R v Saleh - [2017] SASCFC 75

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SALEH
[2017] SASCFC 75
Judgment of The Court of Criminal Appeal
(The Honourable Justice Stanