R v MARRONE - [2024] SASCA 99

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v MARRONE
[2024] SASCA 99
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice Bleby)
15 August 2024
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - OTHER SUBSTANCES AND OFFENCES INVOLVING MULTIPLE SUBSTANCES OR OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Application by Director of Public Prosecutions for permission to appeal against sentence.
The respondent pleaded guilty to four counts of trafficking in a controlled drug contrary to the Controlled Substances Act 1984 (SA) and one count of money laundering contrary to the Criminal Law Consolidation Act 1935 (SA). The respondent was a serious repeat offender within the meaning of s 53(1) of the Sentencing Act 2017 (SA) (Sentencing Act).
Police conducted several searches of the respondent’s home between June 2020 and August 2021. On 4 June 2020 police located 7.3 grams of methylamphetamine. The respondent was questioned by police and later released on home detention bail. The following searches occurred while the respondent was on bail. On 19 June 2021 police located 28.3 grams of MDMA, a handwritten ‘tick-list’ and 6.85 grams of mixed weight material containing methylamphetamine, all hidden on the respondent’s property. On 12 July 2020 police found a plastic bag containing $11,100 in cash. On 21 August 2021 police located 17.2 grams of mixed weight material containing methylamphetamine. The respondent was sentenced to six years imprisonment, with a non-parole period of three years.
The issues on appeal were whether the sentence was manifestly inadequate and whether the sentencing judge erred in declaring, pursuant to s 54(2) of the Sentencing Act, that s 53(1) of that Act did not apply.
The respondent was a longstanding member of the Finks Motorcycle Club. The sentencing judge accepted evidence given by the respondent that he intended to cease his membership with the club.
Much of the offending occurred in breach of the respondent’s bail. The evidence indicated that the respondent was operating at a level higher than a street-level dealer. The respondent had prior convictions for drug offences.
The respondent was a serious repeat offender within the meaning of s 53 of the Sentencing Act. The sentencing judge considered the respondent’s efforts at rehabilitation for his drug addiction, steps that he had taken to distance himself from the Finks Motorcycle Club and his role in caring for his wife, who suffers from considerable physical and psychological health issues. The judge held, pursuant to s 54(2), that these personal circumstances were so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence.
Held (by the Court) granting permission to appeal, allowing the appeal and resentencing the respondent:
1.The sentence at trial was manifestly inadequate. Notwithstanding the rehabilitative steps that the respondent had taken, the seriousness, scale and circumstances of the offending rendered the starting points for the trafficking offences inadequate.
2.In all of the circumstances of the respondent’s offending, the head sentence fell so far below the appropriate standard that to allow it to stand would undermine public confidence in the administration of justice.
3.To the extent that any further residual discretion not to interfere with the sentence exists with effect beyond the considerations attendant on whether to grant permission to appeal, the Court would not exercise it.
4.Having found that the head sentence was manifestly inadequate, it follows that the judge considered the application of s 54(2) of the Sentencing Act with an erroneous view of the seriousness of the offending.
5.The respondent is resentenced to a head sentence of eight years and eight months’ imprisonment. The respondent’s personal circumstances are not so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence. The Court fixes a non-parole period of six years, nine months and six days.

Controlled Substances Act 1984 (SA) s 32(3); Criminal Law Consolidation Act 1935 (SA) s 138(1); Criminal Procedure Act 1921 (SA) ss 150, 157(1)(a)(iii), 158(7); Sentencing Act 2017 (SA) ss 53(1), 54, referred to.
Ericson v The King [2023] SASCA 99; R v Fowler [2014] SASCFC 16; R v Green (2011) 244 CLR 462; R v O’Connor [2012] SASCFC 15; R v Singh [2024] SASCA 81; R v Young (2016) 126 SASR 41, discussed.
