R v Mitric

[2017] SASCFC 178

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MITRIC

[2017] SASCFC 178

Judgment of The Court of Criminal Appeal

(The Honourable Justice Blue, The Honourable Justice Stanley and The Honourable Justice Hinton)

22 December 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - OTHER MATTERS

Appeal against sentence.

On 21 August 2014 police attended at the appellant’s home at Woodville Park and conducted a search. On a shelf in a laundry cupboard the police found a small plastic tub containing 11.5 grams of crystalline powder of which 7.53 grams was methylamphetamine. Sitting next to the tub was a bundle of $50 notes totalling $750 bound by a rubber band. In the lounge room, police located $4,795 cash and a set of handwritten notes in a console of the armrest of a sofa. The police also searched the appellant’s motor vehicle. In it they found $2,120 in cash in the centre console.

The appellant plead guilty to one count of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). He was sentenced to imprisonment for three years and 11 months with a non-parole period of 18 months. The sentencing Judge declined to suspend that sentence and declined to order that it be served on home detention. The Judge ordered that the $750 and $2,120 be forfeited to the Crown as constituting the proceeds of crime.

The appellant’s commission of the trafficking offence was detected by police as part of a wider investigation that involved the interception of telecommunications between the appellant and others in the period August - November 2014.  That investigation revealed that two other men, Mr Vitor and Mr Schlank, were also involved in trafficking in methylamphetamine.

Subsequently, Mr Vitor and Mr Schlank also pleaded guilty to offences against s 32(3) of the Controlled Substances Act 1984 (SA). Mr Vitor was sentenced to imprisonment for three years and six months, reduced to two years, nine months and 25 days. A non-parole period of 16 months was fixed. The sentence was suspended upon Mr Vitor entering into a bond to be of good behaviour for two years.

Mr Schlank was sentenced to imprisonment for three years and six months, reduced to two years on account of his early plea. A non-parole period of 15 months was fixed.  That sentence was suspended upon Mr Schlank entering into a bond to be of good behaviour for a period of three years. 

The appellant argued that his offending was intimately linked with the offending of Mr Vitor and Mr Schlank such that his sentence offended the parity principle (ground two). He further argued that the sentence was manifestly excessive, that the sentencing Judge erred in refusing to suspend the sentence and erred in refusing to order that the sentence be served on home detention (grounds one, six and seven). The appellant also appealed the order that $2,120 represented the proceeds of crime (ground three). The permission Judge granted permission to appeal on grounds two and three, referred the question of permission on grounds one, six and seven and refused permission on three further grounds (grounds four, five and eight). 

Held per Hinton J (Blue and Stanley JJ agreeing):

1.      Appeal dismissed on ground two.

2.      Permission to appeal refused on grounds one, six and seven.

3.      Appeal allowed to the limited extent of setting aside the order forfeiting the sum of $2,120.00.

Controlled Substances Act 1984 (SA) s 32(3); Criminal Law (Sentencing) Act 1988 (SA) s 38, s 33BB; Criminal Assets Confiscation Act 2005 (SA) s 47, s 226(1)(d), referred to.
R v Young (2016) 126 SASR 41; Green v The Queen (2011) 244 CLR 462; Elias v The Queen (2013) 248 CLR 483; Hili v The Queen (2010) 242 CLR 520; R v Mangelsdorf (1995) 66 SASR 60; R v Buckman (1988) 47 SASR 303; Kowald v Hoile (No 2) (1976) 14 SASR 314; R v Kong (2013) 115 SASR 425; R v Dell; R v Dell (2016) 126 SASR 571; R v Filipponi (2016) 126 SASR 464, applied.

R v MITRIC
[2017] SASCFC 178

Court of Criminal Appeal:   Blue, Stanley and Hinton JJ

1. BLUE J:   I agree with Hinton J.

2. STANLEY J:        I agree with the orders proposed by Hinton J and the reasons for making them.

   HINTON J:

3. This is an appeal against sentence.

4. On 21 August 2014 police attended at the appellant’s home at Woodville Park and conducted a search. On a shelf in a laundry cupboard the police found a small plastic tub containing 11.5 grams of crystalline powder of which 7.53 grams was methylamphetamine. Sitting next to the tub was a bundle of $50 notes totalling $750 bound by a rubber band. In the lounge room, police located $4,795 cash and a set of handwritten notes in a console of the armrest of a sofa, referred to as a tick list.

5. The police also searched the appellant’s motor vehicle. In it they found $2,120 in cash in the centre console.

6. Subsequently the appellant was charged with one count of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (the trafficking offence). He pleaded guilty to that offence and was sentenced to imprisonment for three years and 11 months. A non-parole period of 18 months was fixed. The sentencing Judge declined to suspend that sentence and declined to order that it be served on home detention. The Judge did order that the $750 and $2,120 be forfeited to the Crown as constituting the proceeds of crime.

7. After being charged with the trafficking offence the appellant was bailed. He breached the conditions of his bail agreement and was charged with the offence of breach bail, contrary to s 17 of the Bail Act 1985 (SA). He also pleaded guilty to this offence and was sentenced for it on the same date as for the trafficking offence. The sentencing Judge convicted the appellant of the breach bail offence but imposed no further penalty.

