R v Ruzehaji

[2018] SASCFC 139

Supreme Court of South Australia

(Court of Criminal Appeal)

R v RUZEHAJI

[2018] SASCFC 139

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Parker and The Honourable Auxiliary Justice Chivell)

20 December 2018

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING

Appeal against sentence for drug offences.

The appellant and a co-accused were each convicted following a trial by jury of three drug offences contrary to the Criminal Code Act 1995 (Cth): one count of trafficking in a commercial quantity of the controlled drug methylamphetamine; one count of trafficking in a marketable quantity of the controlled drug cocaine; and one count of pre-trafficking in the controlled precursor pseudoephedrine.

Both accused appealed against their conviction. On 11 May 2018, this Court dismissed the appellant’s appeal and allowed the co-accused’s appeal.

Meanwhile, on 1 November 2017, the appellant was sentenced to a single sentence of 13 years’ imprisonment with a non-parole period of 7½ years, backdated to 19 September 2017. The appellant now seeks to appeal against sentence, notice of which was received out of time.

Held, per Peek J (Parker J and Chivell AJ agreeing), granting an extension of time but dismissing the appeal:

1. Statutory powers such as those bestowed in s 12 of the Sentencing Act 2017 (SA) confirm that it is, or make it, possible to take into account various matters not formally proved or admitted when determining sentence. One example may be referred to as aspects of known ‘human behaviour’. R v Olbrich (1999) 199 CLR 270; Weininger v The Queen (2003) 212 CLR 629; R v Kreutzer (2013) 118 SASR 211 discussed.

2.  The Judge’s reference to “chain of command” was no more than a reference to a “drug trafficking hierarchy”. As a matter of known human behaviour, a person in possession of a large quantity of illicit drugs with a high street value would be expected to be at the higher end of such a hierarchy. In all of the circumstances here, it was open for the Judge to find, in the absence of evidence from the appellant, that he was involved at the “higher end” of the drug trafficking hierarchy.

3.  The Judge did not err in finding that the appellant stood to make a “substantial” amount of money. As a known matter of human behaviour, it follows that one will not take the risk of the large prison sentence that is known to be imposed for serious drug trafficking without a “substantial” profit incentive. In all of the circumstances here, it was open for the Judge to find, in the absence of evidence from the appellant, that he expected to make a “substantial” amount of money.

Crimes Act 1914 (Cth) s 16A; Criminal Code Act 1995 (Cth) ss 11.2A; 302.2; 302.3; 306.4; Criminal Law (Sentencing) Act 1988 (SA) s 6; Sentencing Act 2017 (SA) s 12; Judiciary Act 1903 (Cth) ss 68; 79; 80; Criminal Procedure Act 2009 (Vic), referred to.
R v Kreutzer (2013) 118 SASR 211; R v Olbrich (1999) 199 CLR 270; R v Ruzehaji; R v Nazradden [2018] SASCFC 60; R v Young (2016) 126 SASR 41; Weininger v The Queen (2003) 212 CLR 629, discussed.

R v RUZEHAJI
[2018] SASCFC 139

Court of Criminal Appeal:  Peek J, Parker J and Chivell AJ

PEEK J

1. Mr Amir Sabit Ruzehaji (Ruzehaji) and Mr Aram Nasradden (Nasradden) were charged with the following offences:[1]

   [1]    Counts 1 and 2 appeared in an Information dated as being “for arraignment on 12 October 2015”.  Count 3 was laid in a separate ex officio Information dated as being “for trial on 11 September 2017”.

   COUNT 1:

   STATEMENT OF OFFENCE

   Traffic in a commercial quantity of a controlled drug, contrary to section 302.2(1), or alternatively section 302.2(1) and section 11.2A of the Criminal Code Act 1995 (Cth).

   PARTICULARS OF OFFENCE

   Between about 5 July 2012 and 16 October 2012 at Windsor Gardens or elsewhere in the said State Amir Sabit Ruzehaji and Aram Nasradden, either alone or as part of a joint criminal enterprise, possessed 879.7 grams of methylamphetamine located in a storage unit at Safeco Storage and Removals, with the intention of selling any of it.

