R v Hunter - [2017] SASCFC 97

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HUNTER
[2017] SASCFC 97
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Nicholson)
11 August 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE
The respondent pleaded guilty on the morning of trial in the District Court to: two counts of trafficking in a controlled drug, two counts of cultivation of controlled plants for sale, two counts of possession of prescribed equipment, two counts of diversion of electricity from a power system and one count of manufacturing a controlled drug for sale, committed between July 2013 and May 2014.
The Judge ordered individual sentences for each offence or group of offences resulting in a head sentence of six years and 11 months imprisonment with a non-parole period of three years and six months imprisonment. The sentence was suspended on the condition that the respondent enter into a bond to be of good behaviour for a period of two years.
The Director of Public Prosecutions has applied for permission to appeal on the grounds that: the sentence imposed for the manufacturing offence is manifestly inadequate; the Judge erred in making the sentence for the manufacturing offence wholly concurrent with the sentence for the two trafficking offences; and the Judge erred in suspending the total head sentence.
Held (Nicholson J, with Peek and Stanley JJ agreeing): Permission to appeal refused.
Criminal Law (Sentencing) Act 1988 s 10C, s 18A, s 38; Controlled Substances Act 1984 s 32, s 33, s 33B, s 33LA; Electricity Act 1996 s 85; Criminal Law Consolidation Act 1935 s 340, referred to.
R v Payne [2004] SASC 160, (2004) 89 SASR 49; Everett v The Queen [1994] HCA 49, (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; R v Nemer [2003] SASC 375, (2003) 87 SASR 168; R v Cleaver [2016] SASFC 43; R v Kong [2013] SASCFC 15, (2013) 115 SASR 425; Attorney General v Tichy (1982) 30 SASR 84; R v Spyrou [2008] SASC 209; R v Stevens [2008] SASC 170; R v Dell & Dell [2016] SASCFC 156, (2016) 126 SASR 571; Hili v The Queen [2010] HCA 45, (2010) 242 CLR 520; The Queen v Morse (1979) 23 SASR 98; R v McIntosh [2017] SASCFC 87; House v The King [1936] HCA 40, (1936) 55 CLR 499; R v Jongewaard [2009] SASC 346; R v Lutze [2014] SASCFC 134, (2014) 121 SASR 144; R v Hicks (1987) 45 SASR 270, considered.

R v HUNTER
[2017] SASCFC 97
Court of Criminal Appeal: Peek, Stanley and Nicholson JJ
PEEK J.

I would refuse permission to appeal. I agree with the reasons of Nicholson J.
STANLEY J.
I agree with the order proposed by Nicholson J and his reasons for making that order.
NICHOLSON J.
Introduction and background
On 16 February 2017, Craig Richard Hunter (the respondent) was sentenced in the District Court to a suspended sentence of imprisonment for six years and 11 months with a non-parole period of three years and six months after pleading guilty on the morning of trial to nine offences committed between July 2013 and May 2014. The Judge allowed close to the maximum available discount of 10 per cent[1] for the respondent’s guilty pleas in relation to each offence.
[1] In accordance with section 10C of the Criminal Law (Sentencing) Act 1988.
The offences comprised: counts 1 and 4 being two counts of trafficking in a controlled drug;[2] counts 5 and 11 being two counts of cultivation of controlled plants for sale;[3] counts 6 and 12 being two counts of possession of prescribed equipment;[4] counts 7 and 13 being two counts of diversion of electricity from a power system;[5] and count 14 being the offence of manufacturing a controlled drug for sale.[6] The drug in counts 1, 4 and 14 was methylamphetamine. The plants in counts 5 and 11 were cannabis.
[2] Contrary to section 32(3) of the Controlled Substances Act 1984, the maximum penalty for each of which is a fine of $50,000 or imprisonment for 10 years, or both.
[3] Contrary to section 33B(3) of the Controlled Substances Act 1984, the maximum penalty for each of which is a fine of $50,000 or imprisonment for 10 years, or both.
[4] Contrary to section 33LA of the Controlled Substances Act 1984, the maximum penalty for each of which is a fine of $10 000 or imprisonment for 2 years, or both.
[5] Contrary to section 85(1)(a) of the Electricity Act 1996, the maximum penalty for each of which is a fine of $20,000 or imprisonment for 2 years.
[6] Contrary to section 33(3) of the Controlled Substances Act 1984, the maximum penalty for which is a fine of $50,000 or imprisonment for 10 years, or both.