8. The appellant’s commission of the trafficking offence was detected by police as part of a wider investigation that involved the interception of telecommunications between the appellant and others in the period August - November 2014.  That investigation revealed that two other men, Mr Vitor and Mr Schlank, were also involved in trafficking in methylamphetamine. Mr Vitor and Mr Schlank were arrested, charged and ultimately sentenced.

9. Having regard to the sentences imposed upon Mr Vitor and Mr Schlank a Judge of this Court granted the appellant permission to appeal against the sentence he received for the trafficking offence on the grounds that such sentence offended the parity principle (Ground 2). The permission Judge also granted the appellant permission to appeal against the finding that the $2,120 represented the proceeds of crime (Ground 3). In addition the permission Judge referred to the Court of Criminal Appeal the question of whether the appellant should be granted permission to appeal against the sentence he received on the following grounds:

   i.That the sentence was manifestly excessive (Ground 1);

   ii.That the sentencing Judge erred in refusing to suspend the sentence (Ground 6); and

   iii.That the sentencing Judge erred in refusing to suspend the sentence and order that it be served on home detention (Ground 7).

10. Permission to appeal was refused on grounds four, five and eight.

11. I would dismiss the appeal on ground two. I would refuse permission to appeal on grounds one, six and seven. I would allow the appeal on ground three to the limited extent of setting aside the order forfeiting the sum of $2,120.00. My reasons follow.

    Grounds 1 and 2: Parity, the sentences imposed upon Mr Vitor and Mr Schlank and manifest excess

12. The appellant, Mr Vitor and Mr Schlank were all subject of a police operation codenamed Operation Jack-knife. As part of that operation, a number of telecommunication interception warrants were obtained in relation to service numbers used by Mr Vitor. In one call Mr Schlank arranged to meet Mr Vitor on the morning of 24 June 2014 at Mr Vitor’s mate’s house in Woodville Park. Armed with this information police officers were on hand on 24 June 2014 to stop Mr Schlank as he drove away from the Woodville Park house. He was searched and found to be in possession of 26.46 grams of powder containing methylamphetamine of a high purity having street value of over $26,000. Mr Schlank was arrested and charged with one count of selling a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984.

13. Subsequently Mr Vitor was also arrested. He was charged with one count of trafficking in methylamphetamine contrary to s 32(3) of the Controlled Substances Act 1984, that count relating to the supply of methylamphetamine to Mr Schlank on 24 June 2014. 

14. Mr Schlank pleaded guilty in the Magistrates Court and was committed to the District Court for sentence.  On 5 December 2014 he was sentenced by Judge Davey to imprisonment for three years and six months, reduced to two years on account of his early plea. A non-parole period of 15 months was fixed.  That sentence was suspended upon Mr Schlank entering into a bond to be of good behaviour for a period of three years. 

15. Mr Vitor proceeded to trial only to plead guilty after the conclusion of a voir dire. He was sentenced by Judge Beazley on 7 June 2017 to imprisonment for three years and six months, reduced to two years, nine months and 25 days on account of his late plea and time already served.  The basis of the plea was that Mr Vitor did not sell the methylamphetamine to Mr Schlank but facilitated the sale by another. A non-parole period of 16 months was fixed. The sentence was suspended upon Mr Vitor entering into a bond to be of good behaviour for two years.

16. Judge Beazley, in sentencing Mr Vitor, referred to the sentence imposed upon Mr Schlank as having the appearance of a “merciful sentence for a commercial venture with a large amount of methamphetamine, however, it predated recent guidelines of the Court of Criminal Appeal in cases such as R v Young”. He later observed:

    … Your counsel Mr Allen referred to your lack of relevant antecedents, your relatively young age, excellent employment record and the rather unique factual basis for sentencing which he submitted places your role at the lower end of the scale. He referred to the question of parity in sentencing and submitted that your role is objectively less serious than the conduct of Schlank.

    In Lowe v R [1984] HCA 6 the High Court said that the principle of parity in sentencing requires that like cases ought to be treated alike. When co-offenders have not engaged in precisely the same conduct, sentencing should be proportionate to the relative degrees of culpability. The court said that sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of the same sentence upon co-offenders whose respective conduct and antecedents were different would be unjust. Similarly, the imposition of different sentences upon co-offenders whose conduct and antecedents are comparable is also unjust and will give rise to a justified sense of unfair treatment.

    It would have been desirable for both Schlank and yourself to be sentenced by the same judge at the same time, however, intervening acts meant that this was impossible.

    More recently in the case of R v Young the Court of Criminal Appeal has explained that sentences in the range of four to seven years are appropriate for trafficking offences where offenders are motivated to a greater or lesser extent by profit. On any view, this was significant offending by Schlank of a commercial nature. I therefore have had to consider whether the sentence imposed by that judge on Schlank was inappropriately lenient at the time, such that I ought not to be influenced by it when imposing sentence upon you.

    Ultimately while I have had some reservation about the appropriateness of that sentence it is not such to lead me from the path of the principle of parity. In addition, while your roles were different, in my opinion your role as a person introducing Schlank to the dealer ought to be treated as comparable to Schlank’s culpability. Further your respective antecedents are similar.

17. The appellant and Mr Vitor were known to each other.  Consequently, some of Mr Vitor’s intercepted calls feature the appellant. Further, Mr Vitor had stayed in the appellant’s house while he was overseas in June 2014. That said, it was not suggested to this Court that the appellant was in some way concerned in the supply of 24 June 2014.