   COUNT 2:

   STATEMENT OF OFFENCE

   Traffic in a marketable quantity of a controlled drug, contrary to section 302.3(1), or alternatively section 302.3(1) and section 11.2A of the Criminal Code Act 1995 (Cth).

   PARTICULARS OF OFFENCE

   Between about 5 July 2012 and 16 October 2012 at Windsor Gardens or elsewhere in the said State Amir Sabit Ruzehaji and Aram Nasradden, either acting alone or as part of a joint criminal enterprise, possessed 1010.9 grams of cocaine located in a storage unit at Safeco Storage and Removals, with the intention of selling any of it.

   COUNT 3:

   STATEMENT OF OFFENCE

   Pre-traffic in a controlled precursor, contrary to section 306.4(1), or alternatively section 306.4(1) and section 11.2A of the Criminal Code Act 1995 (Cth).

   PARTICULARS OF OFFENCE

   Between about 5 July 2012 and 16 October 2012 at Windsor Gardens or elsewhere in the said State Amir Sabit Ruzehaji and Aram Nasradden, either alone or as part of a joint criminal enterprise, possessed 400 grams of pseudoephedrine located in a storage unit at Safeco Storage and Removals, with the intention of using any of it to manufacture a controlled drug; and with the intention of selling any of the drug so manufactured, or believing that another person intends to sell any of the drug so manufactured.

2. The maximum penalties on the three Counts were life imprisonment, 25 years imprisonment and 7 years imprisonment respectively.

3. Both accused were convicted by a jury on 19 September 2017 and both appealed against their conviction. On 11 May 2018, this Court dismissed the appeal of Ruzehaji and allowed the appeal of Nasradden (and in his case substituted verdicts of acquittal). Reasons for those decisions were later delivered on 21 June 2018: R v Ruzehaji; R v Nasradden.[2]

   [2] [2018] SASCFC 60.

4. Meanwhile, on 30 October 2017, the trial Judge had heard submissions on sentence for both accused and, on 1 November 2017 his Honour sentenced Ruzehaji to 13 years imprisonment with a non-parole period of 7½ years.[3] Ruzehaji now appeals against that sentence on the following grounds:

   1.   The applicant was sentenced on an erroneous basis.

   Particulars

   1.1 The evidence did not provide a basis for the applicant to be sentenced upon the premise that the applicant was at the higher end of the chain of command

   1.2 The evidence was not capable of permitting the Court to sentence the applicant on the basis that the applicant stood to gain a substantial sum of money for his involvement in the crime

   1.3 The evidence went no further than permitting a finding that the applicant had an involvement with the drugs in the capacity of providing storage of the drugs

   [3]    His Honour sentenced Nasradden to 11 years imprisonment with a non-parole period of 6 years (but that sentence was vitiated by his successful appeal against conviction).

   An overview of the prosecution evidence against Ruzehaji

5. The following summary of the evidence will suffice for present purposes.[4] As at 15 October 2012, Ruzehaji and Nasradden were long-term friends.  On 5 July 2012, Ruzehaji commenced to lease Unit 508 at the private rental storage premises of Safeco at Windsor Gardens (Safeco).  The lease contained Ruzehaji’s full personal and contact details and a copy of his driver’s licence with photographic identification.  On each of the days 9, 12, 15 and 16 October 2012, the Safeco activity log recorded access to Ruzehaji’s unit (Unit 508) by the entry of the correct code and on each of those days, at times corresponding to those recorded in the activity log, the Safeco CCTV video footage showed Ruzehaji near the location of Unit 508 after office hours. 

   [4]    A more extensive consideration of the evidence is to be found in the conviction judgment of the Court: R v Ruzehaji; R v Nasradden [2018] SASCFC 60.

6. On each of the days 12 and 13 October 2012, police intercepted telephone calls between Ruzehaji and Nasradden in which they arranged to meet on the morning of 13 October 2012. On the morning of Saturday 13 October 2012, Nasradden attended at Safeco and spoke to Ms Wilby, a Safeco employee, about leasing a unit “near to his friend’s unit”, Unit 508. Ms Wilby showed Nasradden Unit 521 (which was relatively close to Unit 508) and Nasradden agreed to lease it. He specified that his lease was to commence from Monday, 15 October 2012.

