R v Rockford - [2015] SASCFC 51

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ROCKFORD
[2015] SASCFC 51
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Stanley)
22 April 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Permission to appeal against conviction.
Appeal against sentence.
The applicant was found guilty after a trial by judge alone of one count of cultivating a commercial quantity of a controlled drug, one count of trafficking a large commercial quantity of a controlled drug and one count of possessing prescribed equipment.
Whether the trial judge erred in refusing to exclude evidence of the cultivation of a substantial cannabis crop on property leased by the applicant obtained by an unlawful search.
The appellant appeals a sentence of eight years and nine months imprisonment with a non-parole period of four years imposed after the appellant pleaded guilty to three counts of taking part in the production of a prohibited substance contrary to s 32(1)(b) of the Controlled Substances Act 1984 (SA) (the CSA) and one count of taking part in the sale of cannabis contrary to s 32(1)(d) of the CSA. This is separate offending from the offending the subject of the application for permission to appeal against conviction.
Whether the judge failed to consider properly whether imprisonment would have been a greater burden on the appellant by reason of the fact he suffers from terminal cancer. Whether, by reason of that fact, the non-parole period is manifestly excessive.
Held per Stanley J (Kourakis CJ and Sulan J agreeing) granting permission to appeal against conviction and allowing the appeal:
1. The judge failed to have regard to what Deane J describes in Pollard v The Queen as the principal considerations of “high public policy” which favour exclusion of evidence procured by unlawful conduct on the part of investigating police, namely, the threat which disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice (at [39]).
2. The evidence is excluded (at [47]).
3. Conviction quashed. Verdict of acquittal entered on all three counts (at [48]).
Held per Kourakis CJ and Sulan J (Stanley J dissenting) allowing the appeal against sentence:
4. Imprisonment will bear more heavily upon the appellant than upon a relatively healthy prisoner (at [7]).
5. This case demands a merciful approach (at [9]).
6. The non-parole period is set aside. A non-parole period of 20 months from 30 December 2013 is fixed (at [10]).
Controlled Substances Act 1984 (SA) s 32(1)(b), s 32(1)(d); Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 38(2c), referred to.
R v Rockford [2014] SADC 199; Bunning v Cross (1978) 141 CLR 54; R v Ireland (1970) 126 CLR 321; Cleland v The Queen (1982) 151 CLR 1; Pollard v The Queen (1992) 176 CLR 177; Ridgeway v The Queen (1995) 185 CLR 19; R v Swaffield (1998) 192 CLR 159; R v Lobban (2000) 77 SASR 24; Question of Law Reserved (No. 1 of 1998) (1998) 70 SASR 281; Director of Public Prosecutions (Vic) v Moore (2003) 6 VR 430; Kuru v New South Wales (2008) 236 CLR 1; R v Nguyen (2013) 117 SASR 432; R v Jongewaard (2009) 266 LSJS 283; House v The King (2005) 228 CLR 357; R v Kreutzer (2013) 118 SASR 211; R v Smith (1987) 44 SASR 587; R v Boyes (2004) 8 VR 230; R v Godwin (2001) 80 SASR 195; The Queen v Shrestha (1991) 173 CLR 48; R v Wirth (1976) 14 SASR 291; R v Barling (1995) 79 A Crim R 131; The Queen v Cardona [2011] VSCA 58; R v Williams (Unreported, Victorian Court of Appeal, delivered 18 September 1995); R v Wilson [2003] SASC 18; R v DVG (1999) 109 A Crim R 145; R v Sansbur (2010) 107 SASR 570; R v Sarandogolou (2010) 107 SASR 396; R v Creed (1985) 37 SASR 566; The Queen v Stewart 1984) 35 SASR 477, considered.

R v ROCKFORD
[2015] SASCFC 51
Court of Criminal Appeal: Kourakis CJ, Sulan and Stanley JJ

KOURAKIS CJ and SULAN J: We agree that the appeal against conviction should be allowed for the reasons given by Stanley J. We would quash the conviction and enter instead an order of acquittal.
We would allow the appeal against sentence. The prospect that an offender will die in custody naturally evokes some compassion. Offenders who have inflicted serious substantial harm on others may often be the exception to that general observation. A merciful sentence reflecting compassion for an offender who faces death in custody may still accord with sentencing principles for several reasons. In particular, this can be reflected in the non-parole period. In arriving at a non-parole period, the Court should ask: What is the minimum non-parole period a defendant must serve in order to satisfy the punitive, deterrent and preventive purpose of punishment?[1]
[1] The Queen v Stewart (1984) 35 SASR 477.
In the present case, personal deterrence is of little relevance, as the evidence establishes that the appellant, who is 65 years of age, is dying of terminal cancer. Questions of general deterrence are relevant, but can be reflected in the head sentence. The punitive and preventive purposes of punishment in the present case are of limited relevance.
There is no formula in determining an appropriate non-parole period. In considering the non-parole period, all factors relevant to the head sentence are to be taken into account. However, there are cases in which personal factors may play a significant role in arriving at a non-parole period. This is particular so when a defendant is suffering from a terminal illness and the prognosis is that he or she has relatively little time to live. The merciful approach to imposing a sentence may, in those circumstances, have a greater relevance.
