R v Karnage - [2019] SASCFC 82

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KARNAGE
[2019] SASCFC 82
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Nicholson and The Honourable Justice Hinton)
5 July 2019
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 - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PENALTIES - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING
Appeal against sentence.
The appellant pleaded guilty to one count of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The sentencing Judge imposed a head sentence of three years, three months and 12 days, and indicated a non-parole period of two years, seven months and 12 days, after allowing a 30 per cent reduction for the appellant’s plea of guilty (the sentence under appeal). At the time of being sentenced, the appellant had served just over two years of a term of imprisonment for earlier drug offending. This earlier sentence was five and a half years with a non-parole period of three years.
Eighteen months of the sentence under appeal was ordered to be served cumulatively on the earlier sentence, with the balance to be served concurrently, giving rise to a total period of imprisonment of seven years. The Judge extended the existing non-parole period by 12 months to four years.
The principle grounds of appeal were that the sentence under appeal was manifestly excessive; that the Judge erred in sentencing the appellant on the basis that he was a serious repeat offender; that the Judge failed to address parity considerations; and that the Judge sentenced on the basis of a material error of fact.
Held per Nicholson J (Kelly and Hinton JJ agreeing) dismissing the appeal:
1.      The sentence was not manifestly excessive; the Judge’s starting point was within the range for a proportionate sentence.
2.      In all the circumstances, once the order for partial concurrency of the two sentences was made, the effective sentence under appeal can only be described as moderate.
3. The sentencing Judge did not err in failing to make a declaration that the appellant should not be sentenced as a serious repeat offender pursuant to s 54 of the Sentencing Act 2017 (SA).
4. Neither the parity principle nor s 54(2) of the Sentencing Act 2017 (SA) extends as far as to require the sentencing Judge to undertake a form of comparative analysis of the personal circumstances of co-offenders as part of the exercise undertaken pursuant to s 54(2).
5.      The Judge did not sentence on the basis of a material error of fact.
Controlled Substances Act 1984 (SA) s 4, s 32; Criminal Law (Sentencing) Act 1988 (SA) s 18A; Sentencing Act 2017 (SA) s 3, s 4, s 9, s 10, s 26, s 47, s 53, s 54; Summary Offences Act 1953 (SA) s 21F, referred to.
Markarian v The Queen (2005) 228 CLR 357; Green v The Queen (2011) 244 CLR 462; R v Mitric [2017] SASCFC 178; R v Morse (1979) 23 SASR 98, discussed.
House v The King (1936) 55 CLR 499; R v Lutze (2014) 121 SASR 144; R v Young (2016) 126 SASR 41; R v Hayman [2019] SASCFC 72; Hili v The Queen (2010) 242 CLR 520, considered.

R v KARNAGE
[2019] SASCFC 82
Court of Criminal Appeal: Kelly, Nicholson and Hinton JJ

KELLY J: I agree with Nicholson J.
NICHOLSON J.
Introduction
On 21 December 2018, the appellant[1] was sentenced in the District Court having been convicted, following his plea of guilty, of one count of trafficking in a controlled drug. After allowing a 30 per cent reduction for the plea from a starting point of four years and eight months, the sentencing Judge (the Judge) imposed a sentence of imprisonment for three years, three months and seven days and fixed a non-parole period of two years, seven months and 12 days (the “sentence under appeal”).
[1] On 18 March 2019, a single Judge of this Court granted permission to appeal.
The appellant has raised six grounds of appeal[2] but primarily complains that the sentence is manifestly excessive, that the Judge erred in sentencing the appellant on the basis that he was a serious repeat offender, that the Judge failed to address parity considerations and that the Judge sentenced on the basis of a material error of fact. For the reasons that follow I would dismiss the appeal.
[2] The amended grounds of appeal are seven in number. However, appeal ground 2 was abandoned at the commencement of the hearing of the appeal.
At the time of being sentenced, the appellant was serving a term of imprisonment for five and half years with a non-parole period of three years which had commenced on 2 September 2016 (the “earlier sentence”). The Judge ordered that 18 months of the head sentence under appeal was to be cumulative on the earlier sentence with the balance (21 months and seven days) to be served concurrently, giving rise to a total period of imprisonment of seven years, commencing 2 September 2016. Notwithstanding that the Judge had already fixed a non-parole period, his Honour proceeded to “review the existing non-parole period and extend it”.[3] The Judge extended the existing non-parole period by 12 months to four years. This operated, in effect, to reduce the non-parole period of the sentence under appeal as “fixed” by 19 months and 12 days.
[3] In this respect, the Judge used the language of subsection 47(1)(b) of the Sentencing Act 2017 (SA).
Ordinarily, in circumstances such as those before the Judge, there would be have been no occasion to nominate a non-parole period for the sentence under appeal. Given that the appellant was already serving a sentence with a non-parole period and that the sentence under appeal was to be served cumulatively, at least as to part, subsection 47(1)(b) of the Sentencing Act 2017 (SA) required the Judge to review and extend the existing non-parole period which the Judge ultimately did.
However, this was not the ordinary case. By force of subsection 53(1) of the Sentencing Act, the appellant is a serious repeat offender. The Judge declined to make a declaration pursuant to subsection 54(2) and sentenced the appellant as such in accordance with the provisions of subsection 54(1). Section 54 provides as follows.
(1)The following provisions apply in relation to the sentencing of a person who is a serious repeat offender for an offence (including an offence that resulted in the person being a serious repeat offender):
(a)     the court sentencing the person is not bound to ensure that the sentence it imposes for the offence is proportional to the offence;
(b)     any non‑parole period fixed in relation to the sentence must be at least four‑fifths the length of the sentence.
(2)However, a court that is sentencing a person who is a serious repeat offender for an offence may declare that subsection (1) does not apply if the person satisfies the court, by evidence given on oath, that—
(a)     the person's personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence; and
(b)     it is, in all the circumstances, not appropriate that the person be sentenced as a serious repeat offender.
It would seem that the Judge felt obliged, in the circumstances, to fix the mandatory minimum four-fifths non-parole period with respect to the sentence under appeal. However, that mandatory minimum non-parole period was negated and, arguably, the policy or legislative intent underlying subsection 54(1) subverted, when the Judge extended the existing non-parole period by only 12 months. There has been no cross-appeal by the respondent and the Court has not heard argument on this issue. However, the Court was advised that the apparent tension between subsection 47(1)(b) and subsection 54(1) in this respect has very recently been canvassed before a differently constituted Court of Criminal Appeal which has reserved its decision. In these circumstances, I do not propose to comment further on this apparent tension. However, I will return to the fact that, ultimately, the Judge dealt with the non-parole period in accordance with subsection 47(1)(b) and not subsection 54(1) later in these reasons.
