R v Kane

R v KANE
[2003] SASC 237
Court of Criminal Appeal: Debelle, Nyland and Gray JJ

DEBELLE J This is an appeal against sentence.
The appellant was charged on information with possession of cannabis for sale contrary to s 32(1)(e) of the Controlled Substances Act 1984. The maximum penalty for that offence is 10 years imprisonment and/or a fine of $50,000.
The appellant pleaded not guilty. Following a trial in November 2001, the jury was unable to reach a verdict. He was retried some time later. The delay was in no sense caused by the appellant. On 20 February 2003, a second jury unanimously returned a verdict of guilty. On 2 April, the appellant was sentenced by a District Court judge to three years imprisonment with a non-parole period of 14 months. That sentence was not suspended.
The only issue on this appeal is whether the sentence should have been suspended.
The amount of cannabis involved in the offending was quite substantial, that is to say, 6.7 kilograms or its imperial equivalent 15 pounds. At the time of the offending the appellant resided in Queensland. On 20 March 2000, he travelled from Queensland to South Australia in order to purchase cannabis. On 25 March, he went to the Franklin Street bus terminal in Adelaide and made arrangements for a bag to travel back separately from him. The manager of the terminal agreed to the proposal. The bag later became the subject of suspicion. Police were called and the cannabis was found inside the bag. The police replaced the cannabis with similar packages and the bag was returned to Queensland. The appellant collected the bag in Brisbane. At about the same time the police searched his unit on the Gold Coast. No cannabis was found, nor any implements for smoking it. The appellant was arrested about 10 days later.
It is alleged that at the time of the offending the value of the cannabis could have been as little as $30,000 or as much as $60,000. The judge did not find it necessary to decide precisely how much it was worth as he considered it was, in any event, worth a substantial amount and there was scope for significant profit.
The appellant did not challenge the prosecution case but, instead, sought to discharge the burden of proof placed upon him by the terms of s32. He had said that he had come to Adelaide to purchase four pounds of cannabis for himself and the balance was purchased for someone he knew in Brisbane. He said he was not given any money by his friend in Brisbane to buy the cannabis but, instead, was effectively getting it on credit from the supplier in Adelaide. The appellant said that he had paid on the spot for his share of the cannabis. Because eleven pounds was going to be supplied by him to a friend in Brisbane in accordance with the plan and the remaining four pounds was purchased for his own use, the appellant asserted that none of it was for sale. It is apparent from the verdict of the jury that they did not accept the appellant’s account.
For his part, the sentencing judge rejected that account. He found, beyond reasonable doubt, that the appellant had travelled to Adelaide to purchase about 15 pounds of cannabis and that the vast majority of that cannabis was for sale. He accepted that some of it was for the appellant’s own use despite the fact that the apartment showed no signs of cannabis use. The judge further found that the appellant was principally motivated by the comparative easy money that the transaction would bring him and that there was a significant commercial element to this offence.
The judge accepted that the appellant was of good character. The appellant had only one other appearance in a criminal court which was of little consequence in the context of this offending. He was fined but no conviction was recorded.
The judge had before him a character reference from the appellant’s employer. It appears that in the period before the second trial the appellant had secured employment with a company which sells rare gramophone records. The appellant’s duties had included the promotion, distribution and sourcing of material in February 2003. In the course of his duties, the appellant had been on a business trip to Japan and the United States of America on behalf of his employers. His bail agreement was varied in order to permit him to do so. The judge had regard to the reference. He accepted that the appellant was very highly regarded in his personal and business life.
The judge accepted that the offending had occurred in the worst period of the appellant’s life, a time when he was suffering emotional consequences of the breakdown of a relationship. The judge also had regard to the fact the matter had dragged on for longer than it should have. The judge went on to say that for an offence of this kind general deterrence must play a prominent role. He accepted that any imprisonment would weigh more heavily upon the appellant because he would not be able to be visited by family and friends, most of whom live in or near Brisbane.
