R v Franklin - [2012] SASCFC 109

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FRANKLIN
[2012] SASCFC 109
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice White and The Honourable Justice Nicholson)
21 September 2012
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS
Appeal against sentence - appellant convicted of two counts of supplying a controlled drug to a child, and acquitted of one count of indecent assault - appellant sentenced to 18 months' imprisonment with a non-parole period of 11 months' imprisonment.
Prior to trial, an informal offer to plead guilty to the two drug offences in satisfaction of the Information was rejected - on the morning of trial the appellant pleaded not guilty to each count on the Information, but offered to plead guilty to the supply of cannabis to an adult, rather than a child - these pleas were not accepted.
Whether the sentence was manifestly excessive - whether insufficient weight was given to the appellant's attempts to plead guilty prior to the trial - whether the sentencing Judge erred in declining to suspend the sentence.
Held: Appeal dismissed - there may be circumstances in which an unaccepted pre-trial offer to plead guilty to alternative offences may warrant a reduction in sentence if they are the offences of which an accused is ultimately found guilty - the offer must be an actual offer and not a sounding out or an invitation to treat.
The first 'offer' in this case was merely an invitation to treat, or a request for an indication - the appellant's defence at trial was directly inconsistent with the terms of the 'offer' - having regard to the legislative purpose of s 33F and the seriousness with which Parliament views this offence, the sentence of imprisonment was not manifestly excessive - no error demonstrated in declining to suspend the sentence.
Controlled Substances Act 1984 (SA) s 32, s 33F, s 33G, s 33I, s 33 L, s 44; Criminal Law Consolidation Act 1935 (SA) s 56; Criminal Law (Sentencing) Act 1988 (SA) s 38, referred to.
Cameron v The Queen (2002) 209 CLR 339; The Queen v Shannon (1979) 21 SASR 442, applied.
R v Oinonen [1999] NSWCCA 310; R v Pennisi [2001] NSWCCA 326; R v Cardoso (2003) 137 A Crim R 535; R v Bartlett [1996] 2 VR 687; R v Hansen (2011) 206 A Crim R 54; R v Dunstan [1998] SASC 6751; House v The King (1936) 55 CLR 499, considered.

R v FRANKLIN
[2012] SASCFC 109
Court of Criminal Appeal: Sulan, White and Nicholson JJ

SULAN J:  This is an appeal against sentence. On 23 March 2012 the defendant and appellant, Richard Donald Franklin, was convicted of two counts of supplying a controlled drug to a child.[1] He was acquitted of one count of indecent assault.[2] The maximum penalty for selling a controlled drug to a child is life imprisonment or a fine of $1,000,000, or both.
[1]    Controlled Substances Act 1984 (SA), section 33F(a).
[2]    Criminal Law Consolidation Act 1935 (SA), section 56.
On 23 April 2012 the defendant was sentenced by a Judge of the District Court to 18 months’ imprisonment with a non-parole period of 11 months’ imprisonment. The Judge declined to suspend the sentence.
Background
The defendant met the complainant in late 2010 or early 2011. She was 14 years of age at the time of the offending. She was introduced to the defendant by a friend, who told her the defendant was a drug dealer.
The complainant purchased cannabis from the defendant on a number of occasions. This conduct was not charged.
On 12 March 2011 the complainant was hosting a party. She attended at the defendant’s house to obtain cannabis. The defendant gave her a bag of cannabis on credit, the subject of count 1. He also gave her a bong to smoke while she was at his house, the subject of count 2.
The defendant made admissions to the police. At trial he admitted supplying the complainant with cannabis, but claimed that, at the time, he believed she was at least 18 years of age.
The appeal
The defendant submits that the sentence was manifestly excessive. He contends that insufficient weight was given to the defendant’s attempt to plead guilty prior to the trial. Further, it is submitted that the sentencing Judge erred in declining to suspend the sentence.
