R v Jones
[2022] SASCA 105
•13 October 2022
Supreme Court of South Australia
(Court of Appeal: Criminal)
R v JONES
[2022] SASCA 105
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice David and the Honourable Auxiliary Justice Mazza)
13 October 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PROCEDURE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - OTHER SUBSTANCES AND OFFENCES INVOLVING MULTIPLE SUBSTANCES OR OFFENCES
The issue on appeal is whether exceptional circumstances existed enlivening the sentencing Judge's discretion to suspend the respondent's sentence.
The respondent was found in possession of 48.09 grams of a substance containing methylamphetamine, 7.72 grams of a substance containing heroin and 5357.9 grams of a substance containing GHB. He pleaded guilty to trafficking in a large commercial quantity of GHB, trafficking in methylamphetamine and possession of heroin. The sentencing Judge imposed a sentence of five years, four months and 20 days' imprisonment and fixed a non-parole period of two years and six months. She found that exceptional circumstances existed to warrant the suspension of that sentence.
The Director of Public Prosecutions appeals against sentence on the ground that the sentencing Judge erred in finding that exceptional circumstances existed to suspend the sentence.
Held, per the Court, granting permission to appeal, allowing the appeal and revoking the order suspending the term of imprisonment:
1. A finding of "exceptional circumstances" for the purposes of s 96(6) of the Sentencing Act 2017 (SA) is moulded and informed by the mischief the section seeks to remedy: R v Yavus [2018] SASCFC 24. It must be based on an assessment of all of the usual sentencing criteria.
2. Whilst the respondent has demonstrated an attempt at rehabilitation, given the serious nature of his offending and his extensive history of prior offending, the finding that exceptional circumstances existed to enable the suspension of the sentence was, in all of the circumstances, unreasonable.
3. The gravity of the respondent's offending is such that strong reasons of public policy exist to grant the Director permission to appeal, notwithstanding the public interest in ensuring that the respondent is not twice vexed.
4. The respondent is sentenced to five years, four months and 20 days' imprisonment with a non-parole fixed at two years and six months. The order suspending the term of imprisonment is set aside.
Controlled Substances Act 1984 (SA); Sentencing Act 2017 (SA) ss 96(6), 96(3)(c), 96(9), referred to.
R v Yavus [2018] SASCFC 24 , applied.
Everett v The Queen (1994) 181 CLR 295 ; Green v The Queen (2011) 244 CLR 462 ; House v The King (1936) 55 CLR 499; Markarian v the Queen (2005) 228 CLR 357 ; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 ; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 ; Pateras v The Queen [2021] SASCA 107; R v Buttigieg [2020] SASCFC 38 ; R v Harkin [2011] SASCFC 24 ; R v McIntosh [2017] SASCFC 87 ; R v Nemer (2003) 87 SASR 168 ; R v Skinner [2016] SASCFC 106 ; Zefi v The Queen [2021] SASCA 15 , considered.
R v JONES
[2022] SASCA 105Court of Appeal – Criminal: Lovell JA, David JA and Mazza AJA
THE COURT: The respondent was sentenced to five years, four months and 20 days’ imprisonment having pleaded guilty to serious drug offending. The issue on appeal is, given the serious nature of the respondent’s offending, were “exceptional circumstances” established enlivening the discretion to suspend the term of imprisonment.
The respondent, over an approximately 30-year period, has battled with a “pernicious” drug addiction. On 14 February 2019, the respondent was found in possession of 48.09 grams of a substance containing approximately 32.33 grams of pure methylamphetamine, 7.72 grams of a substance containing 2.79 grams of pure heroin and 5357.9 grams of a substance containing 4-hydroxybutanoic acid (GHB). The respondent pleaded guilty to trafficking in a large commercial quantity of GHB and trafficking in methylamphetamine. He also pleaded guilty to possessing heroin.
