R v Irvine - [2016] SASCFC 104

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v IRVINE
[2016] SASCFC 104
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Stanley)
16 September 2016
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING METHYLAMPHETAMINE
Appeal against sentence.
On 23 January 2013 the appellant entered a plea of guilty to a charge of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA). He entered pleas of not guilty to charges of possessing a class D firearm without a licence, possessing a prescribed quantity of a controlled precursor, possessing an unregistered firearm, failing to secure a class D firearm and possessing a dangerous article. In relation to those charges he was tried by a jury in the District Court. He was found guilty of all charges except the charge of possessing a dangerous article. Subsequently there was a disputed facts hearing conducted before the trial Judge in relation to the charge of trafficking in a controlled drug.
On 30 July 2015 a District Court Judge imposed a sentence of five years imprisonment for the offence of trafficking in a controlled drug. The appellant was also sentenced to three years imprisonment for the offence of possessing a firearm without a licence, one year of imprisonment for the offence of possessing a prescribed quantity of a controlled precursor, one year of imprisonment for the offence of possessing an unregistered firearm and he was convicted without further penalty for the offence of failing to secure a firearm, all of which were to be served concurrently with the sentence imposed for trafficking in a controlled drug. The Judge fixed a non-parole period of two years and six months.
The appellant appeals on three grounds. First, on the ground that the sentence imposed for the offence of trafficking in a controlled drug is manifestly excessive. Second, on the ground that the sentencing Judge erred in not apportioning any discount for the early plea. Third, on the ground that the sentencing Judge erred in not suspending the sentence.
Held (per Stanley J, Kelly J agreeing)(Blue J dissenting) dismissing the appeal:
1. A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King (1936) 55 CLR 499 does the appeal court have the power to quash the sentence passed below (at [49]).
2. Where the appellant has appealed the sentence for the trafficking offence only, it falls to the Court to decide the appeal by reference solely to the sentence of five years imprisonment imposed for that offence rather than the total head sentence imposed by the Court in respect of all the offending for which the appellant fell to be sentenced by the sentencing judge (at [58]).
3. The sentence of five years imprisonment for the trafficking offence was not outside the range of sentences available for the offending for which the appellant was sentenced. The sentence imposed is not manifestly excessive (at [64]).
4. The failure to give any discount for the plea of guilty in relation to the trafficking offence was within the exercise of the judge’s discretion (at [69]).
5. There is no error in the decision of the Judge not to suspend the sentence (at [73]).
6. Appeal dismissed (at [74]).
Controlled Substances Act 1984 (SA) s 32(3); Criminal Law Consolidation Act 1935 (SA) s 340, s 348, s 352, s 353; Criminal Law (Sentencing) Act 1988 (SA) s 10B, s 10C, s 18A, referred to.
R v Shannon (1979) 21 SASR 442; R v Copeland (No. 2) (2010) 108 SASR 398, discussed.
R v Jongewaard (2009) 266 LSJS 283; House v The King (1936) 55 CLR 499; R v Kreutzer (2013) 118 SASR 211; R v Tyler [2016] SASCFC 7; The Queen v Morse (1979) 23 SASR 98; Markarian v The Queen (2005) 228 CLR 357; R v Levy (2015) 122 SASR 445; R v Place (2002) 81 SASR 395; R v Lutze [2014] SASCFC 134; R v Koch [2015] SASCFC 31; R v Violi [2015] SASCFC 2; R v Belczacki (2012) 112 SASR 95; R v Young [2016] SASCFC 102, considered.

R v IRVINE
[2016] SASCFC 104
Court of Criminal Appeal: Kelly, Blue and Stanley JJ

KELLY J: I agree with Stanley J that this appeal should be dismissed. I agree with the reasons of Stanley J with one qualification which relates to the discussion concerning this Court’s powers and duties on an appeal under s 352 of the Criminal Law Consolidation Act 1935 (SA).
I do not necessarily agree that this Court is bound by remarks made obiter in this Court in R v Tyler[1] regarding the powers and duties of the Court where multiple sentences are imposed and an appellant chooses to appeal one sentence only.
[1] [2016] SASCFC 7.
In the first place, the disposition of the appeal in Tyler did not depend on the determination of that question of statutory construction. Secondly, I am doubtful that the powers of an appellate court to interfere with a sentence depend on the happenstance of how a sentencing judge at first instance chooses to structure the sentencing package, or on the choice of an appellant to appeal one head sentence only.
I consider that such an approach is contrary to long established practice in this Court and depends for its validity on the adoption of an unduly narrow approach to the meaning of “sentence” in s 348 and s 353(4) of the Criminal Law Consolidation Act 1935 (SA). In my view, where multiple sentences are imposed on one occasion this effectively gives rise to a sentencing “package” which cannot be examined in a piecemeal fashion. That is illustrated by the fact that such a sentence attracts only one non-parole period.
There are several difficulties with the antidote suggested in Tyler to the effect that, where an appellant appeals one individual sentence only in a multiple sentencing package, the Director of Public Prosecutions may choose to cross appeal. In my respectful view this approach ignores the very real constraints and impediments upon the Director in respect of prosecution appeals. I consider that the Director should be free to argue the matter as a whole without constraint of any contrivance which the appellant has chosen to amplify his chances of success on appeal. It is not up to the Director to utilise his powers to correct an unduly restrictive approach taken by this Court, nor is it apparent to me that such an appeal would answer the proper purposes of a prosecution appeal.
For these reasons I would prefer to defer consideration of the argument put again by the Director in this matter until a case arises in which the determination of this issue is necessary to the disposition of the appeal.
BLUE J:
This is an appeal against sentence.
The facts, sentencing remarks and contentions on appeal are summarised in the reasons for judgment of Stanley J.
Construction of the sentence
The appellant contends that the Judge erred in not apportioning any discount for the guilty plea to the trafficking charge.
The appellant pleaded guilty to the trafficking charge in the Magistrates Court on 23 January 2013 and was committed to the District Court for sentence. He had first appeared on the trafficking charge on 1 August 2012. The statutory discount regime introduced by sections 10B and 10C of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) came into force on 11 March 2013 and did not relate to proceedings instituted before that date.
