R v Mustac - [2013] SASCFC 21

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MUSTAC
[2013] SASCFC 21
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Stanley)
3 April 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING CANNABIS, INDIAN HEMP OR HASHISH
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - CIRCUMSTANCES OF OFFENCE
The respondent pleaded guilty on the day of trial to one count of trafficking in a large commercial quantity of cannabis - the plea was made after the trial Judge had refused to exclude evidence of a police search of the respondent's vehicle - the respondent was sentenced to three years' imprisonment with a non-parole period of 12 months after allowing for a 25 per cent reduction for his guilty plea - the DPP sought permission to appeal against the sentence.
Observations about s 285BA of the Criminal Law Consolidation Act 1935 (SA) and the relevance to sentence of an unreasonable failure to respond to a notice to admit facts.
Held: The mitigatory explanation given by the appellant for the commission of the offence was disputed - that the Judge erroneously resolved the factual dispute in the appellant's favour - the reduction for the appellant's guilty plea was manifestly excessive - the sentence was manifestly inadequate - that the offending was within the most serious category of trafficking in cannabis. It revealed a high-level commercial enterprise - the respondent had a prior conviction for a similar offence - the respondent's role was as a middle man - the enterprise involved transporting cannabis interstate - general and personal deterrence required a substantial sentence.
Application for permission to appeal granted - appeal allowed - sentence increased to seven years and six months' imprisonment with a non-parole period of five years.
Criminal Law (Sentencing) Act 1988 (SA) s 56; Criminal Law Consolidation Act 1935 (SA) s 285BA, 285BA(4), s 285BA(6), s 285BA(7); Controlled Substances Act 1985 (SA) s 32(1), referred to.
R v Pirgousis [2012] SASCFC 127, discussed.
R v Olbrich (1999) 199 CLR 270; R v Reiner (1974) 8 SASR 102; R v Shannon (1979) 21 SASR 442; Cameron v The Queen (2002) 209 CLR 339, considered.

R v MUSTAC
[2013] SASCFC 21
Court of Criminal Appeal: Kourakis CJ, Sulan and Stanley JJ

KOURAKIS CJ: The respondent, Mr Mustac, pleaded guilty in the District Court to one count of trafficking in a large commercial quantity of cannabis. Mr Mustac entered his plea on the day his trial was to proceed before a jury and only after a failed application, heard on a voir dire, to exclude, for illegality, the evidence of the search which revealed his possession of the cannabis.
The Judge imposed a head sentence of three years, reduced from a starting point of four years, after taking into account the plea of guilty and a period of twenty five days spent in custody. A non-parole period of twelve months was fixed. The Judge declined to suspend the term of imprisonment.
The Director of Public Prosecutions seeks permission to appeal against the sentence on the following grounds:[1]
1)That the head sentence and non-parole period are manifestly inadequate. In particular:
i.     The sentence fails to reflect the seriousness of the offending;
ii.     The sentence fails to reflect the need for general and personal deterrence;
iii.     The reduction of 11 months and 5 days for the plea of guilty after a voir dire was not warranted; and
iv.     The learned sentencing Judge failed to have regard to the fact that the defendant unreasonably failed to make admissions with respect to a notice to admit facts.
2)That the learned sentencing judge erred by failing to make findings regarding whether there was a background of trading in cannabis and whether the accused had acted under threats when committing the offence.
[1]    Notice of Application for Permission to Appeal against Sentence by the Director of Public Prosecutions filed 7 January 2013.
Background
In brief, Mr Mustac’s personal details were as follows. He was a 37 year old male living in a permanent relationship of some three years duration. Mr Mustac sustained severe injuries in a motor vehicle accident in 1995. Before the accident he was employed as a builder’s assistant by his father. Mr Mustac recovered from his injuries to find consistent work at Sandia Pty Ltd and later as a car salesman and trades assistant. He also gained an income from gambling. The respondent began smoking cannabis following the motor vehicle accident in 1995, finding that it helped with the pain; he had not however used cannabis since 2008. The respondent suffers from lupus and was the full-time carer of his significantly handicapped sister.