Circumstances of the offending and further background
During the five and a half month period between 16 March 2016 and 2 September 2016, the appellant committed three offences of trafficking in a controlled drug, contrary to subsection 32(3) of the Controlled Substances Act 1984 (SA). The maximum penalty with respect to each offence is imprisonment for 10 years or a fine of $50,000 or both. The appellant also committed the offence of possessing a prohibited weapon contrary to subsection 21F(1)(b) of the Summary Offences Act 1953 (SA).
The first in time offence of trafficking and the offence of possessing a prohibited weapon were committed on 16 March 2016. The appellant was stopped by police whilst driving and found to be in possession of a little over 2 grams of methylamphetamine. However, his mobile phone records demonstrated that he had been trafficking in that drug. The appellant was also found to have been in possession of a set of knuckledusters (a prohibited weapon).[4] The appellant was released on bail.
[4] The defendant was also convicted of driving with methylamphetamine in his blood and fined in the Magistrates Court in October 2016.
The second in time offence of trafficking was committed on 31 August 2016 whilst the appellant was on bail for the first in time offence. The second in time offence is the subject of the sentence under appeal. The police had been conducting an undercover operation specifically directed at a person or persons other than the appellant. The appellant became known to the police by virtue of his connections with the target of the undercover operation. The circumstances of the offence committed on 31 August 2016 were described by the Judge who ordered the sentence under appeal in the following terms.
[T]he undercover officer spoke with Christiansen about organising a drug transaction. The undercover officer was instructed to attend a residential address in Ridgehaven, which he did. Upon arrival at the residence he spoke with a male who advised him that he would need to follow another male to a hardware store car park on North East Road. At about 5.20 p.m. [the appellant] arrived in that car park accompanied by another male. [The appellant] provided a bag containing crystalline substance to that male who handed it to the undercover officer. In return, the undercover officer handed the male $4,000 cash.
That crystalline substance weighed a total of 27.7 g and contained 22.2 g of pure methylamphetamine.
The third in time offence of trafficking occurred some three or so days later on 2 September 2016. It was also committed whilst on bail for the first in time offence. The circumstances were described by the Judge who ordered the earlier sentence in the following terms.
[O]n 2 September 2016, police went to the house [where the appellant was] living with [his] partner and daughter. There they found [the appellant] in possession of just over 35 grams of methylamphetamine together with indicia of sale such as unused deal bags and digital scales.
The appellant was not sentenced for the three trafficking offences at the same time, nor by the same Judge. Further, as events transpired, the first in time and the third in time were dealt with first leading to the earlier sentence. The second in time offence was later dealt with by the Judge who ordered the sentence under appeal.
For the first in time trafficking offence and the possessing a prohibited weapon offence committed on 16 March 2016, the earlier Judge imposed a sentence of two and a half years after allowing a reduction of approximately 30 per cent on account of the early pleas. For the third in time trafficking offence committed on 2 September 2016, the earlier Judge imposed a prison term of three years after allowing a reduction of 40 per cent on account of the early plea. His Honour ordered that the sentences be served cumulatively giving rise to a total period of imprisonment of five and half years and fixed a non-parole period of three years both backdated to commence 2 September 2016 when the appellant was first taken into custody.
The earlier sentence was imposed on 1 February 2017. It was not until almost two years later that the appellant was sentenced for the second in time trafficking offence in the manner that has already been identified.
Whilst it is regrettable that the appellant was sentenced by a second Judge with respect to the second in time trafficking offence rather than by the same Judge who sentenced for the first in time and third in time offences, it may be that this has been to the advantage of the appellant for at least two reasons. First, if the appellant had been sentenced at the same time for all three offences then the third in time offence almost certainly would have carried a maximum penalty of 15 years imprisonment or a fine of $75,000 or both on the basis that when being sentenced for that offence, the appellant would have been characterised as a serious drug offender as defined by subsection 4(7a) of the Controlled Substances Act 1984 (SA) for the purposes of subsection 32(3).[5] Second, it is strongly arguable that subsection 54(1) of the Sentencing Act would have operated to require a mandatory minimum non-parole period of four-fifths of the total sentence imposed for all three trafficking offences rather than of that imposed for only the second in time offence sentenced in isolation.[6]
[5] As events transpired, at the time the appellant had committed the second in time offence for which he was sentenced by the Judge, he had only committed the first in time offence.
[6] This potential construction and effect of subsection 54(1) has recently been argued before this Court, differently constituted, which has reserved its decision.
One of the appellant’s complaints concerning the sentence under appeal is that the Judge failed to take account of, or properly take account of, the parity principle. As a result of the undercover operation, a number of other co-accused were sentenced for various drug offences. The Judge described the general factual circumstances surrounding the offending by the appellant and various of the co-accused in the following terms.
You were each charged with other co-accused. Those charges were laid as a result of an undercover SAPOL operation that commenced on 28 July 2016. Initially the operation only concerned Justin Christensen, who was suspected by police of committing drug offences. One undercover officer was assigned to the operation. Throughout these remarks he will be referred to as the 'undercover officer'.
On 20 September 2016, the operation was extended to cover you, Naji Abou Hamze, and those acting in concert with you and your associates. The operation was extended again on 18 January 2017 in relation to you Beedar, and Roxanne Paul, who was also charged and those acting in concert with you and her and your associates.
You Max Karnage and Marcus Jackson became known to police by virtue of your connections to Christensen. The operation lasted until 15 March 2017 and all of the charges that each of you have pleaded guilty to were generated as a result of this operation.
On 11 April this year Christensen was sentenced by [a Judge] of this court, Roxanne Paul was sentenced by me on 19 October this year and Tasha Pavletic, another accused as a result of this operation, was sentenced by [another Judge] on 19 November. Marcus Jackson is yet to be sentenced. A further accused has pleaded not guilty to the charges against him and his matter is listed for trial in April 2019.
Whilst I have had regard to the sentences and sentencing remarks in relation to each of the other accused, I am satisfied that in all of the circumstances, including in Christensen's case the sentencing regime he was sentenced under and in both Christensen and Pavletic's case, the separate unrelated matters they were being sentenced for and in each case the nature of the offending and the respective roles that each played in the transaction that they distinguished their offending from the offending of each of you.
Baktash Beedar
Mr Beedar was sentenced with respect to three offences of trafficking in methylamphetamine. On 9 January 2017, he provided methylamphetamine paste to the undercover officer in exchange for $9,650. The paste weighed a total of 51 grams of which 18.25 grams was pure methylamphetamine. On 20 January 2017, Mr Beedar handed the undercover officer a clear plastic resealable bag containing a crystalline substance weighing in total 28.2 grams and which contained 14.1 grams of pure methylamphetamine. This was in exchange for $5,000 cash which had earlier been provided by the undercover officer to Mr Beedar. On 3 February 2017, again in exchange for $5,000 cash, Mr Beedar provided to the undercover officer a tub of crystalline substance weighing 26.9 grams and which contained 10.3 grams of pure methylamphetamine.
