R v Malakouti - [2018] SASCFC 115

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MALAKOUTI
[2018] SASCFC 115
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Hinton)
5 November 2018
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Appeal against conviction and sentence following a conviction by a trial by jury of one count of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The appellant was sentenced to five years and 11 months imprisonment with a non-parole period of three years and 11 months.
The appellant was found by police standing next to his BMW vehicle in a suburban street in Prospect late at night. He was in the company of another man, T, who lived in a nearby apartment. A sandwich bag containing 9.82 grams of an admixture, of which 7.73 grams was pure crystalline methylamphetamine, was found in the front yard of a house close to where a police officer had directed the appellant and T to remain. The value of the methylamphetamine was between $3,450 and $5,050.
On appeal, the appellant relied on the grounds that the Judge did not adequately direct the jury on what was required to prove possession and sale, that the Judge failed to direct the jury that, to find the appellant guilty, they had to be unanimously agreed, and that the verdict was unsafe and unsatisfactory. In relation to the appeal against sentence, the appellant contended that the sentence was manifestly excessive.
Held, per Kourakis CJ (Nicholson and Hinton JJ agreeing), dismissing the appeal against conviction and sentence:
1. The position of the prosecution and defence case was such that any juror who was not satisfied that the appellant had sold the methylamphetamine to T, but nevertheless found him guilty, must have been satisfied that the appellant possessed the methylamphetamine for the purposes of sale at some point before the police arrived (at [28] and [30]).
2. The resolution of the issue of possession depended on whether the jury were satisfied that the appellant was the ‘dealer’ who had brought the sandwich bag with him in his BMW. For the purpose of resolving that issue, the Judge’s directions on possession were sufficient (at [38]).
3. There being no positive obligation to identify a deduction from a notional starting point for home detention bail, the Judge’s reasons were adequate (at [54]).
4. The sentence was within the range of the sentence for offending of this kind, having regard to the appellant’s personal circumstances and relevant factors, including his prior conviction for trafficking in methylamphetamine (at [10], [64]-[65]).
Controlled Substances Act 1984 (SA); Criminal Law Consolidation Act 1935 (SA); Criminal Assets Confiscation Act 2005 (SA), referred to.
Lane v The Queen (2018) 92 ALJR 689; R v Yildiz (2006) 160 A Crim R 218, discussed.
Gilbert v The Queen (2000) 201 CLR 414; Lane v The Queen [2017] NSWCCA 46; Weiss v The Queen (2005) 224 CLR 300; R v Taylor [2016] SASCFC 54; R v Olbrich (1999) 199 CLR 270; Weininger v The Queen (2003) 212 CLR 629; R v Reiner (1974) 8 SASR 102; R v De Simoni (1981) 147 CLR 383; Nguyen v The Queen (2016) 256 CLR 656, considered.

R v MALAKOUTI
[2018] SASCFC 115
Court of Criminal Appeal: Kourakis CJ, Nicholson and Hinton JJ

KOURAKIS CJ: The appellant was convicted following a trial by jury of one count of trafficking in a controlled drug in March 2015 at Prospect.[1] The Judge imposed a sentence of five years and 11 months imprisonment,[2] with a non‑parole period of three years and 11 months, commencing on 7 September 2017.
[1] Contrary to s 32(3) of the Controlled Substances Act 1984 (SA).
[2] Reduced from a notional head sentence of six years on account of time spent in custody immediately following the appellant’s arrest: see [43] below.
The appellant, who lived in Ridleyton, was found by police standing next to his BMW vehicle in a suburban street in Prospect late at night. He was in the company of another man, T, who lived in a nearby apartment. A sandwich bag (‘the sandwich bag’) containing 9.82 grams of an admixture, of which 7.73 grams was pure crystalline methylamphetamine, was found in the front yard of a house close to where a police officer had directed the appellant and T to remain. The value of the methylamphetamine was between $3,450 and $5,050.
The prosecution case was that the appellant had driven to Prospect with the sandwich bag in his BMW, intending to sell all or some part of it to T, or at some later time to others. The prosecution acknowledged that it could not definitively establish that the appellant had sold the methylamphetamine to T before the police arrived, but contended that he had trafficked the methylamphetamine whether he had already sold it, or still possessed it, for that purpose.
The appellant appeals against his conviction on the grounds that:
·the Judge did not adequately direct the jury on what was required to prove possession and sale and, in particular, on the defence case that the evidence had not excluded the possibility that it was T, and not the appellant, who had trafficked in the drug;
·the Judge failed to direct the jury that, to find the appellant guilty, they had to be unanimously (or by majority) agreed on one of the two alternative factual possibilities acknowledged by the prosecution; and
·the verdict was unsafe or unsatisfactory.
I would dismiss the appeal against conviction.
It was open to the jury to convict the appellant on the basis that he brought the methylamphetamine with him to Prospect for the purposes of sale to T, or others, either then or at a later time. The prosecution case was a relatively simple one, that the appellant was the dealer and that T was a prospective purchaser. The Judge adequately put the defence case and sufficiently explained the concept of possession in the context of the issues joined at trial
The whole of the evidence, including the circumstantial evidence about the respective connections of the appellant and T with methylamphetamine, excluded the possibility that T was already in possession of the methylamphetamine before the appellant arrived.
