offence—the nature and extent of the forfeiture;
The relationship between sentencing and forfeiture orders was recently considered by the Court of Criminal Appeal in Errigo.[35] This decision concerned a Crown appeal against a suspended sentence which was imposed for the offence of taking part in the production of cannabis, contrary to section 32(1)(b) of the Controlled Substances Act. In the course of his reasons for sentence, the sentencing Judge referred to the fact that proceedings had been instituted for the forfeiture of the respondent’s land on which the cannabis plants were grown. The sentencing Judge said that he was “unable to take that into account” in determining the appropriate sentence. On appeal, the Court of Criminal Appeal held that the sentencing Judge’s failure to consider the forfeiture order was “an error”.[36] Doyle CJ, speaking for the Court, reviewed the relevant authorities and continued:[37]
[35] R v Errigo (2005) 92 SASR 562.
[36] R v Errigo (2005) 92 SASR 562 at [37].
[37] R v Errigo (2005) 92 SASR 562 at [39]-[40], [43]-[44].
The forfeiture of Mr Errigo’s interest in the land is not a forfeiture that merely neutralises a benefit obtained through the commission of the offence. Accordingly, the judge was required to have regard to the nature and extent of the forfeiture.
That was the effect of this Court’s decision in R v Carpentieri (2001) 81 SASR 164, which was decided before para (ka) was inserted in s 10(1): see at [37]-[47] (Doyle CJ), with whom the other members of the court agreed. Subsequently, in Director of PublicProsecutions v Alexander (2003) 86 SASR 577, decided after para (ka) had been inserted, Mullighan J said (at [30]):
It is well established that the sentencing court may have regard to the consequence of forfeiture of property by reason of the commission of a serious drug offence when sentencing for that offence ...
Gray J agreed with his reasons (at [83]). Debelle J, the other member of the court, did not find it necessary to comment on this point. Each of those decisions deals with aspects of the operation of the Criminal Law (Sentencing) Act and of the Criminal Assets Confiscation Act (SA), and with aspects of the interaction between those two Acts, but for present purposes it is not necessary to go into those matters any further.
...
The forfeiture is a very substantial detriment suffered by Mr Errigo. It should be taken into account. There is no suggestion that the property was acquired with money gained from criminal activity, or that it was acquired for the purpose of criminal activities. On the other hand, it is appropriate to bear in mind that Parliament clearly intended forfeiture to be an additional penalty, when it occurs. It would not be appropriate for a forfeiture to be matched by a routine equivalent reduction in punishment, even if it were possible to equate the effect of a forfeiture with a period of imprisonment: Carpentieri (at [46]); Alexander (at [17] and [80]).
This means that it will be difficult to achieve consistency in sentencing when considering sentences for the one offence, and comparing cases where property has been forfeited with cases where property has not been forfeited. However, that, as I see it, is an inevitable result of the requirement to allow for the impact of forfeiture. To that extent the interest in consistency (or an appearance of consistency) must give way to the interest in ensuring that punishment is proportionate to the gravity of the offending, taking into account, as best one can, the impact of a forfeiture order.
The forfeiture in the present case did not neutralise the benefit obtained through the offending. Accordingly, the sentencing Judge was required to have regard to the nature and extent of the forfeiture, and the applicant was entitled to the mitigatory benefit that would follow from forfeiture.
The Application
The applicant submitted that in all the circumstances, the sentencing Judge erred in declining to exercise his discretion to suspend the sentence of imprisonment. It was said that the applicant’s earlier outlined personal circumstances and the agreed forfeiture sum allowed a merciful approach to be taken.
The Director contended that there was no error in the approach of the sentencing Judge. It was said that in the circumstances the sentence imposed was a lenient and merciful sentence. It was argued that, having regard to Mangelsdorf[38] and the many subsequent decisions that have followed this decision, no basis had been identified to interfere with the sentence imposed.
[38] R v Mangelsdorf (1995) 66 SASR 60.