Mr Beedar was sentenced by the Judge who ordered the sentence under appeal. The Judge found that Mr Beedar was, by force of subsection 53(1) of the Sentencing Act, a serious repeat offender. His Honour considered Mr Beedar’s personal circumstances at some length and took a very positive view with respect to Mr Beedar’s demonstrated insight into his offending and determination to rehabilitate himself. Whilst Mr Beedar’s antecedent history disclosed multiple minor offending, the only relevant drug related offences were: offences of supplying cannabis, possessing cannabis and delivering a prohibited item to a prisoner, for all of which he received a bond to be of good behaviour in November 2002; an offence of taking part in the production of cannabis for which he received a 12 week suspended sentence in March 2004; and an offence of driving a vehicle with a combination of drugs in Mr Beedar’s blood in January 2014.
The Judge heard evidence concerning Mr Beedar’s personal circumstances and made these findings.
[Mr Beedar] performed well on home detention over an extended period and … spent three months and 27 days in custody in relation to this offending.
I accept that [Mr Beedar has] abstained from illegal drugs and [has] taken positive steps towards rehabilitation.
I also accept that [Mr Beedar has] a good work ethic and [has] undertaken further training whilst on bail.
I also accept the evidence as to the effect of [Mr Beedar’s] experiences in Afghanistan, in refugee camps in Pakistan, and what [he] observed whilst working in rural parts of Kabul when [he] witnessed serious carnage from suicide bombers. [Mr Beedar has] been diagnosed with post-traumatic stress disorder which [the psychologist] says is, in part, causative of [his] drug addiction. [The psychologist] is of the opinion that [Mr Beedar has] insight into [his] offending.
The Judge was satisfied that Mr Beedar’s personal circumstances were so exceptional as to bring him within subsection 54(2) of the Sentencing Act. In all the circumstances, his Honour found that, whilst Mr Beedar was by definition a serious repeat offender, it was not appropriate that he be sentenced as a serious repeat offender. Accordingly, the Judge remained bound by the requirement to impose a proportional sentence and was not required to impose the mandatory minimum non-parole period of four-fifths of the head sentence.

The Judge imposed just the one penalty for all three offences in accordance with the discretion available under section 26 of the Sentencing Act. He sentenced Mr Beedar to a term of imprisonment for three years, 10 months and seven days after allowing a discount of 30 per cent from a starting point of five years and six months on account of early pleas. A non-parole period of 23 months was fixed. His Honour then allowed credit for the three months and 27 days spent in custody and for the 16 months that had been spent on home detention bail. As a consequence, his Honour reduced the head sentence and the non-parole period by a further eight months resulting in a final head sentence of three years, two months and seven days with a non-parole period of 15 months.
Naji Abou Hamze
Mr Hamze was sentenced for six counts of trafficking in methylamphetamine which took place between 23 August 2016 and 9 January 2017. On 23 August 2016, Mr Hamze supplied a crystalline substance to the undercover officer which weighed 13.62 grams and contained 10.89 grams of pure methylamphetamine in exchange for $2,100 provided to another co-accused. On 7 September 2016, Mr Hamze supplied the undercover officer with a crystalline substance which weighed 27.12 grams and contained 21.75 grams of pure methylamphetamine in exchange for the sum of $3,850. On 17 November 2016, Mr Hamze provided the undercover officer with a crystalline substance which weighed 26 grams and contained 20.8 grams of pure methylamphetamine in exchange for $3,800. On 23 November 2016, Mr Hamze provided a crystalline substance which weighed 85.8 grams and contained 68.9 grams of pure methylamphetamine to the undercover officer in exchange for $11,000. On 29 December 2016, Mr Hamze provided a crystalline substance which weighed 26.6 grams and contained 21.3 grams of pure methylamphetamine in exchange for $4,600. On 9 January 2017, Mr Hamze assisted in the provision of a tub of paste to an undercover police officer which contained 51 grams of paste of which 18.25 grams was pure methylamphetamine in exchange for a substantial sum of money, the precise amount of which is not clear.
Mr Hamze was also sentenced by the Judge who ordered the sentence under appeal. The Judge reviewed Mr Hamze’s personal circumstances at length. It was noted that Mr Hamze’s antecedent history consisted of only two counts of failing to comply with a bail agreement in 2017. Mr Hamze also was, by force of subsection 53(1) of the Sentencing Act, taken to be a serious repeat offender. The Judge heard evidence as to Mr Hamze’s personal circumstances and made these findings.
I am satisfied that [Mr Hamze has] developed insight in to [his] offending and [is] remorseful and contrite. I accept [the psychologist’s] opinion that [Mr Hamze is] in the low to moderate range in terms of reoffending and that [his] prognosis is in the fair to good range. Importantly I accept [that Mr Hamze has] developed insight into the importance of staying away from negative peers.
[Mr Hamze] also [has] no criminal history, [is] relatively young and [is] amenable to rehabilitation. [Mr Hamze has] good support networks and [is] not socially isolated.
[The psychologist] expressed an opinion, which I accept, that [Mr Hamze is] highly motivated to avoid negative peers and drug addiction. He gave evidence that [Mr Hamze] would respond well to a comprehensive supervision program with rehabilitation and it would be preferable for [Mr Hamze] to have a long period of supervision to achieve those goals.
The Judge was satisfied that Mr Hamze’s personal circumstances were so exceptional as to bring him within subsection 54(2) of the Sentencing Act such that, in all the circumstances, it was not appropriate that he be sentenced as a serious repeat offender. His Honour, imposing the one penalty pursuant to section 26 of the Sentencing Act, started at imprisonment for six years and eight months but reduced that by 30 per cent on account of the early guilty pleas to four years and eight months. His Honour fixed a non-parole period of two years and five months.
Roxanne Paul
Ms Paul was sentenced for one count of trafficking in methylamphetamine. She undertook menial tasks to assist Mr Beedar on one occasion of trafficking.
Ms Paul was sentenced by the Judge who ordered the sentence under appeal. His Honour reviewed her personal circumstances at some length and noted that Ms Paul’s antecedent record comprised only offences of driving a motor vehicle with a prescribed drug in her blood in 2009 and driving a motor vehicle with methylamphetamine in her blood in 2016. Ms Paul was not a serious repeat offender and was not sentenced as such.
After allowing a discount of 30 per cent for an early plea, the Judge imposed a sentence of imprisonment for two years, eight months and 19 days with a non-parole period of 16 months which he then suspended upon Ms Paul entering into a bond to be of good behaviour.
It is unnecessary to go into Ms Paul’s personal circumstances in any detail. Plainly the nature of her offending and her prior criminal record are such as to exclude parity with respect to Ms Paul’s sentence as being a relevant consideration when sentencing the appellant.
Justin Christiansen
It would appear that Mr Christiansen was the main target of the undercover operation. He was sentenced on 11 April 2018 by a third District Court Judge for one count of trafficking in a large commercial quantity of a controlled drug, the maximum penalty for which is a fine of $500,000 or imprisonment for life or both, and eight counts of trafficking in a controlled drug, the maximum penalty for each of which is a fine of $50,000 or imprisonment for 10 years or both.