In R v Smith, King CJ, with whom Cox and O’Loughlin JJ agreed, said: [2]
... The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.
[2] (1987) 44 SASR 587 at 589.
In Smith’s case, the Court reduced the non-parole period to an unusually low proportion of the head sentence. King CJ concluded that the stress of worry about the defendant’s potentially fatal condition may well cause imprisonment to bear more heavily upon the defendant than upon a healthy person.
The evidence in this case is that the appellant suffers from an incurable condition with a life expectancy, if treated, of 24 months. The survival rate of up to five years is limited to six per cent of those who have contracted the condition. In order for the appellant to survive for any period of more than 24 months, he requires intensive treatment. Access to immediate medical care and appropriate administration of symptomatic medications on an “as needed” basis to reduce suffering is essential. It is clear that imprisonment will bear more heavily upon the appellant than upon a relatively healthy prisoner. The burden of knowing that he has a limited time to live and a requirement that he constantly be managed, combined with the need for palliative care, will place additional stress upon him during the time he is in custody. Suffering the physical and emotional pain of death by cancer in a prison environment away from the support of family and friends is particularly hard.
Further, the likelihood of recidivism is generally much reduced in the shadow of death and, therefore, so too is the relative weight to be given to the elements of community protection specific to deterrence. A relatively lower sentence imposed in such circumstances will not undermine the general deterrent effect of the higher sentences in the more common case of offenders with a life expectancy which greatly exceeds the period imposed. Even though the sentence is nominally lower, the effective punishment it imposes is more severe in real terms precisely because it will approach a life sentence.
This is an exceptional case. There is compelling evidence that the appellant will die within 24 months. The case demands a merciful approach.
We would set aside the non-parole period and fix instead a period of 20 months from 30 December 2013. That non-parole period provides some realistic hope that the appellant will survive until his release before the expiry of the median life expectancy. If he is fortunate enough to survive for a period at the outer end of the range, the combination of supervision and parole and his terminal illness sufficiently reduces the risk of recidivism to allow a merciful approach.
STANLEY J:
Introduction
The applicant was found guilty after a trial by judge alone of one count of cultivating a commercial quantity of a controlled drug, one count of trafficking a large commercial quantity of a controlled drug and one count of possessing prescribed equipment.
The applicant seeks permission to appeal the conviction.
The single ground of appeal is that the trial judge erred in refusing to exclude evidence of the cultivation of a substantial cannabis crop on property leased by the applicant obtained by an unlawful search.
In addition, the appellant appeals a sentence of eight years and nine months imprisonment with a non-parole period of four years imposed after the appellant pleaded guilty to three counts of taking part in the production of a prohibited substance contrary to s 32(1)(b) of the Controlled Substances Act 1984 (SA) (the CSA) and one count of taking part in the sale of cannabis contrary to s 32(1)(d) of the CSA. This is separate offending from the offending the subject of the application for permission to appeal against conviction. There are two grounds of appeal. The first is that the judge failed to consider properly whether imprisonment would have been a greater burden on the appellant by reason of the fact he suffers from terminal cancer. The second is that, by reason of that fact, the non-parole period is manifestly excessive. However, both grounds can be reduced to a single complaint that the sentence is manifestly excessive given the appellant’s illness.
Application for permission to appeal against conviction
On 13 February 2011 Detective Sergeant Hanssen and Detective Brevet Sergeant Moore, acting on information, attended at a number of properties near Lobethal Road, Ashton in the Adelaide Hills. They had been informed that the applicant was growing cannabis on a property in the area. They gave evidence of searching three properties in the vicinity before they came to a property on a dirt track off Lobethal Road which, unknown to them at the time, had been leased by the applicant.
At the entrance to the property there was a gate. It was locked using a chain and padlock or had the appearance of being locked. I will return to this topic. Nonetheless, the officers entered the property for the purpose of conducting their investigation into whether the applicant had committed any drug offence.
The officers walked up a track until they came to a residence and some sheds on the property. One of them knocked on the front door of the property. When no-one answered they proceeded to walk around the exterior of the house where they observed a motor vehicle and inspected a shed. Inside the shed they observed items which they identified as having the potential to be used in the hydroponic cultivation of cannabis. Outside the shed they heard a noise emanating from a locked shed which they associated with functioning hydroponic equipment. They broke into the locked shed and there located two hydroponic rooms each containing nine mature cannabis plants, 24 cannabis seedlings and two small cannabis plants in pots. They also located about 3.4 kilograms of dried cannabis as well as hydroponic and other prescribed equipment used to grow cannabis.
The applicant’s fingerprints were located on a box of disposable gloves found in the shed and on a light shade, and his DNA was located on used gloves, a coffee mug and a heat sealer located inside the shed. The applicant was identified from photographs by the lessor of the property as the tenant, although under an assumed name.
Both police officers gave evidence at the trial.