The Judge made use of the discretion available under section 18A of the Criminal Law (Sentencing) Act 1988.In relation to the two trafficking offences (counts 1 and 4), the Judge imposed a single sentence of five years and five months, reduced from six years. For the manufacturing offence (count 14), the Judge imposed a sentence of 11 months, reduced from 12 months, and ordered that this sentence be served wholly concurrently with the single sentence imposed for the trafficking offences. In relation to the first group of cultivation, possession of prescribed equipment and diversion of electricity offences (counts 5, 6 and 7), a single sentence of imprisonment for 18 months, reduced from 20 months, was imposed. For the second group of such offences (counts 11, 12 and 13), the Judge imposed a single sentence of nine months, reduced from ten months. His Honour ordered that these latter two sentences be served concurrently with each other but cumulatively on the first sentence imposed.
In the result, the total period of imprisonment imposed for all of the offending was six years and 11 months. His Honour fixed a non-parole period of three years and six months. The Judge suspended the sentence on condition that the respondent enter into a bond to be of good behaviour for a period of two years.
The Director of Public Prosecutions has applied for permission to appeal and for orders that “relevant aspects of the sentence be quashed” and the respondent be resentenced. The Director relies on the following grounds:
1.The sentence for Count 14 is manifestly inadequate. The sentence fails to adequately reflect the seriousness of the offence and both general and personal deterrence;
2.The Learned Sentencing Judge erred in making the sentence for Count 14 wholly concurrent with Counts 1 and 4;
3.The Learned Sentencing Judge erred in suspending the total head sentence. The decision to suspend fails to reflect the seriousness of the offending, the importance of general and personal deterrence and erodes adequate standards of punishment for offending of this nature.
For the reasons that follow, I would refuse the application for permission to appeal.
Circumstances of the offending
The offending took place as part of a course of conduct between July 2013 and May 2014. The respondent was involved in the production of methylamphetamine and the cultivation of cannabis at the respondent’s residence in Flagstaff Hill and the cultivation of cannabis at rented premises in Hahndorf. Intercepted telephone communications between the respondent and a co-accused provided evidence of the respondent’s involvement in the trafficking of methylamphetamine and the production of drugs at the Hahndorf and Flagstaff Hill premises. Nevertheless, the Judge accepted that the respondent had played a secondary role and that he acted at the instigation of others.
The first count of trafficking related to the respondent supplying an unknown quantity of methylamphetamine on 11 July 2013 at North Adelaide. His Honour sentenced the respondent on the basis that no finding as to the amount was available on the evidence.
The second trafficking offence was committed on 13 October 2013. The respondent and co-accused supplied 29 grams of methylamphetamine in a car park adjacent to the Dublin Hotel. It was accepted by the Judge that the methylamphetamine involved in this trafficking offence had an estimated street value of between $7,500 and $18,000, depending on its mode of distribution.
The first of the cultivation offences related to 17 mature female cannabis plants growing hydroponically at the property at Hahndorf on 1 November 2013. Police also located prescribed equipment associated with hydroponic cultivation, including light globes, light fittings, carbon filters, electrical transformers and drying racks. Electricity had been illegally diverted to assist with the cultivation of the cannabis plants. The street value of the likely yield of the cannabis plants was estimated to be as much as $20,000.
On 16 May 2014, a police raid on the respondent’s residence at Flagstaff Hill resulted in the manufacturing charge and the charges associated with the second cultivation of cannabis. The agreed factual basis concerning the manufacturing charge was that the respondent permitted the use of his premises by his co-accused for the purpose of manufacturing methylamphetamine but was not directly involved in the manufacturing himself. An unknown quantity of the methylamphetamine produced at the respondent’s premises had been trafficked by the co-accused on the night of 15 May 2014. The Judge sentenced the respondent on the basis that it was unclear whether the respondent stood to benefit financially or otherwise from permitting the use of his premises for this purpose.
The police also found 11 immature female cannabis plants growing hydroponically in a bedroom of the Flagstaff Hill property. The prescribed equipment charge related to hydroponic equipment including light globes, light fittings and carbon filters located in a shed at the rear of the property. Prescribed equipment was in the process of being set up in a room in the shed for the purpose of cultivating cannabis. Electricity had been illegally diverted for cultivation purposes.
