R v Kong
[2013] SASCFC 15
•28 March 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KONG
[2013] SASCFC 15
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice David)
28 March 2013
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - GENERALLY
Crown appeal against sentence – the defendant pleaded guilty to trafficking in a large commercial quantity of methylamphetamine – the defendant acted as a “middle man”, brokering the sale of 9991 tablets – the defendant was sentenced to three years and nine months’ imprisonment, with a non-parole period of 20 months, suspended upon the defendant entering a three-year good behaviour bond.
Whether the sentence was manifestly inadequate – whether the sentencing Judge erred in suspending the sentence of imprisonment.
Principles of Crown appeals, discussed.
Principles relating to sentencing for crimes of trafficking in a controlled drug, discussed – maximum penalty scales according to weight of drug will generally result in longer terms of imprisonment for greater weights – however, circumstances other than weight may have a substantial effect on a sentence – general deterrence must be given great weight in sentencing commercial drug dealers.
Held: Permission to appeal refused – the head sentence imposed was manifestly inadequate – however, in light of the defendant’s childhood history, his progress towards rehabilitation, and his release into the community and continuance of rehabilitation, it would be unjust to the defendant to allow permission to appeal and allow the appeal.
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PROCEDURE
Crown appeals against sentence – where grounds of appeal are that the sentence was manifestly inadequate, and the Judge erred in suspending the sentence of imprisonment – where the Court grants permission as to one ground.
Obiter: once permission has been granted on any ground of appeal and the Court decides to consider the sentence afresh, that reconsideration must include the head sentence, the non-parole period and whether the sentence should be suspended.
Controlled Substances Act 1984 (SA) s 32, s 44(2); Criminal Law Consolidation Act 1935 (SA) s 352, s 353, s 340; Sentencing Act 1995 (WA) s 98; Criminal Code (WA) s 689; Criminal Appeal Act 1912 (NSW) s 5D; Controlled Substances (Serious Drug Offences) Amendment Act 2005 (SA); Controlled Substances (Prohibited Substances) Variation Regulations 2007 (SA); Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 (SA); Criminal Law (Sentencing) Act 1988 (SA) s 38, referred to.
R v Harkin (2011) 109 SASR 334; R v Marien [2011] SASCFC 116; Lacey v Attorney General (Qld) (2011) 242 CLR 573; McGarry v The Queen (2001) 207 CLR 121; Everett v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168; Green & Quinn v The Queen (2011) 244 CLR 462; Griffiths v The Queen (1977) 137 CLR 293; R v Borkowski (2009) 195 A Crim R 1; R v Hicks (1987) 45 SASR 270; R v M, H [2007] SASC 41; R v Mangelsdorf (1995) 60 SASR 60; R v Clift [2010] SASC 79; R v Gjoni [2012] SASCFC 48; R v Osenkowski (1982) 30 SASR 212; R v Payne (2004) 89 SASR 49; Markarian v The Queen (2005) 228 CLR 357; R v Wirth (1976) 14 SASR 291; R v A [2003] SASC 121, considered.
R v KONG
[2013] SASCFC 15Court of Criminal Appeal: Kourakis CJ, Sulan and David JJ
THE COURT: This is an application by the Director of Public Prosecutions for permission to appeal against sentence.
The defendant and respondent, Chanthorn Kong, pleaded guilty to trafficking in a large commercial quantity of methylamphetamine, contrary to s 32(1) of the Controlled Substances Act 1984 (SA). The maximum penalty for the offence is a fine of $500,000 or imprisonment for life, or both. A large commercial quantity includes any mixture containing methylamphetamine, with a total weight of over one kilogram. The Judge sentenced the defendant to three years and nine months’ imprisonment, with a non-parole period of 20 months. He suspended the sentence upon the defendant entering into a bond for a period of three years, conditions of which were that he be of good behaviour and that he be under the supervision of a community corrections officer for a period of two years and obey all lawful directions given to him by the community corrections officer. Further, the defendant was to undertake such drug counselling and treatment as directed by the community corrections officer.
Background
In September 2009, police commenced a covert operation in which they intercepted a mobile phone used by a co-offender, Brendan Ferenczfy. Those intercepts resulted in the police uncovering telephone calls between the defendant and Ferenczfy. Police then commenced intercepting mobile phone calls made by the defendant.
On 8 November 2009, police monitored a number of calls between the defendant and Ferenczfy which revealed that the defendant had arranged for the delivery of 10,000 tablets to Ferenczfy which he had obtained from another person. Further intercepted calls indicated that Ferenczfy had arranged for an associate named Matthew Owen-Cooper to collect the tablets on his behalf.
Police raided Owen-Cooper’s home and found three plastic bags containing 9991 tablets, weighing a total of 2568 grams and containing 103 grams of pure methylamphetamine. Their street value was estimated at between $70,000 and $500,000. The fact of the police raid and the arrest of Owen-Cooper was not known by the defendant or Ferenczfy.
Police continued to monitor telephone calls between the defendant and Ferenczfy. Ferenczfy agreed to pay the defendant $5000 for facilitating the deal. There had also been an earlier transaction involving 10,000 methylamphetamine tablets which the defendant had brokered for Ferenczfy, for which the defendant agreed that he had received $1000.
On 18 May 2010, police arrested the defendant. At the time, found in his 22.6 grams of powder containing 9.98 grams of pure cocaine, valued at between $6000 and $12,000. At the defendant’s home, police located a firearm and ammunition. The defendant was charged with a drug offence relating the cocaine and with possessing a firearm without a licence.
The defendant was sentenced for those offences on 8 December 2011. It was accepted that the cocaine was for his personal use and for his wife’s use. He was sentenced to imprisonment for one year and ten months, with a non-parole period of ten months, suspended upon the defendant entering into a bond to be of good behaviour for 18 months. The charges relating to trafficking in methylamphetamine the subject of this appeal proceeded to trial.