It was contended by the Director that the applicant’s motivation, a desire to realise cash quickly, was one of the evils at which deterrent sentences imposed by the courts in reflection of Parliament’s intentions were directed. This was not a case of desperate need. Nor was it a case where the applicant voluntarily desisted. Her trading would have continued but for police intervention. It was said that a suspended sentence would send the wrong message to the community.
This Court has emphasised over many years that engaging in commercial dealings in drugs is a very serious crime. As earlier observed, the maximum penalty of imprisonment on each count is 25 years. It is rare that a person engaging in a commercial dealing would receive a suspended term of imprisonment.[39] The role of this applicant may be contrasted to that of a courier.[40] There is a need for a strong element of general deterrence when sentencing for these crimes.
[39] R v Mangelsdorf (1995) 66 SASR 60 at 70, R v Constantinou [2005] SASC 466 at [15].
[40] R v Harris (2001) 122 A Crim R 241.
A sentencing judge will only turn to consider suspending a sentence of imprisonment after first determining that imprisonment is the appropriate penalty. Having decided that imprisonment is the appropriate penalty, and having decided the head sentence and non-parole period to impose, a sentencing judge may then suspend that sentence if he or she considers that good reason exists to do so.

Whilst “good reason”[41] will usually be derived from circumstances personal to the offender, there is no limitation placed on what may amount to a good reason. There must be something about the personal circumstances of the applicant or the offence that would render it inappropriate to imprison the applicant in the circumstances where imprisonment is the appropriate penalty. It is not a matter of finding something special or exceptional, but rather a matter of weighing all relevant factors. In Dinsdale,[42] Kirby J summarised the position as follows:
Moreover, the scheme of the legislation, and the two steps which [the relevant legislation] requires, suggest, as a matter of construction, that the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term. This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender. It would be surprising if the legislation were to warrant, at the second step, concentration of attention only on matters relevant to the offender, such as issues of the offender’s rehabilitation and the court’s mercy. On the contrary, the structure and language of [the relevant legislation] support the view that what is required by a proposal that a term of imprisonment should be suspended is reconsideration of “all the circumstances”. This necessitates the attribution of “double weight” to all of the factors relevant both to the offence and to the offender — whether aggravating or mitigating — which may influence the decision whether to suspend the term of imprisonment.
Adopting this approach, then, permits attention to be given not only to the circumstances personal to the offender but also to the objective features of the offence. These may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. They may require that the prison sentence be immediately served, despite mitigating personal considerations. This approach is consonant with the recognition in jurisdictions other than Western Australia of the “complete discretion” which, subject to the statute, the primary judge has in suspending a sentence of imprisonment. In other States, it has been considered undesirable to attempt to circumscribe the language of the statute by reference to supposed formulae, particular considerations or any other gloss.
[41] Section s 38(1) of the Criminal Law (Sentencing) Act 1988 (SA) provides that a sentence may be suspended where “good reason exists”.
[42] Dinsdale v The Queen (2000) 202 CLR 321 per Kirby J at [85]-[86] (footnotes omitted). See also Police v Cadd and Others (1997) 69 SASR 150 at 168-9 (Doyle CJ), 173 (Duggan J); R v Wacyk (1996) 66 SASR 530 at 535 (Doyle CJ), 536 (Perry J).
Having reviewed all material relevant to this application, the conclusion may be reached that the sentence imposed in the present case was an appropriate sentence. A sentence of 18 months’ imprisonment and the fixing of a non-parole period of 12 months with respect to commercial dealings in methylamphetamine can be fairly described as merciful. The Judge’s decision not to suspend the sentence was an entirely appropriate decision. No basis of challenge to that decision has been made out. It was a decision well within his sentencing discretion. Because no basis to challenge the decision has been identified, it is not reasonably arguable that the Judge erred. Accordingly, permission to appeal should be refused.
Conclusion
This application should be dismissed.