On 5 April 2016, Mr Christiansen was found in possession of 8.23 grams of powder which contained 6.57 grams of methylamphetamine and 83.3 grams of powder which contains 66.4 grams of methylamphetamine with respect to which he was charged with two counts of trafficking in a controlled drug. He was also found in possession of approximately 1.5 kilograms of green tablets containing approximately 99.4 grams of MDMA with respect to which he was charged with one count of trafficking in a large commercial quantity of a controlled drug. On this day, Mr Christiansen was also found in possession of various items indicative of drug trafficking together with numerous items related to his membership of an outlaw motorcycle gang.
The other six counts of trafficking in a controlled drug were committed by Mr Christiansen acting as a facilitator to enable an undercover officer to gain access to and to purchase methylamphetamine from a supplier. The six offences occurred on 23 August 2016 (13.62 grams of methylamphetamine), 25 August 2016 (14.1 grams of methylamphetamine), 31 August 2016 (27.7 grams of methylamphetamine), 7 September 2016 (27.12 grams of methylamphetamine), 16 September 2016 (31.16 grams of methylamphetamine) and 26 September 2016 (27.5 grams of methylamphetamine).
Mr Christiansen was 29 years of age at the time he was sentenced and had no prior convictions. In his early adult years, he engaged in honourable service in the armed forces which led to him being exposed to trauma whilst on active service in East Timor and Afghanistan. He was diagnosed with a post-traumatic stress disorder as a result. He resigned from the Army but continued to struggle with mental health difficulties. Mr Christiansen then started work in the security industry and was introduced to ecstasy which assisted him with his symptoms of post-traumatic stress disorder. However, he began to associate with an outlaw motorcycle gang and became a prospect member. This involvement led to him starting to use methylamphetamine and he quickly became addicted. At the time of his offending he was a heavy user. The drugs were provided to him by the club on the basis that a portion was for his own use and the remainder was to be on-sold.
Mr Christiansen received a financial benefit from his trading, although the bulk of the proceeds went to the club. The seizure of the first lot of drugs (the April 2016 offending) caused Mr Christiansen to owe a substantial debt to the club. He realised at this time that this was not the way he wanted to live his life and he started to distance himself from the club. As at the time of sentencing he was no longer associated with it. Mr Christiansen’s main motivation for involving himself in the August/September 2016 offending was to repay the debt. Mr Christiansen’s marriage failed throughout this period and, as the Judge noted, he experienced a difficult time in protective custody, given the fears for his safety. At one time he was badly assaulted and hospitalised with a dislocated shoulder and three broken ribs.
The sentencing Judge noted that, as at the time of sentencing, Mr Christiansen was receiving proper treatment for his post-traumatic stress disorder, had stopped taking drugs and had been involved with Narcotics Anonymous within the prison system. Her Honour described this and other matters as “positive signs for the future” and the Judge also noted that Mr Christiansen had considerable support from family and friends in New South Wales. According to the psychologist who provided a report to the Judge, Mr Christiansen’s future prognosis would depend on him abstaining from drugs and any contact with antisocial elements and receiving specialised assistance for his post-traumatic stress disorder. Mr Christiansen was keen to comply.
The Judge described the offending by Mr Christiansen as objectively very serious. Her Honour employed the discretion available under the former section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and imposed one penalty for all nine offences. She allowed a discount of approximately 10 per cent in relation to the April offending and a discount of approximately 30 per cent for the August/September 2016 offending on account of early pleas.
The Judge indicated notional sentences and notional orders with respect to concurrency and accumulation. Her Honour’s notional approach appears[7] to have resulted in a total head sentence in the order of 11 years and 11 months. This notional total was arrived at after using concurrency to very substantially moderate the notional sentences. For example, for each of the six counts of trafficking which occurred in August/September 2016, the Judge’s notional starting point was four years which she reduced by a little under 30 per cent to reflect the plea of guilty to two years and 10 months. However, she “notionally” indicated that each of those six sentences should operate concurrently with each other but cumulatively with respect to the sentences imposed for the April 2016 offending.
[7] I say “appears” because the Judge did not expressly calculate her total notional starting points; the calculation is mine after having, hopefully, correctly applied her Honour’s intimations with respect to concurrency and accumulation.
Having arrived at this apparent notional period of 11 years and 11 months, her Honour then imposed the actual sentence in the following terms.
In all of the circumstances and taking into account totality, I will impose one penalty of seven years and six months imprisonment for all nine offences … .
Her Honour then, largely on account of Mr Christiansen’s prior good character, including his military service, the support he had within the community and the steps he had taken towards rehabilitation and his good prospects of rehabilitation, fixed a lower than usual non-parole period of two years and six months. The sentence was backdated to commence 4 May 2017 when Mr Christiansen had been taken into custody. It is material to note that Mr Christiansen was not sentenced as a serious repeat offender.
The Judge’s approach to the sentence under appeal
The Judge described the circumstances of the offence in the terms earlier set out in these reasons. The Judge observed that the appellant was a serious repeat offender within subsection 53(1) of the Sentencing Act and that, at the time of committing the offence, he was on bail for the previous offending committed on 16 March 2016 with respect to which he had earlier been sentenced. The Judge then turned to discuss at some length the appellant’s personal circumstances. What follows is very much only a summary of that lengthy discussion.
The appellant is now 36. His parents separated when he was seven years old. His mother worked very hard as a single mother but the family was poor. The appellant had a sheltered upbringing and grew up as a loner with significant lack of self-esteem. He was introduced to cannabis and methylamphetamine when very young and thereafter until recently struggled with drug addiction. The appellant has had a sporadic work history in unskilled capacities, has been unsuccessful in attempting university studies and with respect to the two relationships from which his two daughters were born.
According to the reporting psychologist, the appellant suffers from symptoms of stress, anxiety and depression but does not have a personality disorder. At the time of sentence, the appellant had been drug free for over 12 months. According to the psychologist, the appellant was determined to stay off the drugs and turn his life around and was developing motivation and insight. He had started to develop strategies for continued rehabilitation. The appellant has been a model prisoner and has worked in responsible positions. He has completed a number of vocational certificates and has undertaken the OARS alcohol and drug counselling program. The appellant can expect support from family when he is released from prison.
The Judge summarised the appellant’s prior criminal record in the following terms.
You have a criminal history dating back to 2001 with a series of relevantly minor offences up to 2010. Your offending since then has been serious. The most relevant offending is that in 2010 of six counts of importing a marketable quantity of controlled precursors and dealing with proceeds of crime to the value of over $100,000 for which you were sentenced to three years and nine months in prison with a 30 month non-parole. You are currently serving a five-year and six-month term of imprisonment with a three year non-parole period for offences of trafficking in a controlled drug and possession of a prohibited weapon which offences were committed in 2016 and the sentence commenced on 2 September 2016.