During sentencing submissions (after the disputed facts hearing), counsel for the appellant submitted to the Judge that, because the guilty plea was entered before March 2013, section 10C did not apply but that general principles related to the plea. The Judge identified the fact that, if section 10C had applied, the relevant discount would be 30 per cent. The prosecutor did not take issue with the appellant’s contention that it was appropriate that there be a discount for the guilty plea. The Judge did not suggest that he would not allow a discount for the guilty plea or invite submissions from the appellant why a discount should not be denied on account of the appellant’s denial of more extensive trafficking. No mention was made of the disputed facts hearing in the context of a discount for the guilty plea.
During sentencing submissions, the Judge, counsel for the appellant and the prosecutor all referred to an overall sentence for all of the offending (encompassing both the trafficking and the firearms offences). The following exchanges occurred during the sentencing submissions:
[COUNSEL FOR THE APPELLANT]: In all sentencing matters, your Honour really needs to take an overall view of all of the matters that are before the court and exercise your discretion, your Honour’s own judgement about how a person should be punished. The process of fixing notional sentences is, of course, part of that function. But, nevertheless, my submission about Mr Irvine is that the ultimate question is whether or not he should go to jail really.
HIS HONOUR: Well, yes. I have to determine the disputed facts issue first.
[COUNSEL FOR THE APPELLANT]: Yes.
HIS HONOUR: And then take that into account with all the other offences; all the other – there aren’t that many others – but the other offences that I need to sentence him on, particularly the firearms offence, the red phosphorus and what else was there – the ammunition. So the ultimate question isn’t whether he should go to jail in relation to this offence alone. He may or may not depending on what view I have to take of the whole situation.
…
[THE PROSECUTOR]: Now, I think [counsel for the appellant] accepts that sentence of imprisonment is appropriate in the circumstances and the issue for your Honour is whether or not that sentence ought to be suspended. The Crown submits an immediate custodial sentence ought to be imposed, particularly taking into account the quantity and value of methamphetamine and the firearm offence, possessing of the firearm without a licence, which is actually quite a serious offence, and I make no further submissions to your Honour.
The Judge in his sentencing remarks did not address the question whether there should be a discount for the guilty plea to the trafficking charge. In addition, read as a whole, the sentencing remarks indicate that, in accordance with the discussions extracted above, the Judge first fixed an overall penalty of imprisonment for five years for the totality of the offending and then fixed separate penalties for the separate offences. After referring to favourable personal factors including that the appellant had ceased using drugs, had been out of trouble for three years and was strongly supported by his employer, partner, friends and relatives, the Judge said:
However, having regard, as I must, to the utterances of the Supreme Court, as I have mentioned earlier, I must impose a substantial sentence for these offences. But I indicate that the sentences I impose for all of these offences will be concurrent; that is, they will all run together.
The Judge then proceeded to impose separate sentences for each offence, but made them all concurrent.
The Judge could have utilised section 18A of the Sentencing Act to impose a single sentence for all of the offending However, in that event the Judge would have been required first to determine whether it was appropriate to allow a discount for the appellant’s early guilty plea to the trafficking charge. If the Judge determined that a discount was appropriate, the Judge would have been required to determine separate notional sentences and apply a discount to the notional sentence for the trafficking offence. If the Judge determined that a discount was not appropriate, the Judge might have fixed a single global sentence without determining separate notional sentences.
Alternatively, the Judge could have imposed separate sentences for the separate counts. However, in that event the Judge was required to determine whether it was appropriate to allow a discount for the appellant’s early guilty plea to the trafficking charge. Moreover, it would have been an error in principle for the Judge to have made the sentences for the firearms offences wholly concurrent with the sentence for the trafficking charge. There are two broad reasons for ordering concurrency or partial concurrency between sentences for separate offences: overlaps between offences[2] and the non-linear relationship between the number of offences and the total of the sentences.[3] The first reason has no application here: there was no overlap between the elements of the trafficking charge and the firearms offences. As to the second reason, beyond a certain number of offences, it will be appropriate that the incremental sentence for the additional offence or offences be reduced for reasons explained by Kourakis J (as his Honour then was) in R v Copeland (No 2).[4] The second reason could not justify full concurrency between sentences for the firearms offences and the sentence for one count of trafficking.
[2] R v Belczacki (2012) 112 SASR 95 at [55]-[61] per Peek J (with whom Blue J agreed).
[3] R v Copeland (No 2) [2010] SASCFC 61, (2010) 108 SASR 398 at [107]-[110] per Kourakis J; R v Belczacki (2012) 112 SASR 95 at [62]-[63] per Peek J (with whom Blue J agreed).
[4] (2010) 108 SASR 398 at [107]-[110].
Although it appears as observed above that the Judge approached the determination of sentence on a holistic basis, nevertheless the Report of Prisoner Tried signed by the Judge demonstrates that the Judge did not invoke section 18A and ultimately imposed separate sentences in respect of each count.
While at common law it was not necessarily an error of law not to allow a discount for the early guilty plea,[5] it was common in the District Court to allow a discount and, while it was common to reduce the discount otherwise allowed when the defendant failed on disputed fact issues, it was uncommon not to allow any discount at all in that event. In circumstances in which the appellant submitted that a discount was appropriate and this was not challenged by the prosecutor or questioned by the Judge, it was incumbent on the Judge to address the topic of discount in his remarks on sentence and give reasons if he decided that no discount should be allowed. It should not be inferred that the Judge made a deliberate decision not to allow any discount due to the dispute by the defendant the subject of the disputed facts hearing but decided not to invite submissions on this or address it in His Honour’s reasons. In the absence of the topic being addressed at all, combined with the Judge’s holistic approach to fixing an overall sentence, it should be inferred that the Judge simply overlooked the question of a discount for the early guilty plea.
[5] Whether the position is now different under sections 10B and 10C of the Sentencing Act need not be considered in this appeal.