The circumstances of the subject offending are as follows. In or about early 2011 Mr Mustac travelled from New South Wales to South Australia in a Holden Jackaroo towing a trailer containing a secret compartment. The trailer was not registered in the respondent’s name. In South Australia the respondent met with a supplier or suppliers of cannabis, collected the cannabis and concealed that cannabis in the secret trailer compartment.
Whilst attempting to transport the cannabis to New South Wales Mr Mustac was stopped by police on the South Eastern Freeway after the Summit Road underpass. The police, acting on information, searched the Holden Jackaroo and the trailer. After a thorough search the secret compartment was located by police. Mr Mustac did not help police find the secret compartment. The cannabis found in the compartment was packaged in two cryovac bags, one inside the other. I would infer that the cannabis was carefully packaged in that way to avoid any scent of the drug being detected. Police also located cash in the sum of $1,090 in the Holden Jackaroo. Mr Mustac was arrested.
The evidence put before the Judge, extrapolated from a drug expert’s report, was that the value of the cannabis, in South Australia, was in the range of $17,500 to $141,000. In New South Wales its value was approximately $188,000. That amount is, as the learned sentencing Judge observed, a significant amount of cannabis with a very high street value.
Mr Mustac’s counsel submitted that Mr Mustac was procured to commit the offence by his brother. The Judge summarised those submissions as follows:[2]
Through your counsel you have informed me that you were pressured by your brother [S] who you say was the instigator of a scheme to import cannabis from South Australia into New South Wales. I was informed that your brother suffers a very serious psychiatric condition and when he does not take his medication becomes extremely violent, irrational, intimidating and frightening. He has used violence against you in the past.
You have told me through your counsel that your brother threatened to kill you if you were not willing to assist and it was as a result of the threats from your brother that you undertook the offending conduct. You informed me that you did not want to cause trouble for your brother because of his erratic behaviour.
Nonetheless the Judge sentenced the respondent on the basis that the drug transportation operation in which he was involved was substantial and sophisticated.
[2] Sentencing remarks in R v Michael Adam Mustac DCCRM-11-1219 before Judge Slattery, settled by his Honour Judge Slattery on 21 November 2012.
Mr Mustac was convicted in 2007 for, inter alia, supply of a commercial quantity of cannabis.[3] For this offending the respondent was sentenced to 18 months imprisonment with a non-parole period of six months. Counsel for the Director informed the Judge that, aside from the use of the trailer, the modus operandi of Mr Mustac’s previous conviction was largely the same as the current offence. That is, the 2007 offence involved the use of two cryovac bags containing 14.18 kilograms of cannabis. Mr Mustac was also found in possession of a large quantity of cash.
[3] The respondent was convicted in the Narromine Local Court of New South Wales for the offence of being a person or custodian of goods suspected of being stolen, of dealing with property suspected of being the proceeds of crime and for the supply of a commercial quantity of cannabis.
Mr Mustac’s counsel submitted before the Judge that the 2007 offence was also committed because of his brother’s intimidation.
Failure to make findings as to background trading
Counsel for the Director submitted before the Judge that the respondent should be sentenced on the basis that he had been “actively involved in the trade of cannabis”. Counsel relied on the transcripts of intercepted telephone conversations and text messages on the phone of a person in Adelaide who was the target of a police investigation. The transcripts showed that a person in Queensland using the mobile telephone service 61415980721 communicated with the Adelaide man about the supply of South Australian cannabis to Queensland. However, that telephone service was not registered and there was no evidence before the Judge which linked that phone service to Mr Mustac.
The Judge did not make any express findings on the dispute over Mr Mustac’s involvement in those telephone communications. The issue was a material one and for that reason the Judge was obliged to resolve it.