Limited evidence is available before this Court as to the exact terms of what was offered and communicated between the defendant’s legal representative and the Director of Public Prosecutions prior to the trial. Counsel for the defendant submits that, prior to the trial, the defendant offered to plead guilty to the two drug offences in satisfaction of the Information. This plea was not accepted by the Director, who indicated to the defendant’s legal representative that the charge of indecent assault would proceed.
On the morning of trial, the defendant pleaded not guilty to each count on the Information. He offered to plead guilty to the supply of cannabis to an adult, rather than a child, in respect of Counts 1 and 2. These pleas were not accepted by the Director.
The defendant was later found guilty of both counts of supplying cannabis to a child. Counsel for the defendant submits that upon conviction, the defendant found himself in the same position as he would have been had the original offer to plead guilty to Counts 1 and 2 been accepted prior to the trial.
Further, it is contended that the later offer to plead guilty to supplying cannabis to an adult, which was made in front of the jury, contained a significant concession by the defendant in that it narrowed the compass of the trial to two principal issues. First, his belief of the age of the complainant when the cannabis was supplied and, second, his disputing of the indecent assault allegation.
The defendant submits that the sentencing Judge ought to have sentenced him on the same basis as if he had pleaded guilty, affording him credit for his offer. Counsel for the defendant agreed that the initial offer to plead guilty to Counts 1 and 2 on condition that the charge of indecent assault be withdrawn was not a formal offer made on instructions. He accepted that it was a counsel‑to‑counsel discussion to “sound out” the prosecutor. At the time, counsel for the defendant had no definite instructions to make a formal offer that the defendant plead guilty to the two counts involving the supply of a controlled drug to a child, on condition that the Director agree not to proceed on the indecent assault charge.
An offer to plead guilty
In Cameron v The Queen, the High Court considered the foundation for the mitigatory effect of a plea of guilty. Gaudron, Gummow and Callinan JJ said:[3]
[3] (2002) 209 CLR 339, [11]-[14].
It is well established that the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence. In Siganto v The Queen it was said:
“a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case.”
It should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty. The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice.
Although a plea of guilty may be taken into account in mitigation, a convicted person may not be penalised for having insisted on his or her right to trial. The distinction between allowing a reduction for a plea of guilty and not penalising a convicted person for not pleading guilty is not without its subtleties, but it is, nonetheless, a real distinction, albeit one the rationale for which may need some refinement in expression if the distinction is to be seen as non-discriminatory.
It is difficult to see that a person who has exercised his or her right to trial is not being discriminated against by reason of his or her exercising that right if, in otherwise comparable circumstances, another’s plea of guilty results in a reduction of the sentence that would otherwise have been imposed on the pragmatic and objective ground that the plea has saved the community the expense of a trial. However, the same is not true if the plea is seen, subjectively, as the willingness of the offender to facilitate the course of justice.
Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.
[Citations omitted]
In The Queen v Shannon[4] the Court of Criminal Appeal, sitting as a Court of five, considered the circumstances in which a plea of guilty may be taken into account in mitigation of sentence. King CJ noted at the outset that an offender’s remorse and contrition had always been regarded as a matter making for leniency. In some cases, a plea of guilty might be an indication of repentance, and a mitigating factor subsumed under the heading of remorse, contrition or repentance.[5] King CJ canvassed the two schools of thought in respect of the underlying rationale for treating a plea of guilty as mitigatory. First, that it stems from genuine contrition and remorse, and second, that it is in the public interest.
[4] (1979) 21 SASR 442.
[5] (1979) 21 SASR 442, 443.
With respect to a plea operating in the public interest, King CJ observed the following:[6]
The plea may operate, and may have been so intended, to save a prosecutrix the ordeal of giving evidence in a sexual case. The plea may serve, and may have been so intended, to save the State a lengthy and expensive trial. Yet in neither of such cases might the accused feel genuine remorse. There may be cases in which the only sorrow felt by him is in the fact that he has been detected. But, having been detected, he has had to do the best he can for himself. Weighing the strength of a possible defence against the likely penalty upon conviction he may elect deliberately to adopt a course which involves a measure of public utility in the belief that his own ultimate interest is best served by doing so. The judge may (not shall) take such circumstances into account in the accused’s favour.
