R v Nicholas & Nicholas - [2019] SASCFC 1

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NICHOLAS & NICHOLAS
[2019] SASCFC 1
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Peek and The Honourable Justice Hinton)
18 January 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
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
The respondent brothers, David Nicholas and James Nicholas, were sentenced to imprisonment for a number of drug trafficking offences committed in 2017 and uncovered as part of a police operation.
James was sentenced to imprisonment for three years and nine months with a non-parole period of one year and four months. In David’s case, the 2017 offending resulted in the contravention of a suspended sentence bond which he had entered into in 2014 for previous drug offending. The sentencing judge revoked the bond and reduced the sentence to 12 months before sentencing David to imprisonment for the 2017 drug offending to be served cumulative upon the reduced 2014 sentence. This resulted in an overall sentence of imprisonment for 10 years with a non-parole period of three years and six months.
The Director of Public Prosecutions sought permission to appeal against both sentences. In James’ case, the Director contended that the sentence was manifestly inadequate. In relation to David, the Director submitted that the non-parole imposed was manifestly inadequate and that the term of the suspended sentence should not have been reduced.
Held, per Hinton J (Kelly and Peek JJ agreeing), refusing permission to appeal in each case: the sentences imposed were low, but in the circumstances, compelling reasons existed justifying the judge in adopting a merciful approach.
Controlled Substances Act 1984 (SA) s 32(1), s 32(3), s 44; Offenders Probation Act 1913 (SA) s 9; Criminal Law (Sentencing) Act 1988 (SA) s 20B(1), s 33BB, s 38(2), s 38(2ba), s 58(4), referred to.
Director of Public Prosecutions (Cth) v Masange (2017) 325 FLR 363; House v The King (1936) 55 CLR 499; R v Buckman (1988) 47 SASR 303; R v Cekic [2016] SASCFC 26; R v Devries [2018] SASCFC 101; R v Kong (2013) 115 SASR 425; R v Mandica (1980) 24 SASR 394; R v Mandica (1980) 24 SASR 394; R v McIntosh [2017] SASCFC 87; R v Osenkowski (1982) 30 SASR 212; R v Pishdari [2018] SASCFC 94; R v Young (2016) 126 SASR 41; R v Tait (1979) 46 FLR 386, considered.

R v NICHOLAS & NICHOLAS
[2019] SASCFC 1
Court of Criminal Appeal: Kelly, Peek and Hinton JJ
KELLY J:

I agree for the reasons given by Hinton J that in the unusual circumstances of each of the respondents this is not an appropriate case to grant the Director permission to appeal. This Court’s decision should not, however, be taken to mean that the sentences imposed by the Judge at first instance were appropriate.
PEEK J:
I would dismiss the application for permission to appeal. I substantially agree with the reasons of Hinton J.
HINTON J:
Introduction
James and David Nicholas are brothers. In early 2017, as a consequence of an undercover police operation, they were arrested and charged with drug trafficking offences. They were not charged with the same offences and were not equally involved in the relevant trafficking. Further, in trafficking in 2017 David Nicholas contravened a suspended sentence bond that he had entered in 2014 in relation to previous drug offending.
The brothers both pleaded guilty to the 2017 offences with which they were charged. James Nicholas was sentenced to imprisonment for three years and nine months with a non-parole period of one year and four months. In David’s case, the 2014 suspended sentence bond was revoked and the sentence reduced to imprisonment for 12 months. In addition he was sentenced to imprisonment for nine years for the 2017 drug trafficking offences to be served cumulative upon the reduced 2014 sentence, resulting in an overall sentence of imprisonment for 10 years. A non-parole period of three years and six months was fixed.
The Director of Public Prosecutions now seeks permission to appeal against the sentence imposed upon each brother. In relation to James the Director contends that the sentence was manifestly inadequate. In David’s case, he contends that the sentencing Judge should not have reduced the term of the suspended sentence and that the non-parole period imposed was manifestly inadequate.
I would refuse permission to appeal in each case. My reasons follow.
The principles applicable to a Crown appeal against sentence
The principles governing a Crown appeal against sentence have long been settled by the High Court and are well known. I restated those principles in some detail in R v McIntosh.[1] I resist doing so again. Suffice it to say that before this Court can grant the Director permission to appeal, error in the House v The King[2] sense must be demonstrated and, in addition, this Court must be persuaded that strong reasons of public policy exist which demand that permission to appeal be granted notwithstanding the public interest in ensuring that the respondent is not twice vexed by the repeated exercise of the coercive power of the State. Strong reasons are required because of the premium that the common law places upon a person’s freedom from interference by the State. Generally, strong reasons will exist where it is necessary to intervene “to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience”.[3]
[1] [2017] SASCFC 87.
[2] (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ).
[3] R v Osenkowski (1982) 30 SASR 212 at 213 (King CJ).
In addition, the cautionary advice of King CJ in R v Osenkowski should not be overlooked. King CJ said:[4]
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.
[4] R v Osenkowski (1982) 30 SASR 212 at 212-213.
The offending
The table below sets out the essential details of the charges to which the brothers pleaded guilty.

Count Charge and maximum penalty Offence date Defendant Drug type, quantity and purchase price

1. Aggravated trafficking in a controlled drug (s 32(3) Controlled Substances Act 1984 (SA) (CSA))
$75,000 or imprisonment for 15 years, or both. 13 January 2017 David and James Cocaine : 27.7g/1 ounce : $7,600

2. Trafficking in a controlled drug (s 32(3) CSA)
$50,000 or imprisonment for 10 years, or both. 30 January 2017 David
Cocaine : 27.5g/1 ounce :
$7,600

3. Trafficking in a controlled drug (s 32(3) CSA)
$50,000 or imprisonment for 10 years, or both. 30 January 2017 David MDMA : 1,060 pills (30 g) : $5,500.

4. Trafficking in a large commercial quantity of a controlled drug (s 32(1) CSA)
$500,000 or imprisonment for life, or both. 23 February 2017 David MDMA : 5,140 pills (1.503 kg) : $25,000

5. Trafficking in a large commercial quantity of a controlled drug (s 32(1) CSA)
$500,000 or imprisonment for life, or both. 15 March 2017 David and James MDMA : 5,090 pills (1.485 kg) : $27,500