It follows that the Judge’s sentencing discretion miscarried and the appellant falls to be resentenced.
Approach to appeal and resentencing
The notice of appeal is expressed to be limited to the sentence of imprisonment for five years imposed for the trafficking charge.
The appellant and the Director both contend that the Court should treat the appeal effectively as an appeal against the whole of the sentences imposed by the Judge. The Director in particular contends that, if the Court were otherwise to conclude that the sentence of imprisonment for five years for the trafficking charge should be set aside and a lower sentence imposed, the Court should nevertheless dismiss the appeal if satisfied that the total period of the sentences imposed by the Judge, being imprisonment for five years, was appropriate for the totality of the offending. However, the appellant has not sought to amend the notice of appeal to appeal against the sentences imposed in respect of the counts other than the trafficking charge; nor has the Director sought to cross-appeal against the sentences imposed in respect of those other accounts.
I agree with Stanley J that it has been authoritatively decided by this Court in R v Tyler[6] that, when separate sentences are imposed in respect of separate counts and a party appeals against the sentence in respect of one only of those counts, the Court has no jurisdiction under sections 352 and 353 of the Criminal Law Consolidation Act 1935 (SA) (the Consolidation Act) to vary the sentence in respect of the other counts.
[6] [2016] SASCFC 7, (2016) 124 SASR 412 at [43]-[46] per Kourakis CJ (with whom Nicholson J agreed) and [59]-[63] per Blue J.
In Tyler,[7] this Court said that, if a defendant makes a selective decision to appeal only against a single manifestly excessive sentence but the Court is of the view that the sentence imposed at the same time on another count is correspondingly inadequate, this may in itself warrant a grant of permission to appeal to the Director against the sentence imposed on the other count.[8] Although not spelt out in Tyler, it is instructive to articulate why this is so.
[7] [2016] SASCFC 7, (2016) 124 SASR 412.
[8] At [47] per Kourakis CJ (with whom Nicholson J agreed) and [61] per Blue J.
Pursuant to section 352(1)(a)(iii) of the Consolidation Act, an appeal against sentence by either the defendant or the Director lies by permission of this Court. Although the section does not distinguish between the criteria for permission depending on whether the appeal is by the defendant or the Director, it is clearly established by case law that generally the Director faces an additional hurdle to obtaining permission by virtue of the application of double jeopardy principles. Once a defendant has already been sentenced for an offence, it is regarded as being in the public interest that the defendant should not be twice vexed with the prospect of being deprived of his or her liberty, ie the prospect of a higher sentence being imposed on appeal.[9]
[9] Everett v R (1994) 181 CLR 295 at 299-300 per Brennan, Deane, Dawson and Gaudron JJ; R v Koch [2015] SASCFC 31 at [23] per Parker J (with whom Kourakis CJ and Bampton J agreed).
Generally, permission to appeal in favour of the Director will only be granted when there are public policy considerations that outweigh the public interest against double jeopardy.[10] Generally, as was held by this Court in R v Payne,[11] this will only be so when it is necessary to establish some matter of principle, to establish and maintain adequate standards of punishment, or to correct a sentence 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.
[10] R v Koch [2015] SASCFC 31 at [23] per Parker J (with whom Kourakis CJ and Bampton J agreed).
[11] [2004] SASC 160, (2004) 89 SASR 49 at [86] per Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ.
When two separate sentences of imprisonment for two offences are imposed on a defendant at the same time, particularly for offences committed at about the same time or arising out of a course of conduct, the defendant selectively seeks permission to appeal against the sentence imposed on one count only and the Director reactively seeks permission to appeal against the sentence imposed on the other count on the basis that any excess of the sentence on the first count is counterbalanced by inadequacy of the sentence on the second count, double jeopardy considerations are greatly diminished. It is the defendant who initiates the appeal and challenges part of the sentencing package imposed by the sentencing Judge. The defendant does not face the prospect of an increase in the total period of imprisonment imposed. The appeal by the Director (if permission is granted) is reactive rather than proactive. In these circumstances, if permission to appeal in favour of the defendant is granted, the Payne criteria are not applicable and the public interest is a different one. Ordinarily, if the Court thinks that an excess of the sentence on the first count is counterbalanced by inadequacy of the sentence on the second count, this in itself will give rise to a public interest in granting permission to appeal in favour of the Director on a reactionary basis. If a defendant adopts a contrivance to amplify his or her prospects of appeal, permission to appeal would be granted to avoid such contrivance being effective.

If permission to appeal in favour of the Director on such a basis is granted and if this Court concludes on appeal that the sentencing Judge imposed a sentence that is too high for one count and a sentence that is too low for another count, this Court may well conclude that this evidences some error in approach by the sentencing Judge. For example, this Court might conclude that the Judge proceeded by first determining what the Judge regarded as an appropriate total period of imprisonment for the totality of the offending and erroneously allocated that total period of imprisonment between the two counts.
In the present case, there is no contention by the Director that the periods of imprisonment imposed by the Judge for the firearms offending were inadequate. Rather, the Director contends that the Judge erred in making the sentence of imprisonment for the trafficking offence wholly concurrent with the sentences of imprisonment for the firearms offences. Indeed, in those cases in which a defendant appeals against a sentence of imprisonment for one count and the Director wishes to contend that the total of the sentences of imprisonment imposed for all counts was nevertheless appropriate, it will be comparatively rare for the Director to contend that individual sentences were inadequate and more common for the Director to contend, as in this case, that the Judge erred in the application of accumulation and concurrency principles.
When a defendant appeals against the sentence imposed on one count and not the sentence or sentences imposed in respect of another count or counts, one aspect of the sentence imposed in respect of the count the subject of the appeal is the date fixed pursuant to section 30 of the Sentencing Act as the date on which that sentence is to commence. It follows that, on an appeal against sentence in respect of one count, on exercising the sentencing discretion afresh, this Court will need to consider the commencement date for the sentence this Court considers should be imposed for that count. This includes the question whether the sentence should be concurrent with or cumulative upon the sentence or sentences imposed in respect of other counts not the subject of appeal.