This was not a case in which the prosecution relied on alternative factual bases for conviction. The prosecution alleged that the appellant was guilty of trafficking because he had transported the methylamphetamine to Prospect intending to sell it, either to T or to someone else, on that night, or later. The acknowledgment by the prosecution that, because of the police intervention, the evidence did not clearly establish whether or not the appellant had made a sale to T before the police arrived did not leave the jury alternative factual bases for conviction. On the contrary, the prosecution position was that it did not, on its case, need to prove whether or not the sale had taken place precisely because its case was that the appellant was the dealer who had brought the methylamphetamine with him to Prospect.
There is no ground of appeal, nor was any material placed before the Court, to the effect that the appellant, or his counsel, had conducted the appellant’s defence on a mistaken understanding of the prosecution case.
I would also dismiss the appeal against sentence. The material showed that the appellant was not heavily addicted to methylamphetamine. His primary motivation was commercial gain. The sentence was within the range of the sentences for offending of this kind, having regard to the appellant’s personal circumstances, including his prior conviction for trafficking in methylamphetamine.
The evidence
At about 10.50 pm on 27 March 2015, a police officer, Constable Boyd, drove his marked police car down Devonport Terrace, Prospect. He saw the appellant standing at the driver’s side of the appellant’s BMW, and stopped to speak with him. A short time later, Constable Boyd heard the sound of rustling coming from bushes growing alongside a railway line on the opposite side of Devonport Terrace. He found T there. Constable Boyd asked both men to stand on the driveway of a house next door to T’s apartment. Constable Boyd found a small plastic bag containing a small amount of a substance which he believed to be methylamphetamine on the driveway. Both T and the appellant denied possession of the bag. That substance was not the subject of a charge. The appellant was then searched, after which he and T sat down close together next to a garden bed in front of one of the houses on the street.
Constable Boyd called other police to assist him. When they arrived, they located the sandwich bag about one metre to the left of where T was sitting, and close to two metres from the appellant.
The prosecution also adduced evidence that:
·$1,620 in cash was found on the appellant at the time of his arrest;
·a small, empty, re-sealable plastic bag was found tucked under the appellant’s belt when he was first searched;
·two small plastic containers of a size and type commonly used to package methylamphetamine were found in the appellant’s BMW;
·$4,900 was found in a safe in the appellant’s Ridleyton home;
·two notebooks were found in the appellant’s BMW, which contained entries consistent with what is colloquially known as a ‘tick list’, being a running account of supply, payment and credit commonly kept by dealers in methylamphetamine;
·an entry in the notebooks alongside the name ‘R’, which was T’s first name, recorded significant sales;
·no pipes or other implements for consuming methylamphetamine were found in the appellant’s BMW or his bedroom; and
·the appellant’s DNA was found on the sandwich bag.
The prosecution evidence also showed that:
·T used methylamphetamine and had possibly traded in it;
·when T was searched, a vial containing .06 grams of an admixture of cocaine and methylamphetamine was found;
·police located a number of press-sealed plastic bags on a coffee table in T’s apartment, commonly referred to as ‘J-bags’;
·pipes suitable for smoking methylamphetamine were found in T’s apartment;
·there was no evidence of drug dealing on T’s phone; and
·T’s DNA was also found on the sandwich bag.
The prosecution and defence cases
In opening, the prosecutor formulated the prosecution case as follows:
On the prosecution case on the night in question that the accused was either in possession of that large bag containing the 9.82 g with methylamphetamine and he was intending to sell all or at the very least some of it. Alternatively, the prosecution case is that he had sold some or all of that substance to the other male Mr [T] moments prior to Officer Boyd driving down the road and pulling up next to the BMW.
In his closing address, the prosecutor said:
The prosecution case, as you might have gathered, is that the accused was in possession of that larger sandwich bag with the 9.82 g of substance which had 7.73 g of methylamphetamine in it.
The prosecution say that he possessed those drugs intending to sell them or, at the very least, intending to sell some of them. Whether or not the sale of some or all of those drugs was to occur that night to Mr [T], or the next day, or at some later stage to one or more others, it does not matter in my submission. It also does not matter if you think that perhaps the accused was going to consume some of the drugs in that bag and sell the rest.
Alternatively, the prosecution say that you could convict the accused if you were satisfied that he sold the contents of that larger bag to Mr [T] only moments before police drove down Devonport Terrace.
I interpolate here that despite the prosecutor commencing the last of the just cited paragraphs with the word ‘alternatively’, he was not putting a true alternative at all. Rather, the possibility that the appellant had already sold the methylamphetamine to T was a possible sequelae of the conduct described in the preceding paragraph. If the appellant had already sold the methylamphetamine to T, he could only have done so because he had conveyed the sandwich bag containing it to Prospect for the purposes of sale as outlined in the preceding paragraph of the opening. Strictly speaking, the ‘alternative’ was mere surplusage. On the evidence in this case, the ‘alternative’ factual basis could sensibly only be found if the first basis for conviction were accepted.