Each count involved the sale of the drug identified in the table to an undercover police officer. All dealings between the brothers and the undercover operative subject of the charges were recorded by police. The sentencing Judge summarised the circumstances of the offending as follows:
As to count 1, on 13 January 2017, after messages exchanged over Wickr between the undercover operative and David Nicholas, the undercover operative met David Nicholas in the car park of Hungry Jack’s at Netley and then drove with David to the rear yard of a business associated with you both on Marion Road at Netley. There was a large truck in that yard and James Nicholas you were also present. Both of you were wearing Hells Angels T-shirts.
27.7g of cocaine was sold to the undercover operative at the cost of $7,600. During this transaction there was a discussion about the purchase of 1000 MDMA pills. You both stated that in the past you had sourced these pills at a cost of $4.50 each and David said words to the effect that you would make $1 on the sale of each pill, being 50 cents each per pill. You both stated that you wanted to be paid in cash for the pills with James referring to a prior occasion where you had been stuck with the pills when the buyer decided they no longer wanted them.
As to counts 2, 3 and 4 being offending relating only to David. On 30 January 2017 David met the undercover operative at a shopping centre car park in O’Halloran Hill to effect a sale that had been arranged during earlier conversations and meetings.
David sold the undercover operative 27.5 g of cocaine, being count 2, and 1060 MDMA tablets, count 3, for a total cost of $13,100.
...
On 23 February 2017 David met the undercover operative at a service station at Edwardstown. David directed the undercover operative to drive to the yard at Netley. Upon arrival there the undercover operative gave David $25,000 in exchange for a shopping bag containing just over 1.5 kg of MDMA being 5140 pills, that is, a large commercial quantity of that drug.
This transaction occurred after an earlier discussion and meeting wherein the undercover operative made reference to potentially buying 5000 MDMA pills per month. The undercover operative fabricated an interstate contact to whom he was purportedly selling the MDMA.
On 15 March 2017 both of you attended at the BP Service Station at Edwardstown as had been arranged by David with the undercover operative the previous day. David told the undercover operative that 5000 MDMA tablets as requested were in a bin in the bathroom. In exchange the undercover operative gave David $27,500. The undercover operative located the drugs in the bathroom and motioned to James, who acknowledged the sale, and the acknowledgment was to the effect that the deal had been successful.
There were further meetings thereafter between the undercover operative and David wherein you discussed the possibility of further drug transactions.
In relation to count 1 the aggravating factor alleged in the Information was that in the course of committing the offence the brothers identified themselves as belonging to, or otherwise associated with, a criminal organisation. David was a full member of the Hells Angels, a well-known outlaw motorcycle club. James was a prospect for the club. As the passage from the Judge’s sentencing remarks quoted above indicates, in the course of committing the offence to which count 1 related the brothers wore t-shirts indicative of their membership of the club.
The conversations with the brothers recorded by the undercover police officer indicate that the brothers had been involved in trafficking in the past and, but for their arrest, would have continued to traffick. That said, as will be seen the sentencing Judge considered that the extent of James’ “involvement in any prior uncharged acts remains uncertain in terms of the sentencing process”.
The brothers were arrested on 4 May 2017. They were refused bail and remanded in custody throughout proceedings. On 3 September 2018 James was released on parole.
Personal circumstances
The sentencing Judge had the benefit of two psychological reports, one prepared in relation to James by Dr Lim and the other in relation to David by Ms Darmenia. The Judge was also provided with a number of references from family and friends for each of the brothers, in addition to receiving a letter from each.
James Nicholas is currently 30 years of age. He is one of four children, David Nicholas being approximately 11 months his junior. His parents divorced when he was 13 years old, and, after initially living with his mother, he went to live with his father. He enjoys a good relationship with his father. The same cannot be said for his relationship with his mother. In fact, three of the four children went to live with their father leaving the youngest brother with their mother. In recent times, the youngest brother has also come to live with their father.
The papers make clear that James and David’s father has worked hard to provide them with a warm and supportive home.
James continued to live with his father until he enlisted in the Australian Defence Force. Prior to enlisting he had been gainfully employed since leaving school in year 10. He is described as not being academically inclined but never encountered problems with literacy or numeracy and does not have anything in the way of a learning disability.
James was 21 when he enlisted. Life in the army meant a number of postings in different locations. Unlike his brother, James was not deployed to a combat situation. James told Dr Lim that it was because of his non-exposure to combat that he began to question his future with the army, despite enjoying the regimented structure, the sense of purpose it gave him and the camaraderie. Ultimately, he decided to resign from the army when he was 23 years old.
Upon discharge James worked with a construction firm for about 12 months before deciding to set up a furniture removal business with his brother David. The brothers were encouraged in this venture by their father who was in the same industry and who had surplus work. The brothers were in business together at the time of their arrest. One consequence of their arrest has been the loss of their business.
In her report Dr Lim states that James realised he had become somewhat isolated from the rest of the world in the lead up to his discharge from the Australian Defence Force in 2014. The friends he knew prior to joining up were all married with children and had established careers. He felt he was not doing as well in life. In this context he gravitated towards his brother and his brother’s friendship circle as a social outlet. It was through his brother and his brother’s friends that he became associated with the Hells Angels. In her report Dr Lim recorded:
When asked what he had enjoyed with David and his friends, Mr Nicholas replied, “it was just like being back in the army with the boys. It was something to do after work. Ten to twelve of us would go for runs together, eat, drink, and have a good time. It was no different to hanging out with a group of new friends, spending time getting to know each other”. According to Mr Nicholas, it was in this context that he came to be involved in the current offending. He said that he had agreed to help his brother deal in drugs out of a sense of “obligation” to make sure David would be safe, rather than for personal gain. He remarked, “we are always helping each other out. He’d do the same for me if the situation was reversed”. Mr Nicholas also asserted that while he was present on both occasions and understood the situation, he had never directly participated in the sale of the drugs.
Dr Lim also records being told by James that upon his release he intended to return home to live with his father and was looking forward to getting to know his youngest brother better.
Dr Lim noted that James had accepted his role in the offending to which he pleaded guilty, was remorseful and was willing to make significant changes to his previously dysfunctional lifestyle to prevent his reoffending. She suggested that it was his protective instincts, sense of loyalty, and compliant and non-opinionated nature that made him an ideal candidate to serve in the Australian Defence Force. Those same qualities rendered him vulnerable to becoming indoctrinated into the lifestyle of the Hells Angels. Dr Lim expressed the opinion that James’ association with a negative peer group and his overarching sense of obligation to his brother resulted in his involvement in the drug trafficking offences to which he had pleaded guilty.
In the course of bringing her report to a conclusion Dr Lim expressed the opinion:
Mr Nicholas does not have an antisocial personality structure. He is capable of discerning right from wrong. His main problem is that he has not been conditioned to think independently or prioritise his own needs over that of others, and it is a problem which has been magnified in recent years in the context of his association with an outlaw motorcycle club. He would have (and he still does) lacked the interpersonal skills to navigate himself out of the precarious situation he had found himself in, whilst balancing his loyalty towards his brother and rejecting any involvement in what he understood to be unlawful behaviours.
Dr Lim then recorded that during the period that he had been in custody James had reflected on his dysfunctional thinking and behaviours. She expressed the opinion, that he had “learnt his lesson”.
In the letter James wrote to the Judge he professed to have taken “a good hard look at myself”. He expressed shame and embarrassment at his arrest and charge and was particularly remorseful for the impact it had had on his father, younger brother and grandmother. He now claimed to possess greater clarity of thought as to his future and planned to invest his time in study, in giving back to his family and in living a more productive life. In that regard, he said he intended to cut ties with negative influences.
As mentioned the sentencing Judge had the benefit of numerous references from family members and friends of James. Clearly he comes from a close knit family which remains supportive of him. In a number of the references family members state that they had detected in James a change of attitude in the time he had been in custody. He was described as hardworking, polite and professional. He is undoubtedly a man considered to be of great potential whom it is expected will leave his criminality behind him.
In 2016 James twice came into contact with the criminal justice system. He was fined for the offences of possess a prescription drug not being a drug of dependence and breach bail. In neither instance was a conviction recorded.
David Nicholas is 29 years old. He too described enjoying a positive relationship with his father. His relationship with his mother, by contrast, was a very strained relationship. He reported that he would “avoid her as much as possible”. He left school in year 11 and commenced working with his father for a period before taking up an apprenticeship as an auto-electrician. He completed that apprenticeship and then joined the Australian Defence Force at the age of 21. During his time in the army he was deployed to Afghanistan for nine months in 2011. Active duty saw him exposed to numerous traumatic experiences including witnessing colleagues and civilians injured or killed and confronting the ever present threat of danger and death. He told Ms Darmenia that he was particularly effected by of the constant fear of the “rogue” Afghani soldier operating in close quarters with their Australian army partners.