Exercise of resentencing discretion
The trafficking charge involved a quantity of 23.8 grams of a mixed substance containing 10.3 grams of pure methylamphetamine. The Judge sentenced the appellant on the basis that he had been heavily addicted to methylamphetamine and gambling and had been intending to use some of the substance himself and sell the balance to pay past methylamphetamine and gambling debts.
In relation to the personal circumstances of the appellant, he was referred by his general practitioner in March 2013 to a psychologist, Dr Connell, who provided a report to his general practitioner and to the Court. The appellant has abstained from methyamphetamine since that time and more generally has stayed out of trouble since June 2012 when he committed the offences for which he was sentenced.
The appellant has been in a long-term stable relationship with his partner, interrupted as a result of his methylamphetamine use, but which resumed after June 2012. The appellant has the continuing support of his partner and his family. He is now 41 years old. He has a good long-term employment record and has been in his current employment since April 2013. Very favourable references were provided by the appellant’s superintendent at work, his partner, his mother and stepfather and two long-term friends.
The appellant has a prior conviction for drug offending, having been fined $800 for producing cannabis and possessing cannabis for sale committed in November 2006. He has no other prior convictions for drug or firearms offences. His only other prior convictions are for relatively minor offences in respect of which fines or bonds to be of good behaviour were imposed.
In the circumstances, taking into account the recent decision of this Court in R v Young,[12] an appropriate starting point is a sentence of imprisonment for four years for the charge of trafficking. I would allow a discount of ten months on account of the appellant’s early guilty plea (reduced from the discount I otherwise would have allowed by reason of his denial of the extent of the trafficking the subject of the disputed facts hearing). I would therefore impose a sentence of imprisonment for three years and two months for the charge of trafficking.
[12] [2016] SASCFC 102.
For the reasons given above, the sentence of imprisonment for the charge of trafficking ought to be at least partly cumulative on the sentences effectively totaling imprisonment for three years imposed for the firearms offences. But for the constraints imposed by the fact that this is an appeal by the appellant and the total of the sentences imposed ought not to be increased, I would have ordered that the sentence of imprisonment for the charge of trafficking be cumulative on the sentences imposed for the other offences to the extent of two years (taking into account totality considerations). However, given those constraints, I would order that the sentence for the charge of trafficking be cumulative to the extent of one year and ten months on the sentences imposed for the other offences. This would result in the sentence of imprisonment for the trafficking charge commencing one year and ten months after the commencement of the other sentences and the total of the sentences of imprisonment imposed for the June 2012 offending remaining at five years.
I would fix a non-parole period of two years and six months. For the reasons given by Stanley J, deterrence is an important factor in sentencing for serious drug offences. Notwithstanding the appellant’s personal circumstances, the gravity of the offending is such that there is not good reason to suspend the sentence of imprisonment.
Conclusion
I would allow the appeal. I would set aside the sentence imposed by the Judge for the trafficking charge. I would resentence the appellant to imprisonment for three years and two months for that charge, to commence one year and ten months after the commencement of the sentences imposed in respect of the other charges. I would fix a non-parole period in respect of all of the sentences of two years and six months to commence on 30 July 2015, being the date of commencement of the other sentences.
STANLEY J:
Introduction
This is an appeal against sentence.
On 23 January 2013 the appellant entered a plea of guilty to a charge of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (“the CSA”). He entered pleas of not guilty to charges of possessing a class D firearm without a licence, possessing a prescribed quantity of a controlled precursor, possessing an unregistered firearm, failing to secure a class D firearm and possessing a dangerous article. In relation to those charges he was tried by a jury in the District Court. He was found guilty of all charges except the charge of possessing a dangerous article. An acquittal was entered in relation to that charge. Subsequently there was a disputed facts hearing conducted before the trial Judge in relation to the charge of trafficking in a controlled drug.
On 30 July 2015 a District Court Judge imposed a sentence of five years imprisonment for the offence of trafficking in a controlled drug. The appellant was also sentenced to three years imprisonment for the offence of possessing a firearm without a licence, one year of imprisonment for the offence of possessing a prescribed quantity of a controlled precursor, one year of imprisonment for the offence of possessing an unregistered firearm and he was convicted without further penalty for the offence of failing to secure a firearm, all of which were to be served concurrently with the sentence imposed for trafficking in a controlled drug. The Judge imposed a non-parole period of two years and six months.
The appellant appeals on three grounds. First, on the ground that the sentence imposed for the offence of trafficking in a controlled drug is manifestly excessive. Second, on the ground that the sentencing Judge erred in not apportioning any discount for the early plea. Third, on the ground that the sentencing Judge erred in not suspending the sentence.
Circumstances of the offending
On 13 June 2012 police attended at the appellant’s address at Largs North. They conducted a search of his house during which they located, inside the kitchen freezer, a small tub containing crystalline paste weighing 23.8 grams containing 10.3 grams of pure methylamphetamine. Sitting on top of the fridge police found scales upon which methylamphetamine was detected. In a red esky bag police found 25 shotgun rounds, 17 shotgun shells and 614 bullets. Police also found a firearm, a small bag of cannabis seeds, a Centrelink letter addressed to the appellant, an ice pipe, a clear tub containing 585 grams of red phosphorus, a shotgun round, and a black zip-up bag containing a taser, 44 bullets and 16 shotgun rounds.
Police seized these items and arrested the appellant. The appellant declined to answer any questions.
Disputed facts hearing
The Court conducted a disputed facts hearing to establish the factual basis for sentencing for the offence of trafficking in a controlled drug. The issue was whether the appellant possessed the drug intending to sell it or whether he was taking part in the process of sale by storing, guarding or concealing it on behalf of another person.
The appellant gave evidence that he was holding the methylamphetamine on behalf of an unidentified dealer on the understanding that he could use some of it. He submitted that the absence of the usual evidence associated with commercial trafficking such as tick lists, banking records and telephone activity supported his assertion that he was not engaged in the sale of the drugs.