Ferenczfy was arrested in about June 2010 and charged with the offences relating to the methylamphetamine. He pleaded guilty upon arraignment and was sentenced by a District Court Judge to imprisonment for three years and nine months, with a non-parole period of 20 months. The sentencing Judge in his case started at five years’ imprisonment, but reduced the head sentence on account of his plea of guilty at an early stage. He had a previous conviction for cultivating cannabis.
Owen-Cooper pleaded guilty to the charge relating to the methylamphetamine. He was sentenced by another District Court Judge to two years and nine months’ imprisonment, with a non‑parole period of 12 months, suspended upon him entering into a bond to be of good behaviour for two years.
In June 2011, the defendant had been arraigned in respect of the charge now the subject of this appeal. He had pleaded not guilty. On 10 July 2012, being the first day of his trial, the defendant pleaded guilty.
The defendant’s personal circumstances
The sentencing Judge had regard to the personal circumstances of the defendant. The defendant was 34 years of age at the time of sentence. He is married and has two children aged four and five years. He has no relevant previous convictions involving drugs. He had received a suspended sentence in 1998 for the offence of breaking and entering a building. He complied with the conditions of the bond.
The Judge had regard to a report of Mr Fugler, a clinical forensic psychologist. Mr Fugler observed that the defendant was dependent upon cocaine at the time of the offence. As a consequence, he was in financial difficulty and assisted Ferenczfy in order to obtain money to pay debts for drugs he had obtained for his own use. The defendant developed a cocaine habit after the drug had been supplied to him by friends. He was also addicted to ecstasy.
After his arrest in 2010, the defendant ceased using illicit drugs. Prior to being sentenced, he was regularly tested and all urine samples were returned negative. The defendant is genuinely ashamed and contrite for his offending. In sentencing the defendant, the Judge accepted that he was genuinely sorry, and accepted that he had ceased his involvement in drugs and had commenced to rehabilitate himself.
The defendant had experienced a traumatic childhood. He was born in Cambodia in 1978 and was the youngest in a family of three children. His older sister died of an illness. His father was killed by the Khmer Rouge. Other relatives also died at the hands of that regime.
As a result of his father’s death, his mother was left without support. Over a number of years, the defendant observed the hardship of living under a totalitarian and cruel regime. His mother was in constant fear that the family would be harmed. He observed people being killed and executed. His mother and the family spent long periods in the jungle avoiding members of the Khmer Rouge. Eventually, when he was about eight years of age, the family escaped to Thailand, where they settled in a refugee camp. The camp was extremely dangerous. People were under-nourished. The camp had been infiltrated by members of the Khmer Rouge, who continued to kill people who were being sheltered in the camp. In the circumstances, his mother and the family returned to Cambodia to look for his father. That proved to be a fruitless exercise.
In 1989, when he was 11 years of age, he, his brother and mother came to South Australia. They had been sponsored by a church group which had given his grandmother refuge. She had come to Adelaide and, with the assistance of the church group, arranged for the defendant and the surviving members of his family to migrate to South Australia.
After the family arrived in Adelaide, life for the defendant was difficult. The family was forced to rely upon an uncle, who was emotionally and verbally abusive to the defendant. The defendant suffered from low esteem. He eventually left home at the age of 14. Without the support of his family, he was forced to live on the street for approximately two years. Eventually, his older brother obtained a house to which the defendant returned to live.
The defendant had little formal education and had difficulty with his schooling in Australia. His knowledge of English was limited, as a result of which his academic development was minimal. When he was about 16, he obtained employment. He then worked at Port Stanvac oil refinery for four years, during which time he saved money to purchase a house. He borrowed $200,000. That loan is secured by a mortgage over his home. After leaving his job at Port Stanvac, he worked as a welder and later obtained employment at Amcor, where he remained for eight years as a machine operator. He was working there at the time of his arrest.
As a consequence of his childhood experiences, the defendant suffers from anxiety. He has a history of depression and suffers mood swings. He had been treated by a psychiatrist for his anxiety disorder. He has been in a relationship with his wife for 18 years. Their marriage is stable and positive. He has strong family support. After his arrest for this offending, he reassessed his life.
The defendant commenced drug and psychological treatment after his arrest. He attends monthly sessions at the Drug and Alcohol Service Council. Mr Fugler is of the opinion that the defendant is likely to have suffered a post-traumatic stress disorder consequent upon his traumatic childhood. His decision to abstain from using drugs, together with his stable work history and stable marriage, are positive factors in his path to rehabilitate himself. Regular drug testing confirms that he has not returned to the consumption of drugs. Mr Fugler considers that he has good prospects of rehabilitation.
The sentencing Judge’s approach
The sentencing Judge observed that the defendant had developed a serious addiction to drugs, and that his association with Ferenczfy, who was heavily involved in selling methylamphetamine and ecstasy, was consequent upon him needing money to finance his own drug dependence. The Judge described the defendant’s role as a “middle man”, who received payment for facilitating transactions, the moneys which were then used to finance his own drug habit.
The Judge was informed by the Director that, in a conversation intercepted between Ferenczfy and another person, Ferenczfy said that he owed the defendant $100,000. The Judge gave the defendant’s counsel an opportunity to obtain instructions on that information. The defendant’s counsel told the Judge that the defendant expected to make 50 cents on each tablet sold. Counsel then advised the Judge that the defendant had arranged a third person to deliver the drugs direct to Ferenczfy’s place and had not himself taken possession of the tablets. The defendant expected Ferenczfy to give him $105,000 from which he, the defendant, would keep $5000 as his profit and return the $100,000 to the people who supplied the drugs. The defendant’s counsel told the Judge that many threats had been made against the defendant as a result of his failure to pay.
The Judge accepted that the defendant was a middle man who had sourced drugs for Ferenczfy to on sell. The remarks of another Judge who had sentenced Ferenczfy were before the Court when the defendant was sentenced. Ferenczfy’s counsel had submitted that the drugs were in fact delivered to him by the defendant. Ferenczfy’s counsel accepted that the value of the tablets supplied on 9 November was $100,000 and that they were to be sold at $10 per tablet. Ferenczfy was to make $1 per tablet from that amount. Ferenczfy was to deliver the drugs to four other distributors. Ferenczfy was intending to pay the defendant from funds received from those men.