I interpolate here that, in addition to the controlled precursor and proceeds of crime offending committed in 2010 referred to by the Judge, the appellant’s prior offences include: common assault, larceny (twice), commit an act likely to cause harm, possession of or carry a prohibited weapon (thrice) and various driving and public disorder offences.
The Judge proceeded to consider the question of whether or not a declaration under subsection 54(2) of the Sentencing Act might be made to the effect that, notwithstanding that the appellant was by force of subsection 53(1) a serious repeat offender, in all of the circumstances it was not appropriate to sentence him as such.
The Judge reviewed the evidence given by the appellant and by the psychologist who had provided three reports to the court. His Honour then made these findings relevant to the subsection 54(2) issue.
You appear to be genuine in your expression of insight into the reasons for your offending and as to your commitment to moving away from your past connections and associations, and remaining abstinent on release and obtaining employment, and ensuring that you are there for your daughters. I accept that you have insight which, together with the courses and the programs you are currently engaged in and your abstinence, will assist you to reduce the likelihood of reoffending.
I accept the prosecution submissions as to the nature of the test for determining whether to make a declaration pursuant to s.54(2). Having regard to all of the circumstances, including your evidence and the evidence of Ms Darmenia, I am not satisfied that your personal circumstances are so exceptional as to bring you within s.54(2), and even if I was, given the fact that you are currently serving a five-year, six month term of imprisonment and given your antecedent history, including your imprisonment in 2010 for six counts of importing a marketable quantity of a border controlled precursor, I am not satisfied that it is, in all the circumstances, not appropriate that you be sentenced as a serious repeat offender. In those circumstances, s.54(1) applies.
His Honour proceeded to impose the sentence that has earlier been identified. By way of explanation for the Judge’s orders concerning concurrency, his Honour said this.
As I have said, you are currently serving a sentence of five-and-a-half years imprisonment with a non-parole period of three years backdated to commence on 2 September 2016. The offending for which you are currently serving a sentence of imprisonment are four counts of trafficking in a controlled drug and other offences which were committed on 6 [sic] March 2016, and for trafficking in a controlled drug committed on 2 September 2016.
The 2 September 2016 offending involved 35 g of methylamphetamine. Your current offending occurred between 6 [sic] March 2016 and 2 September 2016. It occurred on 31 August 2016 and also involved a slightly lesser amount of methylamphetamine than the 2 September offending. In these circumstances and in light of the sentencing remarks of [the earlier Judge], it is appropriate to make the sentence largely concurrent with the sentence for your offending of 2 September 2016 and therefore largely concurrent with the head sentence you are currently serving.
I direct that your sentence be largely concurrent with the sentence you are serving to make a head sentence of seven years which is taken to have commenced on 2 September 2016. I am required to review the non-parole period of three years and extend it. Given all of the circumstances, including that the sentences have been made largely concurrent, I extend the non-parole period by one year to four years. Both the head sentence of seven years and the non-parole period of four years are to be taken to have commenced on 2 September 2016. I order forfeiture of the drugs and paraphernalia pursuant to s.52E of the Controlled Substances Act.
Consideration of the grounds of appeal
On an appeal against sentence it is the task of the appellate court to determine whether the sentencing judge made a specific error material to the sentence imposed or whether the sentence can be characterised as unreasonable or plainly unjust; a process error or an outcome error, respectively, as those notions were explained in House v The King.[8] In the absence of either a process error or an outcome error, an appellate court should not intervene. Specifically, it is not for an appellate court to intervene simply on the basis that it would have sentenced in a different manner. In Markarian v The Queen,[9] Gleeson CJ, Gummow, Hayne and Callinan JJ observed the following.
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, 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”.
(citation omitted)
[8] [1936] HCA 40; (1936) 55 CLR 499.
[9] [2005] HCA 25; (2005) 228 CLR 357 at [25].

As earlier mentioned, appeal ground 2 was abandoned. Appeal grounds 6 and 7[10] raise matters to be considered in the context of appeal ground 1, the complaint of manifest excess as an outcome error. However, appeal grounds 4 (sentencing on the basis of a material error of fact), 5 (sentencing the appellant as a serious repeat offender) and 3 (parity) all assert process errors any one of which, if made out, might[11] lead to the appeal being allowed. I will address the three asserted process errors first and in the order just stated.
[10] Appeal ground 7 is drafted in terms that appear to assert a process error – “failing to take into consideration …”. However, as I will explain, the essence of the complaint is a failure to give sufficient consideration, which can only be a particular with respect to a manifest excessive complaint, see R v Lutze [2014] SASCFC 134; (2014) 121 SASR 144.
[11] That is, depending on whether or not the Court is of the view that a different sentence should be imposed.
Appeal ground 4 - error of fact
Towards the end of the sentencing remarks and having determined the head sentence and non-parole period, the Judge turned to the question of the extent to which the sentence under appeal might be served concurrently with the earlier sentence. His Honour said this.
The offending for which you are currently serving a sentence of imprisonment are four counts of trafficking in a controlled drug and other offences which were committed on 6 [sic] March 2016 and for trafficking in a controlled drug committed on 2 September 2016.
(Emphasis supplied)
The reference to four counts of trafficking committed on 6 March 2016 is incorrect. Throughout the sentencing remarks, the Judge referred to the sentencing remarks for the earlier sentence and to the offending the subject of those remarks on a number of occasions. However, his Honour did not specifically identify the offences, the subject of the earlier sentence.
The appellant contends that not only did the Judge’s incorrect statement of four prior trafficking offences committed on 6 March 2016 inform the concurrency issue but there is a substantial risk that it also represented his Honour’s state of mind when earlier determining the starting point of four years and eight months for the head sentence itself.
An initial consideration is whether the reference to “four” may have been the result of an error of transcription. The sentence also reads appropriately if the homonym “for” were to replace the transcribed “four”.[12]
[12] Either version presents grammatical or syntactical problems for the purist.
A number of text based arguments can be put in support of each alternative. However, they are unlikely to advance the matter in the face of the settled sentencing remarks. Further, in response to an inquiry, the Judge confirmed that the typed document from which the sentencing remarks were read at the time of sentencing also contained the word “four”.
However, that does not necessarily preclude as a possibility that the same document settling oversight occurred twice. There are at least two obvious settling oversights elsewhere in the settled remarks contained in the appeal book.
In the context of discussing the psychologist’s evidence, the Judge is recorded as saying this.
I accept her evidence that you would in fact be less likely to reoffend if you are under supervision of a correctional services officer and are likely to benefit from a shorter non-parole period than a longer than normal period on parole.
(Emphasis supplied)
The “comparison” invoked by the first use of the word “than” in its conjunctive sense makes no sense. The reporter heard “than” but the Judge either said or meant “and” and the correction or clarification was not picked up at the time the remarks, as transcribed, were settled.
