R v Nguyen - [2004] SASC 405

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NGUYEN
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Anderson)
7 December 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Appeal against sentence - Plea of guilty to one count of knowingly taking part in the sale of heroin - Agreed factual basis of the plea - Appellant knowingly allowed two of her children to sell heroin from her residence - Appellant indirectly benefited financially from the sale - Sentenced to five years imprisonment with a non-parole period of two years - Whether allowance should have been made for guilty plea - Whether allowance should have been made for prevous periods in custody and on home detention bail - Whether appropriate weight given to Appellant's personal circumstances - Whether sentence manifestly excessive - Whether sentencing Judge erred in failing to suspend the sentence - Appeal allowed - Reduction in sentence
Controlled Substances Act 1984 s 32, s 44; Criminal Law Sentencing Act 1988 s 30(2)(a), s 10, s 11; Criminal Assets Confiscation Act 1996 s 8, s 9, s 10, s 15, referred to.
Signato v The Queen (1998) 194 CLR 656; Cameron v The Queen (2002) 209 CLR 339, applied.
R v Allen (1999) SASC 321; R v Malesevic (1999) 204 LSJS 32; R v Carpentieri (2001) 81 SASR 164; O'Malley v French (1971) 2 SASR 110; Anderson v The Queen (1993) 177 CLR 520; R v Perre (1986) 41 SASR 105; R v Mangelsdorf (1995) 66 SASR 60, considered.

R v NGUYEN
[2004] SASC 405
Court of Criminal Appeal: Duggan, Bleby and Anderson JJ.

DUGGAN J: The background to this appeal and the circumstances surrounding the offence are set out in detail in the reasons for decision of Bleby J.
I agree with Bleby J and Anderson J that this appeal should be allowed. In reaching this view I place particular reliance on two factors. Firstly, no allowance was made for the plea of guilty. The uncontested history of the steps which led to the plea render it appropriate that some reduction be made on this account. Secondly, I think that insufficient regard was paid to the unique circumstances of the offending which justified a measure of leniency.
Nevertheless, the appellant committed a serious offence of a continuous nature. Of particular relevance is the fact that she permitted an apparently well-organised operation for the sale of heroin to take place over a period of approximately 12 months. It was not suggested that she was unaware that her children were breaking the law in a serious way by selling heroin and she must have realised that she was assisting them to do so. An aggravating feature of her offending was that she appears to have continued despite the first police search of the premises and after she had been charged with an offence. In addition, the appellant attempted to impede the second police search by trying to prevent the discovery of a balloon containing heroin.
Complaint was made of the fact that the learned sentencing judge did not allow any reduction for the period of 15 months on home detention bail. This is a factor which can sometimes be taken into account for sentencing purposes: Rv Allen (1999) SASC 321 at [16]. However, the court is not obliged to make a reduction on account of this consideration: Allen at [23]. Allen was a unique case in which the appellant was falsely accused of armed robbery. He pleaded guilty to larceny but, in the meantime, he was subjected to bail with home detention conditions for a period of nine months. This would not have been the case if he had not been charged with armed robbery. In the present case, the home detention conditions were imposed in different circumstances. The appellant continued to offend whilst on bail which had been granted after she had been charged following the first search of her house. Although granted bail again, it was considered necessary to make the conditions of bail more stringent. In the circumstances I do not think that a reduction was appropriate for the time spent on home detention bail.
I would allow the appeal, set aside the sentence imposed by the sentencing judge and substitute a sentence of imprisonment for three years and seven months. I agree that the non-parole of 15 months is appropriate.
In light of the circumstances set out above I would not suspend the sentence. I would direct that the head sentence and non-parole period commence on 5 August 2004.
BLEBY J:
The proceedings
The appellant pleaded guilty to one count of knowingly taking part in the sale of heroin, contrary to s 32(1)(b) of the Controlled Substances Act 1984. A plea of guilty was entered on 13 April 2004 on a fresh information filed on that day. Sentencing submissions took place on 27 July 2004 and the appellant was sentenced on 5 August 2004. She was sentenced to five years imprisonment with a non-parole period of two years commencing on the day of sentence. The sentence was not suspended.