The respondent’s personal circumstances
At the time of sentencing, the respondent was 34 years of age. He was 31 or so at the time of the offending. He has no prior convictions of any consequence and none relating to drugs.
The respondent was born in Adelaide. He had a very troubled upbringing, primarily as a result of his mother’s alcoholism and volatile behaviour. The relationship between his parents involved violence at times and his father was often absent. The respondent often had to care for himself as a young child. He was exposed to a number of traumatic events during his childhood, including observing suicidal behaviours by his mother, his mother’s attempts to burn down the family home and being present in his mother’s car when she caused a hit and run accident. When the respondent was 10 years old or so, members of the family of his friend were murdered during the night while the friend was staying at the respondent’s house. Thereafter, the friend lived with the respondent’s family for a number of months under police guard.
The respondent lived with his father following his parents’ separation when he was about 10 years old. He struggled to engage at school and left when he was in Year 9 to start work in his father’s mechanic business. At the age of 17, the respondent left his father’s home.
The respondent commenced drinking alcohol at a young age and has described himself as having been a very heavy drinker between the ages of about 18 to 30. He used methylamphetamine recreationally during his teenage years. This use increased during his twenties during which he had periods of heavy regular use. According to the respondent, his drug and alcohol use was exacerbated by his association with members of an outlaw motorcycle club.
During the almost three years following his arrest in May 2014 and until he was sentenced, the respondent made significant changes to his lifestyle. The Judge had before him a number of testimonials as to his commitment to rehabilitation since his arrest. His Honour acknowledged that the respondent had expressed a high level of remorse for his offending.
The respondent has been in a stable relationship with his current partner since the time of his arrest. They now have a young son who is approximately 18 months old. He continues to have the support of his partner, father, sister and friends. Following his arrest, the respondent ceased socialising with the peer group who encouraged him, and took part with him, in his drug use. He has not used methylamphetamine since his arrest. He has moderated his alcohol consumption. The respondent has maintained stable employment in his father’s specialist mechanic business. As a result of his father’s increasing health issues, the respondent performs most of the physical work in the business and works five or six days a week. His father is dependent upon him for the survival of the business. The respondent’s partner and child are financially dependent upon him.
The respondent has reported problems with anxiety and depression throughout his adult life. A registered psychologist, Ms Lisa Darmenia, assessed the respondent as having suffered from a longstanding anxiety disorder and a major depressive disorder of fluctuating type during his life. According to Ms Darmenia, the respondent has a good prognosis for sustained change as a result of the lifestyle changes he has made since his arrest, his commitment to his family and work and his insight into his offending. She considers his risk of reoffending to be low so long as the changes he has made are maintained. Ms Darmenia recommended that the respondent continue with mental health treatment. As required by the terms of the bond, the respondent has commenced a mental health care plan with his general practitioner and is undergoing ongoing psychological treatment.
The Judge’s approach to sentence
The Judge in his sentencing remarks summarised the circumstances of the offending. His Honour accepted that the respondent had played a secondary or subservient role in the course of conduct that constituted the offending and that his involvement was linked to his depressive illness, his own use of methylamphetamines and his association with drug users.
The Judge acknowledged the significant changes in the respondent’s personal circumstances since the time of his arrest, in particular his rehabilitative efforts and his regret for the offending. His Honour referred to the positive personal references tendered and the support of the respondent’s family and friends. The Judge paid particular regard to the respondent’s employment record in his father’s business. His Honour also acknowledged the respondent’s lack of relevant antecedent offending and the long period of time that he had spent on bail without incident. His Honour noted the important role of deterrence when sentencing for drug offences.
The Judge’s findings included the following, which have not been challenged on appeal.
You present nearly these years later as a changed and largely reformed person. You are a 34-year-old man in a stable relationship with a young child to support. You have disengage from the peer group that kept you in contact with drugs. It is reported that you exhibit a high level of insight into the offences and express deep regret, and that 'you have done a great deal to manage your own rehabilitation'. There are a number of moving testimonials before the court and persuasive oral testimony, attesting to a complete change in attitude and of positive steps taken for a better future.
You have continued employment in your father's specialist business to the point that he has become completely dependent upon you in the shadow of his own increasing ill health. You are described as a hardworking and skilled worker, which work occupies you for five or six days a week, despite the struggle with mental health issues, for which you receive treatment. You have no prior offences of any relevance to the current matters and you have been on bail without incident for an onerous period of time.