…
On the other hand, there may be pleas of guilty which are not designed to serve the public interest – or may do so only marginally or incidentally. That is to say, the accused’s self-interest is completely predominant in the decision reached by him. One such case will be when the accused is quite unrepentant and confesses his guilt simply because the case against him is overwhelming and, in a practical sense, un-answerable. Another may be a case of ‘plea bargaining’ between the accused or his advisers and the Crown, as, for instance, where the Crown accepts an offer by the accused to plead guilty to a lesser offence. The entry of the ‘guilty’ plea is then merely a manifestation of an exchange of an advantage for a disadvantage by both the accused and the Crown. In such a case it will ordinarily be much more difficult to persuade the court that the plea has that degree of spontaneity or sincerity expected to be the product of true repentance. But, of course, a plea bargain and remorse are not mutually exclusive. A remorseful accused ought not to be prevented from seeking the benefit of any arrangement that he can advantageously make with the Crown nor penalized on that account if he does.
[6] (1979) 21 SASR 442, 446-7.
It is within this background that a court must consider the treatment of a plea as a mitigatory factor in sentencing an accused.
The issue before this Court, however, is how one ought to treat an offer which falls short of an actual plea of guilty.
In R v Oinonen[7] the appellant had been charged with murder, but found guilty by a jury of manslaughter.[8] His earlier offer to plead guilty to manslaughter had been rejected by the prosecution. Grove J, with whom the other members of the Court agreed, observed that it was practice to take into account an offer of a plea of guilty which matches the crime for which a person was ultimately convicted. He observed:[9]
The offer of that plea of guilty or, in usual circumstances, the actual plea of guilty, is of benefit to the person charged broadly in two ways: It is taken as an indication of remorse and contrition for the offence committed and, second, there is what is described as the utilitarian value of the plea; this includes the relief of the State from having to call witnesses and, indeed, the reliefs to the various witnesses of the burden of having to give evidence and potentially being cross-examined.
[7] [1999] NSWCCA 310.
[8] See also R v Pennisi [2001] NSWCCA 326.
[9] [1999] NSWCCA 310, [16].
In R v Cardoso[10] the appellant was convicted of manslaughter after a trial for murder. Prior to and during the trial he had offered to plead guilty to manslaughter, but his offer was rejected by the Crown. The trial Judge took into account the appellant’s remorse but made no allowance for his offer to plead to manslaughter. The Court of Appeal considered this to be in error. Hidden J remarked:[11]
…The applicant had offered to plead guilty to a lesser charge which could fairly be justified on the available evidence and which, in the event, the jury found to be the appropriate measure of his culpability. The Crown chose not to accept that offer, a matter which was beyond the applicant’s control. If the offer had been accepted, the same result would have been achieved without the necessity of a trial.
[10] (2003) 137 A Crim R 535.
[11] (2003) 137 A Crim R 535, [19].
In Victoria, the Court of Appeal has held that a defendant should be given credit for an unaccepted offer to plead to a lesser charge which matches the verdict at trial. In R v Bartlett,[12] the accused was charged with several counts of rape, a count of false imprisonment and a count of indecent assault. He was convicted of indecent assault and false imprisonment. Following a rejection of an application to exclude a record of interview, the appellant proposed to the Crown that he would be prepared to plead guilty to the indecent assault charge. This was rejected by the Crown. The Court of Appeal considered that since the applicant had been prepared to plead guilty to the only sexual charge of which he was found guilty, this factor should have been taken into account in his favour in the sentencing process.
[12] [1996] 2 VR 687.
In R v Hansen,[13] this Court considered the position of an appellant who was acquitted by a jury of murder and convicted of manslaughter, for stabbing the victim four times in the neck, causing him to die shortly thereafter. Counsel for the appellant pointed to a letter written to the Director of Public Prosecutions on the appellant’s behalf after his committal for trial, and well before the trial was set down, in which he offered to plead guilty to manslaughter. The appellant argued that the sentencing Judge erred in not equating the appellant’s offer to plead guilty to manslaughter as a plea of guilty for the purpose of reducing the sentence.