The Judge, in sentencing the defendant, considered that the defendant’s offending was similar to Ferenczfy’s. He too took a starting point of five years and reduced the sentence to three years and nine months, which reflected a discount of 25 per cent for the defendant’s plea of guilty.
The Judge had received a positive report from the Drug and Alcohol Services Council of South Australia about the significant progress the defendant had made in ridding himself of his drug addiction. The Judge was satisfied that the defendant had not used drugs since his arrest, and was satisfied that the defendant had determined to remain drug-free and, in fact, had done so. He was satisfied that the defendant demonstrated insight into his behaviour and had taken positive steps to change his life. A number of character references had been provided to the Judge, which confirmed that the defendant was highly regarded by people who knew him.
The Judge had regard to the sentences passed upon the other two offenders with whom the defendant had been involved. He saw no reason to differentiate between the involvement of Ferenczfy and the defendant.
The decision to suspend the sentence
In considering whether to suspend the sentence, the Judge took into account the gravity of the crime. He took into account that the defendant had had a difficult life. He accepted that, for the 18 months prior to sentence, the defendant had resurrected his life, had been crime-free and had worked hard for his family. He also took into account that the defendant had complied with a bond imposed upon him in respect of the cocaine offences, and that he had embarked upon a program of rehabilitation. He said:
I turn to the question of suspension. The gravity of your crime must, among other things, be weighed against your personal circumstances. You have led a largely law-abiding and productive life, despite the difficult hurdles that you have had to overcome. Significantly, since your arrest of 18 months ago you have turned your back on drugs and resurrected your life. You are crime free and working hard for your family.
You have complied in all respects with the bond imposed by Judge Bampton. Having regard to your guilty plea, your rehabilitation that you have undertaken and your personal circumstances in general, I believe there is good reason to suspend the sentence.
I am firmly of the view that it will not be in your interest or the community’s interests to unravel the process of rehabilitation that you have undertaken by requiring you to serve an immediate sentence of imprisonment.
In the circumstances, the Judge considered that good reason existed to suspend the sentence.
The appeal
The Director submits that the sentence imposed is manifestly inadequate. Counsel contends that the sentence fails to maintain adequate standards of punishment for the offence, and fails to reflect the seriousness of the offending conduct and the need for general deterrence. The Director submits that the Judge erred in determining that good reason exists to suspend the sentence.
Principles relating to prosecution appeals against sentence
Sections 353 and 340 of the Criminal Law Consolidation Act 1935 (SA) deal with the Court’s power in respect of appeals against sentence. Section 353(4) and (5) provide:
353 – Determination of appeals in ordinary cases
...
(4) Subject to subsection (5), on an appeal against sentence, the Full Court must –
(a)if it thinks that a different sentence should have been passed –
(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b)in any other case – dismiss the appeal.
(5) The Full Court must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence.
Section 340 of the Act provides:
340 – Appeal against sentence
Despite any other rule of law, if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence (whether more severe or otherwise) imposed, the court must –
(a)impose the sentence that should have been imposed in the first instance; and
(b)order that the sentence –
(i)will be taken to have come into effect on a date before the date of the order; or
(ii)will take effect on a date on or after the date of the order.
The interrelationship between s 340 and 353 has been considered in R v Harkin.[1] The effect of s 340 is to remove the Court’s discretion to have regard to the principle of double jeopardy in sentencing a defendant, once it is decided that permission should be granted to the Director. Gray and Sulan JJ, in a joint judgment, observed that the words of s 340 make it clear that the Court is precluded from having regard to the rule relating to double jeopardy when resentencing. However, the rule still applies when considering whether permission to appeal should be granted to the Director. White J, in a separate judgment, agreed that that was the effect of s 340.
[1] (2011) 109 SASR 334.
In R v Marien,[2] the Court, Gray, Sulan and Blue JJ, confirmed the decision in Harkin and concluded that s 340 does not displace the sentencing double jeopardy consideration in determining whether to grant permission to appeal.
[2] [2011] SASCFC 116.
In Lacey v Attorney General (Qld),[3] the majority, French CJ, Gummow, Hayne, Crennan, Keifel and Bell JJ, reaffirmed that the principle of double jeopardy was part of the common law doctrine which had existed in Britain and had been passed on to Australia. They reaffirmed that Crown appeals against sentence infringe the essential rationale of the traditional common law rule against double jeopardy in the administration of criminal justice.
[3] (2011) 242 CLR 573.
It follows that the common law principles as to double jeopardy continue to apply in respect of the application for permission to appeal against sentence.
A further question arose during argument, whether permission to appeal could be granted in respect of the head sentence and non-parole period, but be refused in respect of the decision to suspend the sentence.
The Court sought submissions as to whether the Court could grant permission in respect of the head sentence and refuse permission in respect of ground 2, the decision to suspend the sentence. The parties were given leave to consider the question and make further written submissions.
The notice of application for leave to appeal against sentence by the Director seeks permission to appeal as follows:
The grounds upon which leave to appeal are sought are:
(1)That the sentence of imprisonment and non-parole period imposed are manifestly inadequate. In particular:-
(a) the Learned Sentencing Judge gave too great a discount for the plea of guilty;
(b) the sentence fails to adequately reflect the criminality of the conduct;
(c) the sentence fails to maintain adequate standards of punishment for offences of this type; and
(d) the sentence fails to reflect the need for general and personal deterrence.
(2)That the learned sentencing judge erred in finding that good reason existed to suspend the sentences of imprisonment imposed.
Section 352(1)(a)(iii) provides that the Director of Public Prosecutions may appeal against a sentence passed on conviction (other than a sentence fixed by law), or a decision to defer sentencing a convicted person, on any ground with the permission of the Full Court.
