R v Rombola - [2020] SASCFC 76

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ROMBOLA
[2020] SASCFC 76
Judgment of The Court of Criminal Appeal
(The Honourable Justice Blue, The Honourable Justice Stanley and The Honourable Justice Bleby)
13 August 2020
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
Application by the South Australian Director of Public Prosecutions for permission to appeal against sentence.
On 21 July 2016, police observed the respondent seated in the driver’s seat of his car at the Elizabeth South Shopping Centre. The car was searched and the respondent was found to be in the possession of 15.47 grams of crystals containing 12.73 grams of methylamphetamine at a purity of over 76 percent, along with two mobile phones, a set of digital scales and a glass ice-pipe. The crystals were packaged in several plastic resealable bags in various quantities. As packaged, the value of the methylamphetamine was between $4650 and $7325.
Police searched the respondent’s home and found a plastic resealable bag containing white crystals that did not contain any methylamphetamine, four packets of clean plastic resealable bags that were identical in appearance to those found in the car and a blue note book containing a ‘tick list’.
The respondent pleaded guilty to trafficking in methylamphetamine, but at a disputed facts hearing, he gave evidence that he and some friends had pooled their money in order to carry out a block purchase of the methylamphetamine, and his role was simply to collect the drugs on behalf of the group.
The sentencing judge did not accept this version of events, concluding that the respondent was selling drugs in order to support his habit and that there was some element of commerciality. He imposed a sentence of imprisonment of two years and six months, and a non-parole period of one year.
Held (per Bleby J, Blue and Stanley JJ agreeing), granting permission to appeal and allowing the appeal:
1. The head sentence is manifestly inadequate, being well below the range indicated by previous decisions of this court for this type of offending, with no apparent justification.
2. The sentence is set aside.
3. From a notional head sentence of four years and three months, reduced by 10 percent for the appellant’s early guilty plea, a head sentence of three years and 10 months is imposed, with a non-parole period of two years and four months, to operate from 20 January 2020.
Controlled Substances Act 1984 (SA) 32(3), s 44, referred to.
Da Silva v The Queen [2020] SASCFC 66; R v Nemer (2003) 87 SASR 168; R v Young (2016) 126 SASR 41, applied.
Malvaso v The Queen (1989) 168 CLR 227; R v Buttigieg [2020] SASCFC 38; Everett v The Queen (1994) 181 CLR 295; Griffiths v The Queen (1977) 137 CLR 293; House v The King (1936) 55 CLR 499; R v Maroroa [2020] SASCFC 68; R v Borkowski [2009] NSWCCA 102; R v Mangelsdorf (1995) 66 SASR 60; R v Armistead [2019] SASCFC 85; Haddara v The Queen (2016) 260 A Crim R 306; R v Owen [2017] SASCFC 74; R v Osenkowski (1982) 30 SASR 212, considered.

R v ROMBOLA
[2020] SASCFC 76
Court of Criminal Appeal: Blue, Stanley and Bleby JJ

BLUE J: I agree with Bleby J.
STANLEY J: I agree with the reasons of Bleby J and the orders he proposes.
BLEBY J: This is an application by the Director of Public Prosecutions for permission to appeal against sentence. The grounds in support of the application are that the starting point and ultimate head sentence are manifestly inadequate, as is the non-parole period.
The respondent pleaded guilty to one count of trafficking in a controlled drug (methylamphetamine) contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The maximum penalty for this offence is a fine of $50,000 or imprisonment for 10 years, or both. In total, there were 15.97 grams of material containing 12.23 grams of methylamphetamine, the purity being over 76 percent.
The respondent was not sentenced until 24 February 2020. He had pleaded guilty on the first day of trial on 16 January 2019. The matter was adjourned for the defence to obtain reports. At that time, the sentencing judge varied the respondent’s bail agreement. The new conditions were that the respondent be under the supervision of a Community Corrections Officer and obey the directions of that Officer as to undergoing drug assessment, rehabilitation and drug testing as directed and that he not consume any drug other than as prescribed by a legally qualified medical practitioner. His Honour indicated to the respondent at the time that he would regard complying with that agreement very seriously. Further, he said that he would regard not turning up for a drug test more seriously than a positive drug test.