When sentenced, the appellant had just turned 23 years. The judge accepted that, although the appellant had been a heavy cannabis user, that was no longer the case and he had rehabilitated himself. That rehabilitation had been furthered by the fact that he had entered into a new relationship and that he had an impressive work history. In his employment he has sound prospects for the future.
The judge took the view that a sentence of imprisonment was required. When considering the question of suspension he took into account the fact that the appellant was comparatively young, that he had a good work history and prospects, that he had a good character and had rehabilitated himself, and that the circumstances leading to the offending were explained by the breakdown of his earlier relationship. Those factors were balanced, the judge found, by the fact this was a well-planned venture involving a significant amount of cannabis, that the appellant entered into the arrangement for his own profit, and that the offending had a very significant commercial flavour. In the end, he concluded that the offending was too serious to suspend the sentence but imposed a lower than normal non-parole period.
Although the judge referred to the fact that the appellant was aged 23 years, his sentencing remarks indicate that, when considering the question of the suspension of this sentence, he failed to have regard to the fact that he was only 19 at the time of the offending. He was very young. He had no prior convictions. There is, generally speaking, a substantial difference in maturity between a man aged 19 and one aged 23 years.
It is a very serious matter to sentence a person of such youth to imprisonment. In my view, the judge’s exercise of the sentencing discretion in relation to the issue of suspension of this sentence has miscarried. It is appropriate for this Court to reconsider the exercise of that discretion.
I repeat. The appellant was a young man of 19 years with no relevant prior record. In this case, the court was not having to consider whether there were any prospects of rehabilitation. Instead, the appellant had demonstrated his capacity to reform himself.
Not only is he employed by the record company but they are willing to consider engaging him as a partner in due course if the business of the firm should continue to prosper. He is engaged in a relatively senior position as a manager. It is all too rare an event for a person who has offended in this way to have demonstrated actual rehabilitation as opposed to prospects of rehabilitation.
This is a very special case on its own particular facts. I am very conscious of the fact that this Court, in R v Mangelsdorf (1995) 66 SASR 60, has quite positively affirmed the view that suspension of a sentence for offending of this kind will only occur in special or exceptional circumstances. But it must be remembered that at all times a judge retains a discretion as to the appropriate sentence. Those words can only mean that great care will be exercised when determining whether the discretion should be exercised in favour of suspension. In short, the sentencing discretion can not be unduly fettered by epithet such as ‘special’ or ‘exceptional’.
I am conscious also of the fact that, in this case, the offending is particularly serious. It was driven by the element of profit and the appellant had the opportunity, undetected, of standing to gain substantially from the transaction and, as the judge found, was motivated by that intent. The fact that the amount involved is very substantial is certainly a factor which weighs against suspending the period of imprisonment. Nevertheless, each case must be examined on its own facts and circumstances.
Whilst there is plainly a need for general deterrence, that general deterrence should in the appropriate case yield in my view where there is actual as opposed to mere prospects of rehabilitation. At the end of the day it is this appellant’s youth at the time of the offending, as well as the actual rehabilitation, which he has undertaken which, in all the circumstances, call for this sentence to be suspended.
I would be the first to affirm that the issues in this case are difficult. It is a special case. It is one where I have reached this conclusion with a degree of difficulty. It might be said that the sentence ordered by the judge was merciful but, at the end of the day, it is my view that the exercise of the discretion miscarried for the reasons I have given and that it is appropriate to suspend the sentence. I am encouraged to this view by the fact that the delay with the retrial resulted from no fault of the appellant. It is that delay and the rehabilitation in that period which marks this out as a special case. It stands in stark contrast to the facts in R v Tran (2000) 211 LSJS 479.