Bugmy v The Queen (2013) 87 ALJR 1022; Cumberland v The Queen [2020] HCA 21; House v The King (1936) 55 CLR 499; Munda v The Queen (2013) 87 ALJR 1035; R v Butler [2022] SASCA 112; R v Cekic [2016] SASCFC 26; R v Dransfield [2016] SASCFC 68; R v Faber [2020] SASCFC 49; R v Harkin (2011) 109 SASR 344; R v Hunter [2022] SASCA 136; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; R v Pishdari (2018) 274 A Crim R 91; R v Yaroslavceff [2022] SASCA 123, considered.

R v MARRONE
[2024] SASCA 99
Court of Appeal – Criminal: Lovell, Doyle and Bleby JJA

THE COURT: This is an application by the Director of Public Prosecutions for permission to appeal against sentence. The issues arising on the appeal are:
·whether the sentences imposed on the respondent were manifestly inadequate; and
·in circumstances where the respondent met the definition of ‘serious repeat offender’ within the meaning of s 53(1) of the Sentencing Act 2017 (SA) (Sentencing Act), the sentencing judge erred in declaring, pursuant to s 54(2) of that Act, that s 53(1) did not apply.
Background of offending
The respondent pleaded guilty to and was sentenced for the following offences:
·four counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA); and
·one count of money laundering contrary to s 138(1) of the Criminal Law Consolidation Act 1935 (SA).
In October 2019, SAPOL commenced an investigation into the alleged drug trafficking activities of the respondent who, at the time, was a senior member of the Finks motorcycle club (the Finks). Telephone intercepts obtained pursuant to a warrant granted on 27 March 2020 indicated that the respondent was directing others to collect cash and make deliveries of methylamphetamine. Certain intercepts recorded discussions indicating that the respondent was holding several ounces of methylamphetamine, which he was attempting to sell.
Police searched the respondent’s home on 4 June 2020. They located 7.3 grams of methylamphetamine in three small bags located in the master bedroom (Count 1).
Police also seized six weeks of CCTV footage from the premises. The footage revealed the attendance of others at the house which, in combination with the telephone intercept data, depicted the respondent engaging in the sale of drugs from that location. The footage also showed the respondent hiding items in various locations both inside and outside the building located on the property.
The respondent declined to answer questions when interviewed by police. He was subsequently released on home detention bail.
The remaining four counts of offending occurred while the respondent was on bail. On 19 June 2021, police conducted another search of the respondent’s home. They located a resealable plastic bag containing 28.3 grams of MDMA, which was hidden in a palm tree situated in the front yard of the respondent’s home (Count 2). They also found in the same tree a handwritten tick-list with an inventory of six people’s names showing amounts owing of up to $46,500.
On the same day, police found 6.85 grams of mixed weight material containing methylamphetamine in another palm tree by the front gate of the house (Count 3). Police also found $3,600 in a Mimco hand bag in a walk-in wardrobe.
On 12 July 2021, police attended at the respondent’s house again and found a plastic bag hidden in a bush close to the front gate of the house. This bag contained $11,100 in cash (Count 4).
On 21 August 2021, police searched the respondent’s home again. They found a plastic resealable bag containing 17.2 grams of mixed weight material containing methamphetamine inside a fencing panel on the property (Count 5).
The respondent is a serious repeat offender within the meaning of s 53 of the Sentencing Act. In 2003, he was fined for producing cannabis. The Court did not record a conviction. In March 2006, the respondent was sentenced in the District Court to four years and six months’ imprisonment, with a non‑parole period of one year and six months, for possessing cannabis and methamphetamine for sale, producing cannabis and unlawful possession. In April 2011, he was sentenced to six years and 21 days’ imprisonment for intentionally causing harm and assault.
The respondent has convictions relating to breaches of bail in 2009 and 2010. By the time of sentencing for the present offending, he had pleaded guilty to a further eight breaches of bail. Those breaches occurred between l October 2021 and August 2022.
Following his arrest, the respondent spent two years and two months on home detention bail and just under four months in custody on remand. While he was on home detention bail, the Department for Correctional Services prepared a series of home detention compliance reports. A report of 17 November 2022 indicated the respondent had failed to charge fully his electronic monitoring transmitter on 22 separate occasions between February and November that year. Home detention reports of July and September 2022 also noted this trend. Reports of April, May and July 2022 noted a propensity of the respondent to miss calls to his mobile phone from his correctional officer.