Detective Hanssen gave evidence that he had received information from a source that the applicant was growing cannabis on a property situated adjacent to Lobethal Road, Ashton. The property was said to be located somewhere opposite a black iron fence on the southern side of Lobethal Road. On 13 February 2011 he attended at Lobethal Road with Detective Moore to inspect the properties in the hope he could identify vehicles and registration numbers to ascertain whether any of the properties were occupied by the applicant. The applicant was known to him prior to this occasion and he was familiar with the identity of members of the applicant’s family and his associates and the motor vehicles used by some of these people.
He gave evidence they undertook their investigations at properties on Lobethal Road as covertly as they could. They tried to avoid being seen for fear of alerting the applicant or his associates. Detective Hanssen was concerned that if the applicant became aware of their interest, any relevant evidence would be removed or destroyed. They investigated three properties in this way. The evidence is confusing as to whether he believed the appellant was associated with these properties. At the fourth property the gate had the appearance of a fire track gate or a paddock gate. There was a chain wrapped around the post and the gate with a couple of padlocks. On closer inspection he noted the chain could be removed without unlocking the padlocks. He did not remove the chain as this was unnecessary and, in any event, he did not wish to disturb the appearance of the gate for fear of alerting the applicant or his associates to their presence. He said they jumped over the gate.
At the time he climbed over the gate Detective Hanssen admitted he did not have the necessary suspicion to use his general search warrant. However, he gave evidence he believed that generally he had tacit consent to enter private property and approach the front door of an address to make initial inquiries. While he accepted that a locked gate on a suburban residential property indicated that the tacit consent to enter the property had been revoked, he did not believe that a gate on a rural track implied the revocation of the tacit consent to enter the property. He denied knowing that at the time he climbed over the gate he was entering private property. As soon as he saw there was a house on the property he knocked on the front door believing it likely that by then the officers' presence on the property would have been apparent. Once he observed a motor vehicle associated with the applicant he executed his general search warrant.
Detective Hanssen gave evidence that it was virtually impossible at the time for him to identify the property on which it was alleged the applicant was cultivating cannabis other than by undertaking these covert observations and investigations property by property.
Detective Moore gave evidence that he entered the property by removing a chain from the gate, opening it and then rethreading the chain around the gate and the fence after closing it behind him. Attached to the chain were two padlocks. He assumed that Detective Hanssen followed him through the gate. At this point he did not consider that he had authority to execute a general search warrant. He said he believed the common law permitted his presence on the property. He did not believe he was conducting a search but was rather gathering information. He said that had he been approached and asked to leave he would have done so.
There is an obvious conflict in the evidence of the two police witnesses as to how they entered the property. The judge resolved that conflict by preferring the evidence of Detective Hanssen that the officers climbed over the gate. However, the judge did not resolve the question of whether the gate was locked. Rather, he found that the gate was secured in such a fashion as to be locked or to give the impression that it was locked. Notwithstanding the judge's failure to resolve this question, he nonetheless found that the officers did not have an implied licence to enter the property whether the gate was locked or merely gave the appearance of being so.
The judge’s reasons
After hearing the evidence of the police officers the judge ruled that their entry onto the property and subsequent search was unlawful. The judge made this finding irrespective of whether the gate was locked or not. He said:[3]
In the present case the evidence of the police officers was that their purpose was not to communicate with the occupier of the land, but rather to gather information. Rather than seeking out the occupant of the property in question, and indeed the occupants of the three properties they had visited earlier, they sought to avoid contact with the occupants. In effect, the police officers were searching the premises in order to obtain evidence or information connecting the accused with the premises.
In my view, the implied or tacit licence to enter onto land, does not extend to the provision of a tacit consent for a person, absent the existence of a special authority, to come onto the land to conduct such an inspection surreptitiously, for the purpose of obtaining such evidence or information.
[3] R v Rockford [2014] SADC 199 at [58] – [59].
The judge, nonetheless, declined to exclude the evidence obtained as a result of the unlawful search. He said:[4]
[T]he investigating police officers did not deliberately exceed their authority, but rather proceeded on a genuine, if mistaken, view as to the extent of their authority.
The cogency of the evidence discovered as a result of the search had not been affected by any illegality or impropriety, and the evidence sought to be impugned is of obvious significance to the prosecution case.
…
However, having regard to the cogency of the evidence, the fact that the approach by the officers arose, as I have found, as a result of an honest misunderstanding about the right to initially enter the premises, rather than a deliberate flouting of such powers, the fact that the illegality of the search did not contaminate the evidence, and the seriousness of the offences disclosed as a result, I conclude that, in the exercise of my discretion, the application should be refused, and the evidence admitted.
[4] R v Rockford [2014] SADC 199 at [72] – [73], [79].
On the application for permission to appeal the Director does not challenge the finding by the judge that the entry onto the property by the police officers was unlawful. What is in issue is the exercise of the judge’s discretion not to exclude the evidence obtained by the unlawful entry.