Another factor which encourages me to this view is the fact that the appellant has served almost 12 months of the term of imprisonment. He has heard the prison door close behind him. The experience will no doubt reinforce in his mind the need to continue upon his course of rehabilitation and remind him of his obligations to the community.
For these reasons I would allow the appeal. I would vary the order of the judge in the District Court to enable the sentence to be suspended. I would order that the appellant enter into a bond to be of good behaviour for a period of two years, that bond to be in his own recognisance in the sum of $3,000. It will be a condition of the bond that he be of good behaviour for that period and report to a corrections officer in Queensland during that time.
NYLAND J I agree that the appeal should be allowed for reasons expressed by Debelle J and I agree with the conditions of the bond imposed by him.
GRAY J I agree that the appeal be allowed. I agree with the orders proposed by the presiding judge. I reserve the right to publish considered reasons for my concurrence.
On 1 July 2003, Gray J published the following reasons.
GRAY J
Introduction
This is an appeal against sentence. The appeal was allowed at the conclusion of submissions on 17 June 2003. The term of imprisonment imposed was suspended upon the condition that Mr Kane enter into a bond. Ex tempore reasons were given. I now provide my considered reasons for why I agreed with the court’s order.
The appellant Adam Kane was charged on information with possessing cannabis for sale.[1]
[1] Statement of Offence
Possessing Cannabis for Sale. (Section 32(1) (e) of the Controlled Substances Act, 1984).
Particulars of Offence
Adam Kane on the 25^th March 2000 at Adelaide, knowingly had cannabis, a prohibited substance, in his possession for the purpose of selling it to another person.
It is further alleged that the amount of cannabis was in excess of 2 kilograms.
There was considerable delay between the time of the offence in March 2000 and sentencing in April 2003. This was through no fault of Mr Kane. His first trial was conducted in November 2001. The jury was unable to reach a verdict. His second trial occurred in February 2003. At both trials the evidence led by the Crown was not disputed. Mr Kane gave sworn evidence at both trials. Given the weight of the cannabis involved the defence had sought to overcome the statutory presumption that Mr Kane’s possession was for the purposes of sale.
Mr Kane was convicted on 20 February 2003. On 2 April 2003 he was sentenced to imprisonment for 3 years.[2] The judge fixed a non parole period of 14 months. He declined to suspend the sentence. Mr Kane spent approximately 7 weeks in custody before being released on bail pending appeal.
[2] The maximum penalty for the offence was 10 years imprisonment and a fine of $50,000.
The Appeal
The approach of an appellate court when reviewing sentences has been the subject of comment by the High Court in Dinsdale v R [3]. Gleeson CJ and Hayne J observed:
[3] (2000) 202 CLR 321 at 324-325 and 329
The task of the Court of Criminal Appeal was to determine whether there was error made in sentencing the accused, error being understood, in this context, as it was explained in House v R:
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Those principles [referring to House v R] apply both to Crown appeals based upon alleged inadequacy and appeals by offenders based upon alleged excessiveness.
Gaudron and Gummow JJ were of a similar opinion:
In the circumstances of the present case, the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been
upon the facts ... unreasonable or plainly unjust [so that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
Counsel for Mr Kane submitted that the judge erred in declining to exercise his discretion to suspend the sentence of imprisonment. It was contended that the judge failed to consider or adequately weigh Mr Kane’s youth; gave insufficient weight to his finding that Mr Kane had been rehabilitated; gave insufficient weight to the fact that the offence occurred during “the worst period” of Mr Kane’s life and gave too much weight to the notion of general deterrence. No complaint was made about the imposition of a custodial sentence or its length. The only issue on appeal was whether the sentence should have been suspended.
Circumstances of the Offending
Mr Kane resided in Queensland. On 23 March 2000 he travelled to South Australia. He had a return ticket for travel on 25 March 2000. On that day he told staff at the bus terminal that he was too ill to travel. He requested that they send his bag as unaccompanied baggage. The manager agreed but later became suspicious and contacted the police. Mr Kane’s bag was inspected, cannabis weighing 6.7 kilograms (15 pounds) was discovered and seized. The cannabis was valued between $30,000 to $60,000.