The information to which the appellant pleaded guilty was in substitution for a previous information charging two separate counts of possessing heroin for sale. Those two charges had arisen out of searches by police of the appellant’s home conducted on 9 and 30 November 2000. The house was owned solely by the appellant.
In the search conducted on 9 November 2000 police located two water balloons containing .11 grams of heroin. They also found cash in the amount of $76,760 hidden in a bedroom not that of the appellant. As a result of that search, the appellant was charged with one count of possessing heroin for sale and with the summary offence of unlawful possession of $76,760. Proceedings for the summary offence have not yet been disposed of. It will be necessary to refer again to that charge later.
On the occasion of the second search on 30 November 2000, two further water balloons containing .29 grams of heroin, $2,820 in cash and 21 mobile telephones were included in the items seized. It was that search which resulted in the second count of possessing heroin for sale. It will be noted that on each occasion the amount of heroin seized was less than the quantity prescribed under s 32(3) Controlled Substances Act and that the prosecution did not have the benefit of the presumption of possession for sale.
The appellant was committed for trial on the two indictable offences on 26 April 2001. Following her arrest on 30 November 2000, the appellant spent seven days in custody before being released on home detention bail. The conditions of bail included that she remain at her house except for the purpose of remunerated employment, medical, dental or other emergencies or unless approved by her Community Corrections Officer, and that she comply with conditions of electronic monitoring. Those conditions remained until 27 July 2002 when the bail agreement was varied. The only restriction on her liberty pending trial thereafter was that she reside at her own home.
Factual basis of the plea
The fresh information to which the appellant pleaded guilty on 13 April 2004 came about as a result of discussions between the appellant’s legal representatives and officers of the DPP. A factual basis for the plea was agreed. In essence, the offence was that she permitted her home to be used by her two eldest children who sold heroin from the premises over the course of approximately 12 months between November 1999 and 30 November 2000. She knew that her two eldest children were selling heroin and that they themselves were addicted to heroin use. She permitted them to sell heroin to people who came to the family home and knew that her children had heroin at the premises in order to sell it to people who came to the door. On some occasions when neither child was at home, if someone knocked on the door asking for them, the appellant would tell the person that they were not at home and that he or she would have to come back later.
It was agreed that the appellant did not sell heroin herself but allowed her home to be used for that purpose by her two eldest children. Section 32(4) of the Controlled Substances Act relevantly provided:
“(4)Without limiting the generality of this section, a person takes part in the … sale … of a drug of dependence or prohibited substance if the person –
(a)    takes, or participates in, any step, or causes any step to be taken in the process of that … sale …;
(b)    …
(c)    provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which he or she is the owner, …”
It was also agreed that the appellant indirectly benefited from the drug trading activities in that proceeds of not less than $30,000 were spent on household goods, household expenses and home improvements from which all members of the family benefited. That included the sum of $19,000 spent on renovations to the kitchen and other parts of the house.
It was further agreed that in respect of the large amount of money seized on 9 November 2000 and in respect of which the appellant was charged with unlawful possession, she denied that charge and that at the time of sentencing the matter was awaiting trial in the Magistrates Court. It has still not been disposed of. The prosecution acknowledged that a third party laid claim to that money and that the appellant did not. The sentencing Judge was asked to exclude that outstanding charge from her deliberations concerning the sentence she was about to determine. It was further acknowledged by the prosecution that the appellant did not lay any claim to the money seized on 30 November 2000. She did not object to an order being made for its forfeiture and accepted that the money was most likely the proceeds of drug sales by her two eldest children.
In order to understand the nature and circumstances of the offending and the delay in excess of three years between committal for trial and sentence, it is necessary to recite some of the appellant’s relevant personal circumstances.
Background to the offence
The two children engaged in the selling of heroin from the premises were a son then aged 19 and a daughter then aged 18. They were living at home with the appellant and the appellant’s younger children.