In fixing the non-parole period of three years and six months, the Judge placed significant weight on the respondent’s personal circumstances and found that he had a low likelihood of reoffending.
At this point in the sentence process your personal circumstances carry significant weight. You quickly took positive steps of your own initiative to eschew the lifestyle that led you into these crimes and you embarked upon a sustained program of rehabilitation, which renders it unlikely that you will re-offend. The fresh relationship and birth of a child provide great incentives for you to succeed to that end, and you retain the support of your family as well as other members of the community.
The Judge reached the view that it was appropriate in the circumstances to suspend the sentence of six years and 11 months that he had imposed.
When it comes to the question of suspension, the personal circumstances as detailed and particularly the fact that you pose little, if any, risk to the community coupled with the fact that you have no relevant prior convictions lean heavily towards suspension. Conversely, the variety, the relatively large quantities and potential value of the drugs count against suspension. Despite the seriousness of the offences, the combined and weighty personal circumstances are such that it is appropriate in the unusual and compelling circumstances to suspend the sentence, on condition that you enter into a bond to be of good behaviour for a period of 2 years, for 18 months of which you are to be under the supervision of a Community Corrections Officer, and on the further conditions that you not consume alcohol or illegal drugs, that you submit to tests to detect the use of alcohol and drugs as direct and that you attend and participate in such programs, treatment and counselling as may be directed with respect to drugs and alcohol relapse prevention and maintenance strategies and programs.
The approach to a Crown application for permission to appeal
The proper approach to be observed by an appellate court with respect to a prosecution application for permission to appeal is well settled. Permission should be granted only in rare and exceptional circumstances;[7] mere establishment of error by the sentencing Judge is insufficient to justify a grant of permission to appeal. In R v Payne,[8] Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ explained as follows.
The principles to be applied to applications by the Director of Public Prosecutions for leave to appeal against a sentence are well known. Leave should only be granted to establish some matter of principle, pursuant to which the Court of Criminal Appeal might give guidance to sentencing judges, or if it is necessary for the court to establish and maintain adequate standards of punishment for a crime, or to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that standards of penalty and public confidence in the administration of justice can be maintained.
[citations omitted]
[7] Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299-300.
[8] R v Payne [2004] SASC 160; (2004) 89 SASR 49 at [86].
Permission should not be granted merely in order to correct a sentence that is regarded by the appellate court as too low. However, even where no general point of sentencing principle or no need to establish or maintain an adequate standard of sentencing for a particular offence arises, permission to appeal might be given if the sentence is so far below the appropriate standard that to allow it to stand would shake public confidence in the administration of justice.[9]
[9] R v Osenkowski (1982) 30 SASR 212 at 212-213, R v Nemer [2003] SASC 375; (2003) 87 SASR 168 at [24], R v Cleaver [2016] SASFC 43 at [17]-[18].

The issue of double jeopardy remains a consideration at the permission stage of a prosecution application for permission to appeal, notwithstanding the terms of section 340 of the Criminal Law Consolidation Act 1935.[10]
The Director’s grounds of appeal
[10] R v Kong [2013] SASCFC 15; (2013) 115 SASR 425 at [31]-[36].
Ground 1 - Manifest inadequacy of sentence imposed for count 14
The applicant’s first ground of appeal is that the sentence imposed by the Judge for the manufacturing offence of 12 months, reduced to 11 months for the plea of guilty, is manifestly inadequate.
The maximum penalty prescribed for manufacturing a controlled drug is 10 years imprisonment or a $50,000 fine, or both. The applicant contends that the Judge erred in his characterisation of the respondent’s offending and that the sentence imposed did not adequately reflect the seriousness of the offending and the need for general and personal deterrence.
Whilst it was accepted by the applicant that the respondent did not actively participate in the manufacture of the methylamphetamine, counsel submitted that the Judge erred in finding that the respondent had a “limited passive role”, given that the respondent knew that the person to whom he had granted permission to use his premises had a purpose of manufacturing methylamphetamine.
The applicant contends that the Judge failed to have proper regard to the seriousness of this offending and its place within the overall scheme of the respondent’s offending. The offending should not be considered as isolated, but rather as part of a course of drug offending over a prolonged period involving an ongoing commercial enterprise.
In response the respondent contends that the sentence was within the range of appropriate sentences given the characterisation of the respondent’s offending as a “limited passive role” and that the Judge did not err in characterising the respondent’s role in this way with respect to this single offence.