[13] (2011) 206 A Crim R 54.
Vanstone J, with whom I agreed, observed the following:[14]
In my view there is no rule of practice requiring that credit be given for such an offer in these circumstances. Had the appellant been able to point to a plea of guilty following the preliminary examination, or on an arraignment day, or at a subsequent hearing, then there is no doubt that, all things being equal, he would have been able to claim credit for that plea.
[14] (2011) 206 A Crim R 54, [8].
A reason for there being no rule of practice requiring a sentencing Judge to give credit for an offer to plead guilty to a lesser offence than that charged, or to plead guilty to some counts charged if other charged counts are discontinued, is that each case must be considered according to its circumstances. In some cases, what counsel characterise as an offer to plead amounts to no more than a discussion between counsel sounding out the prosecutor as to a possible resolution. In many case, the approach is made by defence counsel, without specific instructions. In such circumstances, the sometimes described offer is no more than a general preliminary discussion. There is no basis in such circumstances for a defendant to obtain a reduction of the sentence.
Another example is an offer to plead guilty, but on a factual basis which is unacceptable to the Director. If, ultimately, the defendant is convicted after a trial, there may be circumstances where it is clear that the underlying factual position, as put by the Director in the defendant’s original offer, is the same. Some credit for the defendant’s offer to plead will be appropriate in such a case.
If the result of the trial is as was anticipated when the defendant offered to plead, then some credit should be given for cooperation and the offer.
In order to ascertain whether a sentence should be reduced, the Court needs to know when the offer was made, the exact terms of the offer, the underlying factual basis to the offer, and any other relevant information. Correspondence between the defendant’s legal advisers and the Director should be provided to the Judge. The preferred position is for the defendant to plead guilty and for the Director to indicate why the plea is not accepted. The basis of the plea and the reasons for a refusal to accept it in answer to the information will be a matter of record.
In Hansen, the discrepancies between the appellant’s defence at trial, and the terms of the offer were that the appellant claimed at trial that at the time he struck the deceased he did not realise that he was holding the scissors, but rather he believed he was merely punching the deceased in self-defence. Vanstone J remarked:[15]
The departure from the terms of the earlier offer tends to suggest that the offer was made as a matter of tactics, rather than being a demonstration of contrition and remorse.
Particularly in circumstances where the appellant’s evidence at trial departs from the basis for the plea put in the letter of offer, I see no reason why a sentencing judge is obliged to give credit.
[15] (2011) 206 A Crim R 54, [9]-[10].
White J in Hansen would have allowed the appeal. He considered that generally authorities indicate that an unaccepted offer of this kind should be regarded as mitigatory. Nevertheless, he made the following observations:[16]
The fact that, following a rejection of an offer, an accused presents at trial a defence which is inconsistent with the offer, will be a relevant consideration. It may reduce or eliminate the significance of the offer as an expression of contrition or remorse. However, ordinarily it should not mean that the offer ceases to be relevant because, at the least, it would have had a utilitarian value had it been accepted.
[Citations omitted].
[16] (2011) 206 A Crim R 54, [35].
In my opinion, in an appropriate case, a sentencing judge may take into account an unaccepted offer to plead guilty to a lesser offence which matches the verdict at the trial. However, the preferable course for a defendant to take is to plead guilty before the Judge. There can then be no doubt about the basis of the plea and, if rejected by the Director, the Judge will know why it was rejected.

I turn now to the purported offers made by the defendant. In the week prior to the trial, the defendant is said to have offered to plead guilty to count 1 and count 2 only, in satisfaction of the Information. There is no evidence before this Court that this offer was anything more than an informal discussion between counsel for the defendant and the Director. At best, it could be characterised as an invitation to treat.