The appellant was born in Vietnam in 1962 and grew up in Saigon. She was one of eight children. In 1975, at the end of the Vietnam war, her family was relocated from their relatively affluent existence in Saigon to a “new economic zone” in Long Khanh Province. She eventually left school in order to help her parents. Her father had been a South Vietnamese soldier. He had been injured and received a small disability allowance. The family had very little money or food. She helped her father work on a farm and helped her mother to run a small market stall in the local village. She had an older brother who died from heroin use.
Life was difficult in the new economic zone. Work was constant and the appellant had no friends. She eventually began working less on the farm and more with her mother on the village stall.
In 1980, the appellant married, and between 1981 and 1985 had three children. In 1985 her husband died as a result of a motor vehicle accident. Thereafter until 1990, in order to support her family financially, the appellant divided her children amongst various relatives during the day so that she could work at the market and spend the nights with her children.
The appellant decided that there was no future for her and her children in Vietnam. In 1990 she fled Vietnam by boat leaving her three children with relatives in Vietnam. She ended up in a refugee camp in Malaysia. It was her intention that, upon settlement in another country, she would seek to arrange for her children to join her. She made her way from Malaysia to Australia where she was resettled as a refugee in 1990. Three years later she was able to sponsor her children to come to Australia. She has had no immediate family support in Australia other than, more recently, a married brother and his family. Her parents remained in Vietnam, her father having since died.
While at secondary school in Australia her eldest son began exhibiting behaviour problems. He left school at an early age and ran away from home several times. He began to use heroin. Eventually he began selling heroin in order to fund his own addiction and in order to make some money. The next child, a daughter, followed a similar behaviour pattern, and under the influence of her elder brother commenced using heroin also. She became addicted and ultimately began selling. Her third child, a son, was likewise affected and spent some time in prison.
After learning that her two eldest children were addicted to and selling heroin she evicted them from the house. However, the children caused problems in the Vietnamese community with criminal activity to support their addiction. The appellant made a decision that it was better to have her children back at home where she could try and exert some control over them. They resumed living in the appellant’s house at the beginning of the period the subject of the charge.
The appellant wanted the children to be at home where at least she could keep an eye on them, even knowing that they were using and selling heroin. She believed that she had to accept her children as they were and she wanted to give them a home. She believed that if she forced them to leave home this would make things worse. She told Mr Ireland, a clinical and forensic psychologist from whose report much of this information has been gleaned, that she would do anything if it helped to get her children off drugs. She had never taken heroin or traded herself. She did not understand that her actions would be considered to be an offence. Her principal concern was one of keeping her family together at home.
Since coming to Australia the appellant had also given birth to two more children aged 10 and 4 at the time of sentencing. These were the result of relationships which had since failed.
The appellant told Mr Ireland, and there is no reason to doubt the information, that over the years prior to 2000 she had been very distressed and depressed because of her children’s behaviour. She saw herself as having no-one from whom she could obtain help either for herself or in managing her children. They did largely what they wanted to do and not what she told them to do. She tried to persuade them, to punish them and cried in front of them to try and get them to change. She saw them go to detoxification and detention centres but none of this appeared to make any difference to their behaviour. She saw herself as having been helpless in influencing her children.
Her antecedent report discloses one conviction for larceny in October 1991 for which she was fined the sum of $150.
Shortly before her sentencing she reported to Mr Ireland that her eldest son, then aged 23, was still living at home and had been drug free for about twelve months. Her daughter, then living with her boyfriend, was also at that time drug free, as was her third child since his release from prison.
Mr Ireland considered that the appellant had been suffering from a Dysthymic Disorder (DSM – IV, 1994). In forming that opinion he noted appetite problems, insomnia, concentration problems and pessimistic feelings concerning the future, the disorder being a response, in recent times, to her children’s drug abuse and associated criminal activity. He noted, however, that there was evidence that she had had a longstanding mood problem associated with a string of difficulties throughout her life both in Australia and in Vietnam. She would benefit from appropriate therapy. He concluded:
“I did not observe any antisocial tendencies present in this woman that might suggest her as motivated to deliberately offend. The outstanding feature of her presentation was her desperate efforts to keep her family together and support her children. It would seem that in her effort to achieve this goal she was prepared to ignore their use of her home to carry on this activity.”