A number of reports indicated that the respondent recorded positive drug tests intermittently whilst on home detention. A report of 17 February 2023 indicated that on 16 January 2023, the respondent had attempted to tamper with a saliva sample. That report identified concerns that the respondent had regularly substituted his urine samples with clean samples. Substitution was not possible with saliva samples and those tests tended to return a positive result. That report recorded positive saliva tests for amphetamine and methylamphetamine on 21 November 2022, 9 January 2023 and 16 January 2023. The respondent failed to attend a saliva test on 24 January 2023.
The respondent’s personal circumstances
The respondent was 45 years old at the time of sentence. He is married and a father to five children and one stepchild. Some of his personal circumstances were recorded in a psychological report prepared in October 2009, which was relevant for the purposes of the 2006 offending. The sentencing judge in the present matter had regard to that report. The psychologist there reported that the respondent in his younger years had frequently been in trouble at school and was expelled mid-way through year 10. Prior to the 2006 offending, the respondent had been living in his own home and had been self-employed as a gardener. He was diagnosed as having adjustment disorder with mixed anxiety and depressed mood.
The sentencing judge was provided with a series of reports from Ms O’Brien, a counsellor and psychotherapist who had been treating the respondent from around June 2022. Ms O’Brien described the respondent as being the main carer for his wife, who had been diagnosed with borderline personality disorder and major depressive disorder, as well as a general anxiety disorder. She observed the respondent as having a fearful avoidant attachment style and understood his main trigger to relapse to using drugs as being acute stress, noting in particular the decline in his wife’s mental health.
Ms O’Brien noted in a report of February 2023 that the respondent had participated in a 10-week intensive drug and alcohol program, and that he had been steering his focus into positive home-based projects. The respondent’s wife had attempted suicide on several occasions in 2022 and had been subsequently detained at Woodleigh House for a period of 2 weeks.
The respondent received psychological treatment from PsychMed for his substance abuse issues from 3 December 2021 to 17 October 2022. He initially self-referred into the Matrix program for treatment for his addiction to methamphetamine. Prior to being formally inducted into the program, he was required to produce two weeks’ worth of non-forensic urine samples, which he did from 12 November to 1 December 2021. These all displayed a negative result for methamphetamine. It was the respondent’s participation in that program that led to the sentencing process being prolonged, in order to accommodate that aspect of his rehabilitation.
The respondent attended 52 of a possible 103 group sessions in the program. He self-referred to re-commence the program on 18 May 2022 and was inducted the same day. In August 2022, he requested to extend the program enrolment to October, in order to make up the days missed on his second attempt. He attended a total of 102 of a possible 126 Matrix sessions on this attempt, thereby completing the Matrix intensive phase. He also voluntarily finished two sessions on 10 October 2022 and two sessions on 17 October 2022.
The respondent was required to complete eighteen drug analysis screenings throughout the treatment. He complied with those requirements on only four occasions. On one of those occasions in July 2022, he returned a positive result for amphetamines.
The respondent was described as being polite to other group members and PsychMed staff members, and as engaging regularly in group discussion. He referred to his health, wellbeing and family as being his primary motivators for engaging with the program.
The sentencing judge was also provided with several letters of support for the respondent, including from his children. These letters recorded the respondent’s close relationship with his family and his children’s ongoing reliance on their father, given the mental health issues suffered by the respondent’s wife. Two letters from the respondent’s eldest daughter explained that she was no longer attending school in order to support the respondent’s wife who, she said, was not able to do day-to-day tasks.
The respondent was a long-standing member of the Finks, having joined in 2001. He gave evidence that he left the club in 2022 to care for his wife and has otherwise expressed to police a desire to leave the club.
The sentence
The judge indicated that he took into account the appellant’s history. He said that the respondent was not to be punished again for his previous offending, but neither was he entitled to the leniency that might be extended to someone without the respondent’s history.