The Bunning v Cross discretion

The so-called rule in Bunning v Cross[5] confers upon a court a discretion to exclude relevant and admissible evidence based on public policy considerations which arise where the evidence has been obtained unfairly or illegally. The Bunning v Cross discretion has its roots in R v Ireland[6] where Barwick CJ considered that a trial judge had a discretion to reject real evidence that was unlawfully obtained. He said:[7]
Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.
[5] (1978) 141 CLR 54.
[6] [1970] HCA 21, (1970) 126 CLR 321.
[7] [1970] HCA 21, (1970) 126 CLR 321 at 335.
In Bunning v Cross[8] Stephen and Aickin JJ, delivering the leading judgment for the court, said:[9]
What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law… [T]he discretionary process called for by Ireland … [is] concerned with broader questions of higher public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.
[8] (1978) 141 CLR 54.
[9] (1978) 141 CLR 54 at 74 - 75.
Their Honours explained the considerations underpinning the competing principles which inform the exercise of the discretion as follows:[10]
The liberty of the subject is in increasing need of protection as governments, in response to the demand for more active regulatory intervention in the affairs of their citizens, enact a continuing flood of measures affecting day-to-day conduct, much of it hedged about with safeguards for the individual. These safeguards the executive, and, of course, the police forces, should not be free to disregard. Were there to occur wholesale and deliberate disregard of these safeguards, its toleration by the courts would result in the effective abrogation of the legislature’s safeguards of individual liberties, subordinating it to the executive arm. This would not be excusable however desirable might be the immediate end in view, that of convicting the guilty.… [T]he courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law … [I]t may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to admissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law.
[10] (1978) 141 CLR 54 at 77 - 78.
In Cleland v The Queen[11] Deane J extended the field of operation of the public policy discretion to include impropriety in addition to unlawfulness. He stressed the balance which had to be struck in exercising the discretion in the following terms:[12]
The rationale of this principle is to be found in considerations of public policy, namely, the undesirability that such unlawful or improper conduct should be encouraged either by the appearance of judicial approval or toleration of it or by allowing curial advantage to be derived from it. Its application involves a weighing, in the particular circumstances of each case, of the requirement of public policy that the wrongdoer be brought to conviction and the competing requirement of public policy referred to above, namely, that the citizen should be protected from unlawfulness or impropriety in the conduct of those entrusted with the enforcement of the law.
[11] [1982] HCA 67, (1982) 151 CLR 1.
[12] [1982] HCA 67, (1982) 151 CLR 1 at 20.
In Pollard v The Queen[13] Deane J further explained the application of the Bunning v Cross discretion in the following way:[14]
[T]he principal considerations of “high public policy” which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular accused. In their forefront is the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. It is the duty of the courts to be vigilant to ensure that unlawful conduct on the part of the police is not encouraged by an appearance of judicial acquiescence. In some circumstances, the discharge of that duty requires the discretionary exclusion, in the public interest, of evidence obtained by such unlawful conduct. In part, this is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct. In part it is necessary to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.
[13] [1992] HCA 69, (1992) 176 CLR 177.
[14] (1992) 176 CLR 177 at 202 – 203.
Ridgeway v The Queen[15] was a further extension of the public policy discretion. The unlawfulness in Ridgeway was not in the conduct of police in obtaining evidence of a crime committed but in the conduct of law enforcement officers who themselves committed a crime in order to establish an element of a further offence which they anticipated would be committed by the accused. Ridgeway is a case of entrapment. The exclusion of the evidence obtained by way of the sting in Ridgeway reflected the court’s duty to ensure that it did not, by the failure to exercise its discretionary powers, achieve an objective which flagrant and deliberate breaches of the law by law enforcement officers was designed to achieve. Mason CJ, Deane and Dawson JJ said:[16]
[T]he considerations of “high public policy” which justify the existence of the discretion to exclude particular evidence in the case where it has been unlawfully obtained are likewise applicable to support the recognition of a more general discretion to exclude any evidence of guilt in the case where the actual commission of the offence was procured by unlawful conduct on the part of law enforcement officers for the purpose of obtaining a conviction. In both categories of case, circumstances can arise in which the need to discourage unlawful conduct on the part of law enforcement officers and to preserve the integrity of the administration of criminal justice outweighs the public interest in the conviction of those guilty of crime. In both categories, the objective of the unlawful conduct is the obtaining of curial advantage: the use of the unlawfully procured evidence in one category; the obtaining of a conviction for the unlawfully procured offence in the other. In both, the reception of the evidence by the courts is a critical step in the obtaining of that objective. If, in relation to either category, no judicial discretion existed to prevent the curial advantage being derived from the unlawful conduct, statements of judicial disapproval would be likely to be hollow and unavailing and the administration of justice would be likely to be “demeaned by the uncontrolled use of the fruits of illegality in the judicial process”. Indeed, there is much to be said for the view that the considerations favouring the exclusion of unlawfully procured evidence of a crime which had already been committed are likely to be less compelling than those favouring the exclusion of evidence of a crime which would never have been committed but for such unlawful conduct on the part of law enforcement officers designed to bring about its commission.
[Citations omitted].
[15] [1995] HCA 66, (1995) 184 CLR 19.
[16] (1995) 184 CLR 19 at 31 – 32.