Be that as it may, in the absence of any evidence linking the telephone conversations and texts to Mr Mustac the Judge could not make a positive finding that Mr Mustac had been in the business of interstate drug distribution apart from the offence on which he had been convicted.
The prosecution’s failure to prove that the texts and conversations originated with Mr Mustac raises a difficult question. Arguably, when a defendant submits that the offence for which he or she is to be sentenced is an isolated aberration, the defendant carries the onus of establishing that mitigating circumstance on the balance of probabilities.[4] However, there is some debate and uncertainty over this question. On another view, an offence committed in the context of a course of conduct is aggravated by that context.[5] I prefer the view that, because a sentence imposed on conviction of one offence cannot be increased by reference to offending of which he or she has not been convicted, the uncharged offending is not an aggravating circumstance. Rather, the isolated and uncharacteristic nature of an offence is a circumstance of mitigation. Of course a Judge may not be able to decide whether or not the offence was isolated in which case the sentence will fall somewhere between what it would have been if the evidence showed that it was an aberration and what it would have been if the evidence showed it was part of a course of criminal conduct. It is not necessary and would be inappropriate to resolve this question in this case because it was never put to the Judge that the defendant carried the onus to prove that the offence was an isolated one. Rather, the submissions proceeded on the basis that the Director carried the onus and that he contended that the onus was discharged by the telephone transcripts.
[4] R v Olbrich (1999) 199 CLR 270 [25]-[28].
[5] R v Reiner (1974) 8 SASR 102.
The Director’s contention that the offence was not an isolated one was therefore dependent on his contention that the intercepted telephone communications were between Mr Mustac and a supplier in South Australia. The Director failed to prove that fact and his appeal on this ground is therefore bound to fail. I would not grant permission to appeal on this ground.
Fraternal threats
In his sentencing submissions Mr Mustac’s counsel submitted that Mustac was “leant on” by his brother (S). Counsel inferred to the Judge that S suffered from a serious psychiatric condition which was controlled by medication but that S’s compliance with his medication program was poor. According to Mr Mustac’s counsel, S can become “extremely violent, irrational, intimidating and frightening” when not properly medicated. Counsel submitted that on many occasions S had inflicted serious physical injuries and scarring on Mr Mustac and that he had assaulted other family members. It was submitted that S had threatened to kill Mr Mustac if he did not take part in the importation of the cannabis from South Australia.
An old report of the Mustac family’s general practitioner, Dr Stewart, dated 15 January 2007 was put before the Judge. The report had probably been prepared for the offences of dishonesty and trafficking in cannabis of which Mr Mustac was convicted in New South Wales on 14 March 2007. Dr Stewart reported that the Mustac family “were under the most severe emotional, physical, psychological and financial strain” due to S’s illness. Dr Stewart related that S suffered psychotic manic depressive disorder with paranoid delusions and that he was not taking his medication for most of 2006 which led to threatening and violent behaviour at home, including intimidation of his parents and siblings.
A discharge summary from the James Fletcher Hospital in the Hunter and New England area of New South Wales dated 5 October 2006 was also received by the Judge. That summary showed that S had a seven year history of persecutory delusions; a possible diagnosis of schizophrenia had been made in 1999. Threatening behaviour towards his family was noted. The summary records that S was extremely agitated on presentation, leaning across a table, writing on paper, and making dramatic gestures with raised volume and pressured speech. S was, however, generally cooperative and agreed to an admission for assessment. The summary notes that the family had observed a deterioration in S’s health and that they reported that S had verbally abused them.
S had spent money excessively and had broken into the family home to retrieve his possessions. The family also reported that S was said to be binging on alcohol several times a week. He was discharged from hospital on 25 September 2006 after being admitted on 31 August 2006.
First, there is very little evidence that S has caused Mr Mustac any serious injury in the report of the general practitioner Dr Stewart. Secondly, no recent reports on S’s condition were provided and there was therefore no independent evidence of S’s condition in 2011. Thirdly, the respondent had not mentioned threats from his brother when he was interviewed by the psychologist Dr White on 15 November 2012 after pleading guilty on 10 October 2012, about three weeks before sentencing submissions on 7 December 2012.