The judge indicated that he had regard to the matters favourable to the respondent including his good work history and work ethic, his family’s strong support, and the support provided by him to his family. He took into account the support the respondent had in the community and the availability of employment on his release. He took into account the needs of the respondent’s children and the matters relating to the needs of his wife.
As to whether the respondent should be sentenced as a serious repeat offender, the judge said:
I consider ultimately that the assessment of whether your personal circumstances are so exceptional as to outweigh the primary considerations of the safety of the community and personal and general deterrence requires the exercise of an assessment, a balancing exercise, and an exercise of discretion as was outlined by the Court of Appeal in Karpany v The Queen.[1] That is the first stage of the consideration as to whether you are able to escape the provisions of the serious repeat offender provisions.
In assessing those matters, I also include the significant steps you have taken towards rehabilitation by undergoing the treatment I have described, albeit with occasional relapses, the eventually largely successful abstention from methylamphetamine to which you have been addicted for many years. Ultimately I have come to the view that you have indeed met the test and that the first stage of the two-stage process again as described in R v Karpany and related authorities as [sic – is] met.
I consider that having regard to those matters, together with the steps you have taken to remove yourself from membership of the club to which I have referred, with the attendant risk that carries, mean that it is not appropriate that you be sentenced as a serious repeat offender.
[1] (2021) 138 SASR 229.
The judge then turned to sentence. In respect of Count 1, he indicated that he would have imposed a sentence of four years, which he expressed to be consistent with the decision of the Court in R v Young.[2]
[2] (2016) 126 SASR 41.
In respect of Counts 2 and 3, the judge indicated that he would have imposed a single penalty to cover both counts, being imprisonment for four years.
In relation to Count, 4, being the money-laundering charge, the judge said that he bore in mind that the cash must have been the proceeds of the sale of drugs. He indicated that he would have imposed a sentence of one year.
The judge then said that in respect of the offending of 21 August 2020 (Count 5), he would have imposed a sentence of imprisonment of four years and six months.
The judge then said:
I would have applied the statutory sentencing discount. Imposing a sentence of that length I consider would be crushing. The offending was an ongoing course of conduct that was linked by your personal circumstances and your insidious addiction to methamphetamine. I consider that the appropriate course, whether by making the sentences partially concurrent or having regard to the principle of totality, is to impose a sentence of imprisonment for six years and 10 months.
Having found that he was not required to sentence the respondent as a serious repeat offender, the judge fixed a non-parole period of three years and 10 months.
The judge then referred to the respondent having spent approximately two years and two months on home detention bail and just under four months in custody. He allowed, on account of these periods, a total credit of 10 months, making the final head sentence six years and the non-parole period three years.
It is a little difficult to be precisely clear as to the process engaged in by the judge. From the passages quoted above, it appears that the judge would have first imposed the maximum discount of 10 per cent on account of the guilty plea in each case to each sentence and accumulated the total of each sentence. That would suggest an accumulated total of just under twelve years and two months, although the judge did not identify the accumulated starting point. The judge then reduced that, on account of totality, to six years and ten months, that is, a little over half of the accumulated period. He then deducted a further 10 months on account of time spent in custody and on home detention bail.
The appeal
The Director acknowledged that the circumstances in which he will be granted leave to appeal is granted are confined to rare and exceptional cases. The principles are not in contention. As this Court said recently in R v Singh:[3]
The principles governing an application for permission to appeal against sentence by the Director are well established. Where the Director’s complaint involves one of manifest inadequacy, there will only be a grant of permission in the “rare and exceptional case” where principles of double jeopardy are outweighed by the need to determine a matter of principle, correct an error of principle, establish or maintain adequate standards of sentence, enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected or to correct a sentence which is so manifestly inadequate that amounts to an error principle.[4]
If a sentence falls so far below the appropriate standard that to allow it to stand would undermine public confidence in the administration of justice, or so low that the magnitude of the disparity itself reveals a misapplication of principle, it may also be appropriate to grant permission to appeal even though no general point of principle will be established by the case.[5]
(Footnotes in original)
[3] [2024] SASCA 81 at [30]-[31].