In my opinion, the nature and circumstances of this purported offer does not warrant or oblige the sentencing Judge to discount the sentence as submitted by counsel for the defendant. This is particularly so given that the defendant’s evidence at trial was that he believed the complainant to be over 18 years of age. The defendant’s evidence at trial is inconsistent with the purported offer of a plea of guilty to the supply of cannabis to a child.
The second offer made by the defendant was on the day of trial in front of the jury. This was an offer to plead guilty to the supply of cannabis to an adult. This offer was also refused by the prosecution.
The jury returned a verdict of guilty of supplying cannabis to a child. I consider that an offer made in respect of a lesser offence, where a verdict of guilty to a more serious offence is found, could not be regarded as mitigatory.
The purported offers could not be said to manifest from an underlying notion of contrition or remorse by the defendant. Whilst I accept that they could have some utilitarian benefit, I do not consider that this was such a case where the sentencing judge was obliged to give any credit for the offer, nor was he required to mention it in his sentencing remarks when arriving at a head sentence and non-parole period.
I would dismiss this ground of appeal.
Good reason to suspend
The defendant submits that the sentencing Judge erred in declining to suspend the sentence. The defendant points to various factors which, in his submission, ought to have been taken into account when considering whether to suspend. These include the fact that the complainant had been obtaining cannabis from a range of sources, that there was a lack of commerciality or profit to the transaction, that the offending did not take place near a school zone or prescribed place, and that cannabis can be regarded as a drug toward the lower end of the scale of seriousness of illegal drugs. Further, it was put that the complainant’s mother was aware that the complainant was purchasing and using cannabis, and that she encouraged the complainant by assisting her financially.
This submission fails to recognise that a primary purpose of the amended section is to ensure that young people do not consume or are encouraged to consume drugs. The provision is for the protection of children from becoming involved with drugs. Those who do supply children must recognise that their conduct is considered by the legislature and the community to be extremely serious.
The maximum penalty for the offence of supplying a controlled drug to a child, contrary to section 33F(a) of the Controlled Substances Act 1984 (SA) is a fine of $1,000,000 or life imprisonment, or both. This offence was previously governed by the repealed section 32(4) of the Controlled Substances Act. Pursuant to that section, the maximum penalty for the offences committed by the appellant would have been a fine not exceeding $100,000 or imprisonment for 15 years or both. Previously, a distinction was drawn between penalties according to the amount and type of drug supplied.
The maximum penalty which is now prescribed reflects the seriousness with which Parliament views the provision of controlled drugs to children. These provisions were designed to protect children from predatory adults.
In this case, the charged conduct was not an isolated event. The sentencing Judge was required to determine a sentence reflecting both personal and general deterrence. The defendant has not pointed to any error on the part of the sentencing Judge. The head sentence and non-parole period of 18 months and 11 months respectively was within the appropriate range for this offending. It was within the discretion of the sentencing Judge to decline to suspend the sentence. No error on his part has been demonstrated.
I would dismiss the appeal.
WHITE J: The circumstances of this appeal are set out in the reasons of Sulan J. I agree that the appeal should be dismissed but add the following reasons.
Offer to Plead Guilty
In my opinion, there will be circumstances in which unaccepted pre‑trial offers by defendants to plead guilty to alternative offences may warrant a reduction in the sentence if they are the offences of which the defendants are found guilty. I reviewed the authorities concerning this issue in my reasons in R v Hansen[17] and it is not necessary for present purposes to repeat that review.
[17] [2011] SASCFC 10 at [27]-[33].
Nor is this the occasion on which to canvass all the matters bearing on the question of whether some such reduction may be appropriate. It is sufficient to note two of the relevant matters.
The first is the nature and form of the offer relied upon. In Hansen, I suggested that any offer relied upon for this purpose should be an actual offer, and not something less such as a sounding out or an invitation to treat.[18] It should be expressed in clear terms and preferably in writing. Counsel should keep in mind that, depending upon the circumstances, they may not be entitled to inform the Court of the contents of without prejudice or off the record discussions. It is for this reason that the entry on arraignment of a formal plea to an alternative offence of which the defendant is ultimately convicted will carry more weight, as may other kinds of formal and open offers.