Counsel for the Director took issue with the submissions about S’s involvement in Mr Mustac’s offending. The Director having taken issue with a submission which, it accepted, was strongly mitigatory, but was on its face improbable, the Judge should have resolved the factual controversy in the clearest of terms.
The Judge referred to the submission in the course of his sentencing remarks but did not expressly make any findings on it. The Judge said:
You have told me through your counsel that your brother threatened to kill you if you were not willing to assist and it was as a result of the threats from your brother that you undertook the offending conduct. You informed me that you did not want to cause trouble for your brother because of his erratic behaviour …
Later the Judge referred to the report of the psychologist, Dr White, in these terms:
Dr White has opined that you are a person with vulnerable disposition and you might succumb to pressure from persons, for example your brother. You are at an average range of 60 per cent in relation to intelligence and you have achieved a year 12 standard of education.”
Counsel for Mr Mustac submitted that in the above passages the Judge implicitly accepted the submission that the respondent acted under the influence of his brother. I am not persuaded that that is so. Ultimately, it is not necessary to form a concluded view on that issue. If the Judge did not decide the issue and meant only to record the submission and materials before him, he has failed to address and resolve a material sentencing issue. Alternatively, if the Judge implicitly decided the issue in Mr Mustac’s favour, then, in so deciding, he has erred in two respects. First, his reasons for accepting the improbable submission in the light of the matters that I mentioned in [20] above were inadequate. Secondly, the finding in favour of the respondent on that issue was plainly wrong because there was no evidence to support it.
The respondent carried the onus of establishing that he acted under the influence of his brother’s violent and threatening behaviour on the balance of probability.[6] The Judge was entitled to inform himself on matters relevant to the determination of sentence as he saw fit and was not bound by the rules of evidence. However, the procedural discretion conferred on the Judge for that purpose by s 56 of the Criminal Law (Sentencing) Act 1988 (SA) must be exercised judicially. I accept that the discretion is wide enough to allow a judge in appropriate circumstances to act on the submission of counsel. For example, most obviously a Judge may, but is not bound, to do so if the opposing party joins in, or does not contest, the submission. There may even be some exceptional cases in which a judge might act on the submissions of one party even against the objection of the other party. However, accepting for the purposes of this appeal that there may be such cases, this was certainly not one of them. The submission if accepted would be a strongly mitigating one but it was, on the face of it, quite improbable. The old reports on which the respondent relied showed that S suffered from a psychiatric condition in 2006 but there was no evidence upon which it could be found that he had threatened Mr Mustac in 2011. Failure to provide any up to date reports, or to seek an adjournment to obtain them, gave rise to an inference adverse to the respondent regarding the role played by his brother.
[6] R v Olbrich (1999) 199 CLR 270 at [25]-[28].
The error in the approach to fact finding is fundamental and must have had a substantial effect on the determination of the head sentence. The error alone might have attracted a grant of permission to appeal, but it is not necessary to consider that question further because the fact finding error is compounded by further errors.
Sentencing discount
The Judge reduced Mr Mustac’s sentence from a starting point of four years to a sentence of three years by reason of his plea of guilty. The reduction is substantial. In the ordinary course, discounts of 25 per cent are generally given to offenders who plead guilty on arraignment or well before the trial. That was not this case. The defendant had challenged the legality of the search of his vehicle which had revealed the cannabis. The voir dire hearing was heard on 8 October 2012. The Judge’s reasons were delivered on 9 October 2012. After the ruling was delivered, the respondent maintained his plea of not guilty. Only on the next day, Wednesday 10 October 2012, did the respondent change his plea to one of guilty. An offender must not be penalised for exercising his entitlement to have evidence of his or her offending excluded because law enforcement agencies have exceeded their powers. However, the fact that Mr Mustac did not plead guilty until after the voir dire had commenced does not entitle him to the substantial reduction of the head sentence given by the Judge.