When the matter resumed in June 2019, the reports had been provided but the respondent indicated that there was a factual issue in dispute. A disputed facts hearing was conducted on 8 July 2019. The respondent gave evidence. At the end of that hearing, the sentencing judge requested a further progress report to include the results of at least three further drug tests.
A further progress report before the Court on 29 October 2019 indicated two earlier positive tests, which the defence characterised as instances of relapse in the context of progress that was otherwise being made. However, when the matter resumed on 18 December 2019, a fifth progress report indicated that the respondent was continuing to test positive for methamphetamine. By that time, and since the plea of guilty, the respondent had returned seven positive urinalysis tests for methamphetamine and one negative urinalysis test. However, the reports also indicated that he had a pattern of reporting late or failing to attend on a number of occasions.
One final report on 17 February 2020 indicated that the respondent had again failed to report for a urinalysis supervision appointment on 30 December 2019, that he returned a negative urinalysis on 2 January 2020 and that on 16 January 2020 he reported for supervision but refused to provide a sample. The prosecution accepts that on that occasion, he was unable to provide a sample. It was against that background that the judge proceeded to sentencing on 24 February 2020.
The offending
On 21 July 2016, police observed the respondent seated in the driver’s seat of his car at the Elizabeth South Shopping Centre. They searched the car and found two mobile phones, a set of digital scales, a glass ice-pipe and a small zip‑up case. Inside the case, they found several plastic resealable bags. These contained various quantities of crystals that in turn contained various concentrations of methylamphetamine, with the total as I have indicated above. Had the methylamphetamine been sold in amounts of 0.1 gram (‘a point’) at $100 per point, it had a potential street value of up to $16,000. The evidence was that as the drugs were packaged, the actual value was between $4,650 and $7,325. If sold in quantities of 8-balls (about 3.5 grams) it was worth between $2,500 and $3,500.
Police searched the respondent’s home and found a plastic resealable bag containing white crystals that did not contain any methylamphetamine, four packets of clean plastic resealable bags that were identical in appearance to those found in the car and a blue note book containing a ‘tick list’. That list had 10 names with various amounts of money recorded next to each name. The total amount recorded was in excess of $20,000. That was, on any view, more than the value of the drugs found in the respondent’s possession.
Analysis of the respondent’s mobile phone revealed limited communications that were consistent with recent drug trafficking. At the time that he was arrested, the respondent was on bail for offences of trafficking in a controlled drug, namely methylamphetamine.
At the disputed facts hearing, the respondent gave evidence that he and some friends had pooled their money in order to carry out a block purchase of methylamphetamine. He said that he and his girlfriend had put $500 towards the purchase. A friend had organised the purchase and paid some amount to the seller. The respondent’s role was simply to collect the drugs on behalf of the group, as he had a car. He had done so the night prior to his arrest. He put them straight in the glove box of his vehicle, where they were found. He had not yet delivered the package to his friends as he had a responsibility to be at home with his son. He said he had taken the scales with him so he could weigh his portion when he went to deliver the package.
As to the tick list, the respondent gave evidence to the effect that this list recorded his and his friends’ financial debts so they could consider what would be required to get a trailer building business started. He was unable to explain why his own name was not on the list or why one other’s name was recorded twice.
The respondent further gave evidence that he was not employed and was in receipt of government payments of about $800 per fortnight. He said he was having difficulty paying his mortgage and that his mother assisted him with this. He said that he had, shortly prior to his arrest, received a tax benefit of approximately $200, which he had put towards the purchase. Notwithstanding his plea of guilty, he denied intending to sell any of the methylamphetamine, he denied possession of any cutting agent and he told the Court that the bags were for placing ‘little phone stuff in because I was fixing phones; screws, batteries, all the pieces’.[1]
[1] T 24.25-27.