After his deployment David returned to base at Woodside. He struggled to disengage from the heightened arousal associated with his tour of duty which effected his mood and his capacity to settle back into a non-combat role. His relationship with his long-term partner broke down. He stayed in the army for a few more months but remained unsettled. Eventually, he was discovered in possession of steroids which led to his discharge.
Ms Darmenia recorded:
… Prior to his active service in Afghanistan in 2011, there was no reported history of mental health concerns, assessment or treatment for Mr Nicholas.
It appeared mental health problems were evident on Mr Nicholas’ return from active duty, with difficulty with civilian re-integration, mood changes, the emergence of post-traumatic symptoms and ongoing stress. Mr Nicholas’ relationship with his fiancé quickly broke down and he engaged in increasing alcohol intake, and then drug use. He sought the company of compatriots who understood his experiences and situation, initially with his army colleagues and later, his association with motorcycle clubs such as the Vietnam Veteran’s, and later the Hells Angels, where he felt supported and understood. I note both Mr Nicholas’ report, and previous collateral information, which suggested psychological support from the army was either delayed or inadequate, and it appeared Mr Nicholas essentially turned to “self-medication” to cope. Psychologist Alan Fugler diagnosed a “stress disorder” with symptoms still present in 2013.
David continues to experience ongoing problems with night terrors, waking violently and with feelings of panic. At the time of writing her report Ms Darmenia assessed David’s post-traumatic stress disorder (PTSD) to be of a chronic nature. David had not had the benefit of specific and intensive treatment for his symptoms. Ms Darmenia said:
Mr Nicholas attempted some therapy in regard to his mental health in 2013 but did not find it helpful at that time. His history suggests a propensity to self-medication with substances such as ecstasy, cocaine and alcohol. Like many veterans Mr Nicholas had a reliance on the company of other individuals with shared experience, initially with his army colleagues and then post-discharge, with others in the outlaw motorcycle community. Mr Nicholas’ criminal offending appears to have commenced in that setting. He does not meet the criteria for an Antisocial Personality Disorder. He presented on interview with mixed feelings about his outlaw club association, and an openness to challenge around lifestyle choices, and was reported to be actively discussing this issue with a social worker at the prison. His engagement with a criminal organisation represents as significant rehabilitative concern and should be addressed directly as part of any rehabilitative process for Mr Nicholas. It is noted that he has a good degree of personal insight as well as a degree of personal ambivalence, with the moderating impact of his father and partner’s disapproval of the club, and these represents [sic] positive prognostic factors for him.
As mentioned David also wrote a letter to the sentencing Judge. In it he admitted to being a member of a motorcycle club. Later in the letter he professed that his future plans did not include membership of the club. He described his prison experience as the lowest of the low. He expressed concern at the stress that he had caused his father compounding the stress his father experienced upon his deployment to Afghanistan. He also acknowledged the anguish he must have caused to other members of his family and to his partner. He says he is ashamed of the fact that on Remembrance Day he had to mark a minute’s silence in remembrance of those who had fallen standing in a cell.
In the letter David also professed to understand that he has PTSD. He admitted to suffering the night terrors and feeling stressed as a consequence of the operations he was required to undertake as part of daily life in a war zone. He admitted that post discharge he dealt with these stresses by illicit drug use but has now been free of drugs and on medication for almost a year. In his letter he takes responsibility for his actions and looks forward to spending time with the William Kibby VC Veterans Shed upon his release. In preparation for this he had on three occasions met with the Shed Coordinator, Mr Heffernan OAM. He expressed remorse at the impact that his imprisonment had had upon on his family. He concluded his letter by saying that whilst any promise to the Judge that he would not offend again would likely ring hollow, he had promised his family and his partner that he would never put them or himself through this again.
As with his brother, the references from family and friends tell of a man with great potential, a strong sense of family and a strong work ethic. Also as in the case of his brother, there is a very real belief amongst those who provided references that David is capable of turning his life around. In this connection it is to be noted that in his time in prison he has set about attending education classes so as to better himself and, according to departmental records, has an excellent attendance record, interacted pleasantly with instructors and encouraged other participants.
Among the references are some from former soldiers who served with David. They attest to his loyalty and dedication and to his possession of character traits that give him every prospect of turning his life around.
As mentioned in opening this judgment, in 2014 David was sentenced to imprisonment for two years and nine months with a non-parole period of one year and eight months for the offences of trafficking in a controlled drug and possession of a prescription drug (the 2014 sentence). Those charges were laid after police searched his home and discovered 444 MDMA tablets and testosterone. David was sentenced on the basis that the testosterone was for his own use as was the MDMA save that he would sell a quantity of the MDMA to friends whom he knew were users in order to defray the cost of his own habit. As to that habit, the 2014 sentencing Judge was told that David would take, on average, 10 tablets each day of the weekend as a means of dealing with the effects of his time in Afghanistan.
After imposing the 2014 sentence to which I have referred the Judge turned to the question of suspension. He said:
Whether or not to suspend your sentence of imprisonment has caused me some anguish. You are only a young man, you have strong family support and you have secure employment. You have a stable relationship with a young woman. You also own your own home, which you are paying off from your earnings. All these factors are in your favour.
If that was all that was favourable to you it is unlikely that I would suspend your sentence of imprisonment in view of the objective seriousness of it.
However, what has ultimately influenced me to suspend your sentence is the fact that you served your country in what must have been a terrifying theatre in Afghanistan. From what I was told you served it well and honourably.
That service came at a cost to you upon your return to Adelaide. I am satisfied that it was in that context that you turned back to ecstasy and that you ultimately committed this serious offending. I think that I must give significant weight to these matters.
I am satisfied that sufficiently good reason exists to suspend your sentence of imprisonment.
The 2014 sentence was suspended upon David agreeing to enter into a bond to be of good behaviour for three years from the date of sentence being 11 February 2014. The date of the offending was 1 February 2013.
David’s antecedents include convictions for two minor driving offences and two charges of affray. In relation to the first charge of affray he was dealt with without conviction and entered into a bond to be of good behaviour for six months. With respect to the second, he was sentenced to nine months imprisonment suspended upon him entering into a bond to be of good behaviour for 30 months. Neither the 2013 drug offending nor the 2017 drug offending breached either of these bonds.
Mr Barry Heffernan OAM gave evidence on behalf of David at sentencing. Mr Heffernan is a former member of the Australian Defence Force and a Vietnam Veteran. He is the coordinator of the William Kibby VC Veterans Shed. Mr Heffernan told the Judge that the shed was set up about seven or eight years ago as a result of dissatisfaction with the support provided by the Department of Veterans Affairs to men and women who had served in the Defence Force. He referred to the Department as having paid little or no attention to people who had suffered in the course of their service and come back to empty lives. He said, “[w]e went away as one person, as David has, we came back totally different”. Through the shed the organisation helps ex-service men and women who have suffered due to their service from “all sorts of different problems”. He said:
David has served and has seen what they call A1 stresses, you have seen dead bodies, you have seen people killed. We did the same sort of thing and you just can’t see a psychologist, or go on tablets, or anything else like that now and get rid of it. It doesn’t happen.
Mr Heffernan gave evidence that he had visited David in prison on three occasions and that they had planned to continue their association in the future when David was released.
We will be there for him. Just because he has finished in custody, that isn’t the end of the story. It goes on and on. He will have his nightmares. He will have flashbacks. Little things will remind him. Smells and noises, people, whatever.
Mr Heffernan was asked questions about the involvement of veterans with organisations such as the Hells Angels. He said:
I know quite a number of men who joined the Hells Angels simply coming back from Vietnam. They didn’t look at it [as] joining an outlaw motor cycle group or anything like that, they recognised the military structure. They looked at the mateship and these guys couldn’t settle into society and the Hells Angels and the Finks and the Commancheros and the rest of it offered that. We know through different contacts and all that, that there are veterans in most of these other groups. I don’t condone what David has done and all the rest of it. I understand. You are probably aware that the Hells Angels were started by a group of American servicemen straight after World War II, people who couldn’t fit back into society. So, this is nothing new that David is involved in as well.