There is another matter which mitigated against a reduction of 25 per cent for the respondent’s late plea. Well before the trial the Director had, on 31 August 2011, filed a notice to admit facts pursuant to s 285BA of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) and was granted leave to serve the notice on defence. Section 285BA of the CLCA provided at the relevant time that:
285BA – Power to serve notice to admit facts
(1)     A court before which a defendant is to be tried on information may, on application by the Director of Public Prosecutions, authorise the Director of Public Prosecutions to serve on the defence a notice to admit specified facts.
(2)     The court may, in granting such an authorisation, fix a time within which the notice is to be complied with.
(3)     The notice must contain a warning, in the prescribed form, to the effect that, if the defendant is convicted, the court is required to take an unreasonable failure to make an admission in response to the notice into account in fixing sentence.
(4)     This section does not abrogate the privilege against self-incrimination and a refusal to make an admission on the ground that the admission would tend to incriminate the defendant of an offence is not to be made the subject of comment to a jury.
(5)     An order under this section may only be made at a directions hearing at which the defendant is represented by a legal practitioner unless the court is satisfied that –
(a)the defendant has voluntarily chosen to be unrepresented; or
(b)the defendant is unrepresented for reasons attributable to the defendant’s own fault.
(6)     If a defendant unreasonably fails to make an admission in response to a notice under this section, and the defendant is convicted, the court should take the failure into account in fixing sentence.
(7)     Without limiting subsection (6), a defendant reasonably fails to make an admission if the defendant –
(a)claims privilege against self-incrimination as a reason for not making the admission; and
(b)thus puts the prosecution to proof of facts that are not seriously contested at the trial.[7]
[7]    The section was amended in 2012. It now provides:
285BA—Power to serve notice to admit facts
(1)     If a defendant is to be tried on information, the Director of Public Prosecutions may serve on the defence a notice to admit specified facts.
(2)     The Director of Public Prosecutions must not, without the permission of the court, serve such a notice on a defendant who is unrepresented.
(3)     The notice must—
(a)specify that it is to be complied with within a specified time or within a time fixed by the court on application by the defence; and
(b)contain a warning, in the prescribed form, to the effect that, if the defendant is convicted, the court is required to take an unreasonable failure to make an admission in response to the notice into account in fixing sentence.
(4)     This section does not abrogate the privilege against self-incrimination and a refusal to make an admission on the ground that the admission would tend to incriminate the defendant of an offence is not to be made the subject of comment to a jury.
(6)     If a defendant unreasonably fails to make an admission in response to a notice under this section, and the defendant is convicted, the court should take the failure into account in fixing sentence.
(7)     Without limiting subsection (6), a defendant unreasonably fails to make an admission if the defendant—
(a)claims privilege against self-incrimination as a reason for not making the admission; and
(b)thus puts the prosecution to proof of facts that are not seriously contested at the trial.
A notice was served on 31 August 2011. The facts alleged in the notice were:
(a)that the respondent stayed in a particular motel room on the 1 and 2 February;
(b)that he was the driver of the vehicle at 11.30 pm on 2 February 2011 when the police pulled him over;
(c)the vehicle was towing a trailer with a New South Wales number plate;
(d)that a Nokia mobile phone, $1090 in cash and a sandwich bag with less than 25 grams of cannabis in a glass pipe were found in the vehicle;
(e)that the mobile phone belonged to the respondent;
(f)that 47 cryovac bags were found in the trailer;
(g)that the contents of the bag were later found to be 20,898.5 grams of female cannabis plant material.
Mr Mustac, through his solicitor, responded on 5 October 2011 that he did not admit the facts. The failure to admit the facts was raised by prosecuting counsel before the Judge. Mr Mustac’s counsel, after taking instructions, informed the Judge that the respondent was not aware of the notice to admit and had no part in the response to it.