The prosecutor then continued by outlining the evidence which tended to prove that the appellant had brought the sandwich bag to Prospect:
Members of the jury, some stranger didn’t happen to leave in excess of $5,000 worth of methylamphetamine sitting in the front garden on the bark chips of [the house].
The DNA evidence seems to suggest that both the accused and Mr [T’s] DNA was on the plastic re-sealable bag. The scientific evidence can’t tell us of course how it was that their DNA might have got there, but one thing that you might be prepared to accept is that the large bag with the drugs in it was either the accused’s or was either Mr [T’s].
The evidence, in my submission, paints the accused as someone who was involved in the regular sale of rather large quantities of methylamphetamine including, you might think, to Mr [T]. Was Mr [T] drug-dealing? Mr [T], on the other hand, you might think, was a drug user who, from time to time, would sell small amounts of methylamphetamine, himself, perhaps to cover the cost of his own use of the drug.
On the prosecution case, when you consider their respective roles, it is the role of dealer and purchaser, it is clear that the larger bag of drugs was brought to Devonport Terrace on that evening by the accused.
...
The prosecution say that the only inference, when you consider the combined force of all the circumstantial evidence, is that the accused was engaged in the drug selling business in March 2015 and that he either possessed the large bag of drugs intending to sell some or all in furtherance of his business or, as I mentioned, he already sold them to Mr [T].
...
The prosecution case, as I’ve mentioned at the outset, is that the relationship between the accused Mr [T] (sic) was one of dealer and user, albeit on the basis that Mr [T] might go on to sell some drugs himself.
(Underlining added)
The underlined passages succinctly articulate the forensic contest in this case; did the appellant or did T have possession of the sandwich bag for the purposes of sale before the police arrived?
In his closing address, counsel for the appellant submitted that the evidence did not exclude the possibility that ‘it was Mr T’s [sandwich] bag’ and that the prosecution’s acknowledgment that it could not say whether the appellant had sold the methylamphetamine or not before the police arrived was reason enough to acquit the appellant. He said:
The prosecution case here, it presents its case on two possible bases. One, is that Mr Malakouti was in possession of the contents of the sandwich bag and bear in mind that it is that that is the subject of this charge, that he was in possession of it intending to sel. That’s their first version that they are presenting to you. Or, alternatively, that he had already sold some of that substance or all of it to Mr [T]. Now, the problem with that is that you don’t know, we don’t know what was occurring. The very fact that they’re presenting these alternative bases leaves open – and I’ll come to the reasons for this – a reasonable possibility that Mr Malakouti was not in possession of that sandwich bag with its amphetamine in it. You have to be satisfied beyond a reasonable doubt that it was Mr Malakouti who had been in possession of that bag and its contents.
It is to be observed that the reference to the prosecution’s ‘alternative bases’ was linked to a submission, which was to be developed, that there was a reasonable doubt that Mr Malakouti ‘had been in possession’ of the sandwich bag. Defence counsel elaborated on that submission as follows:
Now, I submit that the prosecution cannot prove beyond a reasonable doubt on the evidence in this case that Mr Malakouti was in possession of that sandwich bag. It is a possibility. The prosecution rely upon, for instance, the evidence of the DNA, that there is a high likelihood that one or the DNA profiles extracted from the surface area of that sandwich bag had the DNA profile of Mr Malakouti.
Prosecution might be suggesting well there’s a link, there’s a link establishing possession. It also links, of course, to Mr [T]. ... So we don’t know whether or not Mr Malakouti ever handled that item because the scientist also said that there were any number of ways in which DNA material can get onto an item. She said it could be direct transfer, indirect transfer, or secondary transfer. ...
...
What lawyers sometimes describe as the possibility of particular events occurring, can be described as a ‘reasonable hypothesis’ that something happened. Now I suggest to you that it is a reasonable hypothesis that version 1 of the prosecution has occurred. It’s a reasonable hypothesis on the evidence that version 2 has occurred, that he had already sold it. But it is also a reasonable hypothesis on the evidence that Mr Malakouti did not have contact with that bag, that it was Mr [T’s] bag and that he had been doing whatever. We don’t know.
Their case, they’re not able to say. Had it been handed over? Was it Mr [T’s] bag? You cannot exclude as a reasonable possibility that that was Mr [T’s] bag. That is open on the evidence. You don’t know. The bag was found located – you recall Officer Boyd – you might rely upon officer Boyd, I would suggest, than Officer Wauchope. But in any event, you will recall the position in photograph 3, the various positions of Mr Malakouti and Mr [T] and the bag, closer to Mr [T]. How can you exclude as a reasonable possibility that that was Mr [T’s] bag? You can’t. You can’t. And the flaw in the prosecution case, their pitching their case that it might have been in the hands of Mr [T], that there may have been some sort of transaction, on the other hand maybe not, maybe it was always in the hands of Mr Mr [sic] Malakouti.
Well, the prosecution case in itself raises a reasonable hypothesis consistent with innocence and that is that Mr Malakouti was not in possession of that bag.
If there is a reasonable possibility that he was not in possession of the bag, and I suggest that’s open on the evidence, then you have an insurmountable hurdle towards conviction because there will be a reasonable doubt and that is open on the evidence.