7. On 15 October 2012, the Safeco CCTV footage showed Ruzehaji and another male person arriving in a silver car at about 8:30 pm. Ruzehaji carried a large, white plastic bucket from Unit 508 to Unit 521. The other person carried two wicker baskets (one of which contained the drugs and precursor the subject of counts 1, 2 and 3) and a plastic bucket (containing iodine prill)[5] from Unit 508 to Unit 521. Safeco computer activity logs revealed that both Units 508 and 521 were accessed at about this time but only the entry code for Unit 508 (Ruzehaji’s unit) was used.  The silent alarm for Unit 521 (Nasradden’s unit) was activated.

   [5]    The evidence was that iodine is a precursor used with pseudoephedrine in the manufacture of methylamphetamine.

8. On 16 October 2012, the exterior Safeco CCTV footage taken showed the silver coloured car arriving at about 6:00 pm.  Ruzehaji alighted and activated the keypad to the warehouse roller door. He retrieved a ‘blower vac’ from the boot of the car.  The interior Safeco CCTV footage then shows him walking toward Unit 521 carrying the blower vac.  The activity log shows that Unit 521 was accessed for about a minute. Ruzehaji is then seen (now without the blower vac) walking towards Unit 508 and the activity log shows that Unit 508 was accessed for about 11 seconds. He is then seen (without the blower vac) leaving the warehouse and returning to the silver car.

9. It was the prosecution case that by about 6:00 pm on 16 October 2012, Ruzehaji was exercising control over both Units 521 and 508 in the sense of opening both units and storing the blower vac in Unit 521.

10. About two hours later, at 8:40 pm, police attended at Safeco. They searched Unit 521 and found the blower vac there. They found unit 521 to be secured by a combination lock which they cut off and seized.[6] Police seized the wicker baskets and the large white plastic bucket seen being carried on the 15 October 2012 CCTV footage.  One of the wicker baskets contained the methylamphetamine, cocaine and pseudoephedrine the subject of counts 1, 2 and 3 inside various plastic bags and containers. The plastic bucket contained 24.2 kg of iodine, a precursor used with pseudoephedrine in the manufacture of methylamphetamine.

    [6]    The prosecution led evidence from a merchant that the combination lock found on Unit 521 was of exactly the same appearance as a lock he had previously sold to Ruzehaji. The evidence concerning this matter is considered at paragraphs [22] to [24] and [33] to [41] in the conviction appeal.

11. The total quantity of the seized substance containing the cocaine was 1,496 g, of which 1,010.9 g was pure cocaine; its estimated street value was between $1,179,360 and $1,347,000. The total quantity of the seized substance containing the methylamphetamine was 1,504.5 g, of which 879.7 g was pure methylamphetamine; its estimated street value was between $1,467,500 and $1,504,500.  The total quantity of the pseudoephedrine was approximately 400 g; its estimated value was $71,000.

    Section 12 of the Sentencing Act 2017 and section 16A of the Crimes Act 1914 – and matters of ‘human behaviour’

12. Section 12 of the Sentencing Act 2017 (formerly s 6 of the Criminal Law (Sentencing) Act 1988) provides as follows:

    12—Determination of sentence

    For the purpose of determining sentence, a court—

    (a)     is not bound by the rules of evidence; and

    (b)may inform itself on matters relevant to the determination as it thinks fit; and

    (c)     must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

13. As Kourakis CJ stated in R v Kreutzer in relation to s 6 of the Criminal Law (Sentencing) Act 1988 (which is in identical terms to the present legislation):[7]

    A sentencing court may inform itself of matters which are neither circumstances of aggravation nor mitigation as it sees fit in accordance with historical sentencing practice and any applicable statutory discretions such as s 6 of the Sentencing Act.

    [7] (2013) 118 SASR 211, 223.