In the course of sentencing submissions, the Judge asked defence counsel why facts which were “so venial as to really not interfere or should not interfere with the proper defence of the matter” should not be admitted by the defence. Counsel for Mr Mustac, after making it clear that he was expressing his personal opinion, responded that “it may well be because the DPP constantly ask for assistance in proving their case while they are doing their level best to derail any defence to this matter”.
The reason given by counsel for the respondent does not constitute a good reason for failing to admit a fact. Prosecuting counsel are bound to act in accordance with the well established principles calculated to ensure that criminal trials proceed fairly. In this case the Notice to Admit was sanctioned by court order. They may now be served on the authority of the statutory provision alone. In the absence of some impropriety in the issue of a Notice to Admit, defence lawyers must frame their client’s response on the merits of the particular request. It would be unfortunate if a defendant were to suffer the consequence of s 285BA(6) because a practitioner allowed the attitude expressed by Mr Mustac’s counsel about prosecutions generally to influence the advice he or she gives.
On the hearing of the appeal the submission that the appellant knew nothing of the response to the Notice to Admit was withdrawn. Mr Mustac’s counsel also informed this Court that, at the time that the notice was served, Mr Mustac did not know what information had, or might be obtained from the mobile phone and therefore he was not in a position to make an informed decision about whether to admit ownership of the phone. It was contended that an informed decision could not be made until the respondent was in a position to understand the forensic significance of the admission of ownership sought by the Director. In my view there is some force in the submission that it is generally not unreasonable to refuse a fact if its forensic significance cannot be fully appreciated. However, I doubt that the rule is an absolute one. It is not necessary to further consider the submission because, in the circumstances of this case, that part of the notice can be put to one side. Leaving aside fact (e), there is no apparent reason for not admitting any of the other facts which were capable of proof by business records or police witnesses and which, having regard to the conduct of the voir dire and the subsequent guilty plea, were true and not genuinely in dispute.
On the face of s 285BA the obligation of the Court to take into account an unreasonable failure to make an admission in response to a notice, arises when “the defendant is convicted”. The section does not limit the relevant conviction to one made after a trial and verdict. On its terms the duty to take into account an unreasonable failure to admit arises also on a conviction entered upon a plea of guilty. That is not surprising. The reductions in sentence which commonly attend a plea of guilty are made largely because of the defendant’s willingness to assist the administration of justice.[8] There is no doubt also a utilitarian purpose for reducing the sentence.[9] A failure to admit facts may demonstrate that the defendant is unwilling to assist in the administration of justice. That unwillingness might have been taken into account on common law sentencing principles whether the conviction followed a guilty plea or guilty verdict but for the privilege against self incrimination. The purpose of s 285BA(7) is to abrogate the effect of the privilege for the purposes of s 285BA(6). Contrary to the submission of the respondent’s counsel, it is not intended to limit the operation of s285BA(6) of the CLCA.
[8] Cameronv The Queen (2002) 209 CLR 339.
[9] R v Shannon (1979) 21 SASR 442 at 452-453.
Subsection (7) commences with the words “without limiting subsection (6)”. The purpose of subsection (7) is to make it clear that the privilege against self-incrimination which is preserved by s 285BA(4), which prohibits any comment at trial about the failure to admit, does not operate so as to preclude a Judge having regard on sentencing after that trial.
The literal and wide construction of the word “convicted” in s 285BA(6) is also supported by the evident purpose of the power to limit the issues before trial and to focus early attention on the issues in the trial. Plainly enough the prosecution must make arrangements for witnesses to attend at trial and for documentary evidence to be in an admissible form well before the first day of trial. Those arrangements can be resource intensive and expensive. There is no rational reason to limit s 285BA(6) to those cases in which the trial actually proceeds having regard to the pre-trial work which must be done.