(Underlining added)
Those passages show that the essential defence argument was that the prosecution had not excluded the possibility that it was T’s bag. Importantly, the appellant’s counsel did not submit that the verdict must be one of not guilty, even if the jury were satisfied that it was the appellant’s sandwich bag, because the prosecution could not prove whether the sale had taken place or not.
The Judge’s directions
The Judge referred to the prosecution’s ‘alternatives’ before warning the jury about the impermissible uses of the evidence of the tick lists and cash found in the appellant’s possession:
I move now to topic No.9 which on the numbered topics I have just got the word ‘Warnings’ and I will explain what I mean by that in a moment. As you are aware, part of the approach by the prosecution is to say that there is clear proof that the accused possessed the big bag of amphetamine to sell it to [T] or someone else for that matter, or at least sell some of it, and is therefore guilty of trafficking. In other words, that the accused possessed the big bag - and I will refer to it as ‘the big bag’, the sandwich bag - intending to sell it to [T] and is, therefore, guilty of the offence of trafficking.
The alternative approach is that the accused has just sold that bag to [T] and is also therefore guilty of trafficking; in other words, it approaches the matter in either of two ways and either of those two ways would be sufficient. It is a matter for you to say whether on either approach the case against the accused is proved beyond reasonable doubt.

The Judge again referred to the prosecution ‘alternatives’ when directing the jury on the meaning of ‘trafficking’:
Next and perhaps principally, it must be proved that the accused trafficked. The word ‘traffic’ is not one in everyday use but the legislation of the Controlled Substances Act 1984 (SA), which creates this and other drug offences, has a fairly broad definition of what is meant by ‘traffic’ and I will read out part of it for you: ‘A person traffics in a drug if he or she (a) sells the drug, or if you have possession of the drug intending to sell it, or you take part in the process of sale of the drug.’ I will not go into the third of those possibilities and there is a very extensive definition in the legislation that I will not go through but it is the first two upon which the prosecution relies in the alternative, namely, the drug has already been sold or if it has not quite been sold, the accused had it in his possession intending to sell it. Either of those two would be legally sufficient.
It does not have to be the case that the accused would intend to sell all of it. It is sufficient if the accused intended to sell half of it, or some other fraction, it does not really matter. And it does not matter whether the intended sale is on that day or in the future, provided on the day in which possession is proved that was the intention, namely, to sell then or at some future time.
Now, depending on your view of the facts you find proved, there are a number of possibilities in which the accused may have trafficked in a controlled drug. As I have touched upon already a couple of times, the prosecution pitches its case in two alternative ways, either of which would be legally sufficient, namely, that the accused had possession of the drug intending to sell it, or that the accused had just sold the drug to [T] not long before Constable Boyd arrived, that is, that he had possession of it previously but by selling it to [T], he, the accused, no longer possessed it.
The Judge then explained to the jury how they might infer an intention to sell, or, alternatively, rely on the statutory presumption of sale if they were not satisfied that the appellant had already sold the methylamphetamine to T, but were satisfied that he possessed it.
In summary, the Judge’s references to the prosecution alternatives were given only for the purpose of better applying his Honour’s general directions on the impermissible use of evidence of earlier drug trading and the effect of the statutory presumption to the evidence. The Judge did not by those directions present true alternatives to the jury for its consideration.
The Judge’s directions on what constitutes possession were:
The first is for me to say a little bit about the word ‘Possession’. Possession does not mean ownership although it may do so. It may mean ownership but it does not have to. Obviously you can possess something without necessarily being the owner of it. You can borrow someone’s trailer on the weekend to take it to the dump. You can possess something in a number of ways. For example, by the item being in your pocket, in your car, or in your home, even though you are here in court.
The Judge directed the jury on the defence case as follows:
I move to Mr Gaite’s address. He quite rightly reminded you about the presumption of innocence that operates in his client’s favour. He quite rightly told you, as I have already, that suspicion is not enough. For you to think that the accused is probably guilty is nowhere near good enough either. I just ask you to obviously bear steadily in mind those points that he made.
Perhaps the main feature of what Mr Gaite was saying was that there is no evidence of possession by the accused no matter which scenario you might be looking at, particularly, he submitted to you, that the DNA evidence goes nowhere because the police officer who picked up the bag with the amphetamine in it was the same police officer who had searched and helped him to his feet at a point in time earlier than the bag was picked up, and the point that was being made of course was that in that situation there is no way of knowing how that DNA got on there, whether it was from direct handling by the accused, which the prosecution would say, or be some form of secondary transfer from the police officer’s hand to the plastic bag.
...
Another way of putting Mr Gaite’s submission to you is, to put it reasonably bluntly, if the prosecution does not know which of those two scenarios is the one upon which it is going to rely then how can you as jurors, pick out one when the prosecution itself cannot. But the important point that he was making was that if the possession was not proven, reliance upon the DNA basically takes you nowhere. And working backwards from that, he says if that is the case then there is no proof that the accused actually handled the drugs concerned.
So, members of the jury, I think that was the real thrust of what Mr Gaite was putting to you. It was a reasonable hypothesis that has not been rebutted, that there is no proof that the accused handled that bag and that in reality it may well have been [T]’s bag because his DNA was on it and if the prosecution cannot decide which way to jump then there is no way why you should jump one way or another beyond reasonable doubt.