The respondent had previously benefited from a suspended sentence for drug offending; he subsequently breached the suspended sentence. Despite his numerous prior convictions, the sentencing Judge found that the respondent had, whilst on remand, demonstrated “substantial rehabilitation” and “a significant change in his personal circumstances”. The sentencing Judge sentenced the respondent to five years, four months and 20 days’ imprisonment and fixed a non‑parole period of two years and six months. The sentencing Judge determined that exceptional circumstances existed and suspended the sentence on the condition that the respondent enter into a bond to be of good behaviour for a period of two years (with conditions relating to drug testing).
The Director of Public Prosecutions appeals the decision to suspend the sentence arguing that in all of the circumstances, the sentencing Judge erred in finding that exceptional circumstances existed enlivening the discretion to suspend the sentence. The Director did not challenge the sentence imposed.
Background
The facts are not in dispute. At about 1.00pm on 14 February 2019, STAR group officers attended The Watson hotel in Walkerville after receiving information that the respondent was present. The police located the respondent in the carpark of the hotel; he was arrested and searched. The respondent was found in possession of two black Nike brand ‘bum-bags’ that contained the following items:
·a plastic tub containing 39.0 grams of crystals containing methylamphetamine (Count 1);
·a press-seal bag with 0.12 grams of crystals containing methylamphetamine (Count 1);
·a press-seal bag with 0.24 grams of crystals containing methylamphetamine (Count 1);
·a set of digital scales;
·a piece of paper with handwritten names and numbers, a ‘tick-list’;
·$2,950 in cash;
·knuckledusters;
·an ice pipe; and
·two mobile telephones.
The respondent’s hotel room was searched. Police located the following items in a toiletries bag in the bathroom:
·a press-seal bag with 7.16 grams of crystals containing 5.13 grams of methylamphetamine (Count 1);
·a press-seal bag with 1.57 grams of crystals containing methylamphetamine (Count 1);
·a plastic container with 6.52 grams of powder containing 2.39 grams of heroin (Count 3);
·a plastic resealable bag with 1.20 grams of powder containing 0.40 grams of heroin (Count 3);
·seven tablets containing the drug 2CB (uncharged); and
·one tablet containing MDMA (uncharged).
Police searched a vehicle registered to the female who was sharing the hotel room with the respondent, which was parked adjacent to The Watson hotel. Police located the following items in the vehicle:
·a small bottle with 77.9 grams of liquid containing GHB (Count 4);
·a drink bottle with 2,150 grams of liquid containing GHB (Count 4);
·a large red fuel can with 3,150 grams of liquid containing GHB (Count 4);
·10 assorted plastic containers; and
·a home-made taser.
The total quantity of substance containing methylamphetamine the subject of Count 1 was 48.09 grams. The total quantity of substance containing heroin the subject of Count 3 was 7.72 grams. The total quantity of GHB the subject of Count 4 was 5357.9 grams.
The respondent pleaded guilty to:
·one count of trafficking in a controlled substance namely methylamphetamine (maximum penalty imprisonment for 10 years or a fine of $50,000 or both);[1]
·one count of trafficking in a large commercial quantity of a controlled substance namely GHB (maximum penalty life imprisonment or a fine of $1,000,000 or both);[2]
·possession of a controlled substance namely heroin (maximum penalty two years’ imprisonment or a fine of $2,000 or both).[3]
[1] Contrary to s 32(3) of the Controlled Substances Act 1984 (SA).
[2] Contrary to s 32(1) of the Controlled Substances Act 1984 (SA).
[3] Contrary to s 33L(2)(a) of the Controlled Substances Act 1984 (SA).
The respondent’s plea of guilty on 16 July 2021 entitled him to a reduction of up to five per cent in his sentence. The street value of the methylamphetamine was between $14,700 and $24,045. The street value of the GHB was between $13,394 and $16,073. The quantities and values of the drugs, as well as the ‘tick list’ located, indicated that the offending was not isolated but was part of an ongoing business. The respondent was sentenced on the basis that he was not a street-level dealer, but he was also not at the “apex” of the hierarchy.