Delay in process
The appellant speaks very little English. When the matter was first listed for trial in the District Court on the original information, the defence applied for an adjournment for reasons which were not disclosed, but which appear to have related to a change of solicitor. When it was listed for the second time the matter was not reached as no judge was available. The matter was listed for trial again in November 2003. Shortly before that the appellant instructed new solicitors and that trial date was vacated. It was relisted for trial on 13 April 2004.
It was not until her current solicitors were engaged and after a number of interviews with a very experienced interpreter that the appellant began to trust her advisers, apparently for the first time. She had always denied selling heroin. It was only after gaining that trust that she gave full instructions as to her account of what had taken place, her knowledge of what her two children had been doing and her concern at disclosing that information for fear of the consequences to her children. It was only with that complete information that negotiations resulting in the fresh information took place between her advisers and the DPP. It was only then that she understood the process that she was involved in and was able to be encouraged to provide sensible instructions.
The facts, as reflected in the statement of agreed facts put to the sentencing Judge, are tantamount to an acknowledgement by the DPP that the charges the subject of the original information could not have succeeded. When the cultural barriers were broken down and the true facts revealed, it is apparent that she entered her plea of guilty to what was then the appropriate charge at the earliest reasonable opportunity.
The approach of the sentencing Judge
The sentencing Judge had before her the statement of agreed facts, the report of Mr Ireland and a comprehensive and powerful submission from her counsel. While acknowledging the factual features relating to the offending, the Judge noted that she had benefited to the extent of not less than $30,000 from the offending. It was noted, without comment, that she denied ownership of the various amounts of cash seized from the premises on the two occasions of the police searches. The Judge acknowledged the cultural difficulties which had brought about the delay but noted the appellant’s skill and resourcefulness in coming to and bringing her children to Australia.
The sentencing Judge would not accept the submission that she was unaware that she had done anything wrong or that she was unable to do anything about the drug dealing which was taking place from her house. She concluded: “In allowing your house to be used, in effect, as a drug dealer’s den, you became complicit in that trade”. The sentencing Judge considered that deterrence demanded an immediate custodial sentence. She did not allow any discount for the plea of guilty as the case against the appellant was “overwhelming”, and the Judge did “not see it as appropriate to grant a discount for such a late plea”. It was because of the fact that she was still caring for two young children that the Judge decided to impose a lower than usual non-parole period to reflect the hardship that would ensue as a result of her imprisonment.
The plea of guilty
In my opinion the sentencing Judge erred in failing to give some credit for the appellant’s plea of guilty.

She pleaded guilty on the new information on the same day that it was filed. Her maintaining of a plea of not guilty to the two charges contained in the original information was justified. The explanation for the delay in instituting appropriate negotiations with the DPP is explained by the cultural and communication barriers which were not overcome until a late stage. Her acknowledged participation amounted to provision of the premises in which sales took place, knowing that they were taking place, and participating to the extent of telling would-be customers of her children to return at some other time if they were not at the house when the customer called. It was by no means a straightforward and overwhelming case. In one sense it was a late plea, but given all the circumstances, and particularly the cultural difficulties, it was a plea entered at the earliest reasonable opportunity. As soon as she understood her legal situation, her plea was accompanied by a ready acknowledgement of guilt and shame for allowing the proceeds of sale of drugs to be spent on her house. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in their joint judgment in Siganto v The Queen (1998) 194 CLR 656 at 663-664:
“A person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed. On the other hand, a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case. It is also sometimes relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of giving evidence.”
It is also clear on the authority of Cameron v The Queen (2002) 209 CLR 339 at 346 that it is not reasonable to expect a defendant to plead guilty at an earlier time to charges which, it is later acknowledged, will not succeed, or even to a charge wrongly particularised, as was the case in Cameron. The appellant in this case was entitled to be regarded as having pleaded guilty at the first reasonable opportunity. She was entitled to some reduction in her sentence on that account.
