R v Hevko - [2018] SASCFC 22

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HEVKO
[2018] SASCFC 22
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Nicholson)
11 April 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - OTHER TYPES OF ORDER
Appeal against sentence. The appellant pleaded guilty to one count of trafficking in a controlled drug. He was sentenced in the District Court to imprisonment for a period of two years and four months with a non-parole period of 15 months. The Judge declined to suspend the sentence or order that it be served by way of home detention.
The appellant's primary contention on appeal is that the Judge erred in finding that the seriousness of the offending and the need for deterrence outweighed favourable personal circumstances of the appellant in declining to order that the sentence be served on home detention.
Held per Nicholson J (Kourakis CJ and Kelly J agreeing), granting permission to appeal, allowing the appeal, setting aside the District Court sentence and resentencing:
1. The appellant is to serve the term of imprisonment imposed by the Judge by way of home detention pursuant to the provisions of section 33BB of the Criminal Law (Sentencing) Act 1988.
Per Kourakis CJ (Kelly J agreeing):
1. The Judge erred in failing to address the section 33BB discretion against the particular circumstances of the appellant's offending and his personal circumstances.
2. The Judge failed to adequately explain his reasons for declining to order home detention.
Per Nicholson J (Kelly J agreeing):
1. The Judge erred in the application of the requirements of section 33BB to the facts in this case.
2. The Judge's reliance on the appellant's prior offending was misplaced.
3. It was not open to the Judge to make a finding beyond reasonable doubt that the appellant's offending was not a once off isolated offence.
Controlled Substances Act 1984 (SA) s 32; Criminal Law (Sentencing) Act 1988 (SA) s 33BB, referred to.
R v Hosking (2017) 128 SASR 37, considered.

R v HEVKO
[2018] SASCFC 22
Court of Criminal Appeal: Kourakis CJ, Kelly and Nicholson JJ
KOURAKIS CJ.

I would allow the appeal and set aside the sentence imposed in the District Court.
I would identify the error of the Judge as a failure to address the question whether a home detention order should have been made in the particular circumstances of the appellant’s offending. I acknowledge that the Judge expressly adverted to the Court’s discretion to make a home detention order, and to some of the sentencing material pertaining to it. However just as a failure to expressly mention a sentencing consideration does not, of itself, establish that a sentencing judge did not consider it, so too, an express reference to a sentencing option may not conclusively establish that the sentencing judge addressed the relevant questions in the particular circumstances of the case.
It is an error of law to ask the wrong question, ignore relevant material or rely on irrelevant material in a way which affects the exercise of legal power.[1] In Minister for Immigration and Border Protection v MZYTS,[2] Kenny, Griffiths and Mortimer JJ relevantly said this at [68]:
In SZJSS at [27]-[28] (a passage extracted by Robertson J in SZRKT at [96]) the joint judgment of the Court recognised as a proposition flowing from Yusef that “jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power”. In this passage, the Court is not dealing with relevant considerations in the Peko-Wallsend sense. Rather, as we consider Robertson J recognised in SZRKT (at [97]), it is describing an example of jurisdictional error where, in a given case, ignoring relevant material demonstrated a failure to perform the statutory task cast upon it by the combined provisions in the Migration Act because of the nature of the claims made and the nature of the material ignored.
[1] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
[2] (2013) 230 FCR 431 at [68].
The Judge’s reasons for declining to exercise the power conferred by s 33B of the Criminal Law (Sentencing) Act 1988 (SA) (the s 33B discretion) to order home detention were:
Given the seriousness of the offence, together with the importance of deterrence both in this category of offending generally, and personally given your previous and subsequent drug offending, it is not appropriate to exercise the discretion to make a home detention order in this case.
In the generality of cases, and in particular in cases of trafficking in a commercial context, remarks as briefly stated as those would nonetheless sufficiently address the question of home detention. However in this case the Judge’s elliptical references to the “seriousness of the offence” and to the importance of deterrence “in this category of offending generally” conceal a failure to address the salient feature of the offence, namely that it may have been an isolated incident. Nor did the Judge expressly address those of the appellant’s personal circumstances which militated strongly in favour of a home detention order. The failure to specifically address those particular features of the case before him vitiates the Judge’s exercise of the s 33B discretion.
I deal first with the failure to properly characterise the offence for which the appellant fell to be sentenced. In the course of submissions the appellant put that this was the first occasion on which he had conveyed any drugs. The prosecution did not dispute that position, informing the Judge that it had no evidence to the contrary. However the prosecution contended that the appellant was to be paid $500 for conveying the drugs whereas the appellant put that he was only to receive a small quantity of drugs for the use of his addicted girlfriend.
In the course of submissions the Judge raised the further possibility that the appellant was himself a dealer of the drugs but the Judge ultimately found that the appellant was merely conveying the drugs and was not dealing in them. The remaining dispute over how the appellant was to be paid was of no real moment but in order to evaluate the seriousness of the offending it was important that the Judge determine whether:
(a)the offence was the appellant’s first and only involvement in the distribution of heroin; or
(b)the offence was committed against a background of commercial dealing; or
(c)it could not be known whether it was the appellant’s first involvement or an offence committed in a commercial context.
The Judge expressly disbelieved the appellant and could therefore not sentence on the factual basis in (a). The Judge was of course not bound to accept the appellant’s evidence to that effect even though the prosecution did not dispute it and had no evidence to the contrary. Even though there was no evidence on which the Judge could find proved the factual basis in (b), his Honour at one point in his reasons appeared so to find, but that may merely reflect an infelicity of expression.