He emphasised to you that the tick lists were said to be there and it is a matter for you to determine whether or not they were indeed tick lists but he emphasised that the accused’s past dealings are not a matter for which he is presently on trial and obviously I confirm that but, as you know, the prosecution case is different with respect to those tick lists.
(Underlining added)
The underlined summary of the defence submission ‘that it may well have been [T’s] bag’ encapsulates the critical forensic issue at trial.
The inscrutability of the jury’s verdict leaves unknown whether all, none, or any number, of the jurors were satisfied that the sale had taken place. What is known, however, is that the prosecution never put its case on the basis that the appellant had trafficked by purchasing the methylamphetamine from T with the intention of on‑selling it. As we have seen, the prosecution case was the very converse of that position. The Judge did not leave that basis for a guilty verdict to the jury. It would have been productive of a miscarriage of justice if the Judge had done so. Nor was it put by the defence that the appellant might have purchased the sandwich bag of methylamphetamine from T for his own personal use. It follows that any juror who was not satisfied that the appellant had sold the methylamphetamine to T, but nevertheless found him guilty, must have been satisfied that the appellant possessed the methylamphetamine for the purposes of sale at some point before the police arrived.
If any number of the jurors did think that the appellant had sold the methylamphetamine to T before the police arrived, they could have only so found if they were satisfied that the appellant possessed it for that purpose in the moment before the transaction took place. On the evidence in this case, a finding that the appellant had sold the methylamphetamine to T necessarily entails a finding that he brought the methylamphetamine to Prospect for the purpose of sale.
It follows that all members of the jury, whether or not they were satisfied that the sale had been completed, must have been satisfied that when the appellant brought the methylamphetamine to Prospect he possessed it for the purposes of sale.
In Lane v The Queen,[3] the High Court heard an appeal which raised the question whether the trial judge should have given an extended unanimity direction on the appellant’s trial for murder. In that case the appellant, Mr Lane, had been involved in an altercation, captured by closed circuit television (CCTV), which resulted in the deceased falling to the ground and striking his head on the roadway before getting up again and falling a second time, after which he lost consciousness and died nine days later. The CCTV footage of the first fall showed only that the appellant was in pursuit of the deceased shortly before he fell. There was a real question, therefore, whether a deliberate act of the appellant had caused the first fall. The CCTV footage was capable of sustaining a finding that the appellant delivered a powerful punch to the head of the deceased, causing him to fall and strike his head on the ground on the second occasion. A forensic pathologist testified that the cause of a death was a combination of both falls, but that ‘either injury could have led to death on its own’.[4]
[3] (2018) 92 ALJR 689.
[4] Lane v The Queen (2018) 92 ALJR 689 at [17].
The High Court held that the Queensland Court of Appeal wrongly applied the proviso on the ground that because the jury could not properly have found the appellant criminally responsible for the first fall, it must have returned its verdict based on the second fall.[5] The High Court allowed the appeal and set aside the conviction, for the following essential reasons:[6]
It must be accepted, of course, as the respondent argues, that it is to be assumed that the jury followed the trial judge’s directions.[7] But to say this is to accept the force of the appellant’s submission. The absence of a specific unanimity direction in relation to the actus reus that caused the death of the deceased, coupled with the trial judge’s direction that it was open to the jury to convict on the basis that a deliberate act of the appellant caused the death of the deceased if it found that either fall was caused by the appellant, means that it cannot be assumed that the jury was unanimous that it was the appellant’s actions leading up to the second fall that established his guilt beyond reasonable doubt. As Fagan J said,[8] it is quite possible that some jurors might have been satisfied that a voluntary act of the appellant caused the first fall and did not trouble to consider the circumstances of the second. And the jurors who found the actus reus made out in respect of the second fall may have pooled their conclusions with those who found the actus reus made out in respect of the first fall to reach their verdict. For a juror to reason in that way would not be to depart from the directions the jury had been given.
The possibility that some members of the jury might have concluded that the appellant’s conduct leading up to the first fall established the appellant’s guilt of manslaughter cannot be excluded by saying, as was said by the majority in the Court of Criminal Appeal, that the jury “necessarily should have entertained a doubt as to whether the deceased’s first fall was caused by any voluntary act of the appellant.”[9] The case was left to the jury on the basis that it was open to it to convict the appellant by pooling individual jurors’ conclusions of fact on issues in respect of which it was required to be unanimous. It was, as a matter of fact, distinctly possible that some of the jurors may have been disposed to convict on the basis only of the first fall. That is so regardless of whether an appellate court might conclude that the evidence in respect of the first fall was incapable of supporting a conviction. It is not permissible to speculate as to how the jury may have reasoned.[10] Nor would it have been open to the appellate court to hold that the jury should have reasoned by rejecting a basis then said by the Crown and the trial judge to be available to it.
(Footnotes in original)
[5]    Lane v The Queen (2018) 92 ALJR 689 at [45], [49]-[50].
[6] (2018) 92 ALJR 689 at [42]-[43].
[7]    Gilbert v The Queen (2000) 201 CLR 414 at 420 [13], 425‑426 [31]‑[32], 431 [52]; 74 ALJR 676.