[4] R v Osenkowski (1982) 30 SASR 212 at 212-213 per King CJ; House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.
[5] R v Osenkowski (1982) 30 SASR 212 at 213 per King CJ; R v Nemer (2003) 87 SASR 168 at [24] per Doyle CJ.

These principles apply to the complaints of both manifest inadequacy and error in declaring that s 53(1) of the Sentencing Act did not apply.
Manifest inadequacy
While the Director’s ultimate challenge was to the final sentence, counsel challenged each of the starting points as being manifestly inadequate and, as such, illustrative or explanatory of why the judge had ultimately reached the sentence that he did. The Director located the inadequacies of the starting points in the sentencing judge’s invocation of R v Young[6] and his initial ascription of four years to Count 1, four years to Counts 2 and 3 together, and then four years and six months to Count 5. The reference to four years in the context of R v Young[7] is a reference to the following comments of Kourakis CJ in that case:[8]
The offending of a street dealer whose addiction has left him or her largely impoverished and who trades in very small amounts only to feed his or her addiction is at the lower end of the scale of objective seriousness. Other street dealers may not use at all or may be only occasional or social users who engage in street trading primarily to fund a comfortable, usually hedonistic, lifestyle. Other street-level dealers, motivated by profit alone, may sell drugs directly to the end user but not use drugs at all.
Sentences in the range of four to seven years continue to be appropriate for offenders who are motivated to a greater or lesser extent by profit.
[6] (2016) 126 SASR 41.
[7] (2016) 126 SASR 41.
[8] R v Young (2016) 126 SASR 41 at [65]-[66].
It is also relevant to have regard to the passages that immediately followed these:[9]
There will be relatively greater scope for rehabilitation in the case of a first offender dealer whose offending arises out of an all-consuming addiction but who has voluntarily embarked on a course of withdrawing from use of the drug. A sentence of less than four years imprisonment may be appropriate for offenders of that kind. However, that level of leniency cannot continue to be extended in the face of persistent offending either whilst on bail, or after sentence on earlier offending. There is much less reason for leniency in the face of persistent and recidivist trafficking even for the heavily addicted street dealer. As the prospects of rehabilitation diminish and the need for personal deterrence increases, the addicted street dealer can expect sentences in the same order as those imposed on the profit driven offenders.
Sentences approaching the 10 year maximum for the base trafficking offence must be reserved for those middle order dealers, and persistent or recidivist street dealers.
[9] R v Young (2016) 126 SASR 41 at [67]-[68].
The Director relied on several matters in criticising the starting points of the sentencing judge. First, the appellant had been a member of the Finks for over 20 years and was a senior member at the time of the offending. While it was true that he had taken steps to leave the club, that was not until two years after his arrest. The Director observed that the respondent had expressed to Dr Raeside in 2009 that he had been considering ‘getting out’ of the club for family reasons and because of his age and maturity, an intention he did not at that time fulfil.
Membership of a criminal organisation such as an outlaw motorcycle club is relevant to sentencing. As this Court said in Ericson v The King:[10]
As explained by this Court in R v Hunter,[11] by reference to passages from R v Cekic[12] and R v Pishdari,[13] identification with, and loyalty to, a violent criminal organisation is relevant to several of the usual sentencing objectives. It heightens the need for general deterrence so as to deter, and protect the community from, the criminal activities of such organisations. It speaks to the character of the offender, which is relevant to the need to personally deter the offender from re-offending, the likelihood of the offender re-offending, and the offender’s prospects of rehabilitation.
(Footnotes in original)
[10] [2023] SASCA 99 at [75] (Livesey P, Doyle and David JJA).
[11] R v Hunter [2022] SASCA 136 at [41]-[45] (Doyle, Bleby and David JJA).
[12] R v Cekic [2016] SASCFC 26 at [30] (Vanstone J, Kelly J and David AJ agreeing).