The words “any ground” indicate that the Court, in considering permission to appeal, must consider each ground separately. It is open to the Court to grant permission in respect of one or more grounds and refuse permission in respect of other grounds.
It follows that, in considering permission to appeal, the Court is to have regard to each ground of appeal separately. The question then arises as to the consequence of the Court granting permission in respect of one ground yet not being satisfied that permission should be granted upon another ground.
The Director submits that, if permission to appeal is granted on the first ground, then the Court will have determined that a different head sentence and non-parole period should have been passed, and it is not open to the Court to refuse permission to appeal in respect of the second ground relating to suspension of the sentence.
In McGarry v The Queen,[4] the High Court was concerned with s 98 of the Sentencing Act 1995 (WA). That section provides that if a superior court sentences an offender for an indictable offence to a term of imprisonment, and does not suspend that imprisonment and does not make an order for a non-parole period, it could, in addition to imposing the term of imprisonment for the offence (the nominal sentence), order the offender to be imprisoned indefinitely. In that case, the sentencing Judge imposed a nominal sentence of five years’ imprisonment with no eligibility for parole and, in addition thereto, made a declaration of indefinite imprisonment.
[4] (2001) 207 CLR 121.
The Court of Criminal Appeal concluded that the sentencing Judge was in error in imposing a nominal term of five years’ imprisonment. The issue that required decision by the High Court was whether it was open to the Court of Criminal Appeal to dismiss the appellant’s appeal against the order for indefinite imprisonment that had been made by the sentencing Judge. In their judgment, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ observed that the Criminal Code (WA) makes separate provision for appeals to the Court of Criminal Appeal against an order for indefinite imprisonment and against any other sentence. They observed that it might be thought to suggest that there were two appellate processes, one concerning the order for indefinite imprisonment, and the other concerning a nominal sentence. However, the Court considered that the decision to make an order for indefinite imprisonment, and the decision fixing the nominal sentence, form part of a single sentence. They said:[5]
It follows that if an appellate court concludes that the sentencing judge's discretion miscarried in fixing the nominal term of imprisonment, the whole of the sentence imposed by the sentencing judge, including the order for indefinite imprisonment, should be set aside and the appellate court would then be obliged itself to re-sentence the offender. As s 689(3) of the Criminal Code provides, if the Court of Criminal Appeal "think that a different sentence should have been passed", the Court should "quash the sentence ... and pass such other sentence warranted in law by the verdict or which may lawfully be passed for the offence of which the appellant ... stands convicted". The question would not be, as the Court of Criminal Appeal appears in this case to have thought it to be, whether it had been open to the sentencing judge to make the order for indefinite imprisonment which had been made. The sentencing discretion being shown to have miscarried, there was no occasion or need to consider whether it could be separately demonstrated that the sentencing judge's discretion to make an order for indefinite imprisonment had miscarried. It was for the Court of Criminal Appeal to pass such other sentence as ought to have been passed.
[5] (2001) 207 CLR 121, [9].
The wording of s 689(3) of the Criminal Code (WA) is similar to the South Australian section. There is no relevant basis to distinguish between the approach of the High Court when considering the Western Australian section and the approach to be taken when applying s 353(4) of the Act.
The result is that, once permission to appeal has been granted on any ground and the appellate court decides to consider the sentence afresh, that reconsideration must include the head sentence, the non-parole period and whether the sentence should be suspended.
Role of the appellate court
In Everett v The Queen,[6] the High Court observed that appeals by the Crown against sentence placed a defendant in jeopardy for the second time in respect of any sentence that had been imposed upon him. The Court considered that any appeal against sentence by the Attorney-General should be a rarity, and the role of the Court of Criminal Appeal was to lay down principles for the guidance of courts.
[6] (1994) 181 CLR 295.
The approach that should be adopted by the Court was considered by Doyle CJ in R v Nemer,[7] in which he reaffirmed that, in order for a Crown appeal to succeed, the Director must do more than establish that an error has occurred. Permission to appeal should only be granted if the Court determines to establish a principle of sentencing law, or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence. It is not sufficient that the appeal court considers the sentencing Judge has made an error, or even that the sentence is low. Even if each of the Judges would have imposed a greater sentence, that does not satisfy the test of permission to appeal. Doyle CJ observed that if a sentence is so far below the appropriate standard that to allow it to stand would shake public confidence in the administration of justice, then it may be appropriate to grant permission to appeal, even though no general point of principle is established by the case.
[7] (2003) 87 SASR 168.
Prior J agreed with Doyle CJ, although he took a different view in that case because he considered that the sentence which had been passed was based on a wrong factual basis, and the sentencing Judge had been led into error in that he applied the wrong factual analysis to the case. Vanstone J also affirmed the general principle that leave should only be granted in rare and exceptional cases, having regard to the principle of double jeopardy.[8]
[8] R v Nemer (2003) 87 SASR 168, [60] per Prior J and [90] per Vanstone J.
In Green & Quinn v The Queen,[9] the Crown appealed against sentences imposed on two persons convicted of cultivating cannabis. The High Court, French CJ, Crennan and Kiefel JJ considered the approach to Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 (NSW). Section 5D(1) of that Act provides:
[9] (2011) 244 CLR 462.
5D Appeal by Crown against sentence
(1) The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper.
Their Honours stated:[10]
The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions (Crown appeals) under s 5D of the Criminal Appeal Act 1912 (NSW) is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”. That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with correction of judicial error in particular cases.
[Citations omitted.]
[10] (2011) 244 CLR 462, 465-66.
The Court reaffirmed decisions of the Court in Griffiths v The Queen,[11] Everett v The Queen,[12] and Lacey v Attorney-General (Qld).[13]
[11] (1977) 137 CLR 293.
[12] (1994) 181 CLR 295.
[13] (2011) 242 CLR 573.
It is to be observed that s 5D, although not in the same terms as s 352(1)(a)(iii) of the South Australian Act, is in substantially similar terms. In considering the application of s 5D, the majority stated:[14]
A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”. That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion.