The respondent further gave evidence to the effect that he was a regular user of methylamphetamine.
Sentencing
At sentencing, the judge recorded his conclusion that the respondent was selling drugs in order to support his habit and that there was some element of commerciality. He did not accept the respondent’s evidence that the debts in the tick list did not relate to drug dealing.
The judge had regard to the respondent’s criminal history. In addition to some relatively minor offending, he had been fined for cultivating up to the prescribed number of cannabis plants and possession of prescribed equipment in 2010. In 2015, he was convicted of possession of a controlled drug (not cannabis). In 2017, he was fined for possessing equipment to use with a controlled drug and driving a motor vehicle with methylamphetamine in oral fluid.
The sentencing judge gave considerable attention to the respondent’s personal circumstances. He had particular recourse to the psychological reports prepared by Dr White and Mr Maroulis. Dr White had assessed the respondent in March 2019. Mr Maroulis was the respondent’s ongoing treating psychologist and had seen him on a clinical basis on a number of occasions from August 2019.
The respondent was born in 1977. He had a dysfunctional and difficult childhood. His father was a violent alcoholic. His parents separated when he was very young. He maintains a good relationship with his mother, who supported him in the course of the hearing. He had a highly disrupted and disruptive school career until he was expelled in Year 9.
Nevertheless, over time, the respondent obtained work as a brick paver, carpet layer and truck driver. He has two sons, a 13-year-old of whom he has sole custody and a six-year-old who lives with his mother.
In 2013, the respondent was diagnosed as suffering from anxiety and depression.
The respondent commenced using drugs from the age of 14. He first used methylamphetamine at the age of 20. As the sentencing judge observed, he has had an ongoing addiction to methylamphetamine. This has dominated a number of aspects of his life. He has previously been involved in drug diversion programs.
Mr Maroulis diagnosed the respondent as suffering from a chronic adjustment disorder with depressed mood, an anxiety disorder, an anti-social personality disorder and a stimulant use disorder. It appears that the respondent has, over time, been in denial of his addiction. This is evidenced by his having told Mr Maroulis in the course of therapy that his drug use had gone from frequent daily use to almost nil. This was quite inconsistent with his ongoing positive tests to methylamphetamine use. The sentencing judge observed as much. For the reasons described above in respect of the various urinalysis results, the respondent did not perform well in his supervised drug testing.
The sentencing judge said that he paid regard to the principles of general and personal deterrence in the sentencing process, the insidious nature of methylamphetamine and the harm that it causes in the community. He observed that by trafficking in methylamphetamine, the respondent may well have contributed to causing harm to other people.
The judge had regard to the provisions of s 44 of the Controlled Substances Act 1984 (SA), to the quantity of methylamphetamine and to the potential financial gain. He then said:[2]
In sentencing, however, I also accept that you were in the grips [sic] of an insidious addiction to methylamphetamine. That is a factor which is relevant having regard to the pronouncements of the Court of Criminal Appeal in R v Young. I regard you as having engaged in street-level dealing, albeit not at the lowest level.
[2] Remarks on Penalty at 4.
The judge then indicated that had it not been for the plea of guilty, he would have imposed a sentence of imprisonment of two years and six months. He allowed a reduction of 10 percent for that plea, which reduced the sentence to two years and three months. When setting the non-parole period, the judge had regard to the obligations the respondent had to his son, the steps that the respondent had finally taken whilst in prison as outlined in a letter that he had provided to the Court that day, and ‘my assessment that you are not without hope for the future’. On that basis, he fixed what he described as a lower than usual non-parole period of imprisonment for one year.