[18] Ibid at [37]-[38].
The “offer” relied upon in the present case was not really an offer at all. It was really an invitation to treat, or a request for an indication that the making of an offer by the defendant would not be pointless. After some oral discussion, counsel for the appellant sent an email before the trial to the prosecutor enquiring:
Is there any point me taking instructions on pleading to the drugs only?
In effect, this enquiry contemplated pleas of guilty to the two charged offences of supplying a controlled drug to a child if the Director withdrew the charge of indecent assault. The appellant wished to avoid being put in jeopardy of a conviction on the indecent assault count by an agreement to plead guilty to offences involving another form of criminal behaviour altogether. This is quite different from the cases in which the offer relates to the charged conduct but involves a different characterisation of that conduct.
Furthermore, the communications between counsel were almost certainly off the record and without prejudice. It will seldom be the case that “offers” in these circumstances will entitle a defendant to any reduction on sentence.
The second relevant matter is the appellant’s post‑offer conduct. At the trial the only issue concerning the two drug offences was the appellant’s assertion that he believed the child to be an adult. A plea of guilty by the appellant to the offences of supplying cannabis to the child would have involved an acknowledgment by him that he did not have a reasonable belief that the person to whom he made the supply was an adult. Yet, in his sworn evidence at the trial, the appellant asserted that at the time of the supply he had believed that person to be about 20 years old. He continued that assertion after being convicted when being assessed by the psychologist, Dr White, in relation to the submissions to be made on his behalf on sentence. Post‑offer conduct of this kind limits markedly the value of any pre‑trial offer. That was the view which the sentencing Judge took when he said:
Your counsel further put that you had previously offered to plead guilty on certain terms but that that offer had not been accepted. Whatever might be said about that, when the matter came to trial you maintained the firm belief that the child was an adult and you continued to maintain that view in your discussions with Dr White.
It is implicit in this passage that the Judge considered that whatever value the pre‑trial “offer” may have had was undermined by the appellant’s later conduct. In my opinion, the Judge’s conclusion in this respect was correct.
The Severity of the Sentence of Imprisonment
On any view, a contravention of s 33F is a serious offence. The maximum penalty of a fine of $1m or imprisonment for life, or both, which has applied since 3 December 2007 indicates by itself that this is so. Before December 2007, the former s 32(1)(c) of the Controlled Substances Act 1984 (SA) (CSA) would have been applicable. Under that provision the highest maximum penalties applied to the offences of supplying drugs to children and possessing drugs within a school zone. In the case of large quantities of drugs other than cannabis, the maximum penalty was a fine of $1m and imprisonment for life, and for large quantities of cannabis it was a fine of $1m and imprisonment for a term not exceeding 30 years.[19] The extension of these maximum penalties to any offence involving the sale, supply or administration of a controlled drug to a child indicates the serious view which Parliament takes of this conduct. The courts should not ignore this clear legislative statement.
[19] Sections 32(5)A(1)(a)(i), 32(5)A(1)(b)(i), 32(5)A(2)(a)(i), 32(5)A(2)(b)(i). Section 33G in the current CSA contains offences relating to the possession, sale, supply or administration of a controlled drug in a school zone and accordingly seems also directed to the protection of children. It fixes a maximum penalty of a fine of $1m or life imprisonment, or both, for these offences.
As Williams J observed in relation to the former s 32(1)(c), the gravamen of the offence is the supply of a controlled drug to a person whom the Parliament is seeking to protect.[20]
[20] R v Dunstan [1998] SASC 6751.
There are a number of reasons why that protection is appropriate. Young and impressionable minds can be particularly susceptible to pressure or influence; young people are often inclined to experimentation without appreciating fully or at all the risks involved and the pernicious effects of drug taking; they are more vulnerable to developing a dependence on drugs; they are vulnerable to predatory exploitation by those in the drug trade; and the physiological or psychological effects of the drugs at an early stage in their lives may have lasting detrimental effects.