Time spent in custody and on home detention bail
No submissions were made to the sentencing Judge about the appellant’s time in custody or her fifteen months on home detention bail, nor was any reference made to those matters in the Judge’s sentencing remarks. Although the time spent in custody was only seven days, it is a matter to which regard must be had under s 30(2)(a) of the Criminal Law (Sentencing) Act. A court may, as a matter of discretion, give credit for time spent on home detention bail: R v Malesevic (1999) 204 LSJS 32. Time spent on home detention bail is a relevant factor where a charge is withdrawn, the existence of which led to such stringent conditions of bail and which would not have been imposed if the appellant had faced nothing more than the charge that was in fact relied on: R v Allen [1999] SASC 346 at [16], Duggan J. At the time when the appellant was released on home detention bail she faced a second charge of possessing heroin for sale. Had the full facts then been known, it is doubtful that home detention bail would have been ordered. As it was, there appears to have been a recognition after some fifteen months, and well before the filing of the fresh information, that the condition of home detention was not warranted. In all the circumstances, these matters should have been drawn to the attention of the sentencing Judge and, in my opinion, should have had some bearing on the determination of the sentence. The extent of the credit will vary according to the circumstances, but for someone who had no paid employment and who was attempting to bring up very young children with little family support, it was a severe limitation for the fifteen month period.
Manifestly excessive
Ground 5 of the grounds of appeal alleges that the sentencing Judge imposed a head sentence and non-parole period that was in all the circumstances manifestly excessive. Besides the provisions of ss 10 and 11 of the Criminal Law (Sentencing) Act 1988 which is required to be brought into account in determining any sentence, s 44 of the Controlled Substances Act relevantly provides:
“In determining the penalty to be imposed upon a person convicted of an indictable or minor indictable offence against this Act, the court must take into consideration –
(a)the nature of the substance or goods involved in the commission of the offence; and
(b)the quantity of the substance or goods involved in the commission of the offence; and
(c)the personal circumstances of the convicted person (being a natural person), including the circumstances relating to the person’s use (if at all) of any drug of dependence or prohibited substance; and
(d)in the case of an offence involving the manufacture, production, sale or supply of a drug of dependence or prohibited substance, or the possession of a drug of dependence or prohibited substance with intent to sell or supply it to another –
(i) the commercial or other motives of the convicted person in committing the offence; and
(ii) the financial gain that is likely to have accrued to the convicted person as a result of the commission of the offence (but this is not to be taken into consideration if an application for forfeiture of property has been made under the Criminal Assets Confiscation Act 1996 in respect of that financial gain); and
…
(e)any other relevant factor.”
The offence with which the appellant was charged was serious. However, s 32(1) of the Controlled Substances Act 1984 contemplates an extremely wide range of activities and levels of involvement in the manufacture, production, sale, supply or administration of drugs of dependence or of prohibited substances to which s 44 must be applied. The unusual circumstances of this case place the appellant at the lower end of that range.
It was an agreed fact that the appellant and her family benefited to the extent of not less than $30,000 by way of home improvements and household goods. The sentencing Judge referred to that as a relevant fact but as a benefit to the appellant. However, it was not a benefit exclusive to the appellant. She was not the sole beneficiary. The agreed fact was that all members of the family benefited from that expenditure of the proceeds of the children’s activities. She has not personally effected any sales of heroin, nor had she directly received any proceeds of sale. Indeed, she was, perhaps in a misguided and inadequate way, attempting to deter her children from dependence on and sale of heroin.
The Judge was informed by the prosecutor that it was “a fair certainty” that the appellant’s house would be sold and that “at least $30,000 will be retained by the Crown from that sale because that’s the basis on which the plea has taken place and that that is a relevant matter which your Honour can take into account, that this house will be lost”.
The prosecutor can only have been referring to the exercise of powers under the Criminal Assets Confiscation Act 1996 (the “CAC Act”). It is true that an application for forfeiture had not been made at the time of sentencing submissions, but it was clearly foreshadowed. The spirit, if not the letter, of s 44(d)(ii) of the Controlled Substances Act required that the $30,000 gain was not taken into consideration.