The judge found that there was no good reason to suspend the sentence. He did not consider the respondent to be a suitable person to serve a sentence on home detention conditions. In this, he relied on the contents of the progress reports, the respondent’s failure to accept the extent of, or deal with, his drug use and his consequent lack of rehabilitation. He ordered that the sentence and non‑parole period operate from 20 January 2020, when the respondent was taken into custody.
Crown appeals: principles
In Malvaso v The Queen,[3] Deane and McHugh JJ noted the importance of bearing in mind that the statutory jurisdiction to grant leave to the Crown to appeal against sentence:
…represents a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to the deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy…
[3] (1989) 168 CLR 227 at 234.
The source of the reason for granting leave only in rare and exceptional cases should always be at the forefront of the Court’s mind. This Court recently observed in R v Buttigieg:[4]
Both error and strong reasons of public policy are required to justify appellate intervention in a sentence said to be manifestly inadequate. The Crown must persuade the Court that such strong reasons of public policy exist which demand permission to appeal be granted despite the public interest in not twice vexing the respondent.
(Footnote omitted)
[4] [2020] SASCFC 38 at [39] (Lovell J, Kourakis CJ and Nicholson J agreeing).
That obligation of persuasion carries a considerable onus. In Everett v The Queen[5] (Everett) the High Court observed:
An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed. That being so, a “court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified”.
(Footnotes omitted)
[5] (1994) 181 CLR 295 at 299-300 (Brennan, Deane, Dawson and Gaudron JJ).
The Court in Everett went on to say that a Court of Criminal Appeal should be guided by a comment of Barwick CJ in Griffiths v The Queen:[6]
… an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.
[6] (1977) 137 CLR 293 at 310; Everett v The Queen (1994) 181 CLR 295 at 300 (Brennan, Deane, Dawson and Gaudron JJ).
The Court explained that the reference in that passage to a ‘matter of principle’ should be understood as:[7]
…encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting “error in point of principle”.
(Footnotes omitted)
[7] (1994) 181 CLR 295 at 300 (Brennan, Deane, Dawson and Gaudron JJ).
It follows that where a sentence is demonstrated to be manifestly inadequate, such as to constitute an outcome error within the meaning of that phrase used by the High Court in House v The King,[8] a Court of Criminal Appeal may grant permission to appeal to rectify the sentence as a matter of principle. However, the onus on the Crown extends to demonstrating sufficiently strong reasons of public policy for intervening, in the face of the countervailing public interest against twice-vexing the respondent.[9]
[8] (1936) 55 CLR 499 at 505.
[9] R v Maroroa [2020] SASCFC 68 at [97] (Nicholson J).
The purpose of a Crown appeal of achieving consistency in sentencing and establishing sentencing principles can be met to a significant extent by the Court explaining the existence of and reasons for error in a sentence.[10] Whether the Court should exercise its discretion to intervene in any given case depends on the circumstances that inform the questions of public policy that are engaged.
[10] R v Borkowski [2009] NSWCCA 102; (2019) 195 A Crim R 1 at [70] (Howie J, McClellan CJ at CL and Simpson J agreeing); R v Maroroa [2020] SASCFC 68 at [96] (Nicholson J).
Where the complaint is one of manifest inadequacy, assessment of those circumstances has a necessarily subjective quality. This is exacerbated where a correction would not be required to establish a relevant sentencing principle, for example, because the relevant principle is already established. In those circumstances, the Court may still grant permission if the sentence ‘is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice’.[11]
[11] R v Nemer (2003) 87 SASR 168, [24] (Doyle CJ, Prior and Vanstone JJ relevantly agreeing); R v Osenkowski (1982) 30 SASR 212 at 212-213 (King CJ).
The appeal
The complaint by the Director on appeal is straightforward. In R v Mangelsdorf,[12] Doyle CJ emphasised this Court’s repeated references to the severe penalties imposed by s 32 of the Controlled Substances Act 1984 (SA), especially for commercial activity in relation to drugs the subject of s 32. This extended to the ‘evident expectation of Parliament that the courts will impose penalties which will deter people from engaging in commercial activity with respect to these drugs’.[13]
[12] (1995) 66 SASR 60.