In R v Swaffield[17] Kirby J identified the considerations relevant to the exercise of the public policy discretion in Bunning v Cross as follows:[18]
[17] [1998] HCA 1, (1998) 192 CLR 159.
[18] [1998] HCA 1 at [135], (1998) 192 CLR 159 at 212 – 213.
In Bunning v Cross, Stephen and Aickin JJ outlined some of the relevant considerations. One of them was the nature of the offence charged. Also commonly mentioned has been the probative value of the evidence, and its importance in the proceedings. The remaining considerations which Stephen and Aickin JJ listed were:
(i)whether the conduct was deliberate, or resulted from a mistake;
(ii)whether the nature of the conduct affected the cogency of the evidence so obtained;
(iii)the ease with which those responsible might have complied with the law in procuring the evidence in question; and
(iv)the legislative intention (if any) in relation to the law that is said to have been infringed.
To the foregoing, Mason CJ, Deane and Dawson 11 in Ridgeway added an additional consideration:
(v)“whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings.”
…
[Citations omitted].
In R v Lobban[19] this Court held that the public policy discretion in Bunning v Cross is enlivened only when the evidence sought to be excluded is obtained by unlawful, improper or unfair conduct on the part of law enforcement authorities. The Bunning v Cross discretion does not operate to punish unlawful, improper or unfair conduct on the part of law enforcement authorities. That is a matter for police disciplinary procedures or the invocation of separate criminal proceedings. It is only when such conduct results in the obtaining of relevant and admissible evidence that the Court is required to exercise its discretion whether to exclude such evidence obtained by such means. The discretion to exclude does not extend to subsequent conduct on the part of law enforcement authorities, unless the subsequent conduct is closely connected with the earlier conduct. For example, the discretion does not apply where police officers give false evidence as to how material was obtained, where the material itself was not illegally or improperly obtained.[20] The unlawful or improper conduct must be the means by which the evidence was obtained or where the obtaining of the evidence involved the unlawful or improper conduct.[21]
[19] [2000] SASC 48, (2000) 77 SASR 24.
[20] Question of Law Reserved (No. 1 of 1998) (1998) 70 SASR 281 at 288 – 289.
[21] Director of Public Prosecutions (Vic) v Moore [2003] VSCA 90 at [55], (2003) 6 VR 430 at 454.
Consideration
Against the background of this analysis of the principles underpinning the circumstances in which the Bunning v Cross discretion is enlivened and applied, I turn to a consideration of the factors relevant to this appeal. In doing so I bear in mind that the applicant must persuade the Court that the judge's decision to refrain from excluding the evidence is erroneous, in the sense of being a decision that could not be reached in the proper exercise of the discretion. The respondent submits that no error has been demonstrated in the exercise of the judge’s discretion.
In exercising the discretion, the judge properly considered the seriousness of the offending, the cogency of the evidence and its probative importance to the prosecution, and his finding that the investigating police officers did not deliberately contravene the law in entering the property to undertake their search. In weighing these factors, the judge acknowledged the risk that treating cogency of evidence as a factor favouring admission where the evidence is obtained unlawfully may serve to engender the erroneous view that, if evidence is damning enough, that factor will outweigh the illegality involved in obtaining it, thereby rendering meaningless the common law and statutory limitations on the exercise by law enforcement authorities of the powers of search and entry.
The factors considered by the judge were relevant to the exercise of the discretion. They weigh in favour of the admission of the evidence obtained as a result of the unlawful search and entry. However, in my view, the judge failed to have regard to what Deane J describes in Pollard as the principal considerations of “high public policy” which favour exclusion of evidence procured by unlawful conduct on the part of investigating police, namely, the threat which disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. As his Honour observed, it is the duty of the court to be vigilant to ensure that unlawful conduct on the part of police is not encouraged by an appearance of judicial acquiescence. The exclusion of evidence obtained in this way is in the public interest because it is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct and to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.
The failure to consider this relevant factor evidences error in the exercise of the discretion. It leaves the discretion to be considered afresh by this Court. In my view, while the considerations favouring the admission of the impugned evidence are strong, the considerations favouring the exclusion of that evidence are stronger.
The right of a citizen to be protected from unlawful search and entry is an important civil right in our society.[22] As this Court said in R v Nguyen,[23] it is of great importance that police officers entrusted with powers which abrogate fundamental liberties pay close attention to the conditions on which their lawful exercise depends. From the moment of their entry onto the property the police were engaged in a search. Recourse to euphemisms by the police does not alter that fact. The erroneous views of Detectives Hanssen and Moore of the scope of their powers of entry represent a view which, if tolerated by the courts, is calculated to lead to wide-spread and arbitrary infringements on civil liberties. It is those limitations on police powers of search and entry which constitute a fundamental safeguard of those civil liberties.
[22] Kuru v New South Wales [2008] HCA 26 at [37], (2008) 236 CLR 1 at 13.
[23] [2013] SASCFC 91 at [41], (2013) 117 SASR 432 at 442.