[8]    Lane v The Queen [2017] NSWCCA 46 at [154].
[9]    Lane v The Queen [2017] NSWCCA 46 at [50] (emphasis in original).
[10] Weiss v The Queen (2005) 224 CLR 300 at 314 [35].
The evidentiary material in Lane v The Queen is distinguishable from the circumstances in this case. For the reasons I have already given, there were no two, or more, factually independent bases arising out of the evidence in this case on which the appellant may have been convicted.
This case may also be distinguished from the circumstances considered in R v Yildiz.[11] In Yildiz, the prosecution adduced evidence both of the making of an agreement to sell an illicit drug early one afternoon and evidence of the subsequent possession by the accused of a traffickable quantity in the evening. Simpson J, with whom Hoeben J agreed, held that on the evidence in R v Yildiz the prosecution case alleged what was ‘in reality two different offences’ or ‘two different manifestations’ of the offence.[12] Each of the factual bases for conviction in R v Yildiz were independent of each other. Some jurors may have found that the appellant agreed to sell drugs but not that he was in possession of drugs later in the evening. Other jurors may have found the converse.
[11] (2006) 160 A Crim R 218.
[12] R v Yildiz (2006) 160 A Crim R 218 at [30] and [8].
However, in the present case, there was a single sandwich bag of drugs which was the subject of the charge and the prosecution case was based on the possession of the sandwich bag at some point before Constable Boyd arrived at the scene. The possibility that the appellant had sold the methylamphetamine in the sandwich bag to T was not an alternative basis for conviction, but an acknowledgment that even though the appellant was in possession of the methylamphetamine for the purpose of sale shortly before Constable Boyd arrived, he may already have sold it to T by the time he was asked to stand on the driveway.
The verdict was supported by the evidence
The evidence excluded any possibility that the sandwich bag belonged to T. The general indicia that the appellant was trading, namely the cash and packaging found on his person and in his home, were evidence enough upon which it could be concluded that he possessed the sandwich bag before it was thrown into the yard. The appellant’s possession of the tick-lists was even more significant. Of greatest, and perhaps conclusive, weight however, was the notation in one of those notebooks recording significant sales to a person bearing T’s first name.
The presence of the appellant’s DNA is relatively insignificant because T’s DNA was also found on the sandwich bag. However, the fact that the sandwich bag was found in the yard behind the position where T and the appellant were asked to remain is important. If the sandwich bag belonged to T, it is more likely that he would have disposed of it when he was in the bushes along the railway track before Constable Boyd called him over.
If the jury were satisfied that the appellant brought the sandwich bag with him to Prospect in his BMW there could be no doubt that he had been in possession of the sandwich bag. The central forensic issue was not whether T or the appellant possessed the bag whilst it rested in the front yard near where they were sitting. The issue was who had possessed of the bag before it was thrown there. The resolution of that issue depended on whether the jury were satisfied that the appellant was the ‘dealer’ who had brought the sandwich bag with him in his BMW. For the purpose of resolving that issue, the Judge’s directions on possession were sufficient.
The appeal against sentence
After his conviction, the appellant gave evidence and called his father on the provenance of the money that was found and on the entries in each notebook.
The Judge rejected the evidence of the appellant and his father that the $4,900 found in the safe in his home was the proceeds of previous dealing. The Judge ordered the forfeiture of the drugs, as well as the money in his possession ($1,620) and the money in the safe ($4,900) totalling to $6,520.[13]
[13] Pursuant to s 47 of the Criminal Assets Confiscation Act 2005 (SA).
The Judge also rejected the appellant’s evidence on whether the offence of which he was convicted was isolated. The Judge found:
Ignoring your previous sentence in this court for drug offending, I am very satisfied that this was not isolated offending on your part. I have no doubt that you sold to [T] and others previously.
You cannot be punished for that earlier course of conduct but it is relevant to your prospects of rehabilitation and personal deterrence.
I reject your evidence before me on that topic and other topics of substance. Your evidence before me was so untruthful it is hard to know where to start but your attempted explanations for the notes in your diaries was dishonest in the extreme. As I said during the course of submissions after you gave evidence, what you said was bordering on laughable.
I confirm that I am prepared to deal with you on the basis that you were a user of amphetamines but I am not prepared to find that you were a heavy user.
I have no doubt that your actions were motivated by profit. Leaving to one side the money in the safe at your home, you were in possession of $1,620 in cash and the diaries and tick lists in your possession evidence significant trading. I say again that you cannot be punished for that conduct but it is an indication of your motive on this occasion.
Although I am not in a position to find you were exclusively motivated by profit, in my view that was your main motive. Your dealing supported your own modest use but that was minor in comparison with your principal motivation.
The Judge in sentencing described the prosecution case as one in which it was alleged that the appellant either possessed the methylamphetamine to sell to T but the police came alone at the wrong moment, or that he had just sold it to T, who then discarded it. The Judge concluded that the appellant had possessed it to sell to T or someone else.