The sentencing Judge found the appellant to be a “very unimpressive witness” and his evidence in this regard “entirely unconvincing”. He considered it was inherently unlikely that a drug dealer would entrust such a large amount of methylamphetamine to one of his customers, an addict in financial trouble, with an open invitation to use some of it. He found the evidence of the quantity of the drug in the appellant’s possession, the fact that the drugs were worth somewhere between $7,000 to $18,000, the appellant’s obvious motive in selling methylamphetamine given his gambling and drug addiction, the presence of digital scales which could be used as a tool of trade of drug dealing and the presence of red phosphorous, demonstrating his interest in illegal drugs, gave rise to a strong inference to the contrary. The sentencing Judge concluded that the appellant possessed the drug with the intention of selling it.
The Judge’s sentencing remarks
On the basis of those findings the Judge proceeded to sentence for all offences[13] noting that the appellant had committed two serious offences, involving commercial trafficking in drugs and possession of a firearm without a licence in conjunction with that offending. The sentencing Judge noted that the appellant had previous, although less serious, convictions involving drugs. He said:[14]
As to the firearms offences, I reject the submission that it is still open to sentence you on the basis that the firearm belonged to somebody else and was in your shed as storage only. The jury rejected your evidence that you did not know that the firearm was there. There is no reason why I should accept your evidence to the jury that it belonged to someone else. That is a matter in mitigation which you have not sought to prove on the balance of probabilities. Your evidence in the trial, in my view, was just as unsatisfactory as your evidence before me.
Semi-automatic rifles are dangerous weapons and it is notorious that they are prohibited. There is no lawful way to possess one. There is, indeed, no lawful reason to possess one.
As to your personal circumstances, I accept that at the time of these offences you were addicted to methylamphetamine and also to gambling. I accept that you committed the methylamphetamine offence partly for commercial purposes, to finance your own habit and to pay your debts, and partly for your own use of the drug. I am unable to say how much of the drug would have been used for each of these purposes, but I must take into account that you were in possession of a large quantity of the drug.
There were at the time, no doubt because of your drug-taking and gambling, stresses in your relationship, and you described to the psychologist that you felt that your life was out of control.
You have now been out of trouble for three years. You have given up methylamphetamine by yourself, without support. You have been employed. You have had a psychological condition from a motor vehicle accident when you were 16 and you still suffer panic attacks as a result of that. I accept that this condition may have led you to use methylamphetamine, or at least was a factor in that.
You are still with your longstanding partner and your son. Your employer, your work supervisors, your partner, your friends, your mother and your stepfather have all provided references for you, and they all speak highly of you.
[13] The Judge seems to have overlooked sentencing the appellant for the offence of failing to secure ammunition separately from a firearm.
[14] Sentencing remarks of his Honour Judge Chivell delivered 30 July 2015 p 2.
The Judge considered that a substantial sentence was required but he fixed a non-parole period having regard to what he considered to be the appellant’s good prospects of rehabilitation. He said:[15]
The seriousness of the two major offences and the combination of all these offences in my view make it inappropriate that the sentence be suspended. I have already mentioned that there is a great need for deterrence of this sort of offending. I accept that it is significant that it has been three years since you have offended, but there was that delay because of the way that you have conducted these proceedings, first with a plea of guilty which you were given leave to withdraw, then a trial of the firearms and other charges, and then with a disputed facts hearing in relation to the methylamphetamine charge.
The jury rejected your evidence, as have I. It is not clear to me that you have accepted responsibility for your offending. It is about time you did. It is essential that you do that if you are to stay out of trouble in the future. I am sure you are capable of doing that and I am hopeful that you will do that, but you must take responsibility for your behaviour.
[15] Sentencing remarks of his Honour Judge Chivell delivered 30 July 2015 p 3.
Approach on appeal
The test to be applied in determining whether to interfere on appeal with a decision on sentence is set out in R v Jongewaard[16] where Doyle CJ said:[17]
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]:
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".
[16] [2009] SASC 346, (2009) 266 LSJS 283.
[17] [2009] SASC 346 at [40], (2009) 266 LSJS 283 at 288-289.
A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing Judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King[18] does the appeal court have the power to quash the sentence passed below. As was said in R v Kreutzer by Kourakis CJ,[19] if the error identified by the appeal court is manifest excess or inadequacy (an outcome error), the Full Court will fix the sentence it thinks ought to have been imposed. If the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the Full Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal.
[18] (1936) 55 CLR 499.
[19] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214-215.
In considering the appeal against the sentence imposed for the trafficking offence it is necessary to address a preliminary issue. The appellant submits that the sentence of five years imprisonment imposed for the offence of trafficking in a controlled drug is manifestly excessive and the Judge erred in failing to reduce the sentence for the guilty plea and in failing to find good reason existed to suspend the sentence. He submits that if the Court is satisfied that the Judge erred in the sentence imposed for the trafficking offence, the Court should intervene to reduce that sentence and adjust the non-parole period accordingly or suspend the sentence. Otherwise, he submits, apparently conceding that if the appeal is allowed the Court should resentence for all offences, the Court should not interfere with the sentences imposed for the other offences, as to do so would involve double jeopardy.
The Director submits that to adopt this approach would involve error. He submits the Court is to decide the appeal against sentence by reference to the head sentence imposed in respect of all the offending for which the appellant fell to be sentenced, rather than confining the appeal to the narrow issue of whether a particular term of imprisonment for one of the offences for which the appellant fell to be sentenced is infected by error. In any event, the Director submits that if the Court is satisfied that the Judge erred in the approach taken to fixing sentence for the trafficking offence, then the Court must consider whether a different sentence should have been passed in respect of all of the offending. If so, it will quash that sentence and either substitute the sentence that ought to have been imposed or remit the matter for resentencing.