In Bunning v Cross Stephen and Aickin JJ said:[24]
These safeguards the executive, and, of course, the police forces, should not be free to disregard. Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the courts would result in the effective abrogation of the legislature's safeguards of individual liberties, subordinating it to the executive arm.
[24] (1978) 141 CLR 54 at 77 – 78.
Their Honours warned that a deliberate “cutting of corners” by police would tend against the admissibility of evidence illegally obtained. It is apparent that their Honours considered that the fact that in that case the police could easily have obtained the evidence lawfully favoured the admissibility of the evidence unlawfully obtained.[25] The position in this case is the direct opposite. On Detective Hanssen’s evidence it was virtually impossible for the police to identify the property on which the applicant was alleged to be cultivating cannabis without undertaking an unlawful search and entry.
[25] Bunning v Cross (1978) 141 CLR 54 at 79.
While the judge found the contravention of the law in this case was not deliberate, it is relevant that senior and experienced police officers not only had a mistaken understanding of their legal duties and obligations in undertaking the vital and important work of criminal investigation but they persisted in adhering to this mistaken view of their powers at the time of trial. That suggests that this mistaken understanding of the breadth of police powers, and the nature of the limits upon them, is not idiosyncratic or isolated to these officers.
The respondent submits that this was a case of unlawfully procured evidence of a crime which had already been committed rather than a case where the crime would never have been committed but for the unlawful conduct of the police. In accordance with the reasons in Ridgeway, the factors favouring exclusion of the evidence in circumstances such as these are “less compelling” than those favouring the exclusion of evidence of a crime which would never have been committed but for such unlawful conduct on the part of the police.
I am unpersuaded by this submission. The High Court’s observation to this effect in Ridgeway merely represents a relative comparison of two contrasting circumstances. To note that the case for exclusion of evidence is less compelling in the former rather than the latter circumstance says nothing about whether the court should exercise the discretion to exclude the evidence in the former circumstance. Clearly, Bunning v Cross is authority for the proposition that whether the argument for exclusion is less compelling in the former than the latter case does not preclude a court exercising the discretion to exclude the evidence in the former case.
I would exclude the evidence. I do so because I consider it necessary, as it was in R v Nguyen,[26] to censure the excesses of police powers by which the evidence was obtained in order to better secure compliance with the limitations on the exercise of the powers of search and entry conferred on police. In addition, I consider it necessary so that the administration of criminal justice is not brought into disrepute by statements of judicial disapproval of the unlawful procuring of evidence by police appearing hollow and insincere.
[26] [2013] SASCFC 91 at [42], (2013) 117 SASR 432 at 443.
Conclusion
I would grant permission to appeal. I would allow the appeal. I would set aside the findings of guilt on all three counts. As the excluded evidence is the only evidence against the appellant, I would enter a verdict of acquittal on all three counts.
Appeal against sentence
The appellant pleaded guilty to three counts of taking part in the production of a prohibited substance contrary to s 32(1)(b) of the CSA and one count of taking part in the sale of cannabis contrary to s 32(1)(d) of the CSA.
The first offence of taking part in the production of a prohibited substance carried a maximum penalty of two years imprisonment or a fine of $2,000 or both. The remaining charges each carried a maximum penalty of 10 years imprisonment or a fine of $50,000 or both.
The charges related to cannabis being cultivated hydroponically at three residential premises and 7.8 kilograms of cannabis material sent to New South Wales by surface mail. There were a number of people involved in the cultivation. This was a well-organised and sophisticated commercial operation intended to generate substantial profits. The appellant was at the centre of this organisation. The potential gain from the appellant’s offending ranged between $33,000 and $2,244,000.
The appellant pleaded guilty on 1 November 2010. He subsequently fled the jurisdiction. After absconding, the appellant was diagnosed with bowel cancer. He was returning to Adelaide for treatment when he was arrested on 30 December 2013.

The appellant submitted to the sentencing judge that he was concerned about the level of care he had received and would receive in custody for the cancer. After hearing evidence from officers of the Department of Correctional Services and the Prison Health Service, the sentencing judge found that the prison system has the capacity to provide adequate care for the appellant during a term of imprisonment. This was conceded before the sentencing judge by the appellant’s counsel. The sentencing judge said:[27]
Your counsel put to me that any imprisonment term imposed upon you would have a harsher effect on you than on someone in good health because of your medical needs and the possible delay in receiving some of your medication from correctional staff. I have taken all of those submissions into account, and having regard to all of those matters put to me, I do not consider that it would be unduly harsh for you to serve time in prison because of your ill health. In my view, a suspended sentence would not be warranted solely due to s 38(2c) of the Criminal Law (Sentencing) Act. Your counsel has asked that I consider fixing a lower than usual non-parole period, given your terminal illness.
I have taken all relevant matters into account, including your ill health and the effect of any imprisonment term imposed upon you in fixing your sentence. Given the seriousness of your offending and the circumstances surrounding it, I do not think that it would be appropriate for me to fix a non-parole period in your case that is significantly lower than usual.
[27] Sentencing Remarks of Judge Slattery delivered 28 August 2014 at [40] – [41].