The Judge imposed a sentence of six years and fixed a non-parole period of four years. The Judge later corrected the head sentence by reducing it to five years and 11 months to take into account a period spent in custody before the appellant was released on home detention bail. His Honour made a corresponding correction to the non-parole period, reducing it to three years and 11 months. The sentences were ordered to commence on 7 September 2017. His Honour declined to suspend the sentence or to have it served pursuant to a home detention order because the offending was ‘too serious … particularly bearing in mind your previous offending’.
The appellant appeals against his sentence on the grounds that it is manifestly excessive. The appellant particularises that ground as follows:
1.1The learned Sentencing Judge erred in failing to identify the deduction made and, or, in failing to give consideration and adequate weight to the time spent by the [appellant] on home detention.
1.2.The Learned Judge failed to have any or adequate regard to the [appellant’s] rehabilitation during the significant period of delay between the offending and sentencing.
1.3.The Learned Judge erred in fettering his discretion in relation to the imposition of a home detention sentence and/or failed to give adequate reasons for deciding that it was not open.
The appellant is 48 years of age. He was born in Iran. The appellant and his family are members of the Baha’i faith.
The appellant’s father migrated to Australia and from there he assisted the appellant and the appellant’s sister to escape into Turkey. On his arrival in Adelaide, the appellant attended Valley View High School until year 10. He completed his secondary education at Woodville High School. He completed a Certificate III course in hospitality at a TAFE institution. He has a certificate in hairdressing and it is in that occupation in which he continues to work.
The Judge was provided with character references from relatives of the appellant, an office holder at St Peter’s Cathedral, and an employer, all of whom spoke highly of him. The employer stated that he would not hesitate to re‑employ the appellant as a site foreman.

On 5 October 2012, the appellant was convicted of trafficking in methylamphetamine and possession of a class H firearm, namely, a sawn-off bolt action rifle. The appellant was sentenced on the basis that he had trafficked the methylamphetamine to pay a large drug debt which he had accumulated because of his heavy addiction to amphetamines. Whilst the appellant was on bail awaiting sentence, drug tests carried out in accordance with his bail requirements returned negative results. The Judge imposed a sentence of two years’ imprisonment, but suspended it on the appellant entering into a bond to be of good behaviour for two years. The Judge expressed confidence that the appellant had successfully rehabilitated himself.
The Judge’s confidence was misplaced. This offence was committed within six months of the expiry of the bond imposed in 2012.
Following his arrest, the appellant was remanded in custody for close to a month before being placed on home detention on 21 April 2015. The appellant was on home detention bail for a period of 29 months before his home bail detention was revoked by the Judge. Whilst the appellant was on home detention, approved leave passes were issued for activities, including work, legal and court appointments, medical appointments and shopping. The appellant’s work seems to have included employment as a site foreman and operating his own hairdressing business. On one occasion, on 15 October 2016, the appellant left his residence without a pass to attend an event apparently connected with his hairdressing business without obtaining permission from his Community Corrections Officer. The event required him to meet a number of people in various places. The appellant claimed that he did not obtain permission because of the time pressures. The appellant’s home detention regime appears to have been a relatively liberal one.
The appellant was regularly subjected to urinalysis and breath testing whilst on home detention bail and returned negative results on each occasion.
The Judge referred to the appellant’s previous offending and to the suspended sentence he received in October 2012. The Judge expressly acknowledged that the appellant could not be punished again for his previous offending, but observed that the offending was nonetheless relevant to ‘the degree of leniency the court may be able to extend to you and to your prospects of rehabilitation’. The Judge expressly referred to the appellant’s personal circumstances, including the circumstance that he was on home detention bail for two and a half years without incident.
I deal first with the appellant’s complaint that the Judge did not identify the deduction made for, or give adequate weight to, the time spent on home detention. Home detention may, and generally should, be taken into account as a personal circumstance of the offender when sentencing,[14] but there is no mathematical formula that mandates a specific proportionate deduction.[15]
[14] R v Taylor [2016] SASCFC 54 at [20]-[22].
[15] R v Zefi; R v Jakaj (2017) 129 SASR 161 at 178 [96].
The Judge expressly stated that he had regard to the appellant’s personal circumstances and, in that context, expressly reminded himself that the appellant had been on home detention bail for ‘about two and a half years without incident’. The Judge also noted the negative drug testing results in that period. It follows that the Judge did take into account the time spent on home detention in fashioning and arriving at the head sentence of six years. When, after the Judge had pronounced sentence, counsel for the appellant asked whether a specific deduction for time spent on home detention had been given, the Judge responded, consistently with the remarks to which I have just referred, that he had already done so. The appellant therefore has failed to show that the Judge did not have regard to a relevant consideration. There being no positive obligation to identify a deduction from a notional starting point for home detention bail, the Judge’s reasons are adequate. The ground of appeal complaining about the Judge’s treatment of home detention must be dismissed. Of course, it remains to be considered whether the head sentence is manifestly excessive having regard to the appellant’s long period of home detention bail.