The sentencing Judge’s approach
The sentencing Judge set out the offences to which the brothers pleaded guilty, referred to the applicable maximum penalties and detailed the circumstances of their offending. She then referred to the brothers’ association with the Hells Angels and their professed intent to cease further association upon release from custody. Next the Judge referred to the personal circumstances of each of the brothers, including their military service.
In relation to David the Judge observed that during the course of the bond imposed in 2014 he did not have the benefit of treatment. It was not that treatment was not on offer but that David’s experience of counselling when in the Army had suggested to him that little was to be gained. In more recent times, as mentioned above, David had been in contact with the William Kibby VC Veterans Shed and indicated a willingness to involve himself in that organisation and the assistance it offered veterans. The Judge noted David’s promise to his father, siblings and partner not to re-offend. She said:
I accept that you have the insight and motivation at present to stay true to your word and I urge you to remain positive while you serve the balance of your sentence and to continue to improve your skills through courses and training that may be offered while in custody.
She added:
You know that for you to succeed in this respect you must cut ties with the Hells Angels upon your release and you must continue to seek out Mr Heffernan for his support. I also urge you to seek treatment to prevent any relapse into drug use.
When the Judge came to sentence David she refused to make a declaration that he was a serious repeat offender within the meaning of s 20B(1) of the Criminal Law (Sentencing) Act 1988 (SA) (CL(S)A). In this regard the Judge stated that she did not consider that David’s offending history warranted the making of the declaration in order to protect the community. The Judge then turned to deal with the breach of bond. She held that no good reason to excuse the breach existed, “noting that the offending on 13 January and 30 January 2017 was of a similar type to that for which the bond was imposed”. That said, the Judge observed that David had completed all but one month of the bond. In those circumstances she considered there to be special circumstances within the meaning of s 58(4)(a) CL(S)A justifying a reduction in the term of the suspended sentence to one year.
The Judge then turned to sentence David for the 2017 offending. She referred to the seriousness of the offending and to the dangers to the community associated with cocaine and MDMA. Considerable weight was to be afforded general and specific deterrence, she observed. The Judge referred to dicta from this Court regarding sentences imposed upon mid-level dealers. She then said:
While you were a drug user the offending was not pursued so as to fund your drug habit.
I accept that the profits derived from the sale of the cocaine were to be directed towards reduction of the debt owed by your acquaintance Mr … [C] … to the Hells Angels, such that you were not personally to profit from the sale. However, it is apparent from the recordings made by the undercover operative and I find it established beyond reasonable doubt, that you and your brother were to profit from the sale of the MDMA tablets in the order of 50 cents each per tablet.
It is also apparent from these recordings that the offending was not isolated and was part of an ongoing course of conduct. You had the ability to source large quantities of drugs through your Hells Angels associates. You were aware of the risks of detection. You were careful in terms of your communications with a view to avoiding detection and you knew of the potential for a lengthy term of imprisonment to be imposed if the offending was detected.
Large quantities of drugs with high street value were involved, being drugs ultimately destined to addicts and users through supply by your buyer.
I intend to impose one penalty for the five counts pursuant to s.18A of the Sentencing Act which penalty is to be cumulative on that imposed for the breach of bond. I will, however, explain how I arrive at the overall sentence by indicating the notional sentences I would have imposed for each separate offence.
You are entitled to a discount of up to 10% in relation to each count.
As to count 1, being the aggravated count of trafficking in cocaine, I would notionally have imposed a penalty of imprisonment of four years and six months reduced by 10% from five years to reflect your plea of guilty.
For each of the two counts of trafficking on 30 January 2017, I would notionally have imposed a penalty of three years, seven months and six days imprisonment reduced by 10% from four years and I would have notionally ordered those sentences be served concurrently with each other.
The two counts of trafficking in a large commercial quantity of MDMA, being counts 4 and 5, both involved a very large quantity of tablets. I would notionally have imposed a penalty for each count of five years and five months imprisonment, reduced by just under 10% from six years to reflect your plea of guilty and I would have ordered those two sentences be served concurrently and the sentences for each five counts to be served partially concurrently.
In all of the circumstances and taking into account totality, I will impose one penalty of nine years imprisonment for the five counts under s.18A. These are to be cumulative upon the term of imprisonment of one year imposed for the breach of bond, resulting in a head sentence of 10 years imprisonment.
After noting the concession that suspension of the sentence or suspension and service of the sentence on home detention was inappropriate, the Judge turned to fix a non-parole period. She said:
… I consider that your personal circumstances warrant the imposition of a lower than usual non-parole period to enable you to have a greater period of supervision on parole. In this respect I have taken into account your prior military service and the potential impact this has had on your mental health and wellbeing. You have the intellect and drive to once again become a positive contributing member of the community. I accept you are remorseful and contrite for your offending and that you have the support and motivation to take the important step of removing yourself from the Hells Angels upon your release, being the most significant criminogenic factor in your presentation.
I consider this an appropriate case to order a lower than usual non-parole period of three years and six months. Both the head sentence and the non-parole period are to be backdated to commence on 4 May 2017.
The Judge then turned to sentence James. She noted that he was not physically involved in the sale of the drugs, but was aware that those sales were to take place and was supportive of his brother. Having regard to the telephone intercept material tendered, the Judge considered that James’ involvement was not limited to the offences with which he was charged. That said the Judge considered that the extent and duration of James’ involvement in trafficking was uncertain. The Judge considered that the only appropriate penalty was one of imprisonment. She said:
As to count 1, I would have notionally imposed a penalty of imprisonment of three years, reduced by just under 15% from three years and six months to reflect your plea of guilty.
As to count 5, I would have notionally imposed a penalty of imprisonment of three years and five months, reduced by 15% from four years to reflect your plea of guilty, and I would have ordered these sentences be served partially concurrently.
I intend to impose one penalty for the two counts pursuant to s.18A of three years and nine months imprisonment.
The sentencing Judge then turned to deal with the question of suspension. In the circumstances s 38(2ba) CL(S)A was engaged prohibiting the Judge from suspending any sentence unless exceptional circumstances existed. The Judge said:
The tenor of your counsel’s submissions was that your role was confined to simply be present and aware of the transactions being facilitated by your brother, however, as I said before, it is clear that you were also to derive financial gain from the sale of a very large quantity of MDMA tablets, and the circumstances of counts 1, it being a transaction late at night, in the rear yard of a commercial premises and your statement by clothing to indicate your involvement in an outlaw motorcycle gang, is such to elevate your support with respect to this count to that more akin to a form of intimidation.
While it was submitted that the undercover operative knew of your involvement with the Hells Angels and targetted [sic] you both precisely because of this, in my view that is irrelevant.
Despite your positive personal circumstances, in my view there is nothing in this case which mitigates your decision to support your brother to traffic both to reduce debt owed to the Hells Angels and for your own financial gain, and while I consider you have reasonable prospects of rehabilitation, in my view the combination of all of the matters that I have heard does not amount to exceptional circumstances having regard to the nature and gravity of the offending. I decline to suspend the term of imprisonment imposed.
Next the Judge considered whether the sentence of imprisonment should be suspended and served on home detention. She noted in this respect that it was important to have regard to the punitive consequence contemplated by s 38(2) CL(S)A, namely, that ordinarily the sentence of imprisonment is to be served in prison. She then had regard to the qualifying circumstances subject of s 33BB CL(S)A before concluding:
I must determine whether ordering you serve the sentence on home detention would achieve the punitive and deterrent purposes of the sentence in the circumstances, and in this regard whilst serving a sentence on home detention does involve a significant encroachment on a person’s liberty and freedom of movement, in reality it is a significantly less onerous form of punishment than prison.
After carefully considering all relevant matters, I decline to exercise my discretion to impose a home detention order. You must serve the sentence imposed.