Police sent a similar bag on the bus. The bag was collected at the bus terminal in Brisbane by Mr Kane. Police conducted a search of Mr Kane’s apartment. No cannabis or cannabis related items were found.
Mr Kane was aged 19 years. He was a regular user of cannabis. He said that he smoked 40 to 50 cones a day. Although the judge suggested that this was excessive, he accepted that Mr Kane smoked significant quantities of cannabis.
Mr Kane gave evidence that he had travelled to Adelaide to purchase cannabis for himself and for a friend. He said that he had received 11 pounds of cannabis on credit from the supplier for his friend. Mr Kane paid for his 4 pounds “on the spot”. It was Mr Kane’s evidence that none of the cannabis was purchased for the purpose of sale. By their verdicts of guilty, the jury must have rejected Mr Kane’s account.
Mr Kane’s Antecedents
Mr Kane came from a dysfunctional family. He had limited schooling because his family had travelled widely across Australia and lived in a number of rural locations. When Mr Kane was aged 13 years his parents separated. His father and his father’s partner were addicted to heroin. At age 14 his mother left Australia. Mr Kane had to fend for himself.
Mr Kane obtained casual employment and later found regular work in Brisbane. A relationship that he had formed broke down. This led to a period of depression and the use of cannabis. It was during this period that he offended.
The judge acted on the basis that a substantial portion of the cannabis was possessed by Mr Kane for the purpose of sale. Mr Kane’s criminal conduct was accepted to be “a one off event”. The judge accepted that Mr Kane had been rehabilitated. It was said that Mr Kane’s offending could be contrasted to many other drug cases involving defendants with lengthy criminal histories.
Mr Kane had no relevant prior convictions. His only previous court involvement related to an offence of unlawful possession. That matter was dealt with without a conviction being recorded. Mr Kane had a good employment record. This was despite his lack of formal education or employment training. An impressive character reference was provided from his employer. He was described as diligent, honest and trustworthy. Mr Kane was said to have conducted himself professionally at work at all times. Evidence placed before the judge and before this court indicated that he would be employed upon his return to Brisbane should a suspended sentence of imprisonment be imposed.
Suspension
Section 11 of the Criminal Law (Sentencing) Act 1988 (SA) renders imprisonment a sentence of last resort.[4] Once a court has decided to impose a term of imprisonment a discretion to suspend the sentence is provided by section 38 of the Sentencing Act. That discretion is only circumscribed by the need for the court to consider that good reason exists to do so. Otherwise the discretion is unfettered.[5]
[4] 11. (1) A sentence of imprisonment may only be imposed—
[5] 38. (1) Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
A suspended sentence is a very real punishment. Notwithstanding suspension an order for imprisonment remains with all the consequences of such an order on a defendant’s record and future.[6] The remarks of Walters J in Wood v Samuels[7] are apposite:
…a suspended sentence is imposed only when by eliminating all other alternatives, the court thinks the case is one for imprisonment, and, though it be a case for imprisonment, an immediate custodial sentence is not required in the circumstances of the particular case. In my view, a suspended sentence is aimed primarily at the offender whom it is not appropriate to send to prison for the first time and who is most likely to benefit from an exercise of the court’s clemency.
Admittedly there are no comprehensive specific criteria which tell a court when a case is one fit for a suspended sentence. But the perceived seriousness and the intrinsic character of the particular offence, and any element of persistence, can serve as important restraints on the choice of a suspended sentence. On the other hand, the likelihood that further criminal behaviour cannot reasonably be assumed is a matter which may well bring the offender within the scheme of the legislative policy which enables the rigours of a custodial sentence to be avoided. … the considerations governing the choice between a custodial sentence and a suspended sentence cannot be identified by any constant ratio. The factors to be taken into account must invariably be different in the particular circumstances of each particular case.
[6] Elliott v Harris(No. 2) (1976) 13 SASR 516: So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant’s record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency. A liability over a period of years to serve an automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, no matter how slight, can hardly be described as no punishment.
[7] (1974) 8 SASR 465 at (468-469)

Attention was drawn to the decision of this court in R v Mangelsdorf[8], where Doyle CJ observed:
This Court has established standards for the punishment of crimes of the type dealt with by the judges in the cases the subject of the present application. The court has referred time and again to the severe penalties imposed by s 32 of the Controlled Substances Act, in particular to the severe penalties imposed for commercial activity in relation to the drugs dealt with by s 32; and to the evident expectation of Parliament that the courts will impose penalties which will deter people from engaging in commercial activity with respect to these drugs. The court has also made it clear that a suspended sentence will be justified only in truly exceptional circumstances when the offence is one involving, or committed against, a background of involvement in commercial trading or dealing in the drugs dealt with by s 32.
A literal reading of these remarks suggests that in other than the exceptional case an offender involved in commercial trading or dealing in drugs dealt with by section 32 of the Controlled Substances Act 1984 (SA) can expect to receive an immediate custodial term. However in R v Gjoka[9], Doyle CJ (with whom Olsson and Lander JJ agreed) noted that despite the remarks in Mangelsdorf the discretion to suspend a sentence is a statutory discretion to be exercised in accordance with the statutory criterion:
...it is appropriate for this Court in particular cases to determine, as it did in Mangelsdorf, that the nature or gravity of an offence is such that suspension will not be appropriate unless exceptional circumstances are present.   To do so is not to displace the statutory criterion. It is to do no more than to indicate that because the statutory criterion has to be applied in the light of the circumstances of the case, the seriousness of a certain type of offence and the appropriate approach to punishment for that offence may combine to mean that it will be very difficult to justify suspension.
It should also be recognised that of the drugs addressed by section 32 cannabis has been described as being “of a less harmful kind”[10].
Counsel’s Submission
[8] (1995) 66 SASR 60 at 63 see also R v Harris (2001) 122 A Crim R 241, R v Cristol [2002] SASC 288
[9] S6211 1 July 1997 CCA
[10]   In R v Pearce (1980) 91 LSJS 443 the court observed:
The learned judge accepted that [LSD] was in what he described as ‘the middle range’ so far as seriousness is concerned, that is to say, the middle range of prohibited drugs. It is a more dangerous drug than cannabis and its derivatives. On the other hand it is a less harmful drug than heroin in the sense that it is not, as heroin is, physically addictive, although the evidence is that consumers become psychologically dependent upon this drug and its effect on the consumer can be, as I have said, quite disastrous.
Counsel for Mr Kane submitted that the sentence of imprisonment should have been suspended. Mr Kane’s age, good character and employment record provide cogent reasons for suspension of the sentence of imprisonment. The offence was an isolated incident. Mr Kane was aged 19 years. He had subsequently rehabilitated himself. He had retained his employment notwithstanding his absence throughout his trials and whilst in custody before release on bail pending appeal.
Counsel for the Crown submitted that no error had been shown in the judge’s approach. All relevant material had been considered. No error in sentencing principle could be demonstrated. The sentence “was well” within the judge’s sentencing discretion.
The sentencing remarks demonstrate that the judge undertook a careful review of the circumstances of the offending and the matters personal to Mr Kane. The judge observed:
I accept that you are effectively of good character, the 1998 Court appearance being of little consequence in the context of this offending. I also accept the character references tendered on your behalf. It is obvious that, in your personal life and business life, you are regarded very highly. Prior to this offending, the K & D Resources business was expanding and your workmanship was much sought after but the demise of that business, as well as that of your personal situation, contributed to your decision to become involved in this offending. I am prepared to accept that this offence occurred in the worst period of your life.
I accept that this matter has dragged on for much longer than it should have. Not only was there a re-trial but for different reasons that retrial was taken out of the list. You were entitled to put the prosecution to proof and I make it plain that I do not impose a more severe penalty because you pleaded not guilty. You do not, however, receive the benefit of a substantial discount for a plea.
When sentencing for offences such as this, general deterrence must play a prominent role. Personal deterrence plays a less significant role. The maximum penalty for this offence involving this amount of cannabis is 10 years of $50,000 or both. I accept that any imprisonment would weigh more heavily with you because you would not be able to be visited by family and friends, most of whom live in and around Brisbane.
You have just turned 23 years. Since the events giving rise to this offence, you have a new relationship. That is now an established relationship and one you wish to continue. As touched on already, you have an impressive work history and sound prospects for the future.
I have also touched upon your use of cannabis. Whilst I have taken the view that your claimed cannabis use was greatly exaggerated, I accept that you were a heavy cannabis user. You are no longer a user. You have rehabilitated yourself.