18. Mr Vitor’s and Mr Schlank’s offending occurred some two months before the police entered and searched the appellant’s home. As indicated, the appellant was not in the country at that time.

19. As mentioned above, the appellant contends that having regard to the sentences imposed on Mr Schlank and Mr Vitor, the sentence he received offended the parity principle leaving him with a justifiable sense of grievance.

20. In Green v The Queen (Green) French CJ, Crennan and Kiefel JJ provided the following explanation of the parity principle and its application to the imposition of sentence:[1]

    [1] (2011) 244 CLR 462 at [28]-[31]. See also Elias v The Queen (2013) 248 CLR 483 at [30] (French CJ, Hayne, Kiefel, Bell and Keane JJ).

    “Equal justice” embodies the norm expressed in the term “equality before the law”. It is an aspect of the rule of law. It was characterised by Kelsen as “the principle of legality, of lawfulness, which is immanent in every legal order”. It has been called “the starting point of all other liberties”. It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:

    Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.

    (Emphasis in original.) Consistency in the punishment of offences against the criminal law is “a reflection of the notion of equal justice” and “is a fundamental element in any rational and fair system of criminal justice”. It finds expression in the “parity principle” which requires that like offenders should be treated in a like manner. As with the norm of “equal justice”, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.

    General concepts of “systematic fairness” and “reasonable consistency” in sentencing, as an aspect of the administration of federal criminal justice, were discussed in Hili v The Queen. They apply to persons charged with similar offences arising out of unrelated events. The consistency they require is “consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence”. That kind of general consistency is maintained by the decisions of intermediate courts of appeal. The consistency required by the parity principle is focused on the particular case. It applies to the punishment of “co-offenders”, albeit the limits of that term have not been defined with precision.

    In Lowe v The Queen and in Postiglione v The Queen, this Court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged.

    Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may “reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender”. The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen: “the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.” The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.

    [footnotes omitted]

21. The joint reasons in Green make plain that as an expression of the principle of equal justice, critical to the application of the parity principle is that like cases be treated alike, hence the principle is most obviously engaged where two or more persons are charged with the same offence arising out of the same circumstances. Further, the principle can also be applied in the sentencing of persons involved in the same criminal enterprise, but not so as to enable sentencing by reference to different, less serious offences.[2]

    [2]    Elias v The Queen (2013) 248 CLR 483 at [30] (French CJ, Hayne, Kiefel, Bell and Keane JJ).

22. The appellant was not charged with an offence arising out of the same circumstances as those which gave rise to Mr Schlank and Mr Vitor being charged. Recognising this, Counsel for the appellant contended that the offending was nevertheless intimately linked by the involvement of all three men in an overall criminal enterprise. The metes and bounds of that criminal enterprise were never identified. The role each man played in such enterprise was never identified. The link between the enterprise and the particular offences was never articulated. Other than the charges all arising from Operation Jack-knife, that the appellant knew Mr Vitor and Mr Schlank, that all three had been charged with a methylamphetamine related offence, nothing was pointed to that allows this Court to conclude that each of Mr Schlank, Mr Vitor and the appellant committed the drug offences with which they were charged in the furtherance of a common ongoing criminal enterprise to which they were each committed, as opposed to being associated in their individual pursuit of trafficking for their own purposes.

1. To engage the parity principle the relevant link must be one that demands equality of treatment. The moment variation in the charge, circumstances of offending and personal circumstances between offenders arises the strength of the link demanding equal treatment begins to erode. The greater the variation the greater the erosion to the point where the principle ceases to apply. Here the difference between the appellant’s incursion into criminality and that of Messrs Schlank and Vitor is stark – the circumstances of their offending is unrelated. Nothing to which we have been referred suggests that Mr Schlank and Mr Vitor were involved in any way with the methylamphetamine found in the appellant’s laundry cupboard and he did not contend otherwise.

2. The parity principle was not engaged.

3. The appellant’s real complaint is that the sentence he received is manifestly excessive. That complaint is grounded in a comparison of the sentences that he, Mr Vitor and Mr Schlank received which, he contends, evidences that his sentence is plainly unjust. He underscores the injustice of the sentence he received by pointing to his association, such as it is, with Mr Schlank and Mr Vitor and with methylamphetamine as exposed by Operation Jack-knife. It was incumbent upon the sentencing Judge, the appellant submitted, to have regard to the sentences imposed upon Mr Vitor and Mr Schlank in determining the appropriate sentence that he was to receive. No mention is made, however, in the sentencing Judge’s remarks of the sentences they received.

4. Putting the link between the appellant and Mr Vitor and Mr Schlank to one side, Counsel for the appellant sought to bolster the argument more generally by pointing to the sentences imposed in R v Bejtic and R v Dudley and Papps.

5. In R v Bejtic Mr Bejtic pleaded guilty to two counts of trafficking in a controlled drug arising out of the discovery of 24.5 grams of a substance containing 18.3 grams of methylamphetamine on his person (count one) and two resealable bags in the console of his car containing in total 54.4 grams of crystals containing 42.7 grams of methylamphetamine in his car (count two). On account of his pleas Mr Bejtic was entitled to a discount of up to 30 percent on count one, and 10 per cent on count two. On count one he was sentenced to imprisonment for two years and two months, reduced from three years. On count two, he was sentenced to three years and two months, reduced from three years and six months. The sentence on count two was ordered to be served partially concurrently with that imposed on count one, resulting in a total head sentence of three years and eight months. A non-parole period of two years was fixed. The sentencing Judge then suspended the sentence upon Mr Betjic entering into a bond to be of good behaviour for two years.