It follows that the only basis on which the appellant could be sentenced was the agnostic one expressed in (c) above. However the Judge never acknowledged he was required to proceed on the basis that it may have been the appellant’s first incursion into heroin trading.
Even though all trafficking in heroin is serious, in dismissing the option of home detention on the ground of the seriousness of the offence without expressly adverting to the radical uncertainty over the background against which the offence was committed, the Judge failed to address the s 33B discretion against a critical factual feature of the offence.
For similar reasons, the Judge failed to direct his mind to the exercise of the s 33B discretion in this case when he stressed the importance of deterrence “in this category of offending generally”. There is a substantial difference in the relative weight of a deterrence in the exercise of the s 33B discretion between a case in which an offender has conveyed the drug for the first time, and only because of a combination of unique circumstances connected to his girlfriend’s use of the drug, and a case in which the drug is conveyed for the offender’s own financial benefit in the context of commercial dealing. The position being unknown in this case it was wrong to give deterrence the importance it has in drug trafficking generally.
Finally the appellant’s age, health and lack of serious offending after 1983 weighed strongly in favour of a home detention sentence. Moreover the length of the sentence, reduced as it was for the appellant’s guilty plea, was well suited to a home detention order. The failure to acknowledge the weight of those combined circumstances in the exercise of the s33B discretion also discloses that the Judge did not address the s 33B discretion against the appellant’s particular personal circumstances.
If I am mistaken in concluding that the Judge’s reasons manifest a failure to address the questions relevant to the exercise of the s 33B discretion in the circumstances of this case, I would hold, in any event, that the Judge has failed to adequately explain his reasons for declining to order home detention.
Having concluded that the Judge made errors which vitiated his sentencing discretion, it is necessary to consider whether on a proper exercise of the discretion a different sentence should be imposed. I would join in the orders proposed by Nicholson J, albeit with some reluctance. First I observe that even though the offence may have been a one-off, that was not known with any certainty. Secondly, other than the passage of time since the appellant’s conviction for trading in cannabis, the evidence of his rehabilitation is not strong. He has made little use of his tertiary qualifications in that time and I doubt that his decision to care for his parents fully explains that. Thirdly, his decision to convey the drugs on this occasion suggests a subsisting defect of character which drives him to ignore the strictures of the law when it suits him. So too does his decision to grow cannabis whilst on bail for this offending, but that offence is of a much lower order than the trafficking offence for which the appellant fell to be sentenced. Ultimately however my concerns are not sufficient to displace the otherwise strong reasons for ordering a home detention sentence in the circumstances of this case.
I would therefore join in the orders proposed by Nicholson J.
KELLY J.
I agree that the appeal should be allowed for the reasons given by Kourakis CJ and Nicholson J.
NICHOLSON J.
Introduction
The appellant, following his plea of guilty, was convicted of the offence of trafficking in a controlled drug.[3] On 26 October 2017, the appellant was sentenced in the District Court to imprisonment for a period of two years and four months[4] with a non-parole period of 15 months to commence that day. However, on 27 October 2017, the appellant was released from custody having been granted home detention bail by a single Judge of this Court pending the resolution of his then foreshadowed appeal.
[3] Contrary to section 32(3) of the Controlled Substances Act 1984. The maximum penalty for this offence is imprisonment for 10 years or a fine of $50,000 or both.
[4] The Judge nominated a starting point of three years and four months which he reduced by 30 per cent on account of the early plea of guilty.
On 22 November 2017, a different Judge gave permission to appeal on the basis that the sentence imposed was manifestly excessive, being appeal ground 1 together with particulars as provided for in subgrounds 1.1 to 1.5 inclusive. The Judge referred a second ground of appeal to the Court of Criminal Appeal for the permission question to be considered in conjunction with the appeal on ground 1.
On 12 February 2018, a further amended notice of appeal against sentence was provided by the appellant. The effect of the amendment is to relocate subground 1.4 and renumber it as appeal ground 2 such that it became a separate ground of appeal independent of the contention of manifest excess. The original ground 2 was renumbered ground 3. The new appeal ground 2 (old particular subground 1.4) is in these terms.
The learned sentencing judge erred in finding that the objective seriousness of the offence and need for personal and general deterrence outweighed matters personal to the defendant in the application of section 33BB of the Criminal Law (Sentencing) Act 1988.
Insofar as permission to appeal may need to be revisited with respect to this contention now relied upon as a stand alone appeal ground, I would grant permission and for the reasons that follow I would allow the appeal and resentence the appellant.
In the circumstances, it is unnecessary to give consideration to the question of whether or not permission should be granted for appeal ground 3. It is also unnecessary to consider the question of manifest excess (appeal ground 1) other than to note that during the hearing of the appeal, counsel for the appellant abandoned the contention that the length of the head sentence or the non-parole period should be seen as manifestly excessive but maintained the submission that the failure to order the sentence be served by way of home detention, pursuant to section 33BB of the Criminal Law (Sentencing) Act 1988 (the Sentencing Act), did give rise to a manifestly excessive sentence. Again, and given that I would allow the appeal on the basis that the Judge erred in his exercise of discretion in refusing to order service by way of home detention, it is unnecessary to also consider whether or not the sentence is manifestly excessive for this reason.