However, as with David, the Judge considered that James’ personal circumstances were such that he would benefit from a lower than usual non-parole period in order that he have the benefit of a lengthy period of supervision on parole. The Judge fixed a non-parole period of 16 months and ordered that the head sentence and non-parole period be backdated to commence on 4 May 2017.
Submissions
In James’ case the Director contends that the sentence he received was simply too low. In David’s case the Director submits that the sentencing Judge was wrong to reduce the term of the 2014 sentence and wrong to impose a non-parole period that, as a proportion of the head sentence, was so low. Each of the outcomes attacked is said to be plainly wrong because of the combined effect of the following factors:
·The brothers were involved in organised crime;
·The offending was profit driven;
·The offending was part of an ongoing course of conduct, and
·The quantity of the drug in relation to each count was significant and indicative of the brothers being mid-level dealers.
It is also contended that in relation to each brother there is an absence of factors mitigating their decision to involve themselves with organised crime in drug trafficking for financial gain.
In elaborating upon these submissions counsel for the Director emphasised the brothers’ membership of the Hells Angels. Membership of the club gave the respondents access to large quantities of drugs to sell and, it was submitted, enabled them to traffick whilst exploiting the benefit and protection provided by the club and its reputation. In this regard it was also submitted that the Judge correctly found that the brothers committed count 1 in company and whilst wearing club clothing in order to intimidate their new buyer. Membership of the organisation and its involvement in trafficking drugs called for a strongly deterrent sentence.
In the course of argument counsel for the Director conceded that in terms of seriousness, this case did not involve the most serious example of trafficking where the traffickers relied upon their membership of an outlaw motorcycle club. Whilst the brothers made it apparent that they were members of, or associated with, the Hells Angels in the course of the first supply, they did not expressly use their membership as leverage. Notwithstanding, counsel referred to the fact that as at the time of sentencing the brothers remained associated with the Hells Angels and that, despite the sentencing Judge accepting the brothers’ professed intentions to leave the club, the Hells Angels was a criminal organisation with which they had voluntarily involved themselves.
Counsel attacked the Judge’s characterisation of James’ level of involvement as wrongly emphasising the significance of physical involvement. Counsel contended that it was simply not the case that being present or part of the physical exchange of drugs was necessarily a more serious or significant step in the process of sale than other steps in the process. Counsel submitted that the proper characterisation of James’ involvement was that he was a willing participant in the drug trade with his brother and that he was motivated by personal gain.
Counsel then turned to the sentencing Judge’s direction that the sentence imposed on count 1 and count 5 be concurrent. That was an erroneous approach. The sentences were committed two months apart and whilst they formed part of the same ongoing business, were discrete transactions and separate incursions into crime.
Counsel then submitted that, bearing in mind that in R v Kong a five-year starting point for a single large commercial offence was considered manifestly inadequate, the starting point in relation to James’ offending was simply too low.[5] A starting point closer to the top of the four to seven year range identified in R v Young was appropriate.[6] In this connection counsel submitted that James was to be sentenced on the basis that he had involved himself with the Hells Angels and drug trafficking knowing of his brother’s previous conviction for drug trafficking and the peril that it exposed his brother to. Overall, the total head sentence imposed upon James was said to be incapable of providing a sufficient deterrent for those tempted to engage in drug trafficking by the profits to be made.
[5] (2013) 115 SASR 425.
[6] (2016) 126 SASR 41.
Turning to David, counsel contended that it was simply not open to the sentencing Judge to find special circumstances justifying a reduction in the 2014 sentence. The argument here focused upon two things; first, that the same mitigating factors as were raised with the sentencing Judge for the 2017 offending were raised with the Judge who sentenced David in 2014. Nothing in those factors could justify reducing the suspended sentence by two thirds to 12 months. Secondly, the fact that David had completed two years and 11 months of the three-year bond was not capable of amounting to a special circumstance. Here counsel referred to Western v SA Police where Lander J expressed the view that the purpose of a bond was to require good behaviour throughout the duration of the bond and that it was inappropriate to reduce a suspended sentence to account for that portion of the bond during which an offender did manage to be of good behaviour.[7] Counsel for the Director also submitted that the sentence imposed for the 2017 offending should have been cumulative upon the revoked suspended sentence. In this regard he referred to the fact that the 2017 offences involved separate incursions committed four years apart and was aggravated by the breach of the bond.
[7] (1994) 179 LSJS 325.
In dealing with the manifest inadequacy of the non-parole period imposed as part of David’s sentence, counsel commenced by observing that the notional starting points and head sentence identified were merciful. Thus, when the non-parole period was considered as a proportion of the head sentence, it had to be borne in mind that it was a proportion of an already low head sentence. With the exception of David’s military service and his PTSD there was nothing that justified the low non-parole period. Consequently, the question became whether that military service and stress disorder justified the low non-parole period. In answering this question counsel submitted that the Judge who sentenced David in 2014 had the benefit of a psychological report that addressed these issues and outlined steps for David’s rehabilitation that included not associating with those involved in drugs and receiving professional assistance. David did not do so. Counsel contended that there was no sound reason why he could not or should not have taken responsibility for his own rehabilitation. In those circumstances neither his service nor his PTSD could amount to special circumstances or justify the non-parole period.
Upon the issue of permission to appeal, counsel for the Director submitted that the community is less tolerant of the erroneous merciful treatment of drug dealers when their motives are purely commercial and connected to organised crime than it is of the more typical addicted dealer.
Counsel for David commenced his submissions by making plain that no complaint was made by the Director regarding the head sentence imposed and related starting points nominated by the sentencing Judge. He submitted that the factual matrix was not ordinary. This was not a case of trafficking for and on behalf of the Hells Angels. Whilst the proceeds of some of the trafficking was to be used to assist another member of the Hells Angels to reduce personal debt, the trafficking was an individual pursuit with the profit to be enjoyed by the brothers.
Next counsel submitted that because the trafficking subject of the charges was all being controlled by police the offending did not and could not result in harm to the community. In making that submission counsel conceded that this was fortuitous, the brothers obviously were prepared for the drugs sold to be disseminated in the community, but, nonetheless, the consequence of the offending was less than similar offending where the drugs did make their way to the community.
Counsel then submitted that there was evidence and material before the sentencing judge that justified the imposition of a non-parole period that was merciful and shorter than usual. Here counsel pointed to the fact that when David was sentenced in February 2014 the intention was that as part of the suspended sentence bond he would have the benefit of direction and treatment. That was never forthcoming. By comparison, coming forward in time, David has now sought out Mr Heffernan and intends to involve himself with the William Kibby VC Veterans Shed. Counsel also referred to the fact that veterans often return from service and seek out an environment in which they are comfortable, one that reflects in many respects life in the defence force. Here the loss of structure and emotional support and reinforcement that was a consequence of leaving the armed services explains why David gravitated towards the Hells Angels. Falling in with an organisation of that type can assist the person to address their isolation and help them to better cope with life in the community.
Counsel advised that before the sentencing Judge no submission was made to the effect that if the suspension of the 2014 sentence were revoked special circumstances existed warranting a reduction in the sentence. Rather the submission that was made was that it was appropriate to order partial concurrency between that sentence and any sentence imposed for the 2017 offending to achieve the same outcome.
Counsel for James emphasised the reason for James becoming involved in trafficking as articulated by Dr Lim. She conceded that he stood to gain financially and that the offending was above street-level dealing, but nonetheless his motivation and degree of involvement was of a lesser order than that of his brother. He was not party to negotiating either of the deals subject of the charges, performed the role of an assistant to his brother, was not to benefit at all from count 1 and was to make only $0.50 per pill from the sale subject of count 5. These factors, when added to the inability to make findings as to the extent and duration of James’ prior involvement in trafficking, his limited antecedents, his remorse and contrition, the support of his family and friends, his past good work ethic and prospects of rehabilitation, justified the Judge’s merciful approach. Counsel adopted the submission of counsel for David that the fact that the trafficking subject of the charges would not result in the drugs entering the community rendered this offending less serious. In bringing her submissions to a close counsel referred to the fact that James was released on parole on 3 September 2018. She submitted that the public interest did not demand that he be returned to custody.