6. In R v Papps and Dudley Ms Papps was sentenced to two years, nine months and three weeks imprisonment reduced from four years on account of her plea, with a non-parole period of 22 months, suspended upon her entering into a bond to be of good behaviour for three years for one count of trafficking in a controlled drug. Upon being searched by police after the car she was travelling in was stopped, Ms Papps was found to have four plastic resealable bags containing a total of 4.87 grams of methylamphetamine. Ms Papps had pleaded guilty to the charge.

7. Mr Dudley was travelling in the same car as Ms Papps. He too was searched as was his home. He had $50 on his person, $660 in his wallet in his car and three plastic bags containing a total of 4.95 grams of methylamphetamine and a further $2,502 was found in his bedroom. He was sentenced to imprisonment for two years, one month and one week, reduced from three years on account of his plea of guilty. A non-parole period of 18 months was fixed. That sentence was suspended upon Mr Dudley entering into a bond to be of good behaviour for three years.

8. The quotation taken from the joint reasons in Green and reproduced above refers to Hili v The Queen (Hili) and the principles articulated in that case which address consistency in sentencing generally.[3] Those principles apply to persons charged with similar offences arising out of unrelated events. It is those principles that the appellant’s argument, in reality, invokes. In Hili French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:

   As Gleeson CJ pointed out, in Wong v The Queen:

   “All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.” (emphasis added)

   Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results.

   The consistency that is sought is consistency in the application of the relevant legal principles... When it is said that the search is for “reasonable consistency”, what is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression. It is not capable of expression in tabular form. That is why this Court held in Wong that guidelines that the New South Wales Court of Criminal Appeal had determined should be used in sentencing those knowingly concerned in the importation of narcotics were inconsistent with s 16A of the Crimes Act. Those guidelines had made the weight of the narcotic the chief factor determining the sentence to be imposed, thus distracting attention from the several considerations set out in the non-exhaustive list of matters prescribed by s 16A(2) as matters “the court must take into account” in fixing a sentence, if those matters are relevant and known to the Court.

   [footnotes omitted]

   [3] (2010) 242 CLR 520 at [47]-[49].

9. Their Honours then went on to discuss the role in consistency that sentences imposed for similar offending in other cases plays. They said:[4]

   Next, in seeking consistency, sentencing judges must have regard to what has been done in other cases. In the present matter, the prosecution produced detailed information, for the sentencing judge and for the Court of Criminal Appeal, about sentences that had been passed in other cases arising out of tax evasion as well as cases of customs and excise fraud and social security fraud. Care must be taken, however, in using what has been done in other cases.

   In Director of Public Prosecutions (Cth) v De La Rosa , Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: “Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.” But the range of sentences that have been imposed in the past does not fix “the boundaries within which future judges must, or even ought, to sentence”. Past sentences “are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence” (emphasis added). When considering past sentences, “it is only by examination of the whole of the circumstances that have given rise to the sentence that ‘unifying principles’ may be discerned”.

   As the plurality said in Wong:

   “[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.”

   [footnotes omitted]

   [4]    Hili v The Queen (2010) 242 CLR 520 at [53]-[55]; See also Barbaro v The Queen (2014) 253 CLR 58 at [41] (French CJ, Hayne, Kiefel and Bell JJ).

10. There is a limit to the weight to be accorded to first instance sentencing decisions in determining the appropriate sentence range for particular offences. Much greater weight is accorded to decisions of this Court. That is because consistency in sentencing for state offences is largely achieved in this State through the work of this Court. That work includes the provision of guidance from time to time by the setting of sentencing standards.[5] R v Young is an example.[6] In that case there is identified many of the “unifying principles” that ordinarily would be reflected in a consideration of sentences imposed for like but unrelated offending. In R v Young Kourakis CJ, with whom Vanstone and Stanley JJ agreed, said in relation to the offence of trafficking in a controlled drug:[7]

    [5]    Police v Cadd (1997) 69 SASR 150 at 166, 171 (Doyle CJ); Wong v The Queen (2001) 207 CLR 584 at [61]-[62] (Gaudron, Gummow and Hayne JJ).

    [6] (2016) 126 SASR 41.

    [7] (2016) 126 SASR 41 at [63]-[69].

    A street trader in heroin was described by White J in 1985 in R v Rocco, as follows:

    “Street traders addicted to heroin commonly require $1,000-$1,200 per week to buy the amount of heroin required to sustain their addiction on a continuous basis — one half of the weekly purchase usually being consumed in purer form, the other half usually being diluted and sold to others in order to raise the purchase price for the next week's supply.”

    White J correctly observed that the amount a dealer has in his or her possession depends on the point in the trading cycle in which he or she is apprehended.

    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.

    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.

    It is common for offenders to claim that they are, or were, heavily addicted and that drugs found in their possession were primarily for their own use. It is necessary for judges to carefully evaluate those claims. The indicia of commerciality are well known. When claims of addiction and own use are pressed as factors in mitigation in the face of evidence of substantial commerciality they may need to be supported by evidence on oath or other corroborative material.