The right of appeal against sentence is conferred by sections 352(1)(a)(iii) and (2) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) which provide:
(1) Appeals lie to the Full Court as follows:
(a) if a person is convicted on information—
…
(iii) subject to subsection (2), the convicted person or the Director of Public Prosecutions may appeal against sentence passed on the conviction (other than a sentence fixed by law), or a decision of the court to defer sentencing the convicted person, on any ground with the permission of the Full Court;
…
(2) If a convicted person is granted permission to appeal under subsection (1)(a)(iii), the Director of Public Prosecutions may appeal under that subparagraph without the need to obtain the permission of the Full Court.

The Court’s powers and duties on an appeal against sentence are prescribed by s 353 and s 340 of the CLCA. Section 353 relevantly provides:
…
(4) Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a) if it thinks that a different sentence should have been passed—
(i) quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii) quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b) in any other case—dismiss the appeal.
(5) The Full Court must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence.
…
Section 340 provides:
Despite any other rule of law, if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence (whether more severe or otherwise) imposed, the court must—
(a) impose the sentence that should have been imposed in the first instance; and
(b) order that the sentence—
(i) will be taken to have come into effect on a date before the date of the order; or
(ii) will take effect on a date on or after the date of the order.
Section 348 defines “sentence” as follows:
sentence includes any order of the court of trial or of the judge thereof made on, or in connection with, a conviction with reference to the convicted person, or any property, or with reference to any moneys to be paid by the person, and also includes an order under section 39 of the Criminal Law (Sentencing) Act 1988 discharging the convicted person, without imposing a penalty, on the person entering into a bond.
Since this appeal was heard a differently constituted Court of Criminal Appeal has delivered judgment in R v Tyler.[20]In Tyler the Court of Criminal Appeal addressed the preliminary issue raised on this appeal. The Court rejected the same submission by the Director on that appeal as put by the Director in this appeal. The Chief Justice, with whom Nicholson J agreed, said:[21]
A sentencing order is auxiliary to an order of conviction of an offence. A sentencing order cannot be imposed unless and until there is a conviction. Statutory provisions have, over time, added to the sentencing orders of the common law. For example, in the 19^th and 20^th centuries sentences of life imprisonment or determinate sentences of imprisonment progressively replaced the death penalty for felonies. Fines are a common statutory penalty for misdemeanours and summary offences. In more recent times, statutes have provided for other, or additional, orders to be made. Forfeiture, various forms of declarations, supervision orders, and orders for “indefinite” imprisonment are examples. However, such orders are commonly dependent on, and attached to, a conviction.[22] For that reason, the orders of indefinite detention considered in McGarry v The Queen[23] and Strong v The Queen[24] were described as “part of the sentencing decision”[25] or an “integer of a sentence”.[26] Orders of that kind are contemplated by the definition of “sentence”, particularly the words “or in connection with”, found in s 348 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). An error in part of a sentencing order, speaking generally, will vitiate the order because each part of a sentencing order will generally be fixed by reference to the other.[27] That will not necessarily be the case when discrete individual sentences are imposed on convictions for a series of offences. The Director’s submission that the definition of sentence in s 348 of the CLCA should be extended to an order made on a different conviction altogether ignores fundamental principles of common law criminal procedure and must be rejected.
It is common to refer to the total period of imprisonment to be served on multiple sentences of imprisonment as the “head sentence”. That terminology is a convenient shorthand for the purposes of fixing a single non‑parole period pursuant to s 32 of the Criminal Law Sentencing Act 1988 (SA). It is not, however, a sentence in itself, either at common law or by statute. It is merely the total period of imprisonment calculated arithmetically which is to be served as a result of the multiple individual sentences imposed. A sentenced prisoner may appeal one or more of those sentences and not the others, or all of the sentences. The grounds of appeal may allege that a particular sentence, taken alone, is manifestly excessive, or that the “head sentence” is manifestly excessive because of an error in the way the sentences were ordered to be served cumulatively, in part or in whole, or because of some other failure to apply the principle of totality.
The latter ground will be made out only if the cumulative total period of imprisonment of all of the sentences imposed is manifestly in excess of the punishment warranted by the offending as a whole. Individual sentences may be reduced or the degree of concurrency increased to correct that error. Absent an error in any of the individual sentences, there will be no reduction in the total period of imprisonment to be served unless that total is manifestly excessive irrespective of any difference of view, within the acceptable sentencing range, as to how that total should be allocated to the individual offences.
If the former ground is made good the particular sentence found to have been erroneously imposed must be reduced even if the Court of Criminal Appeal takes the view that the total period of imprisonment was not manifestly excessive. To do otherwise would be to ignore the statutory direction in s 353(4) of the CLCA to set aside a sentence which is shown to be manifestly excessive and to impose instead the sentence which should have been imposed. That statutory directive could not be followed, and the total period of imprisonment imposed by the judge maintained, unless the sentences imposed on the convictions for the other offences, were, in effect, increased. That course is precluded by s 353(5) of the CLCA. On setting aside the manifestly excessive sentence and imposing a lesser one, the Court of Criminal Appeal must fix a new non-parole period. The fixing of a new non-parole period is not, in any real sense, an interference with the other sentences. The non‑parole period is a statutory sentencing order attaching to all of the convictions on which the sentences to which it applies are fixed.
[20] [2016] SASCFC 7, (2010) 124 SASR 412.
[21] [2016] SASCFC 7 at [43] – [46], (2016) 124 SASR 412 at 420 – 422.
[22] That statutory connection may reflect a constitutional imperative.
[23] (2001) 207 CLR 121.
[24] (2005) 224 CLR 1.
[25] Strong v The Queen (2005) 224 CLR 1 at [27] (McHugh J).
[26] Strong v The Queen (2005) 224 CLR 1 at [25] (McHugh J).
[27] See, for example, R v Saunders (2011) 210 A Crim R 1.