Counsel for each brother emphasised the benefits to the community of the brothers serving lengthy periods on parole subject to supervision and, in particular, to control as to with whom they associate. Supervision on parole was the best means to protect the community from the risk of recidivism by ensuring that the brothers carried through with their intention to break with the Hells Angels.
Consideration
I commence by making some general observations. The starting point in sentencing for a trafficking offence is the legislative instruction contained in s 44(1) of the CSA. That section provides:
44—Matters to be considered when court fixes penalty
(1) In determining the penalty to be imposed on a person convicted of an indictable or minor indictable offence against this Act, the court must take into consideration—
(a)subject to subsection (2), 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 controlled drug; and
(d)in the case of an offence against Part 5 Division 2 or 3—
(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 that financial gain is the subject of an application under the Criminal Assets Confiscation Act 2005); and
(da)in the case of an offence against section 33F, 33H or 33I—whether the offence occurred within a school zone or at or near any prescribed place; and
(e)any other relevant factor.
The considerations to which s 44(1) refers are, as s 44(1)(e) makes plain, not exhaustive. The intention is that the factors identified and all other relevant factors, including those personal to an offender, be taken into account in the ordinary way, to fashion a sentence bounded by proportionality which serves the purposes of sentencing — to protect the community, to deter specifically and generally, to punish and to rehabilitate. In the present case the observations made in R v Kong are relevant to any assessment of the protective, deterrent and punitive purposes of sentences for trafficking.[8] In R v Kong this Court said:[9]
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, nor 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.
...
The range of penalties for drug offences must recognise that there is a concern in the community about the effect of illicit drug consumption, particularly upon the younger generation. Further, many of those who are involved at the higher end of drug trafficking are also involved in other criminal conduct. Many crimes of violence are committed in a background of drug offending.
[8] (2013) 115 SASR 425.
[9] (2013) 115 SASR 425 at [90], [92].
This remains the position.
The more significant the offender’s role in the illicit drug trade, the greater the need for deterrence.[10] The more significant the offender’s role in the illicit drug trade, the greater the need for condign punishment. An offender heavily invested in the illicit drug trade who trafficks in large quantities and has done so on an ongoing basis profits from harm to individuals, to families and to the community generally. That same offender contributes to drug-related crime. The cost to the community both financial and personal is great. In the circumstances the drug trafficker who is not an addict who trafficks to support his or her habit, but one who chooses to traffick for financial gain in the knowledge of the likely consequences should he or she be caught, cannot, generally speaking, expect leniency. The trafficker who organises him or herself with others so as to increase, perpetuate and protect their trade can expect less again.
[10] R v Camarinha [2018] SASCFC 118 at [44] (The Court).
In R v Young Kourakis CJ contrasted the gravity of the offending of the street-level trafficker with that of the mid-level dealer and in the light thereof commented upon the sort of sentences that might be imposed in each instance for trafficking.[11] He said:[12]
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.
...
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.
[11] (2016) 126 SASR 41.
[12] R v Young (2016) 126 SASR 41 at [65]-[66], [68].
And in R v McIntosh I said:[13]
His trafficking cannot be characterised as that of an ordinary street level dealer. The quantities that he was able to supply and the revenue generated makes this plain. As a supplier his culpability is greater, and in my view considerably so, than that of the street level dealer who sells drugs to support his own addiction. As a corollary of this, his contribution to the harm methamphetamine causes to individuals and the community is greater. The sentence imposed upon him must deter others who would do the same in addition to adequately punishing the respondent for what he has done.
[13] [2017] SASCFC 87 at [166].
These observations serve to guide the sentencer. However, care must be taken with the use of labels. They are convenient, but cannot be allowed to mask consideration of precisely what the particular defendant has done. In this connection in R v Young Blue J helpfully said:[14]
[14] (2016) 126 SASR 41 at [216]-[223].
Features of offending
The features relevant to assessing the seriousness of a defendant’s trafficking offending and the extent of proportionate punishment include the quantity, purity and varieties of the drug or drugs involved; the defendant’s position in the drug trafficking hierarchy; the defendant’s role in the trafficking (eg principal/sole trader, courier, handler, assistant, etc); the level of reward the defendant may be expected to have received as a result of the trafficking; whether the trafficking was undertaken solely for profit or solely to support a drug addiction or a combination; whether the offending was an isolated transaction or part of a course of conduct and in the latter case the period over which the defendant undertook the trafficking. The relevance of these features follow from the legislature’s prescription of relevant factors in s 44 of the Act.
These features in practice tend to overlap or be complementary. For example, a person who is higher in the drug trafficking hierarchy might be expected to be trafficking in drugs of a higher purity than someone lower in the hierarchy; at the level of a retailer, defendants are usually sole traders, whereas at the level of a distributor defendants are often couriers, handlers, assistants, etc; and the higher a person’s level in the drug trafficking hierarchy, the greater will be the quantities and rewards that may be expected.
The quantity of drugs the subject of the trafficking offence involved does not only dictate whether the offence is trafficking, trafficking in a commercial quantity or trafficking in a large commercial quantity and hence whether the maximum penalty by way of imprisonment is imprisonment for 10 years, 25 years or life imprisonment. The relative quantity within each of those three brackets is also important for two reasons. First, s 44(1)(b) explicitly requires a sentencing court to have regard to the quantity involved in the commission of the offence. Second, it would be irrational to treat quantity as critical to the identification of the seriousness of the offence as between the three levels but then to ignore it when assessing the seriousness of the offence within one of those levels. It would lead to anomalies if the appropriate penalty for just over a commercial quantity was of a different order to the appropriate penalty for just under a commercial quantity.
While a proportional or linear approach in assessing the quantity by reference to the minimum quantity for the commission of a higher level of offence in the hierarchy is inappropriate, a court sentencing for trafficking is required to have regard to where the quantity involved lies in the range from a trafficable quantity (1 g in the pure form for the three drugs in the present case) to a commercial quantity (100 g in the pure form for the three drugs in the present case).
As this Court pointed out in R v Faehrmann,a defendant is to be punished only for the trafficking the subject of the charges to which the defendant pleads guilty or of which the defendant is found guilty and not for an uncharged course of trafficking. However, the uncharged course of trafficking is an important aspect of the context of the charged offending and a defendant is not entitled to the same leniency in such a context as if the charged trafficking were an isolated occurrence. Similarly, it is also contextually important if the quantity found in the defendant’s possession is atypically low because the defendant’s stocks are towards the bottom of the trading cycle before acquiring additional stock to make future sales.
Section 44(1)(c) and (d) require a sentencing court to have regard to the circumstances relating to the defendant’s use (if at all) of the drug or drugs in question, the commercial or other motives of the defendant and the financial gain likely to have accrued. It is therefore relevant to consider the extent to which the purpose and effect of the trafficking offence was financial or other gain and the extent to which it was to pay for the defendant’s use of drugs to which he or she was addicted. It is relevant to consider the defendant’s position in the drug trafficking hierarchy and the defendant’s role in the trafficking (eg principal/sole trader, courier, handler, assistant, etc).
All other things being equal, a defendant who does not use drugs and undertakes trafficking purely for profit is likely to attract a higher sentence than a defendant who is addicted to drugs and undertakes trafficking purely to pay for his or her own use. There are various intermediate situations. If a defendant contends that charged trafficking is not purely for profit, the defendant raises a circumstance in mitigation and, if the factual basis is challenged by the Director or not accepted by the Court, the onus lies on the defendant on the balance of probabilities to prove the extent to which the trafficking is not for profit.
Personal factors relevant to determining an appropriate sentence will include the age of the defendant, the defendant’s character, any prior history of drug trafficking, and the defendant's prospects of rehabilitation.
[footnote omitted]