Undoubtedly, a sentence of imprisonment is called for. The more difficult question is whether that sentence should be suspended. There are arguments both ways. You are still comparatively young with a good work history and prospects; you have a good character and have rehabilitated yourself. The circumstances leading up to the offending when your relationship broke down explain why you became involved with cannabis for your own use and in this offence.
Mr Kane’s criminal conduct was serious. His criminal culpability called for a substantial term of imprisonment. Travelling interstate to purchase a substantial quantity of cannabis for the purpose of sale is grave criminal conduct. However the issue of suspension called for a careful weighing of a number of important factors.
The judge did not make specific reference to Mr Kane’s age at the time of the offending. The judge spoke of him being “still comparatively young” and of having “just turned 23 years”. It was said that the level of the maturity of a 23 year old was very different to that of a 19 year old.
It appears that the judge failed to give sufficient weight to Mr Kane’s relative youth at the time of the offending. This was of particular importance having regard to the finding that Mr Kane had successfully rehabilitated himself.
Conclusion
This is a case that allows a merciful approach to be taken. Mr Kane was aged 19 years when the offence occurred. He was depressed as a result of a breakdown of a personal relationship. This was particularly difficult for him given his dysfunctional family background. As a result he had taken to using cannabis. These circumstances provide an explanation for his criminal conduct. It is to his credit that he has taken steps to rehabilitate himself. His attitude to employment and his apparent determination to make something of his life appear to have assisted his rehabilitation.
In the special circumstances of this case good reason exists to suspend the sentence of imprisonment. The principal factors are his age and rehabilitation. However in addition there are other matters. He has spent some seven weeks in custody. As earlier observed the trial and appeal process has been prolonged through no fault of Mr Kane. He has an ongoing personal relationship and steady employment to support him on his release. As earlier observed these factors allow the court to adopt a merciful approach in this case.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1      Statement of Offence
Possessing Cannabis for Sale. (Section 32(1) (e) of the Controlled Substances Act, 1984).
Particulars of Offence
Adam Kane on the 25^th March 2000 at Adelaide, knowingly had cannabis, a prohibited substance, in his possession for the purpose of selling it to another person.
It is further alleged that the amount of cannabis was in excess of 2 kilograms.
2      The maximum penalty for the offence was 10 years imprisonment and a fine of $50,000.
3 (2000) 202 CLR 321 at 324-325 and 329
4       11. (1) A sentence of imprisonment may only be imposed—
         (a)     if, in the opinion of the court—
(i)     the defendant has shown a tendency to violence towards other persons; or
(ii)    the defendant is likely to commit a serious offence if allowed to go at large; or
(iii)   the defendant has previously been convicted of an offence punishable by imprisonment; or
(iv)    any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or
if a sentence of imprisonment is necessary to give proper effect to the primary policy stated in section 10(2).
…
5      38. (1) Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
         (a)     to be of good behaviour; and
         (b)     to comply with the other conditions (if any) of the bond.
See Dinsdale v R (2002) 202 CLR 321 as per Kirby J at 344-348, R v Wacyk (1995-1996) 66 SASR 530 at 535
6Elliott v Harris(No. 2) (1976) 13 SASR 516: So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant’s record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency. A liability over a period of years to serve an automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, no matter how slight, can hardly be described as no punishment.
7 (1974) 8 SASR 465 at (468-469)
8 (1995) 66 SASR 60 at 63 see also R v Harris (2001) 122 A Crim R 241, R v Cristol [2002] SASC 288
9      S6211 1 July 1997 CCA
10   In R v Pearce (1980) 91 LSJS 443 the court observed:
The learned judge accepted that [LSD] was in what he described as ‘the middle range’ so far as seriousness is concerned, that is to say, the middle range of prohibited drugs. It is a more dangerous drug than cannabis and its derivatives. On the other hand it is a less harmful drug than heroin in the sense that it is not, as heroin is, physically addictive, although the evidence is that consumers become psychologically dependent upon this drug and its effect on the consumer can be, as I have said, quite disastrous.

(a) if, in the opinion of the court—

(i) the defendant has shown a tendency to violence towards other persons; or

(ii) the defendant is likely to commit a serious offence if allowed to go at large; or

(iii) the defendant has previously been convicted of an offence punishable by imprisonment; or

(iv) any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or

(b)if a sentence of imprisonment is necessary to give proper effect to the primary policy stated in section 10(2).

…

(a) to be of good behaviour; and
(b) to comply with the other conditions (if any) of the bond.
See Dinsdale v R (2002) 202 CLR 321 as per Kirby J at 344-348, R v Wacyk (1995-1996) 66 SASR 530 at 535

[2003] SASC 237

17 June 2003