Legal principles
The offence of trafficking in a large commercial quantity of a controlled drug is a “serious and organised crime offence” within the definition of s 96(9) of the Sentencing Act 2017 (SA) (“the Act”). The starting point for serious and organised crime offences is that a sentence of imprisonment may not be suspended pursuant to s 96(3)(c) of the Act. Parliament has clearly intended that for offences involving a large commercial quantity of a controlled drug, the statutory “good reason” test is not sufficient to warrant a suspended sentence. By the operation of s 96(6) a court can suspend a sentence “if satisfied that exceptional circumstances exist for doing so”. The only question on appeal is whether the sentencing Judge erred in finding that exceptional circumstances existed enlivening the discretion to suspend the sentence.
The principles relating to prosecution appeals against sentence are well established. Leave should only be granted with respect to Crown appeals against sentence in cases that are “rare and exceptional”.[4] As Brennan, Deane, Dawson and Gaudron JJ said in Everett v The Queen:[5]
An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed.
[4] Everett v The Queen (1994) 181 CLR 295 at 299.
[5] (1994) 181 CLR 295 at 299.
As the Court stated in R v Buttigieg,[6] a prosecution appeal against the adequacy of a sentence should be approached with great care, and the “rare and exceptional” test should be rigorously applied. The prosecution will be granted permission to appeal if it is necessary to enable the Court to establish and maintain adequate standards of punishment for crime; to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected; or if a sentence is so far below the appropriate range of sentences that the sentence reflects an error of principle or would “shock the public conscience”.[7] Both error and strong reasons of public policy are required to justify appellate intervention in a sentence said to be manifestly inadequate. The prosecution must persuade the Court that such strong reasons of public policy exist which demand permission to appeal be granted despite the public interest in not twice vexing the respondent.[8]
[6] [2020] SASCFC 38.
[7] R v Buttigieg [2020] SASCFC 38 at [39] citing R v Nemer (2003) 87 SASR 168 at [24]; R v Harkin [2011] SASCFC 24 at [19].
[8] R v McIntosh [2017] SASCFC 87 at [16].
Respondent’s background
The respondent is currently 43 years of age. His offending history dates back to 1994, when as a juvenile he committed the offence of building break and felony. The respondent’s juvenile offender history is extensive, involving offences such as break and enter, illegal use of a motor vehicle, larceny, assault and drug possession. The respondent spent time in juvenile detention. That pattern of offending behaviour continued when the respondent turned 18.
In October 1998, the respondent pleaded not guilty to the charge of wounding with intent to do grievous bodily harm.[9] The prosecution alleged that the respondent smashed a beer glass on the victim’s forehead and down his face. He was found guilty by verdict of the jury. Judge Russell, having described the offending as a “particularly savage attack”, sentenced the respondent to imprisonment for four years and six months with a non-parole period fixed at two years and three months.
[9] Contrary to s 21 of the then operative Criminal Law Consolidation Act 1935 (SA).
After his release from prison, the respondent continued to offend, those offences including larceny, assault, possessing a prescription drug, carrying an offensive weapon and resisting police officers in the execution of their duty.
In 2007, the respondent was charged with and pleaded guilty to possessing a firearm without a licence, possessing an unregistered firearm and silencer, and taking part in the supply of methylamphetamine. The respondent appeared before Shaw DCJ for sentence in September 2007.
Judge Shaw imposed a term of imprisonment but suspended the sentence. During the course of her sentencing remarks she observed:
The sentence of imprisonment that was imposed in 1998, which saw you serve an extended period in custody, enabled you to reflect upon the path your life has taken. You gained insight into the hopelessness of its direction and into the devastation that a life controlled by drugs, would bring you.
You had the good fortune to father a son in September 1997. Therein lies the motivation for you to reflect on whether or not you would spend the rest of your life in prison or whether, indeed, you would be there to provide a father figure for your son.
Fortunately, you chose the latter course and upon your release from gaol, you resolved not to continue upon the path of self-destruction where you had previously found yourself.
You entered into a stable relationship, which is now of some four years standing, for which you must be very grateful every time you wake up in the morning. You gained regular contact with your son, who is now 10 years of age. You have invested with your partner in a family home. Your partner contributes to the repayments of the mortgage because she is in full employment. You have used great industry and initiative to enter a partnership that enables you to earn an income, despite your lack of education, from a vending machine business. Therefore, you and your partner are able to meet the commitments of an extensive mortgage of $130,000 and to plan for future business ventures that will provide a future life for you and your partner of hope and prosperity.