Blue J considered the terms of s 352 and reasoned that it is predicated upon a separate conviction or acquittal in respect of discrete offences charged and provides separate rights of appeal in relation thereto. It proceeds on the same basis when separate sentences are imposed on convictions for separate offences. He further considered the definition of “sentence” in s 348. He said:[28]
The reference to “an order made on, or in connection with, a conviction” is a reference to all of the types of order that can be made upon conviction, including not only the imposition of a sentence of imprisonment and fixing of a non-parole period, fine or community service obligation but also a restitution order,[29] compensation order,[30] restraining order[31] or intervention order[32] (each of which is referred to in section 348 in the definition of “ancillary order”), a forfeiture order,[33] a declaration[34] or order for entry into a bond.[35] It also refers to the date when a sentence of imprisonment is to commence including an order that the sentence imposed is be served concurrently with or cumulatively upon another sentence of imprisonment (whether imposed at the same time or previously).
The reference to “an order made on, or in connection with, a conviction” does not refer to a separate sentence imposed in respect of a separate conviction for a separate offence. A sentence for offence A is not made in connection with the conviction of a different offence B merely because the Court happens to impose the sentence for offence B at the same time as imposing the sentence for offence A. Nor is this so because the sentence for offence B is made concurrent with or cumulative upon the sentence for offence A. The construction advanced by the Director in this respect is contrary to the wording, context and evident purpose of s 352 and the definition of “sentence” contained in s 348.
If a defendant appeals against the sentence imposed on conviction for one offence contending that the head sentence is excessive,[36] and the Director wishes to contend that, if the head sentence for that offence is excessive, the excess is counterbalanced by the inadequacy[37] of a head sentence imposed at the same time on conviction for another offence, the appropriate course is for the Director to seek permission to appeal against the sentence for the other offence on the conditional basis that the Director’s appeal is pressed only if the defendant’s appeal is successful.
If a defendant appeals against sentence contending that the non-parole period is excessive[38] in circumstances in which he or she has been sentenced for multiple offences and a single non-parole period has been fixed by reason of the convictions for the multiple offences pursuant to section 32(1) of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act), this Court will necessarily consider whether the non-parole period is excessive having regard to all of the multiple offences for which the appellant was sentenced as well as any earlier offences in respect of which the appellant is still serving a term of imprisonment.
If a defendant appeals against a sentence of imprisonment imposed on conviction for one offence contending that the head sentence is excessive in circumstances in which the defendant was sentenced to imprisonment on conviction for another offence and the sentences were ordered to be served concurrently or partially or wholly cumulatively,[39] and this Court finds vitiating error and proceeds to resentence the defendant, this Court will necessarily need to consider whether the sentences should be served concurrently or partially or wholly cumulatively.
[28] [2016] SASCFC 7 at [59] – [63], (2016) 124 SASR 412 at 424.
[29] Pursuant to section 52 of the Criminal Law (Sentencing) Act 1988 (SA).
[30] Pursuant to section 53 of the Criminal Law (Sentencing) Act 1988 (SA).
[31] Pursuant to section 19A of the Criminal Law (Sentencing) Act 1988 (SA) and Pt 4, Div 7 of the Summary Procedure Act 1921 (SA).
[32] Pursuant to section 19A of the Criminal Law (Sentencing) Act 1988 (SA) and s 6, s 20 and s 23 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
[33] For example, pursuant to s 27AAB of the Firearms Act 1977 (SA).
[34] Such as a serious and repeat offender declaration pursuant to s 20B of the Criminal Law (Sentencing) Act 1988 (SA).
[35] Pursuant to s 39 of the Criminal Law (Sentencing) Act 1988 (SA).
[36] Whether manifestly excessive or because the sentencing discretion miscarried for another reason.
[37] Whether manifestly inadequate or because the sentencing discretion miscarried for another reason.
[38] Whether manifestly excessive or because the sentencing discretion miscarried for another reason.
[39] Whether manifestly excessive or because the sentencing discretion miscarried for another reason.
This Court is bound by the decision in Tyler. Accordingly, where the appellant has appealed the sentence for the trafficking offence only, it falls to the Court to decide the appeal by reference solely to the sentence of five years imprisonment imposed for that offence rather than the total head sentence imposed by the Court in respect of all the offending for which the appellant fell to be sentenced by the sentencing Judge.
Ground 1: manifestly excessive?
The appellant submits that the sentence imposed for the trafficking offence is manifestly excessive given that it represents half the maximum penalty. The Judge imposed a sentence of five years imprisonment for the trafficking offence.
In The Queen v Morse,[40] King CJ identified the factors to be considered in determining whether a sentence is manifestly excessive. He identified those factors as the maximum sentence prescribed by law, the standards of sentencing customarily observed for offences of that kind, the seriousness of the offence committed when compared to other offences of its kind, and the personal circumstances of the offender.[41]
[40] (1979) 23 SASR 98.
[41] (1979) 23 SASR 98 at 99.
The maximum penalty prescribed for trafficking in a controlled drug is 10 years imprisonment or a $50,000 fine or both.
In Markarian v The Queen[42] the High Court considered the fixing of maximum available sentences represented yardsticks relevant to the sentencing process which required careful attention by sentencing judges. They invite comparison between the worst possible case and the case before the court at the time. However, it does not follow that because the sentencing Judge imposed a sentence which represents half the maximum penalty that the sentence is manifestly excessive. On the contrary, in R v Levy[43] Kourakis CJ, with whom I agreed, considered the appropriate range of sentence for the generality of cases of street dealing in methylamphetamine contrary to s 32(3) of the CSA is between four and seven years.[44] The Chief Justice did so by reference to the standard set in R v Mangelsdorf[45] for street dealers of heroin. That standard of four to seven years has recently been confirmed by the Court of Criminal Appeal in R v Young.[46]
[42] (2005) 228 CLR 357.
[43] [2015] SASCFC 27, (2015) 122 SASR 445.
[44] [2015] SASCFC 27 at [23] – [29], (2015) 122 SASR 445 at 449 – 451.
[45] (1995) 66 SASR 60.
[46] [2016] SASCFC 102 per Kourakis CJ at [66], Vanstone J agreeing at [80] and Stanley J agreeing [289].