11. It is to be observed that this guidance is framed in terms of a continuation of that first provided in R v Mangelsdorf.[8] The contention that the appellant’s offending preceded R v Young does not, therefore, assist him.

    [8] (1995) 66 SASR 60.

12. The guidance contained in R v Young is also to be understood in the light of the observations made by this Court in R v Kong.[9] In Kong the Court said:[10]

    There continues to be concern about the prevalence of drug abuse in our community. Since Mangelsdorf, the variety of illicit drugs available has increased. Twenty years ago, heroin was a primary concern and was considered to be the most harmful of illicit drugs. The position has changed with the promotion of methylamphetamine and the availability of a variety of illicit drugs, all of which are addictive and have very harmful effects. Research and knowledge about the effects of drugs known as ‘speed’ and ‘ice’ has developed. The so-called party drugs are readily available. The manufacture and importation of drugs is prevalent. The abuse of illicit drugs causes great social harm. The treatment and the management of drug addiction places a substantial financial burden on the health budgets of this State and the Commonwealth. The crimes committed by addicts to support their habits cause much loss and suffering to the community. Those who organise and participate in the distribution of illicit drugs create a serious risk of collateral injury to innocent members of the public. It is, therefore, not surprising that in an effort to tackle the social harm caused by the abuse of illicit drugs, Parliament has imposed substantial penalties for dealing in commercial drugs to both punish and deter those who are attracted by the large profits that dealing can generate. For those reasons, general deterrence must be given great weight in the balancing of the competing sentencing objectives in the case of commercial drug dealers.”

    [9] (2013) 115 SASR 425.

    [10] (2013) 115 SASR 425 at [90].

13. And in the light of the observations of Doyle CJ in R v Mangelsdorf as to the importance of general deterrence militating against the exercise of the discretion to suspend a sentence of imprisonment imposed for trafficking. Doyle CJ said:[11]

    That leaves the question of suspension. Suspension was opposed by counsel for the Director of Public Prosecutions in submissions to the sentencing Judge. In my opinion it was wrong to suspend the sentence. For offences of such seriousness, suspension must be rare indeed. In my opinion the circumstances of this case, cogent as they are, do not justify the decision which the judge made. To allow suspension of the sentence in such a case would, in my opinion, tend to erode the standard of punishment which this Court has set as appropriate for this offence. As King CJ said in R v Taddeo(1993) 67 A Crim R 338 at 340 in words equally applicable to the heroin trade:

    It would send an entirely wrong signal to people who are tempted to engage in cannabis trading and could only tend to weaken the defences which the community expects to be erected and maintained against the drug trade.

    [11] (1995) 66 SASR 60 at 70-71.

14. I turn to the circumstances of this case.

15. At the outset there was no obligation upon the sentencing Judge to refer in his sentencing remarks to the sentences imposed upon Mr Schlank and Mr Vitor. Not only was he not obliged to do so as a matter of law, for the reasons already given in addressing the appellant’s submission on the application of the parity principle, they were of no immediate assistance. The only assistance to be gained from the sentencing remarks in any of the four cases to which the appellant referred was for the purposes of identifying the underlying principles applicable in sentencing a person for trafficking in methylamphetamine contrary to s 32(3) of the Controlled Substances Act 1986. Without being exhaustive those principles may be gleaned from the judgment of Kourakis CJ in R v Young and R v Kong. As Judge Beazley suggested, bearing in mind what fell from this Court in R v Young, the sentence imposed upon Mr Schlank, in particular, did not adequately reflect those principles.

16. Before the sentencing Judge the prosecution submitted that the handwritten notes located in the console of the armrest of the sofa in the appellant’s lounge room was a “tick list” recording past drug sales. If that was so, the appellant’s offending had to be viewed in a commercial context. The sentencing Judge found:

    I turn to the handwritten notes found in the sofa console. You admit to having knowledge of the notes but have indicated through your counsel that you do not admit that they were written by you.

    The document contained names or nicknames, the initials of names, references to ‘ice’, ‘wet’, ‘seven balls’, ‘8 Gs’ and what appeared to be monetary calculations involving large sums of money.

    The prosecution contends, based on the declaration of the drug expert, that the notes refer to amounts of methylamphetamine sold or supplied in one ounce lots or derivatives thereof.

    You were not prepared to give evidence or supply a sample of your handwriting or (sic) handwriting identification purposes. You were under no obligation to do so, however it is not possible for me to say that the documents are probably not written by you.

    The document was found in the console of your sofa and is consistent with your involvement in the drug trade as further evidenced by the drugs and scales found inside your home.

    In the circumstances, I infer that the notes are more likely to be yours than anyone else’s. In conjunction with the telephone intercepts and the cash this suggests that the involvement of selling drugs was greater than what you have said to your counsel. However, the handwritten notes are not inconsistent with your involvement in the trade having commenced as a result of your increased consumption of methylamphetamine following the death of your cousin in May 2014.

    I find that your descent to heavier drug use and the need to finance your addiction triggered your involvement in the drug trade. You are also likely to have proffered from the sales beyond meeting your addiction. However, there is not evidence that you gained any significant wealth from your involvement in the trade.