That is, in summary, you have turned your life around …
It is fair to say that you have indeed been blessed by the good fortune of a son who needs you, and a partner who wants to support a life with you.
(emphasis added)
The respondent then breached that bond on 28 August 2009 by being in possession of 11.52 grams of paste containing 2.12 grams of methylamphetamine (offence of possessing a controlled drug for supply) and manufacturing a controlled drug (on a permit premises basis) on two separate occasions. Judge Boylan revoked the suspended sentence bond imposed by Shaw DCJ, and another suspended sentence that had been imposed in the Magistrates Court. On 19 August 2011, the respondent was sentenced by Boylan DCJ to a total head sentence of six years and nine months with a non-parole period of two years and 10 months.
During his sentencing remarks, Boylan DCJ observed:
For a time you settled down. By the time you were 24 you were in an established relationship with your former wife, Emma, you had work and you bought a house. During the same period you bought a business, an adult bookshop at Smithfield. You were doing well for someone with your background who had only been educated to year 9 1evel.
Unfortunately, by 2007 you had reverted to the drug use which you had begun as a teenager of 14 years. Owing to your need for drug, your marriage broke up, you lost your business and you recently found out that you were about to lose your house. The bank is going to exercise its powers pursuant to the mortgage.
Your personal life has been somewhat chequered. Before meeting Ms Jones you had a three-year relationship with a Ms Tracey Quinn by whom you have a son who is now 14. You have a reasonable relationship with him but you don't see much of him while you are in custody. It is a great pity for a 14-year-old boy, Mr Jones, that his father is here in this position.
While you were with Ms Jones you managed to assist her to cope with her established mental health problems. At the time I heard submissions she was in a psychiatric ward.
Your relationship with Ms Bentley remains strong and she continues to support you.
Your aim is to stay clear of drugs and work your way up in the world again. You have proved in the past you can work your way up in the world.
(emphasis added)
After being released on parole in 2017 following the sentence imposed by Boylan DCJ, the respondent breached his parole by consuming illicit drugs and was returned to custody to serve the remainder of his sentence. He was released from custody in March 2018. The respondent then committed driving offences in May 2018, and the subject offences in February 2019.
In their respective 2007 and 2011 remarks, both sentencing Judges highlighted the respondent’s determination to change his life and the positive aspect of having a stable relationship supporting his rehabilitation.
Materials before the sentencing Judge
At the time of sentence, the sentencing Judge had before her:
·a report from Mr Balfour, a forensic pathologist, dated 14 November 2021;
·two reports from PsychMed related to the respondent’s attendance at the Matrix programme dealing with methylamphetamine addiction – the respondent successfully completed the programme;
·a letter of support from the respondent’s son;
·a letter of support from the respondent’s current partner; and
·an affidavit of the respondent dated 23 November 2021.
When sentencing the respondent, the sentencing Judge took into account the favourable letters from the respondent’s current partner and his son. The sentencing Judge placed much reliance on Mr Balfour’s opinion stating:
You had a gambling addiction that lasted almost two years and ended in 2018. In November 2021 Mr Balfour assessed you as being in the high range of risk for coming into further legal conflict in the next 12 months. Mr Balfour said you would have satisfied the diagnostic criteria for a pathological gambling disorder which is now in remission. He said you have developed a personality disorder after being exposed to neurotoxic developmental factors that corrupted your psychosocial development leading to impaired identity formation and resulting in a personality disorder. Mr Balfour said you developed a post-traumatic stress disorder as a result of being sexually abused but your post-traumatic stress disorder manifested itself in what he described as a conduct disorder. Your post-traumatic stress disorder was exacerbated when you were exposed to trauma during your time in juvenile detention.
Mr Balfour said that you are becoming institutionalised into the criminal justice system. He said your current offending behaviour represents another episode in your self-destructive lifestyle. You need a comprehensive rehabilitation program that assertively targets your core criminogenic risk factors otherwise he said your prognosis to stop offending is poor. Mr Balfour was of the view that your rehabilitation would take two to three years.