While there are mitigating factors in the appellant’s personal circumstances, namely, his previous drug addiction which he has overcome, his supportive relationship with his partner and his maintenance of secure employment, there is nothing in the circumstances of the appellant’s offending which would take him outside the range for an offence contrary to s 32(3) of the CSA. The sentencing Judge found that the appellant possessed the methylamphetamine with the intention of selling it. The sentence of five years imprisonment is not only within the range of sentences available for this offending, but is towards the lower end of the range. On the other hand, there were a number of factors which did not permit the sentencing Judge to extend any leniency for remorse or contrition on the part of the appellant in imposing sentence for the offence of trafficking in a controlled drug. First, there was the Judge’s finding the appellant possessed the methylamphetamine with the intention of selling it and his failure to accept responsibility for his offending. The Judge’s view in this regard was amply supported by the dispute over the facts of the trafficking offence. Second, in the last 10 years the appellant has drug-related prior convictions for possessing cannabis for sale and producing cannabis. Third, the Judge was not satisfied that the appellant had accepted responsibility for his offending. The Judge’s view was amply supported by the pleas of not guilty and the dispute over the facts of the trafficking offence. Fourth, the Judge was obliged to impose a sentence which would give effect to the need for both specific and general deterrence.
In my view, the sentence of five years imprisonment was not outside the range of sentences available for the offending for which the appellant was sentenced. The sentence imposed is not manifestly excessive.
Accordingly, ground 1 of the appeal fails.
Ground 2: failure to discount the sentence for the guilty plea?
In his sentencing remarks the Judge does not refer to any discount being given for the plea of guilty in relation to the trafficking charge. While the plea of guilty was entered on 23 January 2013 there was a dispute as to the basis for sentencing for this offence. This required a disputed facts hearing. In part that explained the delay in sentencing. The provisions of s 10C of the Criminal Law (Sentencing) Act 1988 (SA) did not apply to the appellant. Although the sentencing Judge does not refer to any consideration of giving a discount for the guilty plea, having regard to the sentence imposed for the trafficking offence of five years imprisonment, I am satisfied that the Judge did not discount the sentence for the plea of guilty. In my view, the failure to do so is not indicative of error. It was a matter for the exercise of the Judge’s discretion whether to give any discount for the plea of guilty, and if so, the extent of that discount. Of course, the discretion had to be exercised judicially.
In R v Place[47] the Court of Criminal Appeal endorsed the remarks of King CJ in R v Shannon[48] addressing the principles applicable to the consideration of guilty pleas in sentencing. Those principles are:
[47] [2002] SASC 101, (2002) 81 SASR 395.
[48] (1979) 21 SASR 442.
(1) A plea of guilty may be taken into account in mitigation of sentence where -
(a) it results from genuine remorse, repentance or contrition, or
(b) it results from a willingness to cooperate in the administration of justice by saving the expense and inconvenience of a trial, or the necessity of witnesses giving evidence, or results from some other consideration which is in the public interest; notwithstanding that the motive, or one of the motives, for such cooperation may be a desire to earn leniency,
and where to allow the plea a mitigatory effect would be conducive to the public purposes which the sentencing judge is seeking to achieve.
(2) A plea of guilty is not of itself a matter of mitigation where it does not result from any of the above motives, but only from a recognition of the inevitable, or is entered as the means of inducing the prosecution not to proceed with a more serious charge.
(3) In cases falling within (1), the judge is not bound to make a reduction, but should consider the plea with all the other relevant factors in arriving at a proper sentence.
(4) In assessing the weight to be attached to a plea of guilty as a factor making for leniency, it is proper for the judge to bear in mind that it is important to the administration of justice that guilty persons should not cause expense to the public and delay to other cases by putting forward false stories and on the basis of such false stories contesting the charges against them.
(5) The above propositions are not to be taken as weakening in any way the principle that there must be no increase in the sentence which is appropriate to the crime because the offender has contested the charge.
In accordance with these principles, the judicial exercise of the discretion did not oblige the Judge to give any discount for the plea of guilty. Moreover, given the decision of the appellant to dispute the factual basis of that offending, which caused a substantial delay in sentencing, and occupied the considerable expenditure of the Court’s time and resources, where the Judge found that the appellant’s evidence on the disputed facts hearing was unsatisfactory, the Judge was justified in not discounting on the basis that the plea did not evidence genuine remorse or contrition and a willingness to cooperate in the administration of justice.

The failure to give any discount for the plea of guilty in relation to the trafficking offence was within the exercise of the Judge’s discretion. I would dismiss ground 2.
Ground 3: failure to suspend the sentence
The Judge found that by reason of the seriousness of the two major offences and the combination of all the appellant’s offending good reason to suspend the sentence did not exist.
In R v Lutze[49] Vanstone and Parker JJ held that a decision not to suspend a sentence must be subjected to the same process of review as applies where the length of the sentence is in issue.[50]
[49] [2014] SASCFC 134.
[50] [2014] SASCFC 134 at [48].
The sentencing Judge took into account all relevant matters in determining the issue of suspension. The issue is whether it was open to the Court to decline to suspend the sentence. Only if the decision not to suspend fell outside the range of permissible outcomes, having regard to the nature of the offending and the characteristics of the offender, would be it be open to an appellate court to intervene. As this Court has said previously, the principal factor in sentencing in commercial drug cases and serious firearms cases is deterrence, both personal and general.[51] There was no error in the view the Judge took as to the seriousness of the two major offences for which the appellant fell to be sentence. The requirement for specific and general deterrence weighed heavily against suspending the sentence imposed. The Judge gave proper weight to the evidence of the appellant’s rehabilitation in the three years since the offending occurred, and this sounded in the imposition of a lenient non-parole period. There was no error in the Judge’s observations that the delay in sentencing resulted from the way in which the appellant had conducted the proceedings. In my view, the Judge properly recognised the distinction that sentencing courts have observed which gives greater weight to evidence of rehabilitation where there has been a substantial delay in sentencing that is due to the fault of law enforcement or prosecuting authorities.
[51] R v Violi [2015] SASCFC 2.
In my view there is no error in the failure of the Judge to suspend the sentence. I would dismiss ground 3.
Conclusion
I would dismiss the appeal.