A second settling error is his Honour’s reference, quoted above, to the earlier offences having been committed on 6 March 2016. The earlier Judge’s sentencing remarks and the appellant’s record of criminal antecedents correctly record the first in time trafficking offence as having been committed on 16 March 2016 as does the Judge himself earlier in his remarks.
In any event, when all the circumstances are taken into account, it is intrinsically unlikely that the Judge did have present to his mind at the time of sentencing the fact that four prior trafficking offences had been committed in March 2016.
The sentencing remarks for the earlier sentence and the appellant’s record of criminal antecedents were before the Judge and his Honour made express reference on more than one occasion to both in the sentencing remarks. Both make clear the extent of the appellant’s offending on 16 March 2016 and that he had only two prior trafficking offences in total; one committed on 16 March 2016 and one on 2 September 2016. There is no rational explanation for how or why his Honour might have reached for “four” rather than any other erroneous number of trafficking offences as having been committed on 16 March 2016.
Furthermore, the extent of the earlier offending and the fact that the appellant had committed only three trafficking offences in total[13] was discussed or referred to on at least four occasions during sentencing submissions. In particular, it was referred to in the context of demonstrating that the appellant had committed three relevant offences (including the one on 31 August 2016 before the Judge) for the purpose of characterising the appellant as a serious repeat offender.
[13] That is the two offences on 6 March 2016 and 2 September 2016 and the third (second in time) offence now before the Judge.
In all the circumstances, I have significant reservations about whether the Judge did in fact have a mistaken view of the extent of the appellant’s prior offending. In any event, and even if the Judge was so mistaken, on my reading of the sentencing remarks as a whole I am not satisfied that the error as stated had a material effect on the sentence outcome. The reference to “four” counts of trafficking in March 2016 formed part of the description of why the appellant was currently serving a lengthy term of imprisonment and as an introduction to the chronology that moved the Judge to make the sentence under appeal largely concurrent with the sentence for the 2 September 2016 offending. Once the order for partial concurrency was made, the effective sentence under appeal can only be described as moderate, if not merciful.
Appeal ground 5 – sentencing as a serious repeat offender
The finding that the appellant satisfied the requirements of subsection 53(1)(b) of the Sentencing Act and was by force of the statute a serious repeat offender at the time he came to be sentenced is not under challenge. However, the appellant contends that the Judge erred, having heard evidence directed at the appellant’s personal circumstances, in refusing to make a declaration under subsection 54(2) so as to avoid the more harsh sentencing parameters provided for in subsection 54(1).
Section 54 has been set out earlier but it will be of assistance to set it out again in the present context.
(1)The following provisions apply in relation to the sentencing of a person who is a serious repeat offender for an offence (including an offence that resulted in the person being a serious repeat offender):
(a)     the court sentencing the person is not bound to ensure that the sentence it imposes for the offence is proportional to the offence;
(b)     any non‑parole period fixed in relation to the sentence must be at least four‑fifths the length of the sentence.
(2)However, a court that is sentencing a person who is a serious repeat offender for an offence may declare that subsection (1) does not apply if the person satisfies the court, by evidence given on oath, that—
(a)     the person's personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence; and
(b)     it is, in all the circumstances, not appropriate that the person be sentenced as a serious repeat offender.
There is an artificiality about this appeal ground 5. In my view, even if the Judge had erred in refusing to make the declaration this would have had no effect on the sentence imposed and would not be a basis for allowing the appeal. Whilst the Judge refused to make the subsection 54(2) declaration, he did not, in fact, sentence in accordance with subsection 54(1). The effective head sentence imposed, once the order for concurrency was made, was imprisonment for 18 months. Neither this, nor (for reasons later explained) the starting point of four years and eight months selected by his Honour, could be said to be a head sentence that was not within the available range and proportional to the offence as committed by this offender (subsection 54(1)(a)).[14] Further, the Judge did not, in fact, impose a non-parole period of four-fifths the length of the head sentence. Whilst his Honour indicated that such a non-parole period was required by statute, he, ultimately, exercised the power under subsection 47(1)(b) of the Sentencing Act to extend the existing non-parole period by 12 months.
[14] Cf; R v Young [2016] SASCFC 102; (2016) 126 SASR 41.
The failure to make the subsection 54(2) declaration did not result in the appellant being sentenced as a serious repeat offender in accordance with the subsection 54(1) parameters.
Furthermore, the failure to make the declaration does not have any enduring consequences. It was potentially relevant only to the sentencing task before the Judge but for the reasons just explained had no application in fact. The appellant retains, into the future, his characterisation pursuant to section 53 as a serious repeat offender. However, should he commit other offences and come to be sentenced in the future, he will be entitled to again apply for a declaration under subsection 54(2).
The lack of any utility in the Judge’s failure to make the declaration is sufficient in the circumstances of this matter to dismiss appeal ground 5.
Given that I would dismiss appeal ground 5 in limine, I turn to consider it according to its terms only briefly. In this case, evidence on oath directed to the requirements of subsection 54(2) was given by the appellant and the reporting psychologist. The Judge had to determine whether that evidence satisfied him of two requirements. The first is that the appellant’s personal circumstances were so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence (the “first requirement”). The second is that it is, in all the circumstances, not appropriate that the appellant be sentenced as a serious repeat offender (the “second requirement”).
The language used concerning the first requirement would appear to invoke sections 3 and 4 of the Sentencing Act. Section 3 prescribes the “primary” sentencing purpose under the Act.
The primary purpose for sentencing a defendant for an offence is to protect the safety of the community (whether as individuals or in general).
Further, section 9 requires this primary purpose to be the paramount consideration.
For the avoidance of doubt, the primary purpose for sentencing a defendant for an offence must be the paramount consideration when a court is determining and imposing the sentence.
Section 4 provides for a number of “secondary” sentencing purposes one of which is personal and general deterrence (paragraph (d)).
(1)The secondary purposes for sentencing a defendant for an offence are as follows:
(a)     to ensure that the defendant—
(i)is punished for the offending behaviour; and
(ii)is held accountable to the community for the offending behaviour;
(b)     to publicly denounce the offending behaviour;
(c)     to publicly recognise the harm done to the community and to any victim of the offending behaviour;
(d)     to deter the defendant and others in the community from committing offences;
(e)     to promote the rehabilitation of the defendant.
(2)Nothing about the order in which the secondary purposes are listed in subsection (1) implies that any 1 of those secondary purposes is to be given greater weight than any other secondary purpose.
The first requirement in subsection 54(2) uses the same language as section 3, apart from the change of tense, where it refers to “protecting the safety of the community (whether as individuals or in general)”. The first requirement, with its reference to personal and general deterrence also picks up the language of one of the secondary sentencing purposes in subsection 4(1), being that in paragraph (d).
However, the first requirement does not use the language of primary and secondary nor purpose. Rather, it combines the two purposes and characterises the collective as the “paramount consideration”.