14. Both s 12 of the Sentencing Act 2017 and the principles adumbrated in R v Olbrich[8] are well known. Together they form the background to what I consider to be the key to the resolution of this appeal, namely the discussion by the plurality of the High Court in Weininger v The Queen of ‘human behaviour’ as it pertains to s 16A of the Crimes Act 1914. Their Honours stated in Weininger:[9]

    [16] … Section 16A(2) obliges a court sentencing a federal offender to take into account such matters referred to in that sub‑section "as are relevant and known to the court". The court must do that with a view to imposing on the offender a sentence or making an order that is "of a severity appropriate in all the circumstances of the offence".[10]  Among the matters which the court must take into account, if relevant and known to the court, are "the character, antecedents, cultural background, age, means and physical or mental condition of the person".[11]

    [17] The phrase "known to the court" which qualifies the list of "matters" in pars (a)‑(p) of s 16A(2) which the court "must take into account" presents the evidentiary and other procedural questions upon which this appeal turns. By what means and at whose instigation are these "matters" to be made known? Are issues of fact to be tendered for resolution by the judicial officer who constitutes "the court" for this purpose? If so, do questions of onus of "proof" arise? Are there here the distinctions found elsewhere between ultimate and evidentiary burdens? To what degree, if at all, is the procedure inquisitorial rather than adversarial?

    [8] (1999) 199 CLR 270.

    [9] (2003) 212 CLR 629, 635 (Gleeson CJ, McHugh, Gummow and Hayne JJ).

    [10] Section 16A(1).

    [11] Section 16A(2)(m).

15. Their Honours then referred to R v Olbrich[12] and continued:[13]

    [19]    For present purposes, however, attention to questions of onus and standard of proof may distract attention from another important aspect of the decision in Olbrich.  Framing the question in terms of the onus and standard of proof may suggest that all disputed issues of fact related to sentencing must be resolved for or against the offender.  That is not so.  As was recognised in Olbrich, some disputed issues of fact cannot be resolved in a way that goes either to increase or to decrease the sentence that is to be imposed.  There may be issues which the material available to the sentencing judge will not permit the judge to resolve in that way.

    …

    [21] To frame the relevant question in terms of the onus and standard of proof may also suggest that the only material which may be treated as being "known to the court", and on which the judge may act in sentencing an offender, is material revealed by the plea or verdict of guilty, admission by the offender, or evidence received on the sentencing hearing. The use of the phrase "known to the court", rather than "proved in evidence", or some equivalent expression, suggests strongly that s 16A was not intended to require the formal proof of matters before they could be taken into account in sentencing. Rather, having been enacted against a background of well‑known and long‑established procedures in sentencing hearings, in which much of the material placed before a sentencing judge is not proved by admissible evidence, the phrase "known to the court" should not be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally proved or admitted.

    [22]    In addition to the points just made about what is known to the sentencing judge, there is another important feature of fact finding in sentencing which must be recognised.  Many matters that must be taken into account in fixing a sentence are matters whose proper characterisation may lie somewhere along a line between two extremes.  That is inevitably so.  The matters that must be taken into account in sentencing an offender include many matters of and concerning human behaviour.  It is, therefore, to invite error to present every question for a sentencer who is assessing a matter which is to be taken into account as a choice between extremes, one classified as aggravating and the opposite extreme classified as mitigating.  Neither human behaviour, nor fixing of sentences is so simple.

    [Emphasis added]

    [12] (1999) 199 CLR 270.

    [13] (2003) 212 CLR 629, 636-637.

16. In paragraph [21] in Weininger immediately above, the plurality indicate that even without a provision such as s 12 of the Sentencing Act 2017 it would be appropriate (by virtue of the legislative phrase "known to the court") to take into account many matters urged in sentencing hearings which are not proved by admissible evidence or formally admitted. However, in South Australia the express power in s 12 of the Sentencing Act 2017 is also available to the Courts in their disposition of Commonwealth charges and I therefore turn to a consideration of the grounds of appeal on that basis.

    Particular 1.1 of appeal

17. Particular 1.1 of appeal asserts that: “The evidence did not provide a basis for the applicant to be sentenced upon the premise that the applicant was at the higher end of the chain of command.”