I have placed significant weight upon the conclusions drawn by Mr Balfour at the end of his report. In summary Mr Balfour said that you would be a good candidate for specialist treatment for post-traumatic stress disorder and that you have taken an important step in your rehabilitation by disclosing for' the first time your childhood sexual abuse. He said targeted psychological therapy would reduce your reliance on illegal drugs as a way of coping with your post-traumatic stress disorder and therefore would reduce your propensity to offend.
Mr Balfour said you were totally committed to abstinence from drug and alcohol abuse and your motivation to participate in drug and alcohol rehabilitation had significantly improved. The total commitment to which Mr Balfour referred has been borne out by your successful completion of the Matrix program. The psychological report I received from PsychMed records that during the 16-week program you were completely abstinent from substance abuse and use and your psychosocial distress has decreased.
When considering the question of whether “exceptional circumstances” existed enlivening the discretion to suspend the sentence, the sentencing Judge observed:
As is clear, to be exceptional a circumstance does not have to be unique, unprecedented, or very rare but it has to be one that is not regularly, routinely, or normally encountered. Whilst it is not uncommon for those who commit such offences as you have committed to do so by reason of an addiction, it is uncommon for a person approaching middle age with such a serious and lifelong addiction to achieve a sustained period of abstinence and demonstrate substantial rehabilitation and a significant change in his personal circumstances.
The sentencing Judge later observed:
You have been successful to date in your resolve to overcome what was clearly a powerful and all-consuming drug addiction such that I am satisfied that there has been substantial rehabilitation. There has also been a significant change in your personal circumstances.
The courts are all too familiar with the cycle of drug addiction and offending. It is not commonplace to see substantial rehabilitation of the type that you have demonstrated by offenders with your background of offending and your significant psychological disorder. The expert evidence before me reveals that your post- traumatic stress disorder is the source of your behavioural issues which led to your drug addiction and in turn to your offending behaviour.
It is also uncommon for there to be such a significant delay between offending and sentence, enabling the court to be confident in its assessment that there has been both substantial rehabilitation and therefore good prospects of ongoing rehabilitation. Further, it is uncommon to encounter a situation where an offender with your record is supported in a long-term relationship by a law-abiding partner with stable employment and accommodation who is committed to ensuring that you do not reoffend.
These circumstances in combination in my view do amount to exceptional circumstances enabling me to suspend the sentence of imprisonment that I have imposed.
Applicant’s submissions
The applicant accepted that on appellate review of a sentencing decision, the principles enunciated in House v The King[10] are applicable. The applicant submitted that the case involved an “outcome error” rather than a specific error in the sentencing process. That is, the applicant accepted that it had to establish that the sentencing Judge’s decision was unreasonable or unjust. The applicant contended that the sentencing Judge’s decision was “plainly wrong”.
[10] (1936) 55 CLR 499.
The circumstances that the sentencing Judge found amounted to “exceptional circumstances”, the applicant submitted, were the respondent’s “sustained period of abstinence”, “demonstrated rehabilitation” and “significant change in his personal circumstances” against the background of his “serious and lifelong addiction” to drugs. While the applicant accepted that these were matters relevant to the issue, the personal circumstances said to give rise to the exceptional circumstances, it was submitted, needed to be balanced against all the other circumstances including the nature and seriousness of the offending. General and personal deterrence were important factors when sentencing for trafficking in a large commercial quantity. This, the applicant submitted, the sentencing Judge failed to do, or do adequately, leading to the “plainly wrong” decision.
Further, the applicant submitted that the test of exceptional circumstances is clearly a more stringent test than the more general test set out in s 96(1) of the Act, which empowers a court to suspend a sentence of imprisonment if the court finds “good reason” exists to do so. Parliament has imposed a different test, one which requires the court to impose a custodial sentence unless finding exceptional circumstances exist. That is, exceptional circumstances are therefore “circumstances which, when present, so markedly change the nature of the present case that it is no longer within the mischief which the legislature intended to address with the specified order generally to be made”.[11] The respondent’s personal circumstances in this matter needed to be weighed against the objective seriousness of the offending and the need for general deterrence and protection of the community before a court could find the existence of exceptional circumstances.