But for the guilty plea, the sentencing judge said he would have imposed a head sentence of 10 years. But for the appellant's ill health, the judge would ordinarily have fixed a non-parole period of four years and six months.
Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act), the sentencing judge imposed one sentence, for all offences, of eight years and nine months imprisonment with a non-parole period of four years. The sentence was backdated to 30 December 2013 when the appellant was taken into custody.
The appeal is out of time. An extension of time is sought. The Director made no submissions on this issue. The appellant relies on the affidavit of Noah James Redmond sworn 2 October 2014. That explains the delay in instituting the appeal. I am satisfied that the delay is not the fault of the appellant. I would grant the extension of time.
The test to be applied in determining whether to interfere on appeal with a decision on sentence is set out in R v Jongewaard[28] where Doyle CJ said:[29]
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
[28] [2009] SASC 346, (2009) 266 LSJS 283.
[29] [2009] SASC 346 at [40], (2009) 266 LSJS 283 at 288 – 289.
A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King does the appeal court have the power to quash the sentence passed below. As was said in R v Kreutzer[30] by Kourakis CJ, if the error identified by the appeal court is manifest excess or inadequacy (an outcome error), the Full Court will fix the sentence it thinks ought to have been imposed. If the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the Full Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal.
[30] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214-215.
In sentencing submissions a report from the appellant’s treating oncologist, Dr Hogan-Doran, dated 17 March 2014, was tendered. In his report Dr Hogan-Doran confirmed a diagnosis made in June 2013 of metastatic rectal carcinoma with regional lymphadenopathy and liver and lung metastatic deposits. His prognosis was that the appellant suffers an incurable condition with a median life expectancy ranging from six to eight months untreated, to approximately 24 months treated, with a five-year survival rate of only six per cent. He considers that chemotherapy for metastatic colo-rectal cancer has been proven to extend life and improve the quality of life.
In R v Smith[31] King CJ said that ill-health will be a factor tending to mitigate punishment where it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health. However, he warned that the courts must be cautious as to the influence which they allow this factor to have upon the sentencing process. He said:[32]
Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners.
[31] (1987) 44 SASR 587 at 589.
[32] (1987) 44 SASR 587 at 589.
There are two limbs to the test posed by King CJ in Smith. The first limb is whether the imprisonment will be a greater burden on the offender by reason of his state of health. The second limb is whether there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health. If either limb of the test is established, that is a factor to be weighed in favour of mitigation.
The appellant does not complain about the application by the learned sentencing judge of the second limb of the test in Smith. The appellant’s complaint concerns the sentencing judge’s approach to the first limb of the test. He submits that the sentencing judge failed to make an assessment as to whether imprisonment would be a greater burden on the appellant by reason of his terminal illness. He submits that what was required was an assessment as to whether imprisonment would be a greater burden on the appellant by reason of his state of health, not whether it would be unduly harsh for the appellant to serve any time in prison.
In R v Boyes[33] Chernov JA (with whom Smith and Coldrey AJJA agreed), discussed the first limb of the test in Smith in the following terms:[34]
[W]hether imprisonment will be more difficult for the appellant than for an ordinary inmate is not the relevant criteria for determining if the first part of the test in Smith has operation. Without seeking to treat the above passage from the judgment of King, C.J. as if it were a piece of legislation, it is nevertheless clear from its terms that the first limb is concerned with whether the burden of imprisonment on the offender will be increased because of his disability. Thus, the analysis focuses on the impact that the offender’s disability has on his ability to cope with the prison system in light of his disability. Consequently, before the disability can be treated as a mitigating factor under the first limb, the offender must establish that it will result in imprisonment being a greater burden on him. Thus, the relevant question for present purposes is whether the appellant’s incomplete paraplegia will make imprisonment more burdensome for him and not whether he will find imprisonment more difficult due to his disability than an ordinary prisoner.
[33] [2004] VSCA 97, (2004) 8 VR 230.
[34] [2004] VSCA 97 at [20], (2004) 8 VR 230 at 237.
I am satisfied that the sentencing judge considered whether imprisonment would be a greater burden on the appellant by reason of the cancer. He said so expressly.[35] The evidence before the sentencing judge, which he accepted, is that the correctional services authorities have the capacity to provide adequate care for the appellant during the term of imprisonment imposed. As King CJ said in Smith, offenders generally cannot expect to escape punishment because of the condition of their health.
[35] Sentencing Remarks of Judge Slattery delivered 28 August 2014 at [41].
The appellant further submitted that the learned sentencing judge fell into error by applying the statutory test in s 38(2c) of the Sentencing Act rather than the test in Smith. I do not accept that submission. First, the sentencing judge was merely considering whether a suspended sentence was warranted either generally or by reason of the operation of s 38(2c). Secondly, as was pointed out in R v Godwin[36] by Prior J, with whom Nyland and Lander JJ agreed, the language of s 38(2c) reflects the statement of principle by King CJ in Smith.[37]Thirdly, as I explained above, the sentencing judge applied the second limb of the test in Smith.
[36] [2001] SASC 295, (2001) 80 SASR 195.