[13] R v Pishdari (2018) 274 A Crim R 91 at [22]-[24] (Nicholson J, Kourakis CJ agreeing).
It follows, and this Court has held,[14] that evidence of an attempt to cease an association with an outlaw motorcycle club may well be a relevant consideration in assessing the prospects of a defendant’s rehabilitation.
[14] R v Young (2016) 126 SASR 41 at [187] (Blue J).
In the present case, the sentencing judge accepted the evidence of the respondent, given on oath, as to his decision to cease his membership of the Finks. It was open to him, therefore, to take that into account in assessing the respondent’s prospects of rehabilitation.
The next matter raised by the Director was the objective seriousness of the offending. Counts 2 to 5 inclusive involved three separate occasions of offending in breach of bail, which was an aggravating circumstance. The offending occurred against a background of significant ongoing trading. The telephone intercept material, CCTV footage and the tick list together indicated that the respondent’s role was higher than that of a street level dealer and that he was directing others involved in the business.
Further, the respondent had prior convictions for commercial drug offending.
As to the respondent’s rehabilitation, while it may be said that the respondent had made substantial efforts at rehabilitation, he had not been entirely successful in this. He recorded a total of 13 positive drug tests while on home detention, did not attend for tests and appears to have substituted urine samples. His attendance at counselling sessions in the PsychMed Matrix program on his first attempt was poor. However, this improved significantly on his second attempt. During that second attempt, he attended four of the 18 requested screenings, returning a negative test on three occasions and a positive test on one. As noted above, he had pleaded guilty to eight breaches of home detention bail at the time of sentencing.
It was not disputed that the respondent’s wife had significant needs. The sentencing judge accepted the evidence adduced on behalf of the respondent as to his wife’s physical health issues, anxiety and depression, bipolar affective disorder, panic attacks and depression. She had previously presented at hospital showing psychological vulnerability and distress. She requires considerable treatment on an ongoing basis.
The Director submitted that it did not follow that the respondent was his wife’s primary carer. Indeed, the respondent was taken into custody on 14 February 2023, 11 months prior to sentencing.
The Court was faced with a difficult sentencing task relating to several instances of drug trafficking over a period of more than a year. All but the first offence were committed while the respondent was on bail. The offences were committed against the background of a course of drug trafficking. The respondent was operating at a level higher than a street level dealer. Having said that, his dealing was clearly motivated, to some extent at least, by his own addiction to methylamphetamine.
The respondent’s personal circumstances are complex, to say the least. The respondent has taken steps towards rehabilitation. The sentencing judge accepted the genuineness of those steps. The respondent’s public statements of intention to leave the Finks support the genuineness of his intention. The objective record of the respondent’s compliance with the PsychMed Matrix programs indicates, however, that it is necessary to be guarded about prospects of his rehabilitation.
Notwithstanding the rehabilitative steps that the respondent has taken, the seriousness, scale and circumstances of the offending render the starting points for the trafficking offences inadequate. That is especially so when it is observed that the judge imposed the same starting point, four years, in respect of Counts 2 and 3 together as he did for Count 1. The respondent was already on bail for Count 1 at the time of the subsequent offending.
In these circumstances, the starting points indicated by the sentencing judge were clearly too low. The final indicated head sentence of six years and 10 months (prior to reduction for time spent in custody but apparently taking into account the 10 per cent reduction for a guilty plea) was, for the five offences committed over a course of 14 months, manifestly inadequate.
Permission to appeal
We have set out above the criteria for granting the Director permission to appeal against sentence. The principle of double jeopardy weighs heavily in circumstances where the respondent has already served well over a year of a three-year non-parole period. In our view, however, in all of the circumstances of the respondent’s offending, the head sentence falls so far below the appropriate standard that to allow it to stand would undermine public confidence in the administration of justice. In this regard we emphasise that the offences occurred over a period of 14 months against a background of a course of drug trafficking and that all but the first offence were committed while the respondent was on bail.
Subject to the question of any residual discretion, we would grant permission to appeal on Ground 1, allow the appeal and resentence the respondent.