[11] R v Yavuz (2018) 130 SASR 231 at [115].
Turning to the particular facts of this case, the applicant submitted that the sentencing Judge was required to give significant weight to:
·the seriousness of the offending – the respondent was convicted of trafficking in two drugs as well as possessing other drugs;
·that while the applicant was a methylamphetamine addict, he was not addicted to fantasy;
·that the value of the drugs, the cash seized and the presence of the ‘tick list’ demonstrated the ongoing nature of the enterprise;
·that while the respondent was not funding a hedonistic lifestyle, this was a commercial enterprise funding both his methylamphetamine and gambling addiction;
·that the respondent had previously had the benefit of suspended sentences which he had breached. The breaches occurred despite the respondent submitting to the relevant Court that he had “insight” into his problem, had rehabilitated and had the ongoing support of his then partner;
·the manifest purpose of s 96(3) of the Act; and
·that despite his “substantial rehabilitation” the respondent remained at a “high risk” of reoffending.
Respondent’s submissions
Mr Handshin KC, counsel for the respondent, accepted that the decision to suspend the sentence of imprisonment could be said to be “generous” but submitted that, in all of the circumstances, it was within the decisional freedom of the sentencing Judge to impose. That is, he submitted, the decision to suspend could not be said to be unreasonable or “plainly wrong”.
Mr Handshin submitted that the sentencing Judge’s remarks, looked at in their entirety, demonstrated that the Judge had regard to the authorities on the issue and had approached the sentencing task in line with those authorities. The applicant, he submitted, accepted that there was no identified error in the approach of the sentencing Judge and that the decision to suspend the sentence fell within her discretion.
Like the sentencing Judge did in her remarks, Mr Handshin emphasised the respondent’s extensive effort towards rehabilitation, including attending the Matrix course. The respondent, while on home detention bail, was subject to routine drug tests and since late 2019 had demonstrated that he was no longer using methylamphetamine. Mr Handshin submitted that the respondent had a significant change in his personal circumstances in that he had a supportive partner who was in employment and a person of good character. This support was clearly relevant to the respondent’s approach to his rehabilitation. Mr Handshin submitted that the sentencing Judge was correct in her assessment that all of the personal factors, given the length of time between the offending and sentence, demonstrated the respondent’s determination to successfully rehabilitate.
While accepting that the respondent had a significant drug addiction for decades resulting in many breaches of the law, the respondent had now demonstrated abstinence from drug use and showed, in his personal circumstances, “encouraging and sustained signs” of having turned his life around. Against this background it could not be said that he remained the type of offender to whom the mischief in s 96(3) was directed.
Mr Handshin accepted that other judges may have reached a different conclusion. However, the facts of this case did not demonstrate that the sentencing Judge’s decision to suspend the sentence was plainly wrong.
Discussion
It was common ground that the principles enunciated in House v The King[12] were applicable. A challenge to a sentencing judge’s discretionary decision can only succeed if the judge:[13]
·made an error of legal principle;
·made a material error of fact;
·took into account some irrelevant matter;
·failed to take into account, or gave insufficient weight to some relevant matter; or
·arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
[12] (1936) 55 CLR 499.
[13] Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45]; Pateras v The Queen [2021] SASCA 107 at [15].
It was also accepted that as no process error could be identified, the applicant had to establish that while no error appears explicitly in the reasoning of the sentencing Judge, the decision to suspend the sentence was unreasonable or unjust.
The administration of the criminal law involves individualised justice. The exercise of a discretion that the law reposes in a sentencing judge does not yield a unique answer. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[14] Members of an appellate court cannot substitute on appeal a judgment which turns on their own exercise of discretion merely because they would themselves have exercised the original decision in a different way. For an appealable error in the exercise of judicial discretion to be established, the appellate court must be satisfied that what was done by the sentencing Judge in the judgment under appeal amounted to a failure to properly exercise the discretion entrusted to the sentencing court.[15]
[14] Markarian v the Queen (2005) 228 CLR 357 at [27] per Gleeson CJ, Gummow, Hayne and Callinan JJ.