17. The appellant’s counsel had conceded that the appellant had engaged in the sale of methylamphetamine since the death of his cousin but only to friends. The sentencing Judge’s findings are of a wider involvement in the sale of methylamphetamine. In the light of the sentencing Judge’s findings quoted above, which were not challenged on appeal, the appellant could not be sentenced as a first time drug offender; could not be sentenced on the basis that he engaged in the drug trade for the sole reason of meeting the cost of his own addiction; had to be sentenced on the basis that his customer base was greater than his circle of friends who also used methylamphetamine; had to be sentenced on the basis that his involvement in the drug trade only occurred since the death of his cousin, but would have continued if not for the intervention of the police. Such basis is different to that upon which Mr Schlank, Mr Vitor, Mr Betjic, Ms Papps and Mr Dudley were sentenced.

1. It should also be noted that, unlike Mr Schlank, Mr Vitor, Mr Betjic, Ms Papps and Mr Dudley, the appellant continued to offend after he was arrested and granted bail.

2. At the time of his arrest Mr Schlank was also found to be in possession of a “tick list”. The sentencing Judge does not appear to have turned her mind to the question of the degree of Mr Schlank’s involvement in the illicit drug trade as possibly evidenced by the list.

3. The sentencing Judge’s findings have an additional consequence in this case. They amount to a finding that the appellant was more than a street level dealer, where that expression is to be understood as referring to a person who sells purely to fund their own habit. 

4. The sentencing Judge summarised the appellant’s personal circumstances as follows:

   In addition to your counsel’s submissions, I have been assisted by the tender of a considerable body of documentary material, including a psychological report from Dr Begg dated 12 February 2016, a psychiatric repot from Dr Kelly dated 8 March 2017, a psychological report from Dr Stefanovic dated 3 May 2017 and a home detention suitability report dated 23 January 2017 and letters from you and your wife.

   You are now 36 years of age and live with your wife, Michelle, who married you in February 2015. You have no children. You were born in Bosnia and have one stepsister. Your parents divorced when you were aged five. Growing up, you had minimal contact with your father, however you have a good relationship with your mother. You lived in Serbia during the war from the aged of 12 to 16. There is no doubt that your exposure to war as an adolescent was traumatising and interrupted your secondary schooling. After leaving school you found work in a factory in Serbia.

   At the age of 18 you came to Australia and joined the building industry. You initially worked as a subcontractor and in about 2002 you started your own company, Mitric Roofing. In late 2015 you started a business with your wife of buying and selling second-hand vehicles. You initially ran the business from home and then obtained a lease for the purpose of expanding the business into a warehouse. Since March 2017 you returned to work as a roofing subcontractor, apparently you are currently contracted by a firm called Laurio Construction.

   You have a limited criminal history. You have several convictions for driving offences between 2002 and 2009. In January 2015 you received a $500 fine for carrying an offensive weapon and driving without a licence. The weapon was, in fact, a long-handled torch which the police found in your car after they stopped you for the driving offence. No convictions were recorded for those offences which were all committed prior to your arrest for the trafficking offence.

   In May 2015 you were placed on a good behaviour bond for six months for driving under disqualification. That driving offence occurred on 5 December 2014. Significantly, you have no convictions for drug-related offences.

   Your counsel submitted that you began using methamphetamine when you were about 33. Your use of the drug increased and became a serious problem following the murder of your cousin in Serbia in May 2014. You were traumatised by his death and resorted to using increasing amounts of methamphetamine to cope with your grief. You told Dr Begg that at the time you felt that “nothing mattered anymore”.

   On 20 June 2014 you and Michelle travelled to attend a mourning ceremony for your murdered cousin. You returned to Australia on 9 July 2014 and were involved in a motorcycle accident 12 days later. You sustained injuries on your left side and increased your use of methamphetamine to alleviate pain that you were experiencing at the time. It was submitted by your counsel that you became involved in selling methamphetamine shortly after you returned from Serbia to help defray the costs of purchasing methamphetamine for your own use. She submitted that you sold the drug to close friends. It was submitted that the drugs found in your home were partly for your own use and for sale on the basis that I have outlined.

5. The sentencing Judge also referred to the work the appellant had undertaken in an effort to rehabilitate himself with the assistance of doctors at the Adelaide Clinic, a psychologist and the OARS Community Transition organisation. The Judge accepted that the appellant was trying hard to turn his life around.

6. In sentencing the appellant the Judge said:

   I begin with the trafficking offence. This was a serious crime. The proliferation of methylamphetamine in our community is a serious social issue. This is a dangerous drug. It causes harm to the people who use them and contributes in various ways to the promotion of criminal behaviour in our community. The courts must do what they can to curb the ice scourge by imposing penalties that will, as far as possible, serve to deter people to engage in this activity.

7. I agree.  Further, those remarks are in keeping with the observations of the Chief Justice in R v Kong quoted above. 

8. The sentencing Judge then identified a starting point of four years and seven months reduced to four years and one month on account on the appellant’s guilty plea. In my view, having regard to the guidance provided by this Court in R v Young[12] and R v Kong[13], to Parliament’s intent as gleaned from the maximum penalties set for trafficking offences generally, to the appellant’s level of culpability as set out above, to the fact that he did not cease to offend upon arrest, to his personal circumstances, and to the importance of general deterrence in sentencing for drug trafficking, it cannot be said that the Judge’s starting point was plainly unjust. Bearing in mind all the circumstances of this case, the starting point and head sentence then imposed do not, in my opinion, fall outside the permissible range of sentence for trafficking in methylamphetamine.