The circumstances of the offending
On 18 October 2016, police officers stopped the appellant whilst he was driving his girlfriend’s motor vehicle. When questioned by the police the appellant voluntarily produced from the pocket of the driver’s side door a press-seal bag containing cannabis. A subsequent search of the vehicle disclosed nothing of interest. However, the police also searched the appellant’s person and found three small press-sealed bags in one pocket of his jacket, two of which each contained a single dose of heroin and the third a single dose, approximately 0.08 grams, of methylamphetamine. The police found in another pocket of the jacket 48 smaller press-sealed bags, 36 of which each contained a single heroin dose (between 0.06 and 0.1 grams), 11 of which each contained a larger amount of heroin (between 0.15 and 0.18 grams) and one of which contained a larger quantity again of heroin (about 0.55 grams). In total, the 48 bags contained approximately 4.35 grams of heroin with a street level value, sold as single doses or hits, of between $2,400 and $4,800.
The police also found $475 in the appellant’s wallet, a numbered list on a piece of paper, one mobile phone on the appellant’s person and two mobile phones in the girlfriend’s vehicle. The results of the e-crime analysis on the three phones disclosed nothing that could be said to have been consistent with drug trafficking. Ultimately, it was accepted by the prosecution and by the Judge that the $475 had been innocently acquired[5] and that there was nothing about the numbered list or the phones indicative of or in support of a finding that the appellant had engaged in a background of drug trafficking.
[5] The appellant gave evidence that this was part of his fortnightly pension to be used for living expenses.
It was the appellant’s contention, accepted by the prosecution, that the bag of cannabis had separately been purchased by the appellant for personal use and that when he was stopped by the police he was in the process of couriering the 48 packets of heroin to a man in a hotel on behalf of his girlfriend’s drug dealer. It was the appellant’s case, accepted by the prosecution, in the sense that it was unable to prove otherwise, that the appellant was acting as a courier on just this one occasion and not as part of a course of dealing.
The appellant told the police that someone was going to give him $500 if he delivered the stuff to the man in the pub. However, he changed his story when he spoke to the forensic psychologist, Mr Allen Fugler, who provided a report dated 17 May 2017 for sentencing purposes. The circumstances surrounding the offending, as told to Mr Fugler and as put in submissions before the Judge, were described by the Judge in his sentencing remarks in these terms.
As arranged by your lawyer, a psychological assessment of you was carried out on 10 April 2017 and the report records what you told the psychologist, Mr Fugler on that day. It records that you told him that in fact on the day you were apprehended, you had been intending to purchase heroin to supply your addicted girlfriend … . In the course of attending the drug dealer’s property, you had agreed to deliver the drugs you were caught with to someone at the hotel and only did so in exchange for what you said were “a few bags free of charge”.
You told the psychologist the only thing you purchased was the bag of cannabis, also for your addicted girlfriend.
When your counsel subsequently made submissions on 5 June 2017, [counsel] told the court that you were delivering the heroin to obtain the drugs for your girlfriend for free and that you lied to police that you were going to get $500 for delivering the drugs. So the submission was that you were not receiving any money at all for delivering the drugs.
During the initial submissions, given on 5 June 2017, the prosecutor advised the Court as follows.
Can I indicate that there is no evidence to suggest that there is a background to dealing in this matter. The only evidence we have is what is before your Honour. There is no telephone intercept material, there is no e-crime material before the court, there are no text messages to support a background to this offending, and in those circumstances the Director relies on the declaration material that is before the court and I accept the submissions my learned friend has made about the factual basis, and that is the list that is referred to in the declarations is not relied upon as being a tick list. There is no evidence to support that. The only difficulty, as my learned friend has raised with your Honour, is the issue between what is said in the record of interview about whether there was to be a $500 benefit for the delivery of those drugs to the carpark, as opposed to what he tells Dr Fugler about receiving a few bags of heroin for free. That is the only difficulty and, in my submission, I am instructed that that is a matter for the court to determine.
The Judge made clear, as counsel for both parties accepted, that the factual basis for the offending was ultimately a matter for the Judge and was not one with respect to which any agreement or concession made by the Director would necessarily bind his Honour. His Honour also made clear to counsel for the appellant that his primary concern with respect to the factual basis was that the objective facts, in particular the presence of 48 individual small press-seal bags containing single doses of heroin, strongly suggested that the appellant was not a courier but a street dealer.[6]
[6] This is a characterisation of potential significance given the guidance from this Court in R v Young [2016] SASCFC 102; (2016) 126 SASR 41 that a range of four to seven years imprisonment is appropriate for street level dealers in the circumstances there discussed.

The Judge indicated, as his present thinking, that he had before him three potential bases for sentence namely: that the appellant was a street level heroin dealer; that the appellant had agreed to courier the drugs in exchange for $500; and that the appellant had agreed to courier the drugs in exchange for a small amount of free heroin for his girlfriend.
Throughout a fairly extensive debate between counsel for the appellant and the Judge, counsel maintained her submission that this had been a one-off courier arrangement. She submitted that “in terms of the exchange for a couple of packets of heroin or $500, there’s not much in it in terms of culpability, not much difference in it”. Nevertheless, counsel maintained her submission that the benefit to be obtained by the appellant was a couple of packets of heroin in order to meet his heroin addicted girlfriend’s fairly desperate need at the time.
Whilst the prosecutor submitted that a period of imprisonment had to be imposed and that it was not a suitable case for a suspended sentence she went on to submit in these terms.
However, the Director concedes that this matter involves low level dealing in terms of there is no background to the offending as previously submitted, there is no evidence to suggest that this has occurred on a previous occasion. Therefore your Honour might consider the prisoner is a suitable person for the purpose of a home detention sentence of imprisonment pursuant to section 33BB of the Sentencing Act.