As such, for the purpose of the subsection 54(2) enquiry, the legislature has elevated the collective to a paramount consideration and notwithstanding that personal and general deterrence is by section 4 otherwise to be regarded as a secondary sentencing purpose. In this respect, ordinary rules of syntax and grammar indicate that the descriptor “paramount consideration” refers to the collective not just the first part of the collective (“protecting the safety …”).
There is an element of the tautological in the language of the collective consideration. A consideration of each component naturally embraces a consideration of the other. Nevertheless, the notion of the collective consideration being paramount when engaging with subsection 54(2) is critical to an understanding of the nature of that engagement.
The legislature has characterised the appellant as a serious repeat offender and, as such, he is to be sentenced in accordance with the subsection 54(1) parameters. Underlying, this is the legislature’s determination that, for such an offender, protecting the safety of the public and personal and general deterrence is the paramount consideration. In order to avoid this outcome, the appellant must demonstrate that his personal circumstances are so exceptional as to displace the paramountcy of this consideration. The appellant’s personal circumstances are to be considered in the context of all of the factors ordinarily relevant to sentence, including the nature and seriousness of the offence committed, the risks of re-offending, the need to protect the public and the prospects for rehabilitation.
In the present case, the Judge made positive findings concerning the appellant’s personal circumstances including as to his prospects for rehabilitation in the terms set out earlier in these reasons. However, the following considerations also arise:
(i) the offence committed was a very serious one and involved a substantial quantity of methylamphetamine;
(ii)the drug was sold as part of an organised operation where profit was the motive. Whilst the appellant’s role in the operation is not entirely clear, he was operating at a level beyond that of a street dealer;
(iii)whilst the offence was second in time it was one of three such offences; it was not an isolated transaction;
(iv)the offence was committed whilst on bail for the first in time trafficking offence;
(v)whilst the appellant has demonstrated the hallmarks of an intention to rehabilitate and of having good prospects for rehabilitation, there is no long period of demonstrated rehabilitation other than the period spent to date in the controlled environment of prison;
(vi)the appellant is in his mid-thirties and is not to be accorded the leniency that youth and immaturity attracts;
(vii)the appellant has a poor prior criminal record generally but particularly with respect to drug offending. In addition to the three trafficking offences, the appellant’s 2010 precursor offending was also very serious; and
(viii)the previous lengthy period spent in custody for the 2010 offending does not appear to have had any personal deterrent effect.
These factors, in combination, serve to demonstrate that the public requires protection from the appellant and that there is a continuing need to foster personal and general deterrence. The legislature has marked out the appellant as a person for whom these are the paramount consideration. Whilst the appellant’s personal circumstances are very favourable and encouraging they are not particularly exceptional. In any event, I agree with the Judge that they are not so exceptional as to outweigh the paramount consideration. Notwithstanding his personal circumstances, the appellant is the type of offender intended by the legislature to be sentenced as a serious repeat offender.
In order to avoid being sentenced as a serious repeat offender, the appellant had to demonstrate both paragraph (a) and paragraph (b) of subsection 54(2). Having failed with respect to paragraph (a), it is not necessary to review the Judge’s finding with respect to paragraph (b).
I add, that if appeal ground 5 were to have succeeded, that is, a finding made on appeal that the declaration should have been made, I would have adopted the same sentence structure as did the Judge but would not have sentenced the appellant any more favourably. Appeal ground 5 is not made out.
Appeal ground 3 - parity
Appeal ground 3 is in these terms.
The Learned Sentencing Judge failed to apply parity in sentencing including in his assessment of the test whether exceptional personal circumstances exist such that a declaration pursuant to section 54(2) should be made.
As I apprehend this ground, there are two complaints. First, the Judge failed to take account of the parity principle, in the general or conventional sense, when sentencing the appellant. Second, the Judge failed to take account of the parity principle when declining to exercise the power available pursuant to subsection 54(2) to refrain from sentencing the appellant as a serious repeat offender.
Subsection 10(1)(a) and (b) of the Sentencing Act 2017 provide, consistently with the common law, that a sentencing court is to apply the common law principles of proportionality and parity, although subject to the Sentencing Act and not to the exclusion of any other relevant principle. The parity principle applies as between co-offenders.[15] Co-offenders need not have been charged with the same offence because parity is a consideration of substance rather than form.[16] However, practical difficulties of application can arise in such cases.
[15] Green v The Queen [2011] HCA 49, (2011) 244 CLR 462 at [29] (French CJ, Crennan and Kiefel JJ).
[16] Green v The Queen [2011] HCA 49, (2011) 244 CLR 462 at [30].
Recently, in R v Hayman,[17] this Court, differently constituted, provided a helpful summary of the relevant principles to which summary I have had regard. It is unnecessary to repeat that summary here. It is sufficient for present purposes to set out the following statements of principle from the plurality in Green v The Queen.[18]
[17] [2019] SASCFC 72.
[18] Green v The Queen [2011] HCA 49, (2011) 244 CLR 462 at [28], [31].
“Equal justice” embodies the norm expressed in the term “equality before the law”. It is an aspect of the rule of law. It was characterised by Kelsen as “the principle of legality, of lawfulness, which is immanent in every legal order”. It has been called “the starting point of all other liberties”. It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:
Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.
(Emphasis in original.)
Consistency in the punishment of offences against the criminal law is “a reflection of the notion of equal justice” and “is a fundamental element in any rational and fair system of criminal justice”. It finds expression in the “parity principle” which requires that like offenders should be treated in a like manner. As with the norm of “equal justice”, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.
. . . .
Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may “reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender”. The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen:
the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.
The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.
(Citations omitted)

There are fundamental difficulties with the appellant’s contention that the parity principle has not been observed in the general or conventional sense. If the comparison undertaken is that between the total periods of imprisonment and the non-parole periods ordered for the appellant on the one hand and for any of Messrs Beedar, Hamze and Chrstiansen on the other, the appellant may be seen as having been dealt with more severely. Having said that, the actual sentence under appeal, after the allowance for concurrency, was effectively 18 months with 12 months added to the non-parole period. It can be seen as moderate having regard to the serious nature of the offence of trafficking committed whilst on bail for an earlier committed offence of trafficking.[19]
[19] See generally the discussion in R v Young [2016] SASCFC 102; (2016) 126 SASR 41 with reference to a starting point of four to seven years for a street dealer in the circumstances there canvassed.
However, the sentence under appeal concerns just the second in time trafficking offence; no application to appeal the earlier sentence out of time is before the Court. There is no sensible comparator to the sentence under appeal in the case of any of the co-accused who were all sentenced to a single penalty pursuant to section 26 of the Sentencing Act or, in the case of Mr Christiansen, section 18A of the Criminal Law (Sentencing) Act. Mr Christiansen also received the benefit of a totality consideration and received a sentence that should be seen as extremely merciful.