It was not clear from the prosecutor’s remarks whether a forfeiture order would be sought under s 8, s 9 or s 10 of the CAC Act or whether a restraining order would be sought under s 15 with consequent forfeiture under s 15(5). The operation and effect of those sections was discussed by Doyle CJ in R v Carpentieri (2001) 81 SASR 164 at 170-173. Depending on which course is taken under the CAC Act, the appellant may stand to lose $30,000 or the whole of her interest in the house – an interest which is likely to exceed substantially the sum of $30,000. That has a bearing on the operation of s 10(1)(ka) of the Criminal Law (Sentencing) Act which renders the nature and extent of the forfeiture relevant to the extent that it goes beyond forfeiture of the benefit received.
What can be said is that the sentencing Judge failed to give effect to the intent of s 44(d)(ii) of the Controlled Substances Act and failed to advert to the possibility of a forfeiture of property beyond the benefit received. It was also relevant that even if forfeiture is limited to something of the order of $30,000, the appellant’s house will have to be sold in order to effect that recovery – a substantial hardship to a person who is bringing up young children on her own, without significant family support.
The benefit that she did receive was not a benefit exclusive to her. The whole family enjoyed the improvement in living conditions. Nevertheless, it is she who will have to pay for it.
In rejecting the submission that the appellant was unaware that she had done anything wrong or that she was unable to do anything about the dealing, the Judge rejected the undisputed evidence contained in the report of Mr Ireland, the cultural and personal difficulties on which it was based and her acknowledgement of misguided wrongdoing once the communication and cultural barriers were removed.
There were, therefore, a number of relevant matters which the Judge overlooked in determining the sentence. They must be brought to account upon any reassessment of the sentence.
It is apparent that the exercise of the sentencing discretion miscarried in several respects. It is necessary for this court to fix a new head sentence and non-parole period.
An appropriate sentence
I remind myself that, on a plea of guilty, the Court should act upon the version of the facts which, within the bounds of reasonable possibility, are most favourable to the accused: O’Malley v French (1971) 2 SASR 110; and that matters of aggravation must either be admitted or proved beyond reasonable doubt: Anderson v The Queen (1993) 177 CLR 520. A sentencing Judge is not necessarily bound by a statement of agreed facts: R v Perre (1986) 41 SASR 105, but where, as here, there is no reason to question the facts as agreed, it will be necessary to read the depositions in the light of the charges to which the accused has now pleaded and in the light of those agreed facts. One should not draw inferences that might otherwise have been drawn from those depositions if such inferences are not supported by the agreed facts or would amount to matters of aggravation. This is particularly so where the charge to which a plea of guilty is entered is of a less serious nature than the charge which those depositions were designed to support.
Whilst the offence with which the appellant was charged is a serious one, the circumstances of the offending as I have explained them were most unusual. The appellant did not knowingly take part in the sale of heroin for her own benefit. On the contrary she was opposed to the consumption and trading activities of her children and took what she thought were steps which would encourage them to abandon the practice. As she now realises, those steps were misguided and unlawful, although she did not realise it at the time.
On the other hand, her assistance was over a period of approximately twelve months. She knew what was going on in her own home. There is some suggestion that during the second police search she attempted to conceal one of the packages of heroin found on the premises. That is consistent not only with deliberate offending but also with a continuing but misguided attempt to protect her children. She should be given the benefit of that inference consistent with her other actions.
Such benefits as she did derive from the offending were benefits enjoyed by the whole family, including those actively trading from her house. The provision of those benefits was, on the evidence, initiated by those undertaking the heroin trading. Such benefits as she has shared in will be recovered by the sale of her house.
Given her background and the other personal circumstances to which I have referred I would begin, if sentencing the appellant at the time when the sentencing Judge was considering her position, with a starting point of four years and six months. From that I would deduct eleven months for the plea of guilty and a further six months for the period of home detention. That would result in a head sentence of three years and one month. Given her excellent prospects of rehabilitation, I would have fixed a non-parole period of fifteen months.
Suspension
The appellant complained that the sentence imposed by the District Court was not suspended and that the discretion of the sentencing Judge miscarried by her failing to take into account a number of relevant considerations.