His Honour reiterated from time to time his concern as to the precise nature of the offending. During submissions on 26 September 2017, the Judge made it plain that he was unable to accept the appellant’s submission on the balance of probabilities without hearing evidence. His Honour said this.
So whilst I, on the material before me, can’t make any specific findings as to the scale of trafficking or indeed any other trafficking, I don’t think I can accept without evidence that this wasn’t what it seemed, which is a street level dealer with 50 deals either for sale to the public or to be dropped off up at the pub maybe for a lower level dealer to then on-sell.
Faced with this intimation, the appellant elected to give evidence and did so on the resumption of submissions on 16 October 2017.
The appellant gave evidence in chief concerning his personal circumstances which was not challenged. He then explained that his seriously addicted girlfriend had arrived at his house on the day in question in a very bad way “hanging out” for heroin. He was in the throes of looking after his very elderly and sick mother by preparing her a meal and arranging for her insulin injection and, given that his girlfriend was in such a terrible state and not to be reasoned with, he was anxious to get rid of her as quickly as possible. He took the view that the best way to get rid of her was to acquire a $100 hit of heroin from her drug dealer who lived approximately one kilometre away following which she would calm down and go.
The girlfriend made a phone call to her dealer to arrange the transaction following which the appellant jumped into her car which had been left in the driveway and drove straight to the dealer. He had been to this dealer on her behalf on a couple of earlier occasions. One of the men there asked him if he would go to a hotel which was on his way back home and drop off the packages of heroin in exchange for which they would give him the two packets of heroin and the packet of methylamphetamine that was found in his other pocket. He agreed and they gave him a lunch bag containing the 48 small press-sealed bags of heroin. The appellant said that when he was questioned by the police he panicked because he did not want to get his girlfriend into trouble and told them that he was going to receive $500 for doing this job.
The burden of the cross-examination and of the Judge’s interventions was to call into question the basis on which he was to be paid for transporting the heroin. It would appear that this was designed to challenge his evidence in chief that he had been asked to courier the drugs to a man at a nearby hotel. No questions were directed to the issue of whether or not he had acted in this way or in any way involving trafficking of heroin or other drugs on previous occasions.
In further submissions, given at the conclusion of the appellant’s evidence, counsel for the Director did not depart from her initial submissions concerning the nature of the appellant’s involvement and reiterated that the Judge may consider, in all the circumstances, a home detention order to be suitable. Ultimately, the Judge accepted (as will be explained more fully in the next section) that the appellant had acted as a courier on this occasion and not as a street dealer.
The Judge’s approach to sentence
In his sentencing remarks, the Judge initially explored in quite some detail his misgivings as to the nature of the offending, in particular, as to whether or not the appellant was in fact operating as a street dealer. He did so in order to explain why he had put counsel on notice that her client needed to give evidence if he was to maintain that this had been an isolated delivery from an unnamed dealer to an unnamed person for no reward apart from a small quantity of drugs for his girlfriend. His Honour then provided a summary and his analysis of the evidence given on this topic, including what had been said to Mr Fugler. His Honour made an adverse credit finding, rejected the appellant’s evidence on this issue, and observed that the court was “thus left with the facts as objectively represented in the declarations”.
The Judge made these ultimate findings as to the circumstances of the offending.
Given the lack of reliance the court can place on your evidence, it is unclear what or how much you were to be paid for couriering the drugs … .
Whilst the court finds beyond reasonable doubt that you were doing it for reward and that you were not doing it as a once off, isolated event for a drug dealer you had never met before, beyond that the details are not clear.
Given the material before the court as to your relationship with [the appellant’s girlfriend] and her drug use and drug addiction, the court is prepared to accept on the balance of probabilities that some small proportion of the heroin may have been for supply to her.
Further, in the totality of the circumstances, particularly in the absence of evidence as to any actual or potential sales, the court is prepared to accept the submission that you were a drug courier rather than a street level dealer.
His Honour then identified the appellant’s prior and subsequent drug offending. Throughout his remarks, the Judge placed significant emphasis on this other offending and, in particular, on a “deal or trade” Indian hemp offence committed in 1983, as follows.
It is particularly serious that you would [commit the present trafficking offence] after having received a suspended sentence in the past for dealing or trading illicit drugs.
.  .  .  .
Your offending is serious. Heroin and methylamphetamine cause carnage in our community and are a blight on our society. Couriers of those drugs enable and facilitate the sale and distribution of these very harmful drugs throughout the community. This and the fact that you have both prior drug trafficking offending and subsequent drug cultivation offending means that deterrence must play a material role in any penalty.
.  .  .  .
[With reference to the issue of suspension] at the end of the day, the seriousness of the offence, together with your other drug offending and the need for both personal and general deterrence, outweigh the matters put on your behalf … .
.  .  .  .
[With reference to the issue of an order that the sentence be served on home detention] given the seriousness of the offence, together with the importance of deterrence both in this category of offending generally, and personally given your previous and subsequent drug offending, it is not appropriate to exercise a discretion to make a home detention order in this case.
I will return to the nature of the appellant’s prior and subsequent offending in the context of my discussion of the appellant’s personal circumstances and its potential relevance to the question of the appropriateness of an order for the sentence to be served by way of home detention.
The Judge turned to summarise the appellant’s personal circumstances in the following terms.
Your counsel relied primarily on the matters set out in Mr Fugler's report and in other tendered materials.
You are 66 years of age, born in Poland to parents of Ukrainian heritage, the family migrating to Australia in 1959. You had a happy childhood and a good upbringing.