Counsel submitted that, given the wide range of conduct that can be associated with the offence of manufacturing, from relatively minor or limited engagement to full engagement for commercial reward, the starting point of 12 months imprisonment was within the range of appropriate sentences for the respondent’s conduct.
Ultimately, the respondent contends that there was no identified error in the exercise of the Judge’s discretion and that, whilst the starting point of 12 months might be towards the lower end of the scale of sentences available for this offence, it was not manifestly inadequate, nor so low as to warrant intervention by a grant of permission to appeal.
Ground 2 - concurrency
By the second ground of appeal, the applicant contends that the sentencing Judge erred in making the sentence for the manufacturing offence (count 14) wholly concurrent with the sentence he imposed for the two trafficking offences (counts 1 and 4).
It was submitted that the Judge did so on the basis of his finding that the respondent had a “limited passive role” in the manufacture of methylamphetamine on his premises. The applicant submitted that, on the proper application of the principles stated in Attorney General v Tichy,[11] this finding was not a correct basis for ordering that the term of imprisonment imposed for the manufacturing offence be wholly concurrent with the sentence for the trafficking offences.
[11] (1982) 30 SASR 84.
The applicant further contended that a cumulative sentence ought to have been imposed because the offence reflected a separate incursion into criminality occurring seven months after the later of the two trafficking offences and at a different location.
In response, the respondent contends that full concurrency was within the sentencing discretion of the Judge and that any determination concerning concurrency is a matter requiring discretion, flexibility and practicality.
In deciding to order full concurrency, the Judge here took into account considerations relevant to totality and, in particular, that both the manufacturing offence and trafficking offences occurred as part of the respondent’s engagement in a course of conduct with the co-accused. The respondent submits that this shared background to the offending, the effect of the respondent’s own drug use and his continued association with the co-accused provide a connection between the offences such that it was appropriate for the Judge to group the offences together and to order full concurrency.
In any event, given the length of the sentence for the manufacturing offence, any increase in sentence on the basis that the sentence should have been partially concurrent or even wholly cumulative would not be so significant as to warrant interference by a grant of permission to appeal.
Ground 3 - suspension
The third ground relied on by the applicant is that the Judge erred in suspending the term of imprisonment imposed. According to the applicant, in doing so, the Judge failed to give due consideration to the nature and seriousness of the respondent’s offending.
Counsel for the applicant submitted that the respondent’s conduct of trafficking and involvement in the manufacture of illicit drugs for sale together with the ancillary offending, over a prolonged period, called for greater emphasis on general and personal deterrence, such that suspension of the sentence was inappropriate.
Referring to the judgments of this Court in R v Spyrou[12] and R v Stevens,[13] the applicant contends that the facts of the offending should have resulted in an immediate term of imprisonment. Counsel for the applicant acknowledged that the Judge properly took into account the respondent’s personal circumstances, in particular his changed circumstances, but submitted that in view of the seriousness of the offending, the respondent’s significant role in the course of offending and the paramountcy of deterrence as stated by this Court,[14] the respondent’s personal circumstances were not so unusual and compelling to outweigh the need to impose an immediate term of imprisonment.
[12] [2008] SASC 209.
[13] [2008] SASC 170.
[14] See, for example, R v Dell & Dell [2016] SASCFC 156; (2016) 126 SASR 571.
In response to the third ground of appeal, the respondent contends that the Judge was justified in finding good reason existed to suspend the sentence of imprisonment and notwithstanding the seriousness of the offending such that the exercise of the sentencing discretion did not miscarry.
Counsel for the respondent submitted that, in light of the respondent’s compelling personal circumstances including his mental health issues and his established rehabilitation, there was sufficient material to support the Judge’s exercise of the discretion to suspend.
The respondent’s ultimate contention is that, even if permission might otherwise be warranted with respect to either or both of grounds one or two, permission to appeal ought be refused on all grounds. Counsel relied on double jeopardy considerations. Given the established rehabilitation of the respondent since his arrest in May 2014, and the fact of the suspension of the term of imprisonment in February 2017, the respondent contends that it would be unnecessarily and unacceptably harsh to impose a sentence of immediate imprisonment on appeal. It would be so with respect not just to the respondent but also with respect to the respondent’s partner, child and father.
Consideration
This is a prosecution appeal where the complaint is, essentially, that the Judge has failed to properly exercise his sentencing discretion in a number of respects. It is contended, inter alia, that his Honour has failed to properly characterise the seriousness of the offending and has placed too little weight on the issue of deterrence and too much weight on matters personal to the respondent.