18. The whole of the Judge’s remarks complained of in all of the grounds of appeal are as follows:

    I make it plain that I do not sentence you for possession of the iodine.  Nor do I take into account the factual allegations in other later alleged offending which is the subject of contested proceedings.

    It is not entirely clear what was the involvement of each of you in this offending.  It is clear that the drugs were moved from the unit that you, AR, had rented for some three months.  You accessed the unit several times before 15 October 2012.  It is not clear how you came by the drugs but there is no doubt that you exerted control of them on 16 October, and the quantity of drugs involved makes it plain that your possession of the drugs was for the purpose of sale.

    In the case of the pseudoephedrine, it was to be used to make amphetamines, which would in due course be sold.

19. A little later, his Honour said:

    Because of the quantity of drugs involved, it is plain that the two of you were at the higher end of the chain of command in the trafficking offences and the pre-trafficking of the pseudoephedrine.  I find that each of you was in partnership, as it were, at least as at 13 October.  Both of you stood to make a substantial amount of money from the proposed sale of the drugs.  Beyond these findings it is not possible to be more precise about the role that each of you played.

20. Addressing ground 1.1, it is true that the Judge used the words at the higher end of a chain of command in his sentencing remarks, but it is also clear from the context that he used them in the sense of at the higher end of a drug trafficking hierarchy. It is unfortunate but true that the broad concept of a drug trafficking hierarchy (and the various roles that may encompass) has been extremely well known to the Courts as a matter of human behaviour for a great many years, if not centuries. This is, of course, not to deny the application of the precepts in Olbrich which require proof as to the role and status of a particular defendant on a particular occasion in particular cases; I stress that it is the concept of the general existence of drug trafficking hierarchies with their various roles, rather than what a person actually did on a particular occasion, that may be taken into account under provisions such as s 12 of the Sentencing Act 2017.

1. In the present case, his Honour's reference to chain of command in the sense of a drug trafficking hierarchy was no more than a permissible statement of the obvious: a person found in possession of multiple types of illicit drugs of a total street value between $2,717,860 and $2,922,500 is at a different position in a drug trafficking hierarchy than a person in possession of a small number of packaged “street deals” of the same illicit drugs of a total street value of say $1,000. Such an obvious matter of human behaviour is well within the precepts of Weininger and indeed the purview of s 12 of the Sentencing Act 2017. Equally obvious is the proposition that, other things being equal, the former person will be visited with a greater condign penalty than the latter.

2. Consistently with these propositions, Kourakis CJ stated in R v Young:[14]

   [216]  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 section 44 of the Act.

   [217]  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. [Emphasis added]

   [14] (2016) 126 SASR 41, 94.

3. Counsel for the applicant submits that circumstances surrounding possession can differ. No doubt they can, but here the following matters are clear. First, Ruzehaji was the leading light as between himself and such person(s) as were assisting him in moving the drugs on 15 October 2012. Secondly, there is no evidence of anyone else ordering Ruzehaji about or supervising him. Thirdly, it is unknown how long after Ruzehaji commenced leasing his locker on 5 July 2012 that the drugs came to be stored there and that is an undetermined matter – but it is not the case that it must be taken to be the least possible time before their discovery by the police. Rather, the matter is governed by Olbrich principles; as Kourakis CJ observed in R v Kreutzer: [15] 

   [32]    If a circumstance of aggravation or mitigation is not proved by the party who carries the onus to do so, the converse is not thereby proved and the court must proceed to sentence not knowing whether the circumstance, or the converse, is true.

   [15] (2013) 118 SASR 211, 223.

4. In all of the circumstances, I conclude that particular 1.1 is not established.

   Particular 1.2 of appeal

5. Particular 1.2 of appeal asserts that: “The evidence was not capable of permitting the Court to sentence the applicant on the basis that the applicant stood to gain a substantial sum of money for his involvement in the crime.”

6. Again, this comment by his Honour was no more than a permissible statement of the obvious. As a matter of human behaviour, a person who is prepared to take the risk of the large prison sentence that is well known to follow conviction of trafficking in such large amounts and values of drugs as involved here will only do so for an appropriately substantial profit or reward.