You also did well at school, completing Year 12 at Woodville High School and then a degree in science at Adelaide University.
You married at the age of 21 and had two children, both who have done well. When the children had left home, you and your wife separated, in all after about 20 years of marriage, although I note in one of the department’s reports it says 27 years.
You have had a good work record, first at Hills Industries, then at a uranium mine in Mt Isa, before returning to Adelaide to work for many years at Universal Fibreglass. 12 years ago you ceased employment to be a full-time carer for your father, a role you undertook, together with your mother, for several years until his death in 2008.
You have been in a relationship with [your girlfriend] for about 14 years and that relationship is presently on foot. The court has regard to the letter from Dr Crowley indicating that he has been treating her for opiate and methamphetamine addiction for three years and she remains on methadone and subject to his treatment at the present time.
The court has regard to the reference tendered from Ms Hahn, who indicates that you were also in a relationship with her mother for the years 2002 to 2009, and that you have been over the years, and still are, very supportive of her, her family and her career.
A further reference from a Mr Hall indicates you are helpful and well regarded by him and others.
At the time of the offending, on 18 October 2016, you had been caring for your ill mother for a number of years. You told Mr Fugler that by the time you got home at 11 p.m. on the night in question, she was in a diabetic coma and had to be hospitalised. Unfortunately she passed away 10 days later. She was 86.
Whilst Mr Fugler did not conclude that you had any major psychiatric or psychological condition, he says you have developed depressed affect associated with an unresolved grief reaction, primarily due to you blaming yourself to some degree over your mother's death.
The Judge then repeated the seriousness with which he viewed the offending and the need for personal and general deterrence and proceeded to impose the head sentence and non-parole period earlier referred to.
In declining to suspend the prison sentence and to release the appellant on a bond to be of good behaviour, in accordance with Part 5 of the Sentencing Act, his Honour gave this reason.
As to whether there is good reason to suspend that term of imprisonment, the court has regard to everything put and tendered on your behalf. At the end of the day, the seriousness of the offence, together with your other drug offending and the need for both personal and general deterrence, outweigh the matters put on your behalf such that there is not good reason to suspend the sentence.
In declining to order that the sentence be served by way of home detention, the Judge gave this reason.
As to whether the sentence should be served on home detention, the court has regard to everything put and tendered, including the contents of the reports prepared by Corrections, and has applied the statutory test set out in s.33BB of the Criminal Law (Sentencing) Act, as explained in a series of Supreme Court judgments, including by Doyle J in R v Dell and Dell and by the Chief Justice in R v Filipponi. Given the seriousness of the offence, together with the importance of deterrence both in this category of offending generally, and personally given your previous and subsequent drug offending, it is not appropriate to exercise the discretion to make a home detention order in this case.
The discretion to order that a sentence be served by way of home detention
Division 3A was introduced into Part 3 of the Sentencing Act with effect on and from 1 September 2016. It provides for a further sentencing option whereby a prison term might be served on home detention. Section 33BB addresses the circumstances in which a discretion to so order is available and the matters to be taken into account in the exercise of that discretion. Section 33BB is in these terms.
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.
The Court of Criminal Appeal has considered the nature of the discretion available under section 33BB and the proper approach to its application on a number of recent occasions.[7] It is not necessary and perhaps undesirable to add further to these various expositions, all of which have provided consistent forms of guidance to sentencing judges. However, of assistance in the present case is the summary provided by Blue J in R v Hosking.[8]
[7]    R v Filipponi [2016] SASCFC 148; (2016) 126 SASR 464 at [23]-[28] (Kourakis CJ with whose reasons Vanstone and Nicholson JJ agreed), R v Dell; R v Dell [2016] SASCFC 156; (2016) 126 SASR 571 at [40]-[60] (Doyle J with whose reasons Kelly and Parker JJ agreed), R v Hosking [2017] SASCFC 50; (2017) 128 SASR 37 at [6]-[9] (Vanstone J with whose reasons Parker J agreed) and at [51]-[63] (Blue J), R v Best [2017] SASCFC 55 at [44]-[53] (Stanley J with whose reasons Parker and Lovell JJ agreed) and R v Taheri [2017] SASCFC 115 at [24] (Nicholson J with whose reasons Kourakis CJ and Peek J agreed).
[8] [2017] SASCFC 50; (2017) 128 SASR 37 at [54]-[63].
The court only considers whether to make a home detention order after it has already imposed a sentence of imprisonment on the defendant and determined that good reason does not exist to suspend the sentence.
Before the court’s discretion to make a home detention order is enlivened, the court must be satisfied of three further preconditions:
1      the defendant is a suitable person to serve the sentence on home detention;
2      the proposed residence is suitable and available for the defendant’s detention and the defendant will be properly maintained and cared for while detained therein;
3      the Department for Correctional Services has adequate resources for the proper monitoring of the defendant while on home detention by a home detention officer.
The first condition is directed to the defendant’s circumstances, including capacity to support himself or herself or be supported in private accommodation and likelihood of compliance with the conditions of home detention. The subject matter of the second and third conditions is likely to be addressed by the home detention report ordinarily sought from the Department.
Once the court’s discretion is enlivened, the paramount consideration is the safety of the community. The court must also take into account the impact on the victim, the defendant’s spouse/domestic partner and any other resident at the premises and any home detention report ordered by the court. Subject thereto, the same factors that are relevant to determining the head sentence and whether good reason exists to suspend the sentence of imprisonment are relevant to determining whether to make a home detention order.