In the present cases the drug quantities involved were significant, particularly in relation to counts 3, 4 and 5. Clearly, they are quantities indicative of the vendors being mid-level dealers or higher, as are the sale prices. Bearing in mind that each pill represents an individual dose, the risk of harm to the community was great.
During the course of argument it was suggested that the brothers’ culpability was reduced because they sold cocaine and MDMA to an undercover police officer and were subject of a police undercover operation. I reject that suggestion. The authorities distinguish between the offender incited or encouraged by police to offend when he or she might not otherwise do so, and police operations instigated to detect and bring to justice persons engaged in criminal activity. In the former instance leniency might be extended to the offender but not in the latter.[15] As to the latter, in R v Mandica King CJ said:[16]
This ground for leniency does not exist, however, where the effect of the police trap is not to encourage a person to commit an offence which he would not have otherwise committed, but merely to detect and obtain evidence against an offender who is only too ready to commit the offence. The distinction was made by Lord Salmon in Reg. v. Sang:
“It is only fair to observe that in the present case there was not a shred of evidence that the police sergeant was an agent provocateur. Even if he had been told by an informer that the accused was a hardened dealer in forged bank notes, it would, I think, have been his duty to carry out a test to discover whether this information was correct, which events show that it obviously was. No doubt, the accused would not have committed the crime of trying to sell forged bank notes to the police had he known it was the police. There can, however, be little doubt that he would have tried to sell the forged notes to anyone else whom he ‘considered safe’.
I would now refer to what is, I believe, and hope, the unusual case in which a dishonest policeman, anxious to improve his detection record, tries very hard with the help of an agent provocateur to induce a young man with no criminal tendencies to commit a serious crime, and ultimately the young man reluctantly succumbs to the inducement. In such a case, the judge has no discretion to exclude the evidence which proves that the young man has committed the offence. He may, however, according to the circumstances of the case, impose a mild punishment on him or even give him an absolute or conditional discharge and refuse to make any order for costs against him.”
[footnote omitted]
[15] R v Mandica (1980) 24 SASR 394.
[16] (1980) 24 SASR 394 at 403.
Here the brothers were previously involved in trafficking and were willing to supply the drugs subject of the charges to the undercover officer. This is not an instance of a person who was not engaged in criminal activity being induced by the police to offend. As far as James and David were concerned, they intended to sell drugs that would be used and intended to profit from the demand for the drugs they sold. They willingly involved themselves in a trade that results in harm to the community. That no harm from the sales subject of the charges would occur was, from their position, fortuitous. Bearing in mind their subjective intentions, the fact that the sales subject of the charges did not result in harm to the community has little mitigatory effect.
I accept that there may be a case where the conduct of undercover police officers pushes the low-level dealer from one tier of trafficking to the next and that trafficking at that level may be the exception for the offender. It was not suggested that this was a case of that type nor could it have been when one has regard to the recorded conversations. Those conversations make plain that the brothers supplied quantities that were not unusual for them, and, in relation to the MDMA, quantities that they suggested be purchased in order to make the transaction financially worthwhile.
Next there is the question of the relevance to sentencing of the brothers’ membership of the Hells Angels. In R v Cekic, Vanstone J, with whom Kelly J and David AJ agreed, said:[17]
Next, I shall consider the submission made by counsel for Cekic that the Judge impermissibly had regard to his membership with the Finks motorcycle gang and the bad character of his co-offenders. As discussed, it is appropriate for the Judge to have regard to the factual background of the offending. Here, that included the appellants’ association with an outlaw motorcycle gang and its members. Identification with, and loyalty to, a violent criminal organisation is highly relevant to the fixing of an appropriate sentence, because it affects considerations of culpability, general and specific deterrence, punishment and rehabilitation. Indeed, the Judge in sentencing remarked:
Of course it is important to deter offences of serious violence by whomsoever they are committed. However in sentencing for offences of serious violence committed by offenders who are associated with outlaw gangs the element of general deterrence assumes greater relative importance because it is necessary to counter the violent culture of those gangs.
With respect, I agree with the Judge’s statement. Cekic’s membership of, and identification with, the Finks motorcycle gang speaks to his character, and more specifically to the likelihood of his reoffending and the prospects of his rehabilitation.
[17] [2016] SASCFC 26 at [30].
To similar effect in R v Pishdari Nicholson J said:[18]
Typically, when sentencing an offender, the extent and nature of their prior criminal record will be of assistance in assessing their character and propensities for the purpose of determining matters such as: whether leniency might be justified; the extent to which personal deterrence is to be a consideration; and prospects of rehabilitation. Each of the appellants, with the exception of Mitchell and Mackay, had relatively few serious criminal antecedents and this remains a factor in their favour. However, the fact that a person is a member, nominee or, depending on the circumstances, an associate of an OMCG may of itself support a conclusion that he or she is of bad character with poor prospects for rehabilitation and an enhanced need for personal deterrence and notwithstanding an otherwise moderate or good prior criminal record.
The fact that a person is prepared to associate themself with and participate in the ethos and activities of an OMCG says much about their character. It is common knowledge that many members of OMCGs see themselves as operating outside the law with a preparedness to participate in serious criminal offending, including acts of extreme violence. The fact that a person is prepared to participate in or be involved with such an organisation shows that person to be of very bad character, relevant to the sentencing considerations earlier identified. Each of the appellants in this matter, including those with relatively limited prior criminal records, had a sufficiently extensive association with the Nomads for this reasoning to apply.
[18] [2018] SASCFC 94 at [23]-[24].
Respectfully, I agree with both Vanstone J and Nicholson J.
In the present case, however, both James and David profess an intent to leave the Hells Angels. The Judge appears to have accepted that assurance. It was open to the Judge to do so. The fact that whilst in custody both James and David have continued to associate with members of the Hells Angels does not undermine the Judge’s trust in them that they will be good to their word. It is well known that the Department for Correctional Services houses members and former members of particular groups together and apart from other groups for security purposes.
It is understandable that the Judge reached the conclusion she did. Membership by the brothers of the Hells Angels seems at odds with the values of the Nicholas family. As I have said, the family seems close knit. Membership is also at odds with the sense of honour and service that comes with being a member of the armed forces. The brothers have explained how they came to be members of the Hells Angels. David’s explanation accords with Mr Heffernan’s experience. James gravitated toward his brother. Their path to the Hells Angels is not the same as that normally encountered.
Acknowledgement and acceptance of the immorality and baseness that subscribing to the values of an outlaw motorcycle means is a first step to change. That said, at the time of their offending the brothers did subscribe to the values of the Hells Angels and to the threat to the community that groups like the Hells Angels pose. Further, even though their actions were not undertaken for and on behalf of the club, membership provided them with access to the suppliers of the drugs they sold. And whilst membership was not used expressly to secure any sort of leverage, the implicit message conveyed in the wearing of the t-shirts in the course of conducting the very first sale to the undercover police officer cannot be overlooked.
I turn to deal more specifically with the application in relation to David Nicholas.
I start with the complaint made regarding the Judge’s conclusion that, having revoked the suspension of the 2014 sentence, special circumstances existed justifying the reduction under s 58(4)(a) CL(S)A of that sentence from two years and nine months to 12 months.
In R v Buckman King CJ dealt with the application of a predecessor to s 114(5), namely s 9(6) of the Offenders Probation Act 1913 (SA).[19] He said:[20]
There is a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. 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. The court will not lightly interfere with the ordinary consequence of a breach of the recognisance.
Parliament has recognised, however, that in some cases the rigorous application of the ordinary consequences of breach can be oppressive and even unjust. It has therefore provided to the courts the means of ameliorating those consequences in exceptional cases. Subsection (5) of s 9 of the Offenders Probation Act 1913 empowers the probative court to refrain from ordering that the sentence be carried into effect where the failure to observe the conditions of the recognisance is trivial or there are proper grounds for excusing it. Subsection (6) authorises the reduction of the term of imprisonment in “special circumstances”.
I agree with what Jacobs J has said as to the meaning and relationship of these two subsections. It is to be remembered that the sentence which is activated is the sentence for the original offence. The special circumstances which must exist to authorise a reduction, must therefore be such as [to] render the original sentence inappropriate for that offence in the special circumstances now existing. The probative court must be able to say that if those circumstances, which I should think would almost always be circumstances personal to the offender, had existed at the time of the passing of sentence, the sentence imposed would have been thereby rendered inappropriate. It cannot be too strongly emphasised that where a suspension is revoked, the consequence, in the absence of special circumstances so understood, is that the offender is ordered to serve the sentence which the original court judged to be proper. Subsection (6) exists to enable the probative court to avoid the injustice of activating a sentence the length of which has been rendered oppressive or inappropriate by subsequent circumstances of a special nature.
[19] (1988) 47 SASR 303.
[20] R v Buckman (1988) 47 SASR 303 at 304.
In that same case Jacobs J said:[21]
Before making an order subs (4) the probative court must therefore first direct its attention to subs (5) and ask itself two questions in the alternative: (a) was the breach of the recognisance trivial, or (b) are there proper grounds to excuse the breach. If either of these questions is answered in the affirmative, the court may exercise the power in subs (5)(a) to refrain from ordering the sentence to be carried into effect, with or without the exercise of the ancillary power in subs (5)(b). If the court acts under subs (5) that is an end of the matter, and subs (6) does not fall to be considered; but if the court declines to act under subs (5), and orders that the suspended sentence is to be carried into effect, it is then, but only then, that it has to consider the various options in subs (6). One of those options is to reduce the term of the suspended sentence if there are “special circumstances” for so doing but that in my opinion is an entirely different question from that which the court has to address under subs (5) in asking itself whether there are “proper grounds” to excuse the breach. The court has already decided that there are no such proper grounds before it comes to consider the special circumstances, and the structure of the legislation therefore requires the two concepts to be distinguished. Despite the width of both expressions the distinction, I think, is this: proper grounds for excusing the breach look to the nature of the breach and the circumstances in which it was committed; special circumstances for reducing the sentence, if the breach is not excused, look to some significant change of circumstances since the prisoner was sentenced, which had they existed at that time might have justified a reduced sentence. It seems to me that they will generally be personal factors, of the kind that may dispose a court to greater leniency, which have arisen subsequent to the sentence of imprisonment — ill health or acute domestic problems or obligations spring to mind as examples, but they are only examples, and it is impossible and unwise even to attempt to state exhaustive categories of such special circumstances.
[21] R v Buckman (1988) 47 SASR 303 at 307.
The Judge who sentenced David in 2014 contemplated that for the lifetime of the bond David would have the assistance of a community corrections officer and professional help in dealing with the legacy of his active service in Afghanistan. Unfortunately, he did not get the assistance with his PTSD that no doubt the Judge hoped would evantuate.
I do not accept the submission that this Court should consider that there was nothing stopping David from taking responsibility for his own rehabilitation and seeking out help himself. To adopt that attitude is to ignore the possible impact of mental illness. That is not to say that people suffering from a mental illness cannot take responsibility for their treatment and recovery, but it cannot be expected that invariably people will be able to do so. The assessment of a person’s functional capacity when they are diagnosed as suffering from a mental illness is far more complex. Recognition on the part of the sufferer of their having an illness itself may be an obstacle to treatment. The erroneous perception that one is coping, or that no-one can help, or the perception that maladaptive means of coping such as the abuse of alcohol or drugs are helping, are others. Then there are external pressures that impact upon a person’s willingness and ability to seek out help or to even broach the subject of doing so. And all the while the individual continues to suffer. In David’s case Ms Darmenia refers to the delay or inadequacy of the assistance provided by the Army and to David’s unsatisfactory experience with counselling in 2013. These things pre-dated his sentencing in 2014 but would have informed his attitude to seeking out assistance and his resort to alternatives. In this regard Ms Darmenia refers to his tendency to self-medicate and his reliance upon support to be found in the company of others in what he considered was a supportive environment. In these circumstances, I do not think it can simply be said that he should have helped himself and did not with the consequence that his not having had the benefit of any professional assistance cannot mitigate his conduct.
In imposing sentences that provide for intervention the courts trust in the executive that it will, to the extent that its resources permit, secure the assistance that the individual needs. The courts make such orders having determined that the protection of the community ultimately lies in the offender having the benefit of the contemplated assistance. However, just putting the structure in place does not always mean that the assistance is obtained let alone the objective achieved. In some instances, perhaps many, fault may lie with the offender, but not always or not exclusively.
In David’s case I think there is some scope for concluding that the absence of the interventions that the 2014 sentencing Judge contemplated and the consequence of his being subject to a lengthy bond which for the greater part he did not breach, despite not having the benefit of professional assistance, justified the Judge’s conclusion that special circumstances exist. Had the 2014 sentencing Judge not imposed the conditions permitting intervention, the three-year bond could be viewed as setting David up to fail. Without the assistance of the intervention contemplated by the 2014 sentence that conclusion could similarly be drawn. If this is so, there is an element of the cruel about then imposing the 2014 sentence in its entirety.
Whether or not special circumstances exist is an evaluative question about which reasonable minds might differ. In my view it cannot be said that the conclusion that special circumstances existed in David’s case was plainly wrong. I agree that the mere fact that a significant portion of the bond was served without blemish, of itself, will rarely amount to a special circumstance. However, for the reasons I have given this is not a case of time alone providing the special circumstances. One could debate the size of the reduction made, but I do not think doing so in the circumstances of this case would achieve any of the purposes that it is intended Crown appeals against sentence should serve.
I would refuse permission to appeal on ground 1.
In R v Devries I recently set out at some length the settled principles applicable in the determination of a non-parole period.[22] I resist the temptation to do so again save to make specific reference to R v Shrestha where Brennan and McHugh JJ referred with approval[23] to the following passage in R v Tait:[24]
On the other hand, the deterrent aspect of punishment is of primary importance in cases of this kind. The sentence should demonstrate to others tempted to engage in lawlessness on a vast scale that the punishment to be imposed will be calculated to protect society from the deliberate attack made upon it. When an organized, costly and complex offence is contemplated, the risk of apprehension and the severity of punishment is evaluated; and thus there can be no other class of case in which the deterrent effect of punishment can more confidently be assumed to operate. Those who deliberately choose to run the risk of punishment in order to acquire a profit from the venture cannot point to mitigating circumstances of the sort which stand the chance offender in good stead. The extent to which a sentence recedes from the maximum in cases of this kind is limited by the necessity to impose sentences of unequivocal severity as the most efficient means available to the courts to enforce the relevant prohibition.
[22] [2018] SASCFC 101 at [13]-[17].
[23] (1991) 173 CLR 48 at 66.
[24] (1979) 46 FLR 386 at 399 (Brennan, Deane and Gallop JJ).