[15] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [37] per Gageler J.
Exceptional circumstances
The object of s 96(3) of the Act is to displace the “good reason” test conferred by s 96(1). Parliament has determined that in a prescribed category case, justice is not served by a suspended sentence. Trafficking in a large commercial quantity of GHB is such a case. That an offender needs to establish exceptional circumstances under s 96(6) for the sentence to be suspended makes it plain that the norm in the case of such offenders is that they will serve the sentence.
When considering the question of what could amount to exceptional circumstances, Doyle JA in R v Skinner observed:[16]
While “exceptional circumstances” does connote circumstances outside of the range of circumstances ordinarily or normally encountered, the Court must be careful not to set the test so high that it becomes near impossible to satisfy. As Lord Bingham cautioned, in the passage extracted above, the circumstances need not be unprecedented or very rare.
The exceptional nature of the circumstances may emerge from consideration of a single circumstance or a combination of circumstances. It may emerge from consideration of the circumstances of the offending, the circumstances personal to the offender or some combination of both. It may emerge from qualitative considerations (in the sense of circumstances of a type that do not commonly arise) or quantitative considerations (in the sense of circumstances arising to an uncommon extent or degree).
Beyond these very general observations, it is neither possible nor desirable to be more prescriptive as to what will be required to establish “exceptional circumstances” sufficient to warrant suspension of a sentence of imprisonment under s 38(2ba). It will depend upon the facts of the particular case.
[16] R v Skinner [2016] SASCFC 106 at [95]–[97].
In Zefi v The Queen, Doyle JA observed:[17]
In R v Yavuz, the Court approved what was said on this topic in R v Skinner, but added:
Special or exceptional circumstances are therefore those circumstances which, when present, so markedly change the nature of the particular case that it is no longer within the mischief which the legislature intended to address with the specified order generally to be made.
(citations omitted)
[17] Zefi v The Queen [2021] SASCA 15 at [37].
The qualification noted by Doyle JA is important. As the Court in R v Yavuz (“Yavus”)[18] observed, it must be borne in mind when considering s 96(6) that the legislature’s purposes in criminalising and repressing the relevant conduct will not be served by a suspended sentence save in exceptional circumstances.
[18] R v Yavus [2018] SASCFC 24.
The Court stated:[19]
An identification of the mischief the provision addresses and the objects of the legislature are therefore a critical first step in determining whether there are special or exceptional reasons not to make the specified order or impose the specified penalty. Unless the discretion is approached in that way, its exercise would degenerate into a search for bizarre or peculiar circumstances which, although undoubtedly exceptional, have no bearing on the legislative purpose. For example, it would be exceptional in a drug trafficking case to find a wealthy principal of a large legitimate business at the head of an illicit drug distribution network, but that circumstance, in isolation, weighs heavily in favour of applying the general rule, not departing from it. …
This Court’s observations in R v Kong quoted above and those of Doyle CJ in R v Mangelsdorf, require that paramountcy be afforded to general deterrence in sentencing for drug trafficking. That accords with the legislature’s intention in requiring that exceptional circumstances be established before a sentence of imprisonment imposed in relation to a serious and organised crime offence may be suspended. Affording general deterrence paramountcy militates against the suspension of any sentence for drug trafficking.
(citations omitted)
[19] R v Yavus [2018] SASCFC 24 at [116], [118].
It is thus important to remember that what amounts to exceptional circumstances in any given case is moulded and informed by the mischief the section seeks to remedy.
As the Court pointed out in Yavuz, while a circumstance may be uncommon, the use of such labels can be potentially misleading. Some uncommon features may militate against a finding of exceptional circumstances rather than support it. It is not a matter of a sentencing court sifting through the personal circumstances of an offender to find something that perhaps can be described as uncommon to support a finding of exceptional circumstances. That is not to say that the personal circumstances of an offender can never tip the scales in favour of a finding that exceptional circumstances exist. It depends. But the purpose of the section and the general sentencing considerations including general deterrence, personal deterrence and the protection of the community always loom large. A finding of exceptional circumstances must be based on an assessment of all of the usual sentencing criteria.
Were exceptional circumstances established?