Residual discretion
The respondent submitted that even if the Court considered that the sentences imposed were manifestly inadequate and was minded to grant permission to appeal, it should exercise its residual discretion not to interfere with the sentences. The Court invited further written submissions as to whether, given the statutory requirement that the Director must obtain permission to appeal against sentence, the residual discretion existed in South Australia.
The Director submitted that the statutory regime comprised of ss 150, 157(1)(a)(iii) and 158(7) of the Criminal Procedure Act 1921 (SA) left no room for a residual discretion, notwithstanding the recognition by the High Court of its existence in other jurisdictions where the legislation imposes no requirement of permission to appeal on the prosecution.[15] The Director’s analysis made reference to statements in this Court that recognised the existence of such a discretion[16] and others that doubted it.[17] It drew on the observations of this Court in R v Fowler[18] in support of the proposition that there cannot be said to remain any residual discretion in the face of the requirement of permission to appeal:[19]
During argument reference was made to a “residual discretion” which it was said the Court on a prosecution appeal should consider before setting aside a sentence. The High Court cases of Bugmy v The Queen (2013) 87 ALJR 1022 and Munda v The Queen (2013) 87 ALJR 1035 were relied upon. Those cases were decided in a statutory context relevantly different from our own. They arose in New South Wales and Western Australia respectively. In both instances the provisions granting power to interfere in a sentence are expressed in discretionary terms. The language in s 353(4) Criminal Law Consolidation Act 1935 obliges the Court to interfere “if it thinks a different sentence should have been passed”. However, an appeal by the Director can only proceed with the permission of the Full Court (s 352(1)(a)(iii)) and plainly, at that stage, an important discretion resides in the Court.
These cases do not provide a firm basis for implying a residual discretion to decline to interfere upon an otherwise meritorious appeal. In any event, in the circumstances of this case, I would not be prepared to exercise such discretion as might be available to decline to interfere. The integrity of the sentencing regime is at stake.
[15] R v Green (2011) 244 CLR 462; Cumberland v The Queen [2020] HCA 21.
[16] R v O’Connor [2012] SASCFC 15 at [21] (Doyle CJ, Gray and Stanley JJ agreeing); R v Harkin (2011) 109 SASR 344 at [106] (White J); R v Faber [2020] SASCFC 49 at [41] (Bampton J; Parker and Livesey JJ agreeing).
[17] R v Yaroslavceff [2022] SASCA 123 at [33]-[34] (Livesey P and David JA); R v Butler [2022] SASCA 112 at [77] (David JA and Mazza AJA); R v Dransfield [2016] SASCFC 68 at [57] (Nicholson J; Peek and Doyle JJ agreeing).
[18] [2014] SASCFC 16.
[19] R v Fowler [2014] SASCFC 16 at [12]-[13] (Vanstone J, David and Parker JJ agreeing).
In R v Green, the High Court described the scope of the discretion:[20]
The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to individuals.
[20] R v Green (2011) 244 CLR 462 at [43].
In R v O’Connor,[21] the respondent had been released by an order of the Court after undertaking and completing the appropriate treatment. The spectre of re‑imprisonment was held over the respondent for more than a year. The Court held that in those circumstances, the hardship to the respondent in being re‑imprisoned warranted dismissal of the appeal notwithstanding the grant of permission.
[21] [2012] SASCFC 15.
It will be necessary for this Court to determine, in the appropriate case, whether any residual discretion, grounded in principles of double jeopardy, has been excluded by the statutory regime in the Criminal Procedure Act 1921 (SA). Principles of double jeopardy inform the discretionary question of permission. However, notwithstanding that the Court requested written submissions on the question, this is not that case. To the extent that any further residual discretion exists with effect beyond the considerations attendant on whether to grant permission to appeal, we would not exercise it here. While the cost to the respondent of allowing the appeal is high, it is a necessary cost in order to maintain public confidence in sentencing standards.