[citations omitted].
[14] Green & Quinn v The Queen (2011) 244 CLR 462, [36].
The Court approved the statement in R v Borkowski,[15] in which the Court of Criminal Appeal in New South Wales observed that the goals of consistency in sentencing and the establishment of sentencing principles, which are the purposes behind Crown appeals, can be achieved to a very significant extent by a statement of the Court that the sentences imposed upon the defendant were wrong and why they were wrong, without necessarily interfering with the sentence.
[15] (2009) 195 A Crim R 1, 18.
In R v Hicks,[16] the Court considered a prosecution appeal in which the main thrust of the attack on the sentence was directed against the suspension of the sentence. King CJ said:[17]
The discretion to suspend the sentence exists where the court is of the opinion that, having regard to the factors enumerated in s 4(2a) of the Offenders Probation Act 1913, it is expedient to do so. Amongst the enumerated factors are character, antecedence, age and health. The learned sentencing judge formed that opinion and, unless it can be seen that there are no reasonable grounds upon which such an opinion could be formed, the discretion to suspend must be held to have arisen. If the discretion arose, it was for the learned sentencing judge to exercise it. It was his discretion and this Court is not authorised to substitute any view which it might hold as to the appropriate exercise of the discretion for that of the judge in whom it was vested by law.
[16] (1987) 45 SASR 270.
[17] (1987) 45 SASR 270, 272.
In R v M, H,[18] Gray J, with whom Duggan and White JJ agreed, referred to the approach the Court should take in the case of a Crown appeal against the suspension of sentence. He observed:[19]
Accordingly, a Crown appeal against suspension of sentence should be approached with great care, and the “rare and exceptional” test should be rigorously applied. Furthermore, an error must be identified before a sentence may be interfered with. As Kirby J explained in Dinsdale:
As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.
[Citation omitted].
[18] [2007] SASC 41.
[19] [2007] SASC 41, [19].
Discussion
Counsel for the Director submits that this is a rare and exceptional case where permission should be granted, and when the Court should intervene in order to maintain adequate standards of punishment for the crime of trafficking in a large commercial quantity of a controlled drug. Counsel submits that, although the defendant was to receive only $5000 for his part of the arrangement, his role was pivotal in obtaining a large quantity of methylamphetamine for Mr Ferenczfy. His role was as a middle man and was more culpable than a mere street dealer.
Counsel conceded that there were significant personal circumstances to enliven the sympathy and mercy of the Court when sentencing the defendant, but submits that the seriousness of the offending was such that any compelling personal circumstances were outweighed when considering whether good reason exists to suspend the sentence. Counsel accepted that the defendant had made a genuine decision to distance himself from his previous life, and that he had taken significant steps towards his rehabilitation.
The only submission put by the Director to support the submission that the Court ought to interfere with the order for suspension is that the offending was too serious to support a conclusion that good reason existed to suspend the sentence. For the reasons that follow, we would reject the submission. In our view, the exercise of the discretion was not so unreasonable as to justify interference by this Court.
The legislative scheme and 2007 amendment
The Director submits that there has been an increase in penalties for drug trafficking offences since 2007.
On 3 December 2007, s 32 of the Controlled Substances Act 1984 (SA) was amended. Prior to this time, and at the time of R v Mangelsdorf,[20] s 32(1) of the Controlled Substances Act 1984 (SA) prohibited a person from knowingly manufacturing, producing, taking part in manufacture or production, selling, supplying, administering, taking part in the sale supply or administration, and possessing for the purpose of sale, supply or administration, drugs of dependence or prohibited substances.
[20] (1995) 60 SASR 60.
Sub-section 32B provided the maximum penalties. Section 32B(a) dealt with cannabis or cannabis resin. The most serious offence applied where the amount of cannabis exceeded the prescribed amount, in which case the maximum penalty was $500,000 and 25 years’ imprisonment. There was an offence of intermediate seriousness, which applied where the amount of cannabis was less than the amount prescribed but was one fifth or more of that amount. This offence attracted a maximum penalty of a $50,000 fine or 10 years’ imprisonment, or both. The comparatively least serious offence applied in all other circumstances, that is, where the amount of cannabis was less than one-fifth of the amount prescribed. These offences attracted a maximum penalty of a $2,000 fine or two years’ imprisonment, or both.
Section 32B(b) dealt with all other prohibited substances. Where the quantity of the substance exceeded the amount prescribed, the maximum penalty was a fine of $500,000 and imprisonment for life. Where the quantity of substance involved was less than the amount prescribed, the maximum penalty was a fine of $200,000 or 25 years’ imprisonment, or both.
The Controlled Substances (Serious Drug Offences) Act Amendment 2005 (SA) commenced on 3 December 2007. Inter alia, that amended s 32 of the Controlled Substances Act 1984 (SA). The new s 32 introduced the term “trafficking”, which includes selling, having possession with the intention of selling, and taking part in the process of sale of a controlled drug.[21] The new trafficking offences were mirrored by offences against manufacture.
[21] See Controlled Substances Act 1984 (SA), s 4(1).
As a result of the 2007 amendments, trafficking offences by weight[22] are now organised in three tiers. The most serious is trafficking in a large commercial quantity of a controlled drug, which has a maximum penalty of a $500,000 fine, life imprisonment, or both.[23] The first of the less serious offences is trafficking in a commercial quality of a controlled drug, which has a maximum penalty of a $200,000 fine or 25 years’ imprisonment, or both.[24] The least serious trafficking offence has a maximum penalty of a $50,000 fine or imprisonment for 10 years, or both.[25]
[22] There is now an additional offence for trafficking in a prescribed area: see s 32(2a), s 32(6).
[23] Section 32(1)
[24] Section 32(2)(a).
[25] Section 32(3)(a).
The two less serious offences are now aggravated where the offending or offender is associated with a criminal organisation.[26] Where a person is charged with a trafficking offence and the quantity of the controlled drug is a trafficable quantity (a prescribed amount), s 32(5) reverses the onus in relation to some matters.