The report of Mr Ireland was relevant to a number of aspects of sentencing, including suspension. He recommended ongoing counselling, and it is apparent from the appellant’s present circumstances that her prospects of rehabilitation were very good.
The appellant’s problems were really those of her children which were in part the product of the untimely loss of her husband, her fleeing from Vietnam, her lack of family support and inability to cope with their difficult adolescent behaviour. It was her futile effort to stop her children selling drugs by taking them back into her home which brought her into the cycle of offending.
Despite being on bail, there is no suggestion whatever that she has engaged in any further offending since November 2000. Indeed her whole outlook is now quite different with the attempts, so far successful, of her children to rehabilitate themselves. Given that dramatic change of circumstance and the extreme delay, for whatever reason, in dealing with her situation, a custodial sentence has diminishing relevance to her present situation.
The sentencing Judge did not give adequate weight to the circumstances created by the conduct of the appellant’s children, her contrition, her background, antecedents and psychological condition, her prospects of rehabilitation and that of her children and the hardship likely to be caused to her youngest children, particularly the four year old daughter, by a custodial sentence.
Suspension of a custodial sentence for a breach of s 32 of the Controlled Substances Act is a most unusual occurrence. Individual and general deterrence must normally be given great weight, particularly where trading in a drug such as heroin is concerned. In R v Mangelsdorf (1995) 66 SASR 60 at 70-71 the Chief Justice, speaking on behalf of the Court of Criminal Appeal, observed that for offences of trading in heroin suspension must be rare indeed. It must be remembered that that observation was made in the context of a charge of possession of heroin for sale where actual trading by the respondent was acknowledged.
The circumstances of this case are exceptional. The charge was a lesser charge than the offending in Mangelsdorf. To suspend the sentence in this case would not be “to erode the standard of punishment which this court has set as appropriate for this offence”: R v Mangelsdorf (supra) at 70-71. Bearing in mind the requirements of s 11 of the Criminal Law (Sentencing) Act I consider that suspension would have been appropriate.
Accordingly, I would have suspended the sentence upon the appellant entering into a good behaviour bond under the supervision of a Correctional Services Officer. Supervision would ensure that, if the circumstances remain appropriate and if the opportunity is available, she can be required to undertake the therapy contemplated by Mr Ireland.
Conclusion
It follows that in my opinion the appeal should be allowed and the appellant re-sentenced as at today’s date taking into account her time already spent in custody.
Including the week spent in custody in December 2000 the appellant has now served in excess of three months in custody. If she is to be re-sentenced, and particularly if the sentence should properly have been suspended, that period must be brought into account. She has been deprived of the ability to have that portion of the sentence suspended. Taking that into account I would now fix a fresh head sentence of two years and eight months with a non-parole period of ten months, the head sentence and non-parole period to take effect from today. I would direct that the sentence be suspended on condition that she enter into a bond to be a good behaviour for a period of two years, that she be under the supervision of a Community Corrections Officer for the period of the bond and that she obey the lawful directions of the Community Corrections Officer to whom she is assigned.
However, as the majority of the Court does not favour suspension of the sentence, the appropriate sentence now to be imposed is that which I consider should have been imposed by the sentencing Judge, namely a head sentence of three years and one month with a non-parole period of fifteen months, the head sentence and non-parole period commencing on 5 August 2004.
I would make this order on the footing that any forfeiture of the appellant’s property is limited to the purpose of recovering any benefit which the appellant has received herself or in which she has participated with members of her family.
ANDERSON J: I have read the draft reasons of Bleby J which set out in detail the relevant background facts surrounding this matter.
I agree that all of the appellant’s personal circumstances as set out by his Honour are relevant to the sentence which should be imposed. In particular, her heritage, background and migration are all relevant. So is her life in Australia since she migrated. The circumstances of delay are also relevant prior to the plea of guilty which was entered when the new Information was filed.
I am also in general agreement with his Honour in relation to the exercise he carried out regarding the time spent in custody and on home detention, and I agree with his conclusion that the sentence imposed was manifestly excessive.
However, I do not agree that the sentence should be suspended. It is my view that there are a variety of factors which require the appellant to serve a term of imprisonment.