Section 33F does not distinguish between the various forms of controlled drug to which it applies. Nor does it distinguish between the various circumstances in which the sale, supply or administration of a controlled drug may occur. However, a court sentencing for a s 33F offence must take into consideration the provisions of s 44 of the CSA which provides (relevantly):
(1)In determining the penalty to be imposed on a person convicted of an indictable or minor indictable offence against this Act, the court must take into consideration—
(a)     subject to subsection (2), the nature of the substance or goods involved in the commission of the offence; and
(b)     the quantity of the substance or goods involved in the commission of the offence; and
(c)     the personal circumstances of the convicted person (being a natural person), including the circumstances relating to the person's use (if at all) of any controlled drug; and
(d)     in the case of an offence against Part 5 Division 2 or 3—
(i)the commercial or other motives of the convicted person in committing the offence; and
(ii)the financial gain that is likely to have accrued to the convicted person as a result of the commission of the offence (but this is not to be taken into consideration if that financial gain is the subject of an application under the Criminal Assets Confiscation Act 2005); and
(da)   in the case of an offence against section 33F, 33H or 33I—whether the offence occurred within a school zone or at or near any prescribed place; and
(e)     any other relevant factor.
(2)In determining the penalty to be imposed in respect of a summary or indictable offence against Part 5 involving a controlled drug (other than cannabis, cannabis resin or cannabis oil), the degree of physical or other harm generally associated with the consumption of that particular type of controlled drug, as compared with other types of controlled drugs, is not a relevant consideration and the court must determine the penalty on the basis that controlled drugs are all categorised equally as very harmful.
…
It can be seen that, in relation to a number of offences under the CSA, including s 33F offences, s 44(1) requires the Court to have regard to the nature and quantity of the drug involved, the personal circumstances of the convicted person, any commercial considerations associated with the sale, supply or administration, and whether the offence occurred within a school zone or at or near any other prescribed place.
The offence established by s 33F may be committed in a variety of circumstances with a wide range of culpability. Although the exceptionally severe maximum penalty indicates Parliament’s view of the seriousness of the offence, in many cases it will not provide a useful reference point for the fixing of sentence. That is because there will be many cases in which penalties approaching the maximum would be entirely disproportionate to the conduct involved, even when one takes account of the evident legislative intention.
The nature of the controlled drug involved in this case is an important consideration. Section 44(2) contains an indication that Parliament does not intend cannabis in its various forms to be regarded as harmful to the same extent as the other forms of controlled drug. While sentencing courts are obliged generally to regard all controlled drugs as equally harmful, that requirement does not apply when a court is sentencing for a cannabis offence.
Another indication that the legislature does not regard the sale, supply or administration of cannabis in its various forms as seriously as it does the same conduct in relation to other controlled drugs is seen in s 33I of the CSA. Section 33I establishes the counterpart offence to s 33F in relation to the sale, supply or administration of a controlled drug to an adult. Under s 33I(2), the maximum penalty for the sale, supply or administration of cannabis, cannabis resin, or cannabis oil is a fine of $2,000 or imprisonment for two years, or both. Under s 33I(1) the maximum penalty for the supply, sale or administration of other controlled drugs is a fine of $50,000 or imprisonment for 10 years, or both. The marked difference between these maxima is an indication that the Parliament does not regard cannabis in its various forms with the same degree of concern as it does the other controlled drugs.[21]
[21] Section 33L of the CSA also distinguishes between cannabis and the other forms of controlled drugs in the maximum penalties which it fixes for the possession or consumption of controlled drugs.
On the other hand, the fact that s 33F does not make the distinction made by s 33I and that it has higher maximum penalties tends to confirm the significant protective purpose of s 33F.