7. It was the position of counsel on the appeal that if the Judge had said “for a sum of money” or “a profit” rather than “for a substantial sum of money” or “a substantial profit”, his Honour's remarks would have been unexceptionable. Counsel was, of course, correct to make that concession – but it immediately begs the question of what does the word “profit” simpliciter mean in the present context?

8. Is a person who is to be taken to have committed a trafficking crime ‘for profit’ to be sentenced on the basis that the extent of that profit may not be thought of as greater than the lowest coin in the realm? I think not. I consider that the correct position is that if the value of the particular drug transaction is low, then it will be reasonable to assume that only a relatively low profit is envisaged from that particular transaction. However, if one is to address trafficking in drugs worth a total street value of between $2,717,860 and $2,922,500, it certainly does not constitute appellable error to find (in the absence of evidence from the accused) that a “substantial” profit was envisaged. I conclude that particular 1.2 is not established.

   Particular 1.3 of appeal

9. Particular 1.3 of appeal asserts that: “The evidence went no further than permitting a finding that the applicant had an involvement with the drugs in the capacity of providing storage of the drugs.”

10. Counsel really relied upon the first two particulars and said little about this last ground. It seems that the only remaining comment by the Judge complained of is that concerning ‘partnership’. That comment may be a little inexact, but I did not understand counsel to submit that it constituted appellable error. In any event, I find that it does not. I conclude that particular 1.3 is not established.

    Disposition of the appeal

11. There is no ground of appeal that the sentence is manifestly excessive and I in no way suggest that there should have been. This Court received some brief submissions as to how the Court should approach a re-sentencing if ground 1 of appeal were to be made out but, since I am of the view that that ground of appeal has not been made out, there can be no re-sentencing.

12. I would grant the required extension of time but dismiss the appeal. 

13. PARKER J:          I would grant an extension of time but dismiss the appeal.  I agree with the reasons of Peek J but make the following additional observations. 

14. Peek J has observed at paragraph [16] that s 12 of the Sentencing Act 2017 (SA) is available to South Australian courts in their disposition of Commonwealth charges. I agree with that observation for the reasons that follow.

15. The High Court held in Bui v Director of Public Prosecutions (Cth) that ss 68, 79 or 80 of the Judiciary Act 1903 (Cth) did not operate to apply certain provisions in the Criminal Procedure Act 2009 (Vic) to the sentencing of Commonwealth offenders in Victoria.[16] The relevant provisions directed the Victorian courts not to apply the double jeopardy principle when determining a prosecution appeal against sentence. The High Court held that there was no gap or omission in Commonwealth statutory law such as to bring s 80 of the Judiciary Act into play in respect of the sentencing of persons convicted of Commonwealth offences. Accordingly, s 16A of the Crimes Act 1914 (Cth) applied of its own force to the sentencing by the Victorian courts of persons convicted of offences against Commonwealth laws without regard to the impugned provisions in the Criminal Procedure Act (Vic).

    [16] (2012) 244 CLR 638.

16. Section 16A(2) of the Crimes Act requires a sentencing court to take into account “such of the following matters as are relevant and known to the court”. Paragraph (a) of s 16A includes amongst the listed matters “the nature and circumstances of the offence”. The High Court noted in Weininger v The Queen that what is “known to the court” for the purposes of s 16A may be established “by well‑known and long-established procedures”.[17]

    [17] (2003) 212 CLR 629 at 637 [21].

17. In light of that observation by the High Court, combined with the non‑prescriptive nature of the words “matters as are relevant and known to the court” in s 16A, I do not consider that the Commonwealth Parliament has “otherwise provided” within the meaning of s 79 of the Judiciary Act. I therefore agree with the observations of Peek J that when sentencing a Commonwealth offender, or considering an appeal against such a sentence, the Court can inform itself in the manner permitted by s 12 of the Sentencing Act. In other words, s 12 (and its antecedent s 6 of the Criminal Law (Sentencing) Act 1988 (SA)) is “a well-known and long-established procedure” as referred to by the High Court in Weininger.

18. CHIVELL AJ:           I agree that an extension of time should be granted, and that the appeal be dismissed, for the reasons expressed by Peek J. I also agree with the additional remarks of Parker J.