I next turn to the complaint that the Judge fettered his discretion to make of a home detention order instead of imposing an immediate sentence of imprisonment, and that his Honour failed to give adequate reasons for not granting home detention. The Judge observed that the seriousness of the offence of trafficking in methylamphetamine, and the appellant’s persistence in trafficking within a short time of the expiry of the previous bond, strongly militated against a home detention order. The appellant’s denial of the offending and the false evidence he gave on the sentencing hearing not only manifested a lack of contrition but made it difficult to have any real confidence in his rehabilitation. The Judge was right to be sceptical of the appellant’s claims to be addicted to methylamphetamine. The addiction was quickly brought under control following his arrest for the earlier offending and again after his arrest for the subject offence. In the absence of an overwhelming drug addiction, the Judge was right to find that the appellant’s motives were primarily commercial. In those circumstances, this was an obvious case for declining to make a home detention order. The Judge’s reasons were adequate.
The complaint that the Judge failed to have regard to the appellant’s rehabilitation must also be dismissed. The Judge expressly referred to the appellant’s positive personal circumstances including that he had not reoffended, had returned negative drug results and had good employment prospects. The Judge’s finding that the appellant was ‘mainly motivated by profit’ was not challenged. In those circumstances, having regard to the appellant’s denial of the offending and his false evidence on the sentencing hearing, the Judge’s guarded assessment of the appellant’s rehabilitation prospects was sensible.
The sentence imposed by the Judge was a heavy one but, for the reasons that follow, it was not manifestly excessive.
I accept that even though the appellant was able to leave his home for work and other purposes, a substantial amelioration of his sentence by reason of his long period of home detention was appropriate. It follows that the sentence which would otherwise have been imposed but for the time spent on home detention bail would have been at the higher end of, if not greater than, the range of sentences generally applicable to street dealers motivated by profit.[16]
[16] R v Young (2016) 126 SASR 41.
However, the methylamphetamine found in the sandwich bag was of a substantially higher purity than that commonly possessed by street dealers. There is evidence in this case to support a finding that the appellant did not just engage in street dealing and to find that he also sold to other dealers. At the very least, there was sufficient evidence not to sentence the appellant on the basis that he only sold at street level quantities and amounts.
Moreover, the offence was the appellant’s second offence for methylamphetamine trafficking. I accept that the sentence imposed for this offence cannot in any way penalise the appellant for his prior offending, but for the reasons which follow it is a relevant consideration.
There is no judicial power to punish other than upon a conviction. It follows that the sentencing power can only be exercised to penalise that conduct which constitutes the offence of which the defendant has been convicted. That limit on the power to punish informs the well-established approach to sentencing when the evidence shows that a defendant has committed more serious offences than those of which he was convicted, and to the taking into account of other offences committed on other occasions.[17] However, it does not follow that a defendant who has prior convictions, or who has not shown that the subject offence is an isolated one, will not receive a higher sentence, all other things being equal, than a defendant with no prior convictions who has committed an isolated offence.
[17] Weininger v The Queen (2003) 212 CLR 629; R v Reiner (1974) 8 SASR 102; R v De Simoni (1981) 147 CLR 383; Nguyen v The Queen (2016) 256 CLR 656.
The proposition may be illustrated by reference to a case in which all relevant circumstances are the same, save for the existence of prior convictions. A defendant who has no prior convictions will receive a lesser sentence than a defendant against whom prior convictions are proved. The latter is not being punished again for his earlier offending; rather, the heavier sentence reflects the relatively greater weight of personal deterrence and lesser weight given to rehabilitation in his or her case. A similar analysis applies to the comparison between cases in which positive good character is demonstrated and those in which it is not.
So too when the variable is the isolated nature of the offending. The isolated nature of an offence is a mitigatory circumstance which a defendant carries the onus to establish.[18] If a defendant proves that the offence is an isolated one, personal deterrence will carry relatively less weight, and rehabilitation more weight, resulting in a lesser sentence. On the other hand, a defendant who cannot establish that the offence is an isolated must be sentenced on the basis that personal deterrence is an important consideration and that his or her rehabilitative prospects are less certain. His or her sentence will therefore be greater than that imposed on a defendant who has demonstrated that the offence is an isolated one. A defendant may fail to show that the offence is isolated because prosecution evidence shows that the appellant has been engaged in a course of criminal conduct of which the subject offence is an instance. However, in such a case the defendant’s sentence will be longer than it might otherwise have been because of the defendant’s failure to prove a mitigating factor, and not because the course of conduct is an aggravating factor. If it were otherwise, the Court would punish the defendant for offences of which he or she has not been convicted. Cases in which the prosecution evidence shows that the offence is part of a course of conduct can be treated no differently to those cases in which a defendant fails to prove that the offence is isolated.
[18] R v Olbrich (1999) 199 CLR 270 per Gleeson CJ, Gaudron, Hayne and Callinan J, at 278, 279.
It follows that the appellant’s prior conviction for methylamphetamine was a relevant factor which precluded him from receiving a more lenient, rehabilitative sentence. That was particularly so having regard to the short time between the expiry of his bond and the commission of this offence.
The sentence was not manifestly excessive.
Conclusion
For the reasons I have now given, I would dismiss both the appeal against conviction and the appeal against sentence.
NICHOLSON J: I agree that both the appeal against conviction and the appeal against sentence should be dismissed. I agree with the reasons of the Chief Justice.
HINTON J: I agree with Kourakis CJ for the reasons he gives that both the appellant’s appeal against conviction and appeal against sentence should be dismissed.