There has clearly been a very large commercial operation carried on from within the appellant’s house, by members of her family, under her eyes and with her approval.
An agreed fact for the basis of the plea of guilty is that the defendant “agreed or permitted the two eldest children to sell heroin to people who came to the family house and knew that her children had heroin at the premises in order to sell to people who came to the door.”
Whilst it is said that the personal circumstances of the appellant, and including in particular having one young child of four under her care, require her not to serve a term of imprisonment, the fact is that that child and other children were present during the time when the offending took place and the learned sentencing Judge took that into account.
The offending took place over a period of approximately 12 months. The appellant was first arrested on 9 November 2000 and was then released on bail. Whilst on bail she was arrested again, on 30 November 2000, because she continued to offend.
The appellant was remanded in custody from 30 November 2000 to 7 December 2000 and then released on home detention conditions on that date, namely, 7 December 2000. Those home detention conditions were revoked, and a simple bail agreement was entered into on 19 March 2002.
The appellant indirectly benefited to the extent of not less than $30,000 from the proceeds of the sale of heroin according to the agreed facts.

In addition, an amount of $76,000 in cash was found in her house. Despite the fact that someone else has claimed that money, it is nevertheless indicative, in my view, of her allowing monies from the sale of heroin to be stored in her house. On a separate occasion, three smaller amounts of cash were found by police hidden in different parts of her home. As part of the agreed facts, the appellant accepts that these three amounts of cash were likely the proceeds of drug sales by two of her children.
I am also influenced by the fact that three police officers have given statements relating to their search of the appellant’s premises on 30 November 2000. On that occasion, they saw the appellant attempt to remove a balloon containing heroin from a linen cupboard. They had discovered the heroin earlier but left it in the cupboard.
The carpenter who did the kitchen renovations at the appellant’s house said that the appellant accompanied him to purchase the tiles, and that she paid $1,288.70 in cash for the tiles. He also stated that when he was in the house, he saw the appellant answer the door on many occasions. He said no one ever came inside even though there were many visitors. The visitors only stayed for a very short time. Again this shows the extent to which she acquiesced in the use of her house for drug dealing.
It was put by Ms Davison for the DPP:
“… if you allow this amount of drug dealing to go on from your home, and if when your children who are doing the drug dealing aren’t there to facilitate the sale, you, in effect, redirect the person who’s come there, telling them to come back later or you’re taking part in it in that way, that is very significant.”
I agree with those sentiments.
I have taken into account the various matters set out in the draft reasons of Bleby J in relation to the appellant’s personal circumstances, but in my view, these are outweighed by the fact that the appellant allowed a large-scale operation to be conducted from her home with full knowledge of what was happening. She clearly had an active role to play in the matters.
The gravity of the appellant’s offending, in my view, is that she has used the proceeds of the sale of the illegal drug to benefit herself, albeit at the same time other members of her family also benefited.
It is for these reasons that I have come to a different conclusion from Bleby J in relation to the suspension of the sentence.
As Bleby J says, suspension of a custodial sentence for a breach of s32 of the Controlled Substances Act 1984 (SA) is a most unusual occurrence. Doyle CJ in R v Mangelsdorf (1995) 66 SASR 60 (at 70-71) said that in relation to offences of trading in heroin, suspension must be rare. He also said that suspension would, “…erode the standard of punishment which this Court has set as appropriate for this offence.”
I do not agree that the circumstances of this case are exceptional to the point where they should displace the principle stated in Mangelsdorf even though the appellant pleaded guilty to a lesser charge. She was, as I have said, an active party in allowing others to trade from her home in what was a large commercial operation.
In my view, having regard to the requirements of s11 of the Criminal Law (Sentencing) Act 1988 (SA), suspension is not appropriate.
As I have indicated, I agree with Bleby J’s reasons in relation to the sentence and non-parole period which were imposed, and I agree with his Honour’s calculations in relation to the reduction of both. I would therefore also impose a head sentence of three years and one month, and a non-parole period of fifteen months. The appellant has already served more than three months in custody. I would therefore allow the appeal and impose a new head sentence and non-parole period as set out above.