   [12] (2016) 126 SASR 41.

   [13] (2013) 115 SASR 425.

9. Leniency was extended to the appellant in the form of a lower than normal non-parole period. I do not understand the appellant to complain regarding the proportion of the non-parole period to the head sentence.

10. There was some suggestion made in the course of the hearing of the appeal that the appellant was motivated to plead guilty by reason of overtures made by a judge prior to the sentencing Judge becoming seized of the matter. It was not suggested that the supposed overtures were of a nature that vitiated the sentencing process. In those circumstances no need arises for this Court to consider what was said and its consequences.

11. I would refuse permission to appeal on ground one. I would dismiss ground two.

    Ground 6: Should the sentence have been suspended?

12. Under s 38 of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) a sentence of imprisonment may be suspended if a sentencing court “thinks that good reason exists for doing so”. In this case the sentencing Judge said:

    I turn to the question of whether I should suspend the sentence.

    In my view, the gravity of your conduct outweighs those considerations personal to you. I find that there is no good reason to suspend the sentence.

13. In R v Buckman King CJ said:[14]

    … A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law-abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non-law abiding ways. …

    [14] (1988) 47 SASR 303.

14. It may be accepted that the sentencing Judge did not consider that the appellant deserved a last chance. Having regard to the appellant’s culpability as set out above, and to the serious nature of the offence and its consequences for the community, it cannot be said that it was not open to the Judge to arrive at that conclusion.

15. In Kowald v Hoile (No 2) Zelling J said:[15]

    Leaving on one side the errors in the facts which he has identified as constituting the extenuating circumstances, the learned Special Magistrate has failed to ask the three further questions which must always be asked when considering whether one of the various forms of non-custodial sentence should be used where the imposition of a custodial sentence would be the other alternative. These are: (a) How do the extenuating circumstances fit into the pattern and context of the offence viewed as a whole? (b) Is this man likely to respond to a non-custodial sentence so as to reform and rehabilitate his life style or is he merely seeking by the use of exercises and forensic eloquence to escape the due reward of his misdeeds? (c) Does the community's need and also its duty to suppress an active social evil whether that need and duty be expressed legislatively by Parliament in statutory form or factually by the prevalence of the offence, the difficulty of its detection, and the serious consequences to the community of its commission, outweigh the Judge's duty to be as compassionate as the circumstances admit, in dealing with any person appearing before him who has been convicted of a criminal offence?

    [15] (1976) 14 SASR 314 at 319-320.

16. It may also be accepted that the sentencing Judge considered the community’s need to suppress trafficking in methylamphetamine as outweighing the appellant’s prospects of continuing to rehabilitate himself. The prevalence of methylamphetamine abuse in the community and the damage it causes to individuals, their families and friends, and the community generally is well known. I refer to this Court’s observations in R v Kong quoted above.[16] The appellant willingly involved himself in fostering that damage for his own benefit. As Doyle CJ made plain in R v Mangelsdorf, the importance of general deterrence militates against the suspension of any sentence for drug trafficking.[17]

    [16] (2013) 115 SASR 425 at [90].

    [17] (1995) 66 SASR 60 at 70-71.

17. It was open to the sentencing Judge to conclude that no good reason existed to suspend the sentence of imprisonment. I would refuse permission to appeal on ground six.

    Ground 7: Should the sentence have been suspended and it ordered to be served on home detention?

18. Section 33BB(1) of the Sentencing Act vests a broad discretion in sentencing courts to suspend a sentence of imprisonment and order that a defendant serve a sentence on home detention. In R v Dell; R v Dell Doyle J, with whom Kelly and Parker JJ agreed, said:[18]

    ... it is important to bear in mind that while serving a term of imprisonment on home detention represents a significant entrenchment upon a defendant’s ordinary liberty and freedom of movement, and is a more onerous form of punishment than a suspended sentence of imprisonment, the reality is that it is a significantly less onerous form of punishment than a requirement that the defendant serve an immediate term of imprisonment within a prison. The New South Wales authorities in relation to the similar regime for home detention orders that exists in that jurisdiction make this plain.

    The significance of the less onerous nature of a home detention order is that courts will need to be astute to ensure that the making of such an order – even if it will assist in the rehabilitation of the defendant and provide sufficient personal deterrence – does not inappropriately undermine achievement of the objectives of punishment and general deterrence. The ultimate sentence imposed must always be appropriate having regard to the criminality of the conduct involved, and the Court’s concern to achieve a level of punishment and general deterrence. The greater the weight to be attached to these objectives in an individual case, the less likely it will be appropriate that there be an order for home detention

    It is notable that the legislature has not chosen to circumscribe the Courts' discretion by proscribing a home detention order in respect of any particular category of offence, or in respect of sentences of imprisonment beyond a particular period of length. However, this does not mean that home detention orders will not generally be inappropriate in respect of many types of offences, and in respect of defendants the subject of lengthy terms of imprisonment. To the contrary, there will be many cases in which the nature of the offending is such that the need to ensure achievement of the broader objectives of sentencing will for practical purposes foreclose any exercise of the discretion in favour of home detention. The length of the head sentence that has been imposed will often provide some indication of the weight that it is necessary to attach to the objectives I have mentioned.