[37] [2001] SASC 295 at [27], (2001) 80 SASR 195 at 200.
No error has been demonstrated in the sentencing judge’s approach to fixing the head sentence.
Of course, this appeal concerns not just a case of ill-health but of terminal illness.
It cannot be doubted that there is scope in the application of sentencing principles for considerations of compassion[38] and mercy.[39] Courts of appeal have particularly noted that there is scope for the application of these considerations in the case of terminally-ill prisoners in fixing non-parole periods.[40] However, while the fact of terminal illness is a matter to be weighed in the sentencing process and, necessarily, in the case of serious offending, diminishes the weight to be given to considerations of specific deterrence, the terminal illness of an offender cannot overshadow the need for a sentence properly to reflect appropriate punishment for the offending and have regard to matters of general deterrence.[41]
[38] TheQueen v Shrestha [1991] HCA 26, (1991) 173 CLR 48 at 70.
[39] R v Wirth (1976) 14 SASR 291 at 296.
[40] R vBarling (1995) 79 A Crim R 131 at 134-135; The Queen v Cardona [2011] VSCA 58, R v Williams (Unreported, Victorian Court of Appeal, delivered 18 September 1995); R v Wilson [2003] SASC 18.
[41] R v DVG [1999] SASC 546 at [82], (1999) 109 A Crim R 145 at 152.
This was very serious offending. In addition the appellant had absconded while on bail and was at large for a period of more than three years. There is no evidence that during most of this period he was anything other than in good health. His antecedents provided no scope for the court to extend any leniency in fixing sentence. The appellant has a lengthy history of dishonesty and drug offences.[42] In fixing sentence, the sentencing judge had regard to the fact of the appellant’s terminal illness. He took into account the effect of a term of imprisonment on the appellant’s health. By reason of his illness he discounted the non-parole period he would otherwise have fixed by six months. The appellant submits that he should have discounted further because in all likelihood the appellant will still die in gaol. I do not accept that submission. Before the sentencing judge the appellant’s counsel accepted that the offending required an immediate term of imprisonment. As the reasons of the Victorian Court of Appeal in R v Barling[43] demonstrate, the fact of terminal illness, while a relevant consideration, cannot operate to reduce a sentence or impose a non-parole period that is so distorted as to bear no proper relationship to the sentencing principles to be applied to the particular offending and the other circumstances of the particular offender. The implication in the appellant’s submission is that the sentencing judge erred in failing to reduce the non-parole period by an amount sufficient to ensure the appellant did not die in gaol. That would have required a reduction from the four years imposed to something in the vicinity of half that period. This is after the sentencing judge already had reduced the non-parole period by six months. A non-parole period of two years would be less than 25 per cent of the head sentence imposed. In R v Sansbury[44] Doyle CJ discussed the proper approach to fixing a non-parole period. He said:[45]
A non-parole period should be the minimum period which the offender must serve in prison to satisfy the punitive, deterrent and preventive purposes of punishment. In fixing the non-parole period the Court must reflect each of those purposes. It is appropriate for a judicial officer to fix the non-parole period having regard to these purposes, and to arrive at an appropriate non-parole period, without making a reduction on account of time spent in custody. A non-parole period is not fixed simply as a proportion of the head sentence. It is both a period of time that reflects the purposes of punishment, and a decision as to the minimum period to be spent in prison. The latter consideration is a significant matter.
[42] See Antecedent Report, AB 45 – 46.
[43] (1995) 79 A Crim R 131 at 134 - 135.
[44] [2010] SASCFC 8, (2010) 107 SASR 570.
[45] [2010] SASCFC 8 at [23], (2010) 107 SASR 570 at 573.
In R v Sarandogolou[46] Doyle CJ cited with approval R v Creed[47] where King CJ said:[48]
In every case, but particularly in the case of serious crimes such as the present, it is necessary that the non-parole period, no less than the head sentence, operate as a deterrent to others who may be minded to commit similar crimes… The non-parole period, no less than the head sentence, must reflect the punitive, the deterrent, and also the preventive purposes of punishment. The preventive purpose of punishment requires that a serious offender be deprived of the opportunity of posing any further threat to the public for a period of time which the gravity of his conduct justifies.
[46] [2010] SASC 190 at [20], (2010) 107 SASR 396 at 399.
[47] (1985) 37 SASR 566.
[48] (1985) 37 SASR 566 at 568.
So short a non-parole period as that pressed on the court by the appellant would not operate as a deterrent to others who may be minded to commit similar crimes to those for which the appellant fell to be punished. While the preventive purposes of punishment count for little in the case of the appellant, the punitive and general deterrent purposes remain relevant and important. The non-parole period fixed represents approximately 45 per cent of the head sentence. In the present case a non-parole period of four years was within the range of permissible sentences, having regard to the seriousness of the offending and the other circumstances of the appellant. No error on the part of the sentencing judge has been demonstrated in fixing the non-parole period. Although the non-parole period will be likely to have the consequence that the appellant may die in prison, for the reasons explained, the Court cannot order any lesser penalty.
Conclusion
I would dismiss the appeal against sentence.