Mr Balfour diagnosed the respondent as suffering with a post-traumatic stress disorder caused by the trauma of child sexual abuse and later detention in a juvenile training facility. He opined that, without a supervised and structured rehabilitation programme, the respondent’s prognosis to cease offending was “poor”. Even with such a programme, Mr Balfour observed that the respondent “will be prone to experiencing relapses of his drug addiction that place him at risk of further offending behaviour.” Clearly the respondent poses a significant risk to the safety of the community.
The respondent has made a commendable effort to stop taking drugs against a background of his “pernicious” addiction. In the lengthy delay between the commission of the offence and sentence (which was largely due to the respondent pleading not guilty to the offending) the respondent embarked upon his rehabilitation. Many offenders facing the courts in relation to drug trafficking offences attempt rehabilitation. Of itself, that is not an uncommon circumstance. The respondent does have the support of his partner, although it cannot be ignored that he was in that relationship when he committed the current offending. Family support again is not an uncommon feature in drug related matters. It also cannot be ignored that the respondent has made, as mentioned earlier in these reasons, the same submissions about rehabilitation and a change of family circumstances on two prior occasions. Despite the respondent relying on those positive factors, he relapsed into drug addiction.
The respondent’s offending in this matter is very serious. He was in possession of over 5000 grams of GHB and approximately 48 grams of methylamphetamine. The value of the drugs, the cash seized and the presence of the ‘tick list’ demonstrated the ongoing nature of the enterprise. The respondent had previously received a suspended sentence which he breached by drug offending. He also breached parole by drug offending.
While the respondent’s attempt at rehabilitation is commendable, given the serious nature of his offending and set against his prior offending history, exceptional circumstances are simply not established. The offending is so serious and the need for general deterrence, personal deterrence and the protection of the community so manifest that the finding by the sentencing Judge that exceptional circumstances existed enabling suspension of the prison sentence was unreasonable and plainly wrong.
Should permission to appeal be granted?
On a DPP appeal, the Court must first deal with the question of permission to appeal before determining whether the appeal should be allowed. The question of permission to appeal involves issues ranging beyond those involved in the merits of the appeal.
The common law principle of double jeopardy continues to apply in respect of an application by the South Australian Director of Public Prosecutions for permission to appeal against sentence. This is particularly so when the original sentence has been suspended as the offender has been in the community and may have taken significant steps towards rehabilitation. In prosecution appeals, circumstances may combine to produce the result that if the appeal is allowed the guidance provided to sentencing judges will be limited and the decision will occasion injustice. To suddenly reverse the decision and impose a custodial sentence may produce such an injustice. A court can exercise its discretion and refuse permission to prevent a person being twice vexed by the repeated exercise of the coercive power of the State.[20]
[20] R v Buttigieg [2020] SASCFC 38 at [42]; Green v The Queen (2011) 244 CLR 462 at [2] per French CJ, Crennan and Kiefel JJ.
Thus, a finding that the sentencing Judge’s decision to suspend the sentence was unreasonable does not mean that permission to appeal will be granted. The respondent has now had the benefit of a suspended sentence since 22 July 2022. There is no suggestion that he has not complied with the terms of the bond. To reverse this decision and to cancel his right to be at liberty when he has clearly undertaken what the courts have already required of him is a very significant step. However, it is necessary for this court to maintain adequate standards of punishment. To allow the sentence to remain suspended would shake public confidence in the administration of justice. We consider that the gravity of the respondent’s offending is such that strong reasons of public policy exist which demand that permission to appeal be granted, notwithstanding the public interest in ensuring that the respondent is not twice vexed by the repeated exercise of the coercive power of the State. We would not exercise any residual discretion (if available).
Permission to appeal is granted and the appeal is allowed.
The respondent must serve the term of imprisonment imposed.
Orders
We make the following orders:
1.Permission to appeal is granted and the appeal allowed.
2.The order suspending the term of imprisonment is set aside.
3.The respondent is sentenced to imprisonment for a period of five years, four months and 20 days with a non-parole period of two years and six months. The head sentence and non-parole period is to run from the date the respondent is taken in to custody.
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