    [footnotes omitted]

    [18] (2016) 126 SASR 571 at [56]-[58]

19. I refer to without repeating the appellant’s culpability and to the observations of this Court in Young, Kong and Mangelsdorf. I also refer to without repeating the sentencing Judge’s observations of the efforts the appellant has made to rehabilitate.

20. In R v Filipponi Kourakis CJ, with whom Vanstone and Nicholson JJ agreed, said:[19]

    In the case of serious drug trafficking the demands of general deterrence and punishment are such that if these considerations have operated to preclude a suspended sentence then, in the ordinary case, it is unlikely that the purposes of sentencing will be met by imposing a home detention order.

    On the other hand cases of trafficking which fall at the very lower end of the range of objective seriousness when combined with strong prospects of rehabilitation may attract a favourable exercise of the discretion.

    [19] (2016) 126 SASR 464 at [37]-[38].

21. It cannot be said that this case sits at the very lower end of the range of objective seriousness. Having regard to the appellant’s level of culpability and to the fact that he continued to offend whilst on bail, and bearing in mind the repeated statements by this Court as to the need to impose sentences that deter traffickers, it cannot be said that the sentencing Judge’s decision not to order home detention was plainly wrong. The appellant’s rehabilitative efforts are laudable, they merit the leniency extended to him in the form of the lower than normal non-parole period. They do not, however, demonstrate that the sentencing Judge was plainly wrong in determining that the sentence of imprisonment he imposed served in prison was the appropriate punitive response to achieve the purposes of sentencing.

22. I would refuse permission to appeal on ground seven.

    Ground 3: $2,120 represented proceeds of crime

23. The sentencing Judge ordered that the appellant forfeit the $2,120 found by police in the console of his motor vehicle. Whilst the Judge did not identify the power pursuant to which he made such order, it appears to be s 47(1)(a) of the Criminal Assets Confiscation Act 2005 (SA).

24. The appellant complains that the sentencing Judge’s finding that the $2,120 was the proceeds of trafficking cannot be sustained. The sentencing Judge found:

    I turn to the $2,120 cash located in the console of your motor vehicle. The cash comprised denominations of $5, $10, $15 and $20.  It was submitted on your behalf that the cash had been acquired by your wife in the course of conducting her online marketing business.  I accept that she ran such a business but on balance I do not accept that that was the source of the cash.  No sound explanation has been advanced as to how your wife received cash conducting online transaction or why such a substantial amount of cash had not been banked by her.  Furthermore, the cash was located in the console with a set of electronic scales which had methamphetamine adhering to them.  I think it is more probable that the cash located in the car console formed part of the proceeds of previous drug sales.

25. The appellant submitted, and the respondent conceded, that the sentencing Judge was wrong in thinking that the $2,120.00 in cash located in the centre console of the appellant’s car was located with a set of electronic scales that contained traces of methylamphetamine. The electronic scales were in fact discovered in a different vehicle owned by the appellant.

26. The experience of the courts is that the illicit drug market is largely cash based and that traffickers commonly carry scales used to weigh trafficable quantities. Accordingly, if there had been a physical association of the cash found in the console with electronic scales containing traces of methylamphetamine, it would have been highly probative of the likelihood of the cash being generated by trafficking. It is that association that led the sentencing Judge to conclude that it was more probable “that the cash located in the car console formed part of the proceeds of previous drug sales.” In the light of the respondent’s concession that conclusion cannot be sustained.

27. The appellant suggests that the sentencing Judge’s conclusion that the $2,120.00 was the proceeds of prior trafficking infects the assessment of the appellant’s overall culpability and thus the sentence imposed. I disagree. The error in no way undermines the sentencing Judge’s conclusion regarding the inference to be drawn from the tick list. The $2,120.00 might not be the proceeds of trafficking, but the tick list makes plain that there were proceeds generated. The error in relation to the $2,120.00 says nothing of the degree of involvement of the appellant in the drug trade. It does not cause me to think that the sentence imposed, the refusal to suspend under s 38 of the Sentencing Act, and the refusal to suspend and order home detention under s 33BB of the Sentencing Act was infected by error.

28. Under s 226(1)(d) of the Criminal Assets Confiscation Act 2005 a person against whom a forfeiture order has been made in relation to a conviction of a serious offence[20] may appeal against such order as if the order was part of the sentence imposed.

    [20] Trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1986 (SA) is a serious offence within the meaning of s 3 of the Criminal Assets Confiscation Act 2005 (SA).

29. In my view ground three is made out. I am also of the view that the evidence before the sentencing Judge did not establish on the balance of probabilities that the $2,120.00 was the proceeds of the serious offence to which the appellant pleaded guilty. Under s 47(1)(a) of the Criminal Assets Confiscation Act 2005 (SA) a person’s property may only be forfeited if it is established that it is the proceeds of a serious offence or offences of which that person has been convicted. The sentencing Judge found the $2,120.00 to be the proceeds of past uncharged trafficking. Accordingly, the $2,120.00 could not be forfeited under s 47(1)(a) of the Criminal Assets Confiscation Act 2005. If that sum was to be forfeited it either had to be subject of a restraining order, or, an application under s 95 of the Criminal Assets Confiscation Act 2005 (SA).

    Conclusion

30. I would allow the appeal to the limited extent of setting aside the order forfeiting the $2,120.00.