In order to appreciate the context in which the applicant’s contentions are to be considered I have, to this point, set out in some detail the circumstances of the offending, the respondent’s personal circumstances and the Judge’s findings on the evidence and approach to sentence. This permits me to be relatively brief in explaining why in my view permission to appeal should be refused.
I turn first to a consideration of grounds one and two together. In Hili v The Queen,[15] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said this.
As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. ...
[citations omitted]
[15] [2010] HCA 45; (2010) 242 CLR 520 at [59].
Factors relevant to the question of manifest excess are:[16] the maximum sentence prescribed by law; the standards of sentencing customarily observed for offences of the kind in question; the seriousness of the offence committed when compared to other examples of the offence in question; and the personal circumstances of the offender. As a matter of principle, the same considerations arise when considering the question of manifest inadequacy. Further, in R v McIntosh,[17] Hinton J (with whose reasons Peek and Nicholson JJ agreed) observed that “a finding that a sentence is manifestly inadequate is a finding that the sentence does not properly serve the purpose of punishment”.
[16] The Queen v Morse (1979) 23 SASR 98 at 99 (King CJ).
[17] [2017] SASCFC 87 at [175].
The offence in count 14 of manufacturing a controlled drug for sale was not isolated. It is to be viewed against the background of the course of drug offending engaged in by the respondent as found by the Judge, but having regard to his level of involvement and the reasons for his involvement, as found. Whilst there are features that support a lenient approach to the overall sentence imposed, the scope for leniency including with respect to the sentence for any particular offence, such as count 14, is reduced because of the course of conduct.
Taking into account the matters relevant to the question of manifest inadequacy referred to above, a starting point of imprisonment for 12 months was low and mercifully so. However, the circumstances of the offence, according to the evidence, placed it towards the low end of seriousness for this type of offence. This together with the respondent’s personal circumstances and his limited involvement with respect to this offence justified leniency and a sentence at the low end of the applicable range. Taken in isolation, the starting point was not manifestly inadequate.
However, the Judge did err, essentially for the reasons given by the applicant, in ordering that this sentence for count 14 be served wholly concurrently with the sentence imposed for counts 1 and 4. Some partial concurrency would have been justified.
The order for full concurrency caused what was already a mercifully low sentence for count 14 to be a manifestly inadequate sentence when considered in isolation. I have qualified my conclusion in this respect for the following reason.
Whilst the Judge did not mention the discretion under section 18A of the Criminal Law (Sentencing) Act he did make use of it to impose single sentences for each group of offences considered. However, his Honour did not impose just the one penalty for all of the offending. With respect to the length of the various sentences, the applicant has complained only about the sentence imposed for count 14 in isolation. No objection has been taken with respect to the sentences imposed for counts 1 and 4 (five years and five months), counts 5, 6 and 7 (18 months cumulative) or counts 11, 12 and 13 (nine months concurrent). Because of the way the total period of imprisonment has been structured, the applicant is entitled to take the approach it has with respect to each individual sentence imposed.
However, even though the sentence for count 14 may be seen, in isolation, as manifestly inadequate, when considering the question of whether permission to appeal should be given, the total period of imprisonment ordered for all of the offending is an overarching consideration. It may be, for example, that had the Judge started lower for counts 1 and 4 but higher for, and/or allowed some acummulation with respect to, count 14, neither such sentence would have been amendable to a Crown appeal.
The Judge’s effective starting point (that is, before the discount for guilty pleas but after allowing for the orders dealing with concurrency) for all of the offending was imprisonment for seven years and eight months. Given the respondent’s level of involvement, his rehabilitation demonstrated over a number of years and the greatly reduced need for personal deterrence together with his very favourable personal circumstances including his prior good criminal record, an overall starting point of seven years and eight months whilst moderate is not to be seen as manifestly inadequate.
I would refuse permission to appeal on grounds one and two because, whilst the starting point of 12 months fully concurrent, considered in isolation, was manifestly inadequate it was not so inadequate as to require intervention at the permission stage when considered in the context of the total period of imprisonment imposed. Further, and in any event, inadequacy alone is not sufficient to justify a grant of permission. This is not a case where the sentence under challenge is the result of a Judge’s idiosyncratic approach, or is one of a run of manifestly inadequate sentences for this type of offending that needs to be discouraged or that is so inadequate that it demands intervention. None of the features additional to manifest inadequacy as described earlier in the extract from R v Payne apply to this case.