Under section 33BC, the court has a discretion to restrict or extend the purposes for and conditions on which the defendant may leave the residence and may do so progressively over the period of home detention. This gives the court a degree of flexibility in tailoring strict, moderate or light conditions to the particular case. As a matter of generality, the stricter the conditions, the greater the level of punishment and community protection (including deterrence).
A home detention sentence involves a higher level of punishment, community protection and deterrence than a suspended sentence of imprisonment. It involves a lower level of punishment, community protection and deterrence than a custodial sentence. A sentence of home detention is an intermediate form of punishment between a suspended sentence and a custodial sentence.
It may be appropriate to impose home detention when the offending circumstances are sufficiently serious as to require the imposition of a sentence of imprisonment and not to suspend it but not so serious as to preclude home detention. It may be appropriate to impose home detention as a result of greater relative weight being given to the defendant’s personal circumstances (vis a vis the offending circumstances) at this stage compared to the head sentence and suspension stages. Usually it will be a combination of these two matters, weighing the offending circumstances with the personal circumstances. Ultimately, however, if the offending circumstances are sufficiently serious, it will be inappropriate to impose home detention however favourable be the defendant’s personal circumstances.
In R v Dell, Doyle J (with whom Kelly and Parker JJ agreed) said:
The power to order that a defendant serve their term of imprisonment on home detention is intended to provide an alternative to custody within a prison. A home detention order sits in the sentencing hierarchy between a suspended sentence under Part 5 and a custodial sentence. That is, it is a more onerous punishment than a Part 5 suspended sentence of imprisonment, but a less onerous punishment than a custodial sentence.
…
… Much like the discretion to suspend a sentence of imprisonment under Part 5 of the Sentencing Act, the requirement to take into account the full range of sentencing considerations will in some cases give the court the ability to attach greater weight to the considerations personal to the defendant than is appropriate at the stage of determining the head sentence. On the other hand, and again like with the discretion to suspend in Part 5 of the Act, the requirement that the full range of sentencing considerations be taken into account means that the Court cannot overlook the need to ensure that the sentence ultimately imposed has adequate regard to not only the rehabilitative objective of sentencing, but also the objectives of punishment, denunciation and general deterrence. These remain important objectives at all stages of the sentencing process. Just as the nature and seriousness of certain types of offending, and consequential weight to be afforded to the need for punishment and general deterrence, can go close to foreclosing the discretion to suspend under Part 5 of the Sentencing Act, so too similar considerations may operate in this way in the context of the discretion to make a home detention order under s 33BB(1).
In this respect, it is important to bear in mind that while serving a term of imprisonment on home detention represents a significant entrenchment upon a defendant’s ordinary liberty and freedom of movement, and is a more onerous form of punishment than a suspended sentence of imprisonment, the reality is that it is a significantly less onerous form of punishment than a requirement that the defendant serve an immediate term of imprisonment within a prison.
Usually it may be expected that, when a question whether the power conferred by section 33BB should be exercised arises, the court will first consider whether the preconditions are met and then whether to exercise the discretion. However, if the court determines that on the assumption that the preconditions are met it is inevitable that the discretion would be exercised against ordering that the sentence be served on home detention, it will not be necessary to determine whether the preconditions are met.
In R v Dell, Doyle J (with whom Kelly and Parker JJ agreed) said:
While a conclusion that a defendant is a “suitable person” is a necessary condition of an exercise of the discretion to make a home detention order, I do not think that it will always be necessary to make an express finding on this issue. Bearing in mind the nature of sentencing remarks, and on the assumption that the range of matters relevant to the sentencing process will have been mentioned earlier in the remarks, it will generally be sufficient that the sentencing judge’s remarks make it plain that he or she has turned their mind to the exercise of the discretion under s 33BB(1), and set out the outcome of that exercise. It follows that I do not consider that the Judge in this case erred in not expressing a conclusion as to the suitability of Karl and Jimmy Dell for a home detention order. It was sufficient that the Judge addressed, and expressed a conclusion, in relation to the ultimate issue, namely that it was not appropriate to exercise the discretion to make home detention orders in their favour in this case.
[footnotes omitted]
The appellant’s case for a home detention order

The appellant’s personal circumstances are such as to suggest scope for leniency.
He is 66 years old and migrated to Australia with his family from Poland in 1959. As a young man he obtained tertiary qualifications in organic chemistry and then spent a substantial period of time working as a laboratory chemist engaged in quantitative and qualitative analysis. He ceased work about 14 years ago when he became the full time carer for his father and mother after his father became terminally ill. The appellant, himself, subsequently suffered from serious and chronic ill health, in particular, three heart attacks, one of which was a major attack. He now has five stents in his coronary arteries and is on multiple medications on which his health depends. The appellant’s mother was extremely ill at the time of the offending under consideration and she passed away about ten days after the appellant was arrested. The appellant owns his own house at Ottoway and supports himself with the pension and a small investment.
Soon after the appellant’s arrest he ceased to live with his girlfriend and now lives alone. She is permitted to visit his house but no longer lives there. The appellant has accepted that he no longer can cope with her drug addiction or with her friends. It is presently a condition of the appellant’s home detention bail that he is not to permit his girlfriend to live at his house.
The Judge had before him two character references, one from a woman who has known the appellant for 15 years and who describes him as a “father figure” and one from a male friend of 14 years standing. Both referees speak highly of the appellant’s reliability, trustworthiness, loyalty and character generally. Both emphasise the support and help the appellant routinely provides to others in the community.