[13] R v Mangelsdorf (1995) 66 SASR 60 at 63.

There are two matters of principle that give immediate context to this long‑reiterated position.
The first is the guidance that this Court provided in R v Young[14] (Young) for the sentencing of street level dealers for an offence under s 32(3). In that case, Kourakis CJ said:[15]
Sentences in the range of four to seven years continue to be appropriate for offenders who are motivated to a greater or lesser extent by profit.
There will be relatively greater scope for rehabilitation in the case of a first offender dealer whose offending arises out of an all-consuming addiction but who has voluntarily embarked on a course of withdrawing from use of the drug. A sentence of less than four years imprisonment may be appropriate for offenders of that kind. However, that level of leniency cannot continue to be extended in the face of persistent offending either whilst on bail, or after sentence on earlier offending. There is much less reason for leniency in the face of persistent and recidivist trafficking even for the heavily addicted street dealer. As the prospects of rehabilitation diminish and the need for personal deterrence increases, the addicted street dealer can expect sentences in the same order as those imposed on the profit driven offenders.
Sentences approaching the 10 year maximum for the base trafficking offence must be reserved for those middle order dealers, and persistent or recidivist street-dealers.
[14] (2016) 126 SASR 41.
[15] At [66]-[68] (Vanstone and Stanley JJ agreeing).
The second matter is that the drug in question was methylamphetamine, in a crystallised form that is commonly known as ‘ice’. In R v Armistead,[16] Hinton J had regard to and adopted an observation of the Victorian Court Appeal in Haddara v The Queen[17] with respect of trafficking in ice and the increase in its prevalence. Justice Hinton observed:[18]
In my view those observations apply equally in this State.[19] Crystal methylamphetamine or ice is one of the more pure forms of methamphetamine. Purity results in the high experienced being of greater intensity. The National Drug Strategy Household Survey 2016 states that the intense high brings with it “intense reactions … [and] … powerful responses including comedown, the potential for dependence (addiction) and chronic physical and mental problems”.[20]
(Footnotes in original)
[16] [2019] SASCFC 85.
[17] (2016) 260 A Crim R 306 at [66]-[67], [69] (Redlich, Priest and Beach JJA).
[18] R v Armistead [2019] SASCFC 85 at [136].
[19] Prevalence in this State is also supported by the findings in Australian Criminal Intelligence Commission, National Wastewater Drug Monitoring Program (Report 7, April 2019).
[20] Australian Institute of Health and Welfare, National Drug Strategy Household Survey 2016: Detailed Findings (Report, 2017) at 68.
There was no complaint about the sentencing judge’s summary of the respondent’s personal circumstances. The Director submitted that those circumstances were unremarkable and that there was little to excite the leniency of the Court. Rather, there was considerable evidence demonstrating that the respondent has poor prospects of rehabilitation and an increased need for personal deterrence.
Further, the sentencing judge found that the respondent was engaged in ‘street-level dealing, albeit not at the lowest level’. This language would appear to place the appropriate sentencing squarely within the four to seven years’ range articulated by this Court in Young.
Against this, counsel for the respondent argued that the observations of the Chief Justice in Young as to when a sentence of less than four years’ imprisonment may be appropriate applied in this case. He emphasised that the respondent was a first offender dealer (his antecedents do not appear to have involved commerciality), whose offending clearly arose out of addiction. He emphasised the report of Mr Maroulis to the effect that the respondent had significantly reduced his substance abuse from frequent daily use to ‘almost nil’.[21]
[21] John Maroulis Psychological Report 21 October 2019 at 5, AB 108.
The difficulty with this last submission is that not only did the respondent continue to return positive urinalysis results, but the sentencing judge positively rejected it.[22] The judge treated that claim as amounting to a denial of his addiction and an inability on the respondent’s part to take responsibility for his drug use or to engage in drug rehabilitation.[23]
[22] Remarks on Penalty at 3.