I turn to consider ground 3. The only question before the Judge was whether there was “good reason” to suspend the prison sentence he had imposed.[18] In performing this task the Judge was obliged to have regard to all relevant circumstances that were before him, in particular, those bearing on the seriousness of the offending and the need for general and personal deterrence and those bearing on the offender’s personal circumstances including but not limited to his prior criminal record, his prospects for rehabilitation and any legitimate issues of hardship.
[18] Section 38(1) of the Criminal Law (Sentencing) Act 1988.
In this case, the respondent’s personal circumstances across a range of topics, as earlier described, tended very favourably towards suspension. The Judge described them, in this context, as “unusual and compelling”. One feature calls for further elaboration. The Judge was satisfied that, during the three years following his arrest, the respondent had substantially rehabilitated himself. The fact of substantial rehabilitation is powerful in two respects. First, actual rehabilitation is a much more reliable guide to the future for a sentencing judge than is a finding that there are good prospects for rehabilitation and for obvious reasons. Second, where there has been substantial rehabilitation it can be a very serious and counterproductive act to put that actual rehabilitation at risk by imposing a lengthy prison sentence. In these circumstances, a suspended prison term can have significant work to do. If the respondent were to complete the two year bond period incident free he will have demonstrated five years of good behaviour. However, if he were to breach the bond, the sentence remains available to be served.
The decision whether or not to suspend is discretionary and on a Crown appeal the Director must first demonstrate an error in the House v The King[19] sense. The correct approach on appeal was explained, by Doyle CJ in R v Jongewaard.[20]
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:
[25] As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
[19] [1936] HCA 40; (1936) 55 CLR 499 at 505.
[20] [2009] SASC 346 at [40].
In this case, the Director has not identified any specific error of principle by the Judge, sometimes referred to as a process error. To the extent that complaint is made of a failure to properly characterise or appreciate the seriousness of the offending or the need for general deterrence, such are really criticisms directed to the weight given by the Judge to such matters. The fact that other judges or this Court on appeal might form a different assessment as to the weight to be given to such matters is not a reason, of itself, for appellate interference.[21]
[21] See, for example, R v Lutze [2014] SASCFC 134; (2014) 121 SASR 144 at [45]-[47] (Vanstone and Parker JJ).
The Director’s complaint is, in essence, that an outcome error was committed. The offending in this case was so serious and the need for a sentence to reflect principles of general deterrence so manifest, that it was not open to the Judge, after taking account of this respondent’s personal circumstances, to suspend. However, as Vanstone and Parker JJ observed in R v Lutze:[22]
A wrongful decision to suspend is a species of manifest inadequacy: Dinsdale at [6] per Gleeson CJ and Hayne J. Where such a complaint is made the question for the appellate court is: “Was it open to the court to suspend the sentence?” Only if the decision to suspend fell outside the range of permissible dispositions — having regard to the nature of the offending and the characteristics of the offender — would it be open to the appellate court to intervene.
[22] [2014] SASCFC 134; (2014) 121 SASR 144 at [49].
The course of offending in this case was undoubtedly serious. Suspension will rarely be justified for offending of this nature, attracting a total period of imprisonment and non-parole period of the length ordered in this case. However, as the Judge found, the respondent’s personal circumstances were extremely favourable. Many other judges would not have suspended. However, this Judge examined all relevant considerations with care and gave detailed and cogent reasons for his decision. It cannot be said that the discretion to suspend fell outside the range of permissible dispositions for this matter.
In any event, even if the Judge had erred in this respect, matters indicating that the respondent should not be “twice vexed” with the prospect of imprisonment include the following:
(i)the substantial period of time between the offending and the passing of sentence;
(ii)the rehabilitation that has occurred in the meantime and the risk that to imprison now may very well undo that rehabilitation;
(iii)the hardship, as identified by the Judge, that would result for the respondent, his father and his other dependents; and
(iv)the fact that the respondent after waiting three years or so to be sentenced was told by the Judge that he would not be going to prison.
As King CJ observed in R v Hicks.[23]
When a person ... has been told that he will not have to go to prison, a great load is lifted from his mind. The consequence of reversing that intimation could be devastating ...
[23] (1987) 45 SASR 270 at 273.

I would refuse the application for permission to appeal.