Furthermore, the appellant, unlike the co-offenders, is a serious repeat offender and has a very significantly more serious material prior criminal record, particularly when regard is had to the precursor offending committed in 2010 for which the appellant received a substantial prison sentence.
In R v Mitric,[20] Hinton J encapsulated the difficulty.
To engage the parity principle the relevant link must be one that demands equality of treatment. The moment variation in the charge, circumstances of offending and personal circumstances between offenders arises the strength of the link demanding equal treatment begins to erode. The greater the variation the greater the erosion to the point where the principle ceases to apply. Here the difference between the appellant’s incursion into criminality and that of Messrs Schlank and Vitor is stark – the circumstances of their offending is unrelated. Nothing to which we have been referred suggests that Mr Schlank and Mr Vitor were involved in any way with the methylamphetamine found in the appellant’s laundry cupboard and he did not contend otherwise.
The variations in the present case were such as to obviate the parity principle.
[20] [2017] SASCFC 178 at [23].
The appellant also complains that the parity principle was not applied as part of the Judge’s determination whether the appellant’s personal circumstances were so exceptional as to warrant the making of a declaration under subsection 54(2). In other words, it is contended that the appellant has a justified sense of grievance in that such a declaration was made with respect to Messrs Beedar and Hamze but was not made in the appellant’s case. Given, as I have found with respect to appeal ground 5, that the failure to make the declaration, even if erroneous, has not resulted in any miscarriage of justice, any failure to observe the parity principle at this earlier stage should be considered in the same way.
In any event, to apply the parity principle as contended for would require a sentencing judge to undertake a form of comparative analysis of the personal circumstances of co-offenders as part of the exercise undertaken pursuant to subsection 54(2). Neither the parity principle nor subsection 54(2) extends that far.
Subsection 54(1) requires a finding (of mixed fact and law) to be made. Where the finding has been made, subsection 54(2), where engaged,[21] requires a Judge to make the evaluative judgment called for in either making or refraining from making the declaration envisaged by subsection 54(2). Only when that dual process has been completed does the Judge proceed to sentence either in accordance with or not in accordance with subsection 54(1). Where subsection 54(2) is invoked, the issue of whether or not subsection 54(1) is to apply to a sentencing task will depend on an essential antecedent determination peculiar to the offender in question with respect to which it would be premature and impractical to attempt to apply the parity principle. Finally, if the parity principle has no role to play at the sentencing stage on the facts as I have found, the same factual disparities would render it inapplicable at this earlier stage.
[21] It is not uncommon for an accused to decline to adduce evidence and, in effect, to waive any enquiry under subsection 54(2).
Appeal grounds 1 (manifest excess), 6 and 7
By appeal ground 1, the appellant asserts that the sentence imposed was manifestly excessive by virtue of the head sentence of three years, three months and seven days being “grossly disproportionate” even for a serious repeat offender. By appeal ground 6, the appellant complains that insufficient consideration was given to the fact that the subject offence took place only days prior to the third and final offence which involved a much larger quantity of methylamphetamine and with respect to which the appellant was already serving a very substantial sentence. By appeal ground 7, the appellant complains that the Judge failed to take into consideration (at all) the appellant’s personal circumstances at the time he committed the three trafficking offences and as relied on by the earlier sentencing Judge.
The Judge comprehensively reviewed the appellant’s personal circumstances and for this purpose had before him the reports of the psychologist and the oral evidence of the psychologist and the appellant himself to which his Honour made reference in his remarks. He also had before him the sentencing remarks of the earlier Judge to which he also made reference in his remarks. On my reading of the Judge’s sentencing remarks and the materials to which he made reference, I am satisfied that his Honour did give consideration to the matters identified in appeal ground 6 and 7. The question of whether or not appropriate or sufficient weight was given is really to be subsumed within the complaint that the sentence was manifestly excessive.[22]
[22] R v Lutze [2014] SASCFC 134; (2014) 121 SASR 144.
The assertion of manifest excess requires an appellate court to review the discretionary decision made by the sentencing Judge. The principles of such a review are well established. It is not sufficient for an appellate court to conclude that it would have come to a decision different to that reached by the Judge. Rather, it must be established that the Judge came to a decision that is unreasonable or plainly unjust.[23] In R v Morse,[24] King CJ identified the following as relevant considerations.
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.
Whilst consideration will need to be given to all of the matters that are relevant to fixing a sentence, as the High Court has observed in Hili v The Queen[25] by its very nature a conclusion of manifest excess or for that matter manifest inadequacy is one that does not admit of lengthy exposition.
[23] House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505, see also Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25].
[24] (1979) 23 SASR 98 at 99.
[25] [2010] HCA 45; (2010) 242 CLR 520 at [59].
The circumstances of the appellant’s offending and his involvement with an organised drug trading operation suggest he should be treated at least as seriously as a street dealer. However, even if the appellant were to be dealt with as a street dealer a starting point of four years and eight months imprisonment cannot be regarded as outside the range available to the Judge. In R v Young, it was held that a sentencing range of four to seven years continues to be appropriate for trafficking by a street dealer motivated to a greater or lesser extent by profit.[26]
[26] R v Young [2016] SASCFC 102; (2016) 126 SASR 41 at [66].
In the present case, the amount of methylamphetamine involved was substantial[27] (27.7 grams of methylamphetamine) and the offence was a serious example of its type. The offence was committed within an organised drug operation motivated by profit and was one of three separate incursions into commercial drug offending and committed whilst on bail for an earlier similar offence. In addition, the appellant had previously served a substantial term of imprisonment for importing controlled precursors. The starting point was well within range.
[27] The 27.7 grams of substance contained 22.2 grams of pure methylamphetamine.
The Judge ameliorated the potential harshness for the appellant in having the three trafficking offences dealt with on two separate occasions by allowing a substantial level of concurrency with respect to the head sentence and by extending the non-parole period already in place by only 12 months. Whilst the final outcome, a total period of imprisonment of seven years with a non-parole period of four years, might still be seen as severe, it was not in my view outside the range when all of the circumstances of the three offences and the appellant’s personal circumstances are taken into account. It should also be borne in mind, in this respect, that the appellant may have been advantaged by not having all three offences dealt with at the same time by the same Judge for the two reasons identified near the beginning of this judgment.
The above represents the approach to the question of manifest excess I would adopt in the event that the appellant had not been sentenced as a serious repeat offender. As it happens, it was not expressly stated by the Judge whether he proceeded to impose a disproportionate head sentence in accordance with the power available (but not mandatory) under subsection 54(1) or found it unnecessary to do so. Given that in my view, the Judge’s starting point was within the range for a proportionate sentence, I take the view that his Honour did not see the need to impose a disproportionate sentence.
In any event, it is not necessary for me to address the question whether a person sentenced as a serious repeat offender can ever complain about a sentence being manifestly excessive and, if so, what would be a sufficient basis for such a contention.
I would dismiss the appeal.
HINTON J: I agree with Nicholson J for the reasons he gives that this appeal should be dismissed.