In his report of 17 May 2017, Mr Fugler, has expressed a number of opinions concerning the appellant.
Mr Hevko is presently depressed and guilt ridden, he mostly blaming [sic] himself for the death of his mother, which he perceives to have been related to the instant offence. He has an unresolved grief reaction to her passing, as well as to the previous death of his father and it is my belief he would obtain considerable benefit from grief counselling.
. . . .
While John Hevko has a somewhat unenviable history of motor vehicle offences, the most recent having been in January 2013 for driving without a learners permit, he had not had a conviction for a drug-related offence for a period of 27 years, and with the exception of the occasional use of cannabis he has not used illicit drugs for an extended period. As such, I do not believe it will be necessary for him to be referred to a drug treatment programme.
Having said that, he does require specialised psychological treatment to assist him in resolving the presently depressed affect and guilt associated with grief and in improving his stress management skills.
It is Mr Fugler’s opinion, on balance, that Mr Hevko’s decision making processes at the time of his offending on this occasion “were likely to have been negatively impacted upon by psychological factors …”.
The appellant’s record discloses a number of very old drug related offences. In 1983, he was convicted of possessing a drug and fined $30. Also in 1983, he was convicted of “deal or trade” a drug and fined $600 and sentenced to imprisonment for seven months suspended upon entry into a bond to be of good behaviour for two years. In 1989, he was convicted of one count of possessing a controlled substance and one count of producing a controlled substance and in each case fined $200. In all of these cases the drug concerned was cannabis or cannabis related.
Nevertheless, in the 27 years or so between 1989 and the commission of the offence now under consideration, the appellant’s only criminal offending has involved motor vehicle and driving offences and one offence of passing a valueless cheque with respect to which he was convicted and placed on a bond to be of good behaviour for 12 months. The appellant, at 66 years of age, has never spent any time in prison.
In my view, the possession offence in 1983 and the possession and producing offences in 1989 should be given virtually no weight when consideration is given to the need for personal deterrence and the prospects of rehabilitation for this appellant now convicted of trafficking heroin. These earlier offences involved cannabis and almost certainly small quantities thereof, concerned possession only with no commercial element and were committed some 34 and 27 years ago respectively.
The offence of deal or trade a drug committed in 1983 raises additional considerations. Again, it concerned a cannabis related drug and was committed some 34 or so years prior to the present offending. However, it did involve a commercial element. According to the sentencing remarks for this offence, the appellant had purchased 600 grams or so of Indian hemp with respect to which he incurred a debt to the supplier for the purchase price of $600. The appellant intended to process and sell the Indian hemp but it was of poor quality and much of it was unsaleable. The appellant had made nothing out of the venture at the time of his apprehension. Given the appellant’s preparedness, at that time, to engage in drug trading, albeit with respect to Indian hemp, this 1983 offence carries some weight in that it tells us something about the appellant. He has shown a capacity to lapse into serious criminality. However, the relatively minor nature of this trading or trafficking offence, the fact that it concerned Indian hemp and the fact that there had been no repetition for 34 years or so does give significant support to two inferences that are, in fact, favourable to the appellant, namely:
(i)that the appellant did in fact respond to the personal deterrent effect of the suspended sentence and did so by demonstrating over 34 years a capacity to refrain from drug offending; and
(ii)that the appellant demonstrated an ability and a commitment to rehabilitation following his censure by the court.
A full understanding of the need for personal deterrence and the appellant’s capacity for rehabilitation cannot, as the Judge recognised, be fully appreciated in the absence of consideration being given to the appellant’s post-offending conduct. On 12 December 2016, some seven or so weeks after being arrested for the subject offending, the appellant was found in possession of proscribed equipment (a bud stripper) and to be cultivating more than the prescribed number of cannabis plants. He pleaded guilty to these two offences and, on 23 February 2017, was convicted and placed on a bond to be of good behaviour for 12 months with conditions. Again, the offending involved cannabis, as it would appear, for personal use and, as it also would appear, was regarded by the magistrate as relatively minor.
The Judge was correct to have regard to this subsequent offence on the basis that it carried some weight with respect to the question of personal deterrence and prospects of rehabilitation. Nevertheless, the offence of trafficking in a controlled substance, be it heroin, methylamphetamine or a drug such as cocaine for that matter, is significantly more serious than the previous and post drug offending of the appellant. An inference might well be drawn that the appellant was content to continue to break the law; but only insofar as cannabis for personal use is concerned.
Both personal and general deterrence must, of course, play a very material role in the imposition of penalty for the trafficking offence under consideration. However, for the reasons I have expressed, the appellant’s prior and post-drug offending adds little, if anything, to this imperative and, in my opinion, does not detract from the appellant’s otherwise good prospects for rehabilitation, in the sense of his refraining from any future trafficking behaviour.
In my view, the Judge’s reliance on the appellant’s prior offending, in the manner earlier set out, was misplaced.
The appellant’s personal circumstances are such as to lend strong support to the view that the appellant has good prospects for rehabilitation in the sense earlier described, that is, of refraining from further like offending. Further, the need to promote personal deterrence, always an important consideration, has not been heightened but rather lessened following a proper consideration of this appellant’s personal circumstances.
Seriousness of the offending
The offending was plainly serious. However, the appellant offended as a courier not as a street dealer and this has been properly reflected in the imposition of the head sentence and non-parole period in this case. Nevertheless, it was a single transaction involving a small amount of heroin of relatively low value. The gravamen of the offence was the one off transportation of 4.35 grams and one should be careful not to be distracted by the 48 separate single deal bags which, once street dealing has been excluded, ceased to have relevance per se. In addition, on any analysis, the appellant’s financial gain was modest.