Mr Mustac’s counsel also submitted that in any event most of the facts which were the subject of the notice could be easily admitted. That submission can be accepted. However, that circumstance only tends to show that the Notice to Admit was of limited utility in shortening the trial itself. It is plain enough from s 285BA(7) that the utilitarian purpose of saving time at trial is one of the relevant considerations for the purposes of subsection (6). However, for the reasons given earlier it is not the sole purpose. Notwithstanding the limited utility of the admission of the facts, the failure to admit them reflects an unwillingness on the part of the respondent to facilitate the course of justice.
In R v Pirgousis[10] I drew attention to the importance to carefully examine assertions of contrition accompanying a late guilty plea: [11]
I wish to emphasise that the weight which will be accorded to an offender’s guilty plea and claimed contrition, will vary according to the circumstances. A guilty plea which comes only after an offender has taken advantage of the, sometimes long, time which it takes for a matter to come to trial, and after possible technical defences have been lost, does not demonstrate much willingness to facilitate the administration of justice. Nor does it demonstrate much depth of contrition.
The only inference open on all of the evidence was that Mr Mustac was not contrite and that, far from being willing to facilitate the administration of justice, he was determined to escape the consequence of his offending by any route open to him. His eventual guilty plea was a reluctant recognition of the inevitable. It is difficult to see how any more than a 5 to 10 per cent reduction for utilitarian purposes was appropriate. As his counsel observed, the prosecution case was proved with just a few witnesses. The discount was manifestly excessive. This error too, even if it had stood alone, might have attracted permission to appeal. Further consideration of that question can again be deferred until the final error complained of is considered.
[10] [2012] SASCFC 127.
[11] R v Pirgousis [2012] SASCFC 127 at [20].
Manifestly inadequate
Counsel for the Director of Public Prosecutions submitted that the starting-point of four years imprisonment was manifestly inadequate for the following reasons:
a.the offending fell within the most serious category of trafficking, attracting a maximum penalty of life imprisonment or a $500,000 fine;
b.the objective criminality revealed this was a high-level, commercial enterprise:
i.      the respondent was in possession of 20.898 kg of dried female cannabis material;
ii.     the cannabis was packaged into 47 separate bags. Each bag was “double-bagged”; that is, each bag was sealed twice within two cryovac bags;
iii.     the respondent travelled from New South Wales with an apparently purpose-built trailer, containing a secret compartment where the cannabis was hidden. He had, by inference, met with South Australian drug contacts and sourced a large amount of cannabis;
iv.     the cannabis was valued at between $141,000 and $188,000;
c.the respondent had a prior conviction for similar offending.
d.the respondent was therefore neither a novice nor a low-level street dealer. He could be characterised as (at least) a middle man. This conduct goes beyond ancillary assistance to higher-level drug dealers. Sentencing courts consider this level of conduct to be serious criminal conduct which warrants substantial penalties.
For the reasons I gave in [13] above the appellant fell to be sentenced on the basis that this was his first offence since his conviction for trading in cannabis in New South Wales in 2007. Nonetheless it is clear from the construction of the purpose-built trailer and the quantity of cannabis involved that he was willingly participating in a major interstate cannabis trading enterprise. The considerations of general and personal deterrence called for a substantial sentence.
In my view the appropriate starting point was eight years imprisonment. A reduction of only 5 per cent is justified by the late plea of guilty. Rounding that reduction off I would have imposed a sentence of seven years and six months. The sentence imposed by the Judge of three years is manifestly inadequate. The inadequacy and the errors which attended the respondent’s sentence demand a grant of permission.
I would allow the appeal and set aside the sentence imposed in the District Court. I would impose a sentence of seven years and six months with a non-parole period of five years to commence on 21 December 2012.
SULAN J: I would allow the appeal. I agree with the Chief Justice and with the orders he proposes.
STANLEY J: I would allow the appeal and set aside the sentence imposed in the District Court. In lieu thereof, I would impose a sentence of seven years and six months, with a non-parole period of five years. I agree with the reasons of the Chief Justice.