[26] Controlled Substances Act 1984 (SA) s 32, s 43.
The Controlled Substances (Prohibited Substances) Variation Regulations 2007 (SA)[27] also commenced on 3 December 2007 and amended the relevant regulations so as to prescribe trafficable, large commercial and commercial quantities of controlled drugs. In some cases, the regulations prescribe large commercial quantities and commercial quantities both in terms of the weight of the controlled drug in its pure form and the weight of the mixture of the prescribed drug and anything used to dilute or “cut” it. In a case where the pure form of the drug will not exceed the prescribed amount but the mixture will exceed the “mixture” prescribed amount, then the prescribed amount is exceeded.[28] The same is true in the converse situation. Prior to the 2007 amendments, the amounts prescribed by the regulations were for mixtures of prohibited substance and diluting or “cutting” agent.
[27] See Gazette p 4308, 22 November 2007.
[28] See R v Clift [2010] SASC 79, [17].
The foregoing can be summarised by the following table:
Controlled substance and legislation Weight Maximum penalty Cannabis and cannabis resin prior to 3 December 2007 amendment 10kg (mixed) or more cannabis, 2.5kg (mixed) or more resin $500,000 fine and 25 years’ imprisonment 2kg – 10kg (mixed) of cannabis, 0.5kg – 2.5kg (mixed) resin $50,000 fine and 10 years’ imprisonment Less than 2kg (mixed) cannabis, less than 0.5kg (mixed) resin $2,000 fine and 2 years’ imprisonment All non-cannabis controlled drugs prior to 3 December 2007 amendment Eg, 0.3kg (mixed) or more heroin $500,000 fine and life imprisonment Eg, less than 0.3kg (mixed) heroin $200,000 fine and 25 years’ imprisonment All controlled drugs after 3 December 2007 amendment
“Large commercial quantity”
Eg, 2kg (pure) / 12.5kg (mixed) or more of cannabis
Eg, 0.75kg (pure) / 1kg (mixed) or more of heroin or amphetamine
$500,000 fine and life imprisonment “Commercial quantity”
Eg, 1kg – 2kg (pure) / 2.5kg - 12.5kg (mixed) of cannabis
Eg, 0.1kg - 0.75kg (pure) / 0.2kg -1kg (mixed) of heroinEg, 0.1kg - 0.75kg (pure) / 0.5 – 1kg (mixed) of amphetamine
$200,000 fine and 25 years’ imprisonment Eg, less than 1kg (pure) / 2.5kg (mixed) of cannabis
Eg, less than 0.1kg (pure) / 0.2kg (mixed) of heroin
Eg, less than 0.1kg (pure) / 0.5kg (mixed) of amphetamine
$50,000 fine and 10 years’ imprisonment
The previous legislative scheme provided three tiers of maximum penalty for cannabis and two tiers for all other controlled drugs. The current scheme prescribes three tiers of maximum penalty which apply to all controlled drugs. The first two tiers impose maximum penalties identical to the two tiers applicable to non-cannabis controlled drugs under the old scheme. However, for selected drugs, the new regime’s delineation between pure and mixed drug can result in a lesser maximum penalty than under the previous regime of penalties. The third tier under the new regime is a less serious offence which was not available under the old regime.
The list of controlled drugs in Schedule 1 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 (SA) is vastly longer than that in its predecessor. There are drugs in that Schedule which did not exist or were not provided in prohibited categories at the time of Mangelsdorf. In 2008, s 44(2) of the Controlled Substances Act 1984 (SA) was enacted. That section abolished the distinction in determining penalty between heroin and other controlled drugs other than cannabis, cannabis resin or cannabis oil. In so doing, the legislature both abrogated the delineation adopted as a matter of sentencing practice between heroin and amphetamine-based drugs, and recognised the difference between cannabis and all other controlled drugs. In this latter sense, the section reinstated into the legislative scheme a level of leniency which had been abolished by the 2007 amendment. While the post-2007 trafficking offences operate more harshly on cannabis offences in the sense of maximum penalties, the enactment of s 44(2) allows a court to consider, in fixing penalty, the degree of harm associated with the consumption of cannabis and related drugs.
Counsel for the Director refers to R v Gjoni[29] as supporting the submission that there has been an increase in maximum penalties since 2007. However, that decision concerned offences of cannabis cultivation, offences for which the maximum penalty did increase on 3 December 2007.[30]
[29] [2012] SASCFC 48.
[30] [2012] SASCFC 48, [16].
The fact that the 2007 amendments did not increase the maximum penalties applicable for trafficking offences is consistent with the purpose of those amendments. In the second reading speech for the amending Bill it was said:[31]
The core of the proposed drug offences is a familiar and simple set of structured offences. They are trafficking in a controlled drug, trafficking in a commercial quantity of a controlled drug and trafficking in a large commercial quantity of a controlled drug. The general trafficking offences are supplemented by a similarly tiered structure of offences on manufacture (manufacturing, manufacturing a commercial quantity, manufacturing a large commercial quantity) and on cultivation of controlled plants (cultivation, cultivation of a commercial quantity, cultivation of a large commercial quantity). In each case, the concept of trafficking, cultivating, and manufacturing includes taking a step in the relevant process, which is in turn defined widely to include all kinds of participation in the prohibited behaviour. All have similar reverse onus provisions about intention and belief.
This kind of simple, rational and transparent structure is the principal purpose of the overhaul of serious drug offences proposed in the Bill. It sets out to replace a chaotic and ad hoc set of sentencing provisions now in s 32 of the Act…
[31] Second Reading Speech, Controlled Substances (Serious Drug Offences) Amendment Bill 2005 (SA) (The Hon. P Holloway, Legislative Council, 20 October 2005, 2853, 2854).
The foregoing analysis means that there is little utility in comparing sentences and maximum penalties under the earlier legislation with the current legislation.