The complaint that the judge erred in declaring it was not appropriate for the respondent to be sentenced as a serious repeat offender
Having found that the head sentence was manifestly inadequate, it follows that the judge considered the application of s 54(2) of the Sentencing Act with an erroneous view of the seriousness of the offending. In circumstances where we would allow the appeal on Ground 1, it is unnecessary to consider further the Director’s specific complaints on this ground. However, the matters relevant to this ground require consideration on resentencing.
Resentencing
Taking into account all the matters identified above, we resentence the respondent as follows.
In respect of Count 1, we indicate a starting point of five years. We reduce that by 10 per cent on account of the respondent’s plea of guilty. That makes a starting point of four years and six months.
In respect of Counts 2 and 3, we indicate a total starting point for the two offences together of six years. We reduce that to five years and five months on account of the respondent’s plea of guilty. We order that two years and five months of this sentence are to be served concurrently with the sentence for Count 1.
In respect of Count 4, we indicate a starting point of one year. We reduce that by one month on account of the respondent’s plea of guilty. That makes a starting point of 11 months. We order that this be served wholly concurrently with the sentence for Count 1.
In respect of Count 5, we indicate a starting point of six years. We reduce that to five years and five months on account of the respondent’s plea of guilty. We order that three years and five months of this sentence are to be served concurrently with the accumulated sentence for Counts 1 to 4.
This makes a total head sentence of nine years and six months.
As noted above, the respondent is a serious repeat offender within the meaning of s 53 of the Sentencing Act. Section 54 of that Act then provides:
54—Sentencing of serious repeat offenders
(1)The following provisions apply in relation to the sentencing of a person who is a serious repeat offender for an offence (including an offence that resulted in the person being a serious repeat offender):
(a)     the court sentencing the person is not bound to ensure that the sentence it imposes for the offence is proportional to the offence;
(b)     any non‑parole period fixed in relation to the sentence must be at least four‑fifths the length of the sentence.
(2)However, a court that is sentencing a person who is a serious repeat offender for an offence may declare that subsection (1) does not apply if the person satisfies the court, by evidence given on oath, that—
(a)     the person's personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence; and
(b)     it is, in all the circumstances, not appropriate that the person be sentenced as a serious repeat offender.
In concluding that the personal circumstances of the respondent were so exceptional as to outweigh the considerations identified in s 54(2)(a), the judge expressly took into account the respondent’s history. He also emphasised what he described as the ‘significant steps’ the respondent had taken in respect of his rehabilitation treatment notwithstanding ‘occasional relapses, [and] the eventually largely successful abstention from methylamphetamine’. He also had express regard to the steps the respondent had taken to remove himself from the Finks, noting that this carried a risk to the respondent.
The respondent taking steps to leave the Finks is undoubtedly an important step in his rehabilitation progression. However it cannot be said to be more than that. The respondent’s wife’s circumstances invite considerable sympathy. The respondent’s desire to support and care for his wife is understandable and commendable. Moreover, the respondent has persevered in his attempts at the PsychMed Matrix rehabilitation program. Having said that, his efforts have been mixed at best.
Each of these factors is relevant to setting an appropriate non-parole period and, in the ordinary course, would invite a degree of leniency. However, we do not think that together they are so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence.
The offending constituted a series of mid-level trafficking offences over a period of more than a year, against the background of a course of dealing. Counts 2 to 5 inclusive were committed while the respondent was on bail. While there is some scope to accord lesser weight to personal deterrence, that scope is not particularly great. The importance of general deterrence is unaffected. The protection of the community remains a significant consideration. While there are matters to be identified in the respondent’s favour with respect to his personal circumstances, we do not think that together they exhibit an exceptional character of such weight as to engage s 54(2)(a).
We fix a non-parole period of seven years, seven months and six days.
We reduce the sentence and the non-parole period by 10 months on account of the time the respondent has spent in custody and on home detention bail. On resentencing, we therefore sentence the respondent to a head sentence of eight years and eight months and a non-parole period of six years, nine months and six days. The sentence is backdated to commence on the date the respondent was taken into custody, 14 February 2023.