Counsel for the appellant emphasised a number of matters: the appellant’s age of 52; that the drug in question was cannabis and the smallness of the quantity involved; the fact that the child was already a regular user of cannabis; that there was an element of apparent parental approval as the child would use money given to her by her mother with the knowledge that it would or may be used to acquire cannabis; that it was the child who had approached him for the supply rather than the converse; that the appellant was only one of several suppliers of cannabis to the child; and that there was an absence of commerciality in both transactions as the cannabis which was the subject of the first count was sold at cost price, and the second was in the nature of a gift. To these matters could be added the circumstance that the appellant did not make the supply to the child with the intention that she would resell it or use it in any other way as an incident of a distribution network among young people.
However, when the evident protective purpose of the offence established by s 33F is kept in mind, many of these matters lose their significance. The rationale for the protection of children to which I referred earlier applies as much to cannabis as it does to other forms of controlled drugs.
The appellant was a mature adult and the child only 14 years old. He was a supplier and she, if not an addict, at least a habitual user. The appellant acknowledged that he had previously supplied the child with cannabis. This seems to have explained the confidence with which the child approached him for the supply on 12 March 2011 and means that the two supplies on that day occurred in the context of a commercial relationship which the appellant anticipated would be ongoing. It also means that the appellant was not entitled to the lenience which may have been available had this been a one‑off or spur of the moment supply.
The apparent parental approval of the child’s cannabis use did not alter the appellant’s responsibilities: his own obligation to comply with the law was not affected by the attitude of the child’s mother. It was not open to him to exploit the circumstances apparently condoned by the child’s mother and in particular to provide cannabis in a context of anticipated continued commercial supply. For similar reasons, it does not avail the appellant at all to point to the fact that other persons were also prepared to break the law by supplying cannabis to the child.
The circumstance, if it had been the case, that the appellant had by his supply introduced the child to cannabis, or had prevailed on her to take his supply, would, in my opinion, have aggravated his offence. The absence of those matters is not a matter of mitigation.
I agree that, on one view, imprisonment for 18 months with a non‑parole period of 11 months does seem severe for two offences of the supply of modest amounts of cannabis. However, regard must be had to the seriousness with which contraventions of s 33F must be viewed and the legislative purpose of the provision. In addition, by reason of his own previous convictions for offences involving the possession and cultivation of cannabis, the appellant well knew the unlawfulness of conduct involving the use of cannabis. Further still, as both Dr White and the sentencing Judge observed, the appellant was “oblivious to the reality of [cannabis] use being totally inappropriate”. On that basis, I do not consider that it can be said that the sentence of imprisonment in this case was too severe.
Suspension
After imposing the sentence of imprisonment and fixing the non‑parole period, the Judge said:
I am not satisfied that there are good grounds to suspend that sentence.
The appellant’s counsel submitted that this conclusion involved error. In support, he referred again to the matters relied upon as indicating that the head sentence and the non‑parole period were too severe, although counsel gave more emphasis to matters which were personal to the appellant.
Section 38 of the Criminal Law (Sentencing) Act 1988 (SA) permits a sentencing judge to order suspension when the judge considers that good reason exists for doing so. The decision concerning suspension of a sentence is an exercise of discretionary judgment. The circumstances in which appellate courts will interfere with such discretionary judgments are limited.
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.[22]
[22] House v The King (1936) 55 CLR 499 at 504-5.

The submissions of counsel did not, in my opinion, identify any error in the Judge’s reasons of the kind referred to in this passage. It is true that the Judge did not refer expressly to a number of aspects of the appellant’s personal circumstances. However, those circumstances were set out in the report of Dr White to which the Judge said expressly that he had had regard. The Judge also said expressly that he had had regard to the various matters put on the appellant’s behalf during the course of the sentencing submissions. I note too that the Judge had the advantage of seeing and hearing the appellant when he gave evidence in the course of the trial.
In my opinion, the appellant has not demonstrated any error of the kind which would permit this Court to interfere with the exercise of the Judge’s discretionary judgment.
Conclusion
For the reasons given above, I would dismiss the appeal.
NICHOLSON J. I agree that the appeal should be dismissed for the reasons given by White J.