Sentencing standards
Counsel for the Director submits that the starting point of five years, when considering an offence of trafficking in a large commercial quantity of a prohibited drug, is manifestly inadequate.
From time to time, the Court will give general guidance as to the general standard of sentencing to be applied in respect of certain crimes. That was the case in R v Mangelsdorf.[32] During the course of the February sittings of the Court of Criminal Appeal, there have been four applications by the Director alleging the inadequacy of sentences in respect of drug matters. Since the decision in Mangelsdorf, there have been numerous appeals in respect of sentences for drug offences. A different regime and level of punishment now pertains. It is appropriate, therefore, to reconsider the comments of Doyle CJ in Mangelsdorf.
[32] (1995) 66 SASR 60.
In Mangelsdorf, the Court was concerned with three appeals. The first related to street trading in heroin. The second related to small-scale dealing in LSD. The third related to possession of a significant quantity of cannabis for sale. Doyle CJ classified the drugs in categories of seriousness, heroin being the most serious, LSD classified as a middle-range drug, and cannabis as less serious.
The distinction between heroin and other controlled drugs (other than cannabis, cannabis resin or cannabis oil) having been abolished, all drugs, other than cannabis, are to be considered as very harmful.
Mangelsdorf was convicted of possessing heroin for sale. The quantity found in his possession was such as to attract a maximum penalty not exceeding $200,000 or imprisonment for 25 years, or both. Mangelsdorf had in his possession 15 alfoil packets each containing a taste of heroin. It was admitted that he had been involved in selling small amounts of heroin daily over a period of about two months. Doyle CJ reviewed a number of sentences for dealing in heroin. He considered that the starting range of sentence for a street dealer involved in commercial dealing in heroin should be between four and seven years’ imprisonment. In the case of persons who are involved in larger scale dealings, penalties will be increased. Doyle CJ acknowledged that each case must be considered on its merits. In certain cases, it may be appropriate for a sentencing judge to commence outside the range of sentencing standards set by the court. Sentencing judges have a discretion, and there must always be room for them to exercise that discretion having regard to the circumstances of an individual case. As King CJ pointed out in R v Osenkowski,[33] there must always be a place for leniency which can even be extended to offenders with bad records and who commit serious offences. Nevertheless, standards of sentencing are indicated to ensure that idiosyncratic decisions of judges can be corrected.
[33] (1982) 30 SASR 212.
In discussing standards of punishment, we have had regard to the statement of this Court (Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ) in R v Payne, in which the Court stated: [34]
We have summarised the court’s approach and practice, to emphasise that the practice of this Court giving guidance to sentencing courts is well established, and is regulated by principles that govern the exercise of the court’s jurisdiction. Those principles dictate that the guidance given is in terms of sentencing principles to be applied, and the sentencing range that can be expected for certain types of case. The guidance does not take, and as a matter of law cannot take, the form of a determination of the actual sentence to be imposed in future cases. That would amount to an attempt to exercise the power, that rests with the sentencing court, to determine the sentence appropriate to the case, in light of relevant statutory provisions and of the principles and standards identified by this Court.
[34] (2004) 89 SASR 49, [15].
Counsel for the Director submits that the standard penalty referred to in Mangelsdorf related to a relatively small quantity of prohibited drugs. It involved a street dealer, and it involved dealing in a commercial context over a period of approximately two months.
In Markarian v The Queen,[35] Gleeson CJ, Gummow, Hayne and Callinan JJ discussed the significance of maximum penalties. They observed:[36]
[35] (2005) 228 CLR 357.
[36] (2005) 228 CLR 357, [30]-[31].
Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing, Stockdale and Devlin observe that:
“A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century ... or because it has more recently been set at a high catch-all level ... At other times the maximum may be highly relevant and sometimes may create real difficulties ...
A change in a maximum sentence by Parliament will sometimes be helpful [where it is though that the Parliament regarded the previous penalties as inadequate]”.
It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case. That he used the maximum penalty impermissibly appears from his Honour’s particular deference to it in this passage:
“Parliament cannot have intended that, other things being equal, the penalty for supplying more than 250 g should be less than for supplying that quantity.”
The form of the statement is explained by the fact that his Honour did not start with the maximum penalty for an offence involving the quantity in question, but used another maximum penalty as his starting point, that is, the maximum for an offence in the category of seriousness immediately below that of the principal offence.
[Footnotes omitted.]
In considering the appropriate range for offending of the nature referred to in this case, we have had regard to the maximum penalties provided for this offending.
The following matters should be noted in the application of that passage to this case. First, the maximum penalties were fixed by Parliament relatively recently and, overall, manifest an intention to increase penalties for trafficking in the hope of deterring a trade which Parliament, for obvious reasons, considers is the cause of great social harm.
Secondly, the passage affirms the use of the applicable maximum penalty as a yardstick against which the case before the Court and the worst possible cases are compared. Thirdly, the errors identified by the joint judgment are:
·the arithmetic derivation of a starting point from the maximum by reference to quantity of the drug involved; and
·the failure to have proper regard to all of the circumstances of the offence, because of the heavy focus on the quantity involved.
We do not read the passage to suggest that, in the comparison of cases against the yardstick of the maximum penalty, the scaled structure of the penalties for difference amounts must be ignored. On the contrary, the very use of the maximum penalty in the way explained in that passage requires sentencing courts to have regard to the scaled penalties in order to maintain some relativity in the spread of sentences both within, and between, the categories. That is not to say, as the judgment recognises, that circumstances other than the quantity involved may not have a substantial effect on where in the spread the sentence falls. For example, minor involvement in a major trafficking enterprise may result in a sentence in a lower sentencing range, generally applicable to offences involving lesser quantities.
It must be remembered that the quantity of drug involved in a particular charge may be a matter of happenstance affected by how far into a trading venture an offender is apprehended.
There is another consequence of the scale of penalties which should be observed. The higher maximum penalties imposed by reference to the greater quantities of the drugs traded will, generally, result in longer terms of imprisonment in cases coming within the higher categories than those in the lower categories even though, apart from weight, all of the other circumstances are broadly similar.