[23] Remarks on Penalty at 3-5.
Counsel also referred to this Court’s decision in R v Owen[24] where the appellant had been sentenced on his plea of guilty to two counts of trafficking in a controlled drug and one count of unlawful possession, to a single sentence of two years, nine months, one week and six days imprisonment, with a non-parole period of 12 months. That appeal, which was unsuccessful, was against the sentencing judge’s refusal of the exercise of the discretion to suspend.
[24] [2017] SASCFC 74.
The purpose for which the respondent referred to this case is not clear, other than to observe that the head sentence and non-parole period were not the subject of appeal by either party and that sentences of such length are therefore not unknown. A comparison at that level of abstraction is not useful. Moreover, it is apparent from the reasons of the Court that the starting point had been four years. Discounts had been applied, in particular on account of the plea of guilty. This case does not assist.
Manifest inadequacy
The head sentence in the present case is manifestly inadequate. The starting point was well below the range indicated by R v Young, with no apparent justification for this.
Given the matters specific to this offending and to the respondent that I have related above, the sentence is so low as to shock the public conscience, such that permission to appeal should be granted. Nor do I consider this to be an appropriate case for the Court to grant permission to appeal but exercise its residual discretion nevertheless to dismiss the appeal.[25]
[25] R v Nemer (2003) 87 SASR 1 at [24] (Doyle CJ); R v Osenkowski (1982) 30 SASR 212 at 212-213 (King CJ).
It is not necessary to reach a separate conclusion as to the adequacy of the non-parole period. My conclusion as to the head sentence being manifestly inadequate requires reconsideration of the whole sentence, ensuring a properly balanced head sentence and non-parole period.[26]
[26] Da Silva v The Queen [2020] SASCFC 66 at [56] (Livesey J, Kourakis CJ and Stanley J agreeing).
Resentencing
In circumstances where the sentencing judge found that the respondent had been engaged in street level dealing ‘albeit not at the lowest level’, the Director submitted that the appropriate starting point should be somewhere in the middle of the range of four to seven years. However, while the judge found some degree of commerciality, the primary motivation of the respondent was clearly to fund his addiction. Thus, for example, he did not fit within the description, to use the words of Kourakis CJ in R v Young, of ‘only occasional or social users who engage in street trading primarily to fund a comfortable, usually hedonistic, lifestyle’,[27] or some variant thereof.
[27] R v Young (2016) 126 SASR 41 at [65].
The judge found and was justified in finding (given the quality and quantity of drugs and the other indicia of sale), that the respondent was not engaged in the lowest level of street dealing. However, that finding is not the sole determinant of the overall level of objective seriousness. I infer from the factual matrix that I have set out above (interpolating that it seems clear that the sentencing judge inferred the same), that the respondent’s profit motive was very much secondary to that of his addiction.
In those circumstances, I consider that the starting point should be within the four to seven-year range, but at the lower end of that range. I would adopt a starting point of four years and three months. Allowing a 10 percent discount for the plea of guilty, I would reduce that to three years and 10 months.
The sentencing judge imposed a ‘lower than usual non-parole period of imprisonment for one year’ having regard to the respondent’s obligations to his son, the steps that he had finally taken whilst in prison and his Honour’s ‘assessment that you are not without hope for the future’.[28] These matters are relevant to assessing the appropriate non-parole period. As the Director submits, however, it is necessary to weigh those factors against the other relevant sentencing factors, including the need for personal and general deterrence, punishment and the severity of the offending. I would set a non-parole period of two years and four months.
[28] Remarks on Penalty at 5.
Conclusion
I would grant permission to appeal. I would allow the appeal and set aside the sentence. I would impose a head sentence of three years and 10 months and set a non-parole period of two years and four months. The sentence and non‑parole period are to operate from 20 January 2020, when the respondent was taken into custody.