Once the appellant’s evidence as to why he did what he did stands as rejected by the Judge and is put to one side, the evidentiary material before the Judge admitted only of the appellant being involved in just the single transaction, as charged. There was no evidence before the Court capable of supporting a finding beyond reasonable doubt that the appellant was “not doing it as a once off isolated offence …”. The rejection of the appellant’s evidence was not, of itself, sufficient to support such a finding. It was not open to the Judge to make the finding in these terms. It was open to the Judge to conclude that he had not been persuaded by the defence on the balance of probabilities of the mitigating factor tending to leniency, that the transaction was an isolated one, and this may have been his Honour’s intended effect. In any event, the extent to which, if at all, his Honour placed any reliance on the articulated finding when exercising his ultimate sentencing discretion, in particular, whether he misused it as aggravating the seriousness of the offence or only as a reason not to allow leniency on this score, is not apparent from a reading of the Judge’s remarks as a whole.
Appeal ground 2 – should home detention have been ordered in this case?
There will be cases where the basis upon which an order for home detention has been refused is relatively straightforward. In such circumstances it may not be necessary for a Judge to set out detailed reasoning leading to that conclusion. However, there will be cases where the discretion to order home detention is fairly open on the evidence in which cases it usually will be incumbent on a judge to provide a more fulsome explanation as to why the discretion has been exercised in the way it has been. In my view, this was a case where such an order was fairly open on the evidence.
The home detention report before the Judge was positive and there ought to have been little doubt in the Judge’s mind that the various preconditions prescribed in subsections 33BB(1) and (2) had been satisfied. As such, the discretion was enlivened and, as a consequence, the Judge was required to proceed to the second stage of consideration identified in the authorities earlier referred to. This requires the Court to address what the legislature describes as the paramount consideration, that is, the safety of the community together with the various factors set out in subsection 33BB(4). In addition, and whilst not expressly stated in section 33BB, it is clear on the authorities that the Court must also take into account the full range of sentencing considerations present in a particular case. As such, the Court must ensure that the sentence ultimately imposed has adequate regard to the objectives of sentencing, in particular, rehabilitation, punishment, denunciation and general deterrence.
On the facts of this case, none of the requirements or matters to be considered as set out in subsection 33BB(4) pose an impediment to an order for home detention. Further, the length of the sentence, and in particular the non-parole period, is not such as to raise the concerns discussed in Filipponi where a person would be required to spend an inappropriately lengthy period on home detention. In this case, a non-parole period of 15 months is of the order that lends itself to an order for home detention particularly where, as here, the appellant is living alone in his own house without having to consider the needs of other residents and is in a position to financially support himself without working. The matters in subsection 33BB(4) were not specifically addressed by the Judge.
Furthermore, given the nature of the offending and the personal circumstances of the appellant as earlier described, the paramount consideration – the need to protect the public – does not loom large in this case. This factor also was not specifically addressed by the Judge.
General sentencing considerations, including in particular the need for punishment and general deterrence, would still be served in this case by an order for home detention. In my view, it was incumbent on the Judge, in the circumstances of this case, to give a more fulsome explanation as to why, having declined to suspend pursuant to Part 5 of the Sentencing Act, the more severe form of punishment of home detention which lies in between full suspension and an immediate custodial penalty was not appropriate.
Not only did the Judge not provide a sufficiently fulsome explanation related to the facts of this case, he, in effect, applied the same test to both questions. This was an error in the application of the requirements of section 33BB to the facts in this case.[9] Each discretionary judgment is governed by a different test and requires, in part, different considerations to be addressed.
[9] See generally the discussion of this by Blue J in R v Hosking [2017] SASCFC 50; (2017) 128 SASR 37 at [73]-[77].
In asking himself whether there was good reason to suspend the term of imprisonment imposed, the Judge concluded:
At the end of the day, the seriousness of the offence, together with your other drug offending and the need for both personal and general deterrence, outweigh the matters put on your behalf such that there is not good reason to suspend the sentence.
In determining whether or not it was appropriate to exercise the discretion to make a home detention order, his Honour concluded:
Given the seriousness of the offence, together with the importance of deterrence, both in this category of offending generally, and personally giving your previous subsequent drug offending, it is not appropriate to exercise the discretion to make a home detention order in this case.
The essence of the expressed reasoning is identical. In this respect, the latter determination is not, in my view, saved by virtue of the preamble:
The Court has regard to everything put and tendered, including the contents of the reports prepared by corrections and has applied the statutory tests set out in s 33BB of the Criminal Law (Sentencing) Act, as explained in a series of Supreme Court judgments, including by Doyle J in R v Dell & Dell and by the Chief Justice in R v Filipponi.
Conclusion
I am not satisfied that the Judge properly attended to the requirements of section 33BB when coming to the conclusion that he arrived at. Insofar as is required, I would grant permission to appeal on ground 2 and I would allow the appeal and set aside the District Court sentence. As far as resentencing is concerned, I would not depart from the head sentence or non-parole period ordered by the Judge but I would, for the reasons set out, order that the appellant serve that sentence on home detention pursuant to the provisions of section 33BB of the Sentencing Act. The appellant is presently on home detention bail. Subject to the requirements of section 33BB, I would impose terms and conditions of home detention in material respects the same as those to which he is presently subject, including that he is not to permit his girlfriend to live at the home detention premises.