All of the above implications of the scale follow from the application of the maximum penalties as yardsticks, and the principles of sentencing parity and consistency. Their net effect is to increase the broad penalty ranges across all of the categories, considered in Mangelsdorf.
There continues to be concern about the prevalence of drug abuse in our community. Since Mangelsdorf, the variety of illicit drugs available has increased. Twenty years ago, heroin was a primary concern and was considered to be the most harmful of illicit drugs. The position has changed with the promotion of methylamphetamine and the availability of a variety of illicit drugs, all of which are addictive and have very harmful effects. Research and knowledge about the effects of drugs known as ‘speed’ and ‘ice’ has developed. The so-called party drugs are readily available. The manufacture and importation of drugs is prevalent. The abuse of illicit drugs causes great social harm. The treatment and the management of drug addiction places a substantial financial burden on the health budgets of this State and the Commonwealth. The crimes committed by addicts to support their habits cause much loss and suffering to the community. Those who organise and participate in the distribution of illicit drugs create a serious risk of collateral injury to innocent members of the public. It is, therefore, nor surprising that in an effort to tackle the social harm caused by the abuse of illicit drugs, Parliament has imposed substantial penalties for dealing in commercial drugs to both punish and deter those who are attracted by the large profits that dealing can generate. For those reasons, general deterrence must be given great weight in the balancing of the competing sentencing objectives in the case of commercial drug dealers.
There is a recognition that, in addition to penal penalties, it is necessary to assist addicts and to provide rehabilitation programs. Rehabilitation is an important part of the sentencing process.
The range of penalties for drug offences must recognise that there is a concern in the community about the effect of illicit drug consumption, particularly upon the younger generation. Further, many of those who are involved at the higher end of drug trafficking are also involved in other criminal conduct. Many crimes of violence are committed in a background of drug offending. It follows that this Court should give guidance as to the range of penalties that might apply to drug offending.
Having regard to the foregoing, the starting point of five years’ imprisonment for the offending in this case was manifestly inadequate, for several reasons. First, it falls at the lower end of the range identified for street dealers in Mangelsdorf, but the maximum penalty applicable in this case is life imprisonment and not 25 years, as it was in Mangelsdorf. Secondly, it fails to reflect the effect of the scaled hierarchy of categories and maxima penalties to which we referred in [83]-]89]. Thirdly, the respondent was a middleman and not a street trader.
Counsel for the Director also submits that the Judge was in error in applying a discount of 25 per cent for the defendant’s plea of guilty and cooperation. The defendant pleaded guilty on the first day of trial. The discount was too generous, rendering the head sentence even more inadequate.
We turn to consider the decision of the Judge to suspend the sentence.
There is no apparent or identifiable error in the Judge’s approach to the suspension of the sentence in this case. The Judge gave due consideration to all relevant matters. In exercising his discretion to suspend the sentence, no error on the part of the Judge has been demonstrated. He had regard to all relevant factors. There were compelling reasons for the Judge to find good reason exists to suspend the sentence. He was largely influenced by the fact that, prior to sentencing, the defendant had demonstrated that he was leading a law-abiding and productive life, and that he had turned his back on drugs and resurrected his life. The defendant was well on track in rehabilitating himself. He was subject to a suspended sentence and had complied with the conditions of that sentence. He has ceased his association with those involved in the dealing in drugs. He was to receive very little profit from his involvement.
When considering whether good reason exists to suspend the sentence, a sentencing judge has a wide discretion. The effect that an immediate custodial sentence may have on a defendant’s family and upon his life in general is a relevant factor to which the Court is entitled to have regard.[37]
[37] R v Wirth (1976) 14 SASR 291.
Where the defendant is serving a sentence which has been suspended, the sentencing court should hesitate to impose a custodial sentence which would frustrate the earlier sentence and deprive the defendant of the opportunity to rehabilitate himself, in particular when he has demonstrated that he is on the road to successful rehabilitation.[38]
[38] See R v A [2003] SASC 121.
The suspension of the respondent’s sentence much complicates the issue of permission to appeal, for the reasons given in [42]-[47]. Leaving aside the question of suspension, the reasons to give permission to appeal are weighty. For the reasons earlier expressed, this sentence demonstrates the need to revise the guidance given to sentencing courts by this Court’s decision in Mangelsdorf.
However, we are not persuaded that suspension, even of the significantly longer sentence which, in our view, should have been imposed, would have been a plainly unreasonable exercise of the power conferred by s 38 of the Criminal Law (Sentencing) Act 1988 (SA).
Unsurprisingly, the Judge was much impressed by how the respondent had lifted himself out of the traumatic and deprived circumstances of his early years. He is highly regarded by his wife’s family and many others in the community. He is obviously a competent and diligent worker. The respondent has the capacity to make a substantial contribution to his community.
This Court must first deal with permission. There are circumstances which will produce an injustice if a Crown appeal is allowed, even in a case in which the sentence is erroneously lenient.[39] Factors such as a defendant’s personal circumstances, the defendant’s progress towards rehabilitation, the harshness of sentencing a person to custody who has been free in the community and has taken significant steps to rebuild his life are just some of the factors which are relevant to which the exercise of a residual discretion to refuse a Crown appeal.
[39] See Green & Quinn v The Queen, (2011) 244 CLR 462, [2].
It would be a crushing reversal of fortune for a man who left the dock nine months ago, believing that he would not be taken from his family and would be able to continue his rehabilitation in the community, to now be required to serve a lengthy and immediate custodial sentence.
In this case, to grant permission to the Crown to appeal and to allow the appeal would be at too high a cost, in terms of justice, to the defendant. Without reaching a final conclusion as to whether or not we would have suspended the longer sentence we would have imposed in an exercise of our discretion, which we acknowledge to be very favourable to the respondent, we would refuse permission to appeal.
Conclusion
We would refuse permission to appeal.
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