Brennan and McHugh JJ were quick to acknowledge that in certain cases deterrence may have to yield to rehabilitation especially if the community was likely to derive a benefit from the rehabilitation of the offender. Despite this deterrence was always a factor to be taken into account in setting a non-parole period.[25]
[25] R v Shrestha (1991) 173 CLR 48 at 66.
In David’s case it is to be recalled that the non-parole period had to serve the purposes of both the 2014 and 2018 sentences.
The non-parole period imposed by the sentencing Judge is 35% of the overall head sentence. That proportion suggests error. If imprisonment for nine years for the 2017 offending is the appropriate sentence and, an additional year must be served for the 2013 offending, it is difficult to understand how the purposes of both sentences will be achieved if only three years and six months is served.
I agree with counsel for the Director that the quantity and value of the drugs, the role David played, the harm to the community risked, the fact that the offending was not isolated, and that the trafficking was engaged in solely for the purposes of profit called for a non-parole that was a greater proportion of the head sentence in order to serve the general deterrent purpose of the head sentence. As indicated above, this Court has routinely emphasised the need to impose sentences for drug trafficking that deter generally. Furthermore David’s conduct indicates that he was well aware of the risk of detection and the consequences that would follow and yet chose to run that risk. When this is taken with his association with the Hells Angels and the implicit reliance upon the Hells Angels’ brand in the course of committing count 1, the adequacy of the non-parole period as an expression of condign punishment is also questionable.
What is plain is that the Judge’s approach was merciful. Where the Judge referred to David’s personal circumstances as warranting a lower than usual non-parole period, she is to be understood as meaning a lower non-parole period than she would otherwise impose. The Judge was motivated to take the course she did by David’s prior military service and the impact it had had upon his mental health and wellbeing. Quite clearly the Judge considered David’s prospects of rehabilitation to be very good. I think she was right to do so.
Above I have referred to King CJ’s cautionary advice to this Court in Osenkowski. Mercy is a difficult concept to reduce to a statement of principle governing its future application. When King CJ spoke of mercy in Osenkowski he was not sanctioning the abandonment by sentencing judges of the principles that ensure consistency in sentencing and equal treatment. Mercy cannot be a cloak for the arbitrary. Arbitrariness is anathema to equal treatment and the rule of law. It saps confidence in the administration of justice. Rather King CJ was referring to the existence of a factor or factors in the individual case that the judge considered took it outside the ordinary. Something, perhaps intuitive to the experienced judge, which warranted differential treatment. Differential treatment in such circumstances does not offend consistency in sentencing or the principle of equality provided relevant difference truly exists. In Director of Public Prosecutions (Cth) v Masange Maxwell P and Redlich JA said:[26]
The requirements of justice must sometimes be tempered. Mercy “may alleviate suffering that is in some sense deserved” or which a judge is otherwise entitled to impose.
[footnote omitted]
[26] (2017) 325 FLR 363 at [73].
In my view there was ample material to which the Judge could point that supported the merciful approach she determined was appropriate. I have in mind the combined effect of Mr Heffernan’s evidence as to the lasting impact for a veteran of service in a war zone and the fact that David had now reached out for help, his family support and undoubted ability to be a productive member of the community as attested to in the references tendered, and his positive and productive use of his time in prison.
Mr Heffernan’s evidence also explains how David ended up a member of the Hells Angels. As I have said, his path to the Hells Angels is not the norm and does not reflect the graduation of embedded anti-social traits. It may be considered that the Judge considered David to have arrived at a cross-road in his life and to have realised as much. She fashioned a sentence that places great faith in his turning his life around, provides him with assistance in doing so, and which protects the community. In my view, even though the non-parole period is erroneously low, this is one of those rare cases where this Court should not interfere with the mercy that has been extended.
I would refuse permission to appeal on ground 2.
I turn to deal with the application in relation to James Nicholas.
Here it must be recalled that James’ role was subordinate and less than his brother’s. It is also to be recalled that the extent to which he had been involved in trafficking in the past and his role in any such trafficking is unknown. It cannot be said that he is necessarily a mid-level dealer, as in the case of his brother. Undoubtedly, his role was facilitative and undoubtedly it was undertaken knowing the risk of detection and the consequences. As in the case of David, it is not the case that the trafficking offences to which James pleaded guilty were committed for or on behalf of organised crime. However, it may be accepted that membership of the Hells Angels was enabling. Again in relation to count 1, I treat the aggravating factor as occupying the lower end of the scale.
In all the circumstances, in my view the Judge’s nominated starting points for each of count 1 and count 5 were low. I would have thought that an overall head sentence of between five and six years was appropriate with a non-parole period at least 50% of the head sentence. The indicative sentence and non-parole period that I consider important are driven in no small part by the deterrent and punitive purposes of punishment. The low non-parole period I have suggested reflects James’ good prospects of rehabilitation
As in the case of David, the Judge has treated James mercifully. He too appears to have been treated as if he has arrived at a cross-road in his life. Like his brother, but for different reasons, he too has had difficulty in adjusting to life outside the Australian Defence Force. His prospects of rehabilitation are very good. His membership of the Hells Angels is not reflective of an anti-social attitude nor an anti-social personality disorder. He has the capacity and ability to reform. He is remorseful and acknowledges his previously dysfunctional lifestyle. He enjoys the strong support of his family.
As with David I am persuaded not to interfere with the sentence the Judge imposed upon James. Again I treat this as an instance of the Judge’s sympathies being reasonably excited to extend mercy. I do not think it unusual that she would view the brothers similarly. They are brothers, close in age, generally close, with similar interests and the same value set. I think it was open to the Judge to consider that those values are not truly the values of the Hells Angels and that the professed intent to leave the club should be accepted. If I am wrong in this, those same considerations coupled with the fact that James has now been released on parole would lead me to refuse permission. I do not think that the public policy reasons that favour intervention in James’ case are strong enough to outweigh the public interest in ensuring that he is not twice vexed by the repeated exercise of the coercive power of the State.
I emphasise that the brothers have been in the receipt of mercy reflecting the sentencing Judge’s faith in them that they will be true to their word. Trusting in that judgment, I decline to grant the Director permission to appeal. If it transpires that the Judge’s faith was wrongly placed, the brothers cannot expect to be treated the same again or that their word will count for much with a court.
Conclusion
Permission to appeal in each case is refused.

Count	Charge and maximum penalty	Offence date	Defendant	Drug type, quantity and purchase price
1.	Aggravated trafficking in a controlled drug (s 32(3) Controlled Substances Act 1984 (SA) (CSA)) $75,000 or imprisonment for 15 years, or both.	13 January 2017	David and James	Cocaine : 27.7g/1 ounce : $7,600
2.	Trafficking in a controlled drug (s 32(3) CSA) $50,000 or imprisonment for 10 years, or both.	30 January 2017	David	Cocaine : 27.5g/1 ounce : $7,600
3.	Trafficking in a controlled drug (s 32(3) CSA) $50,000 or imprisonment for 10 years, or both.	30 January 2017	David	MDMA : 1,060 pills (30 g) : $5,500.
4.	Trafficking in a large commercial quantity of a controlled drug (s 32(1) CSA) $500,000 or imprisonment for life, or both.	23 February 2017	David	MDMA : 5,140 pills (1.503 kg) : $25,000
5.	Trafficking in a large commercial quantity of a controlled drug (s 32(1) CSA) $500,000 or imprisonment for life, or both.	15 March 2017	David and James	MDMA : 5,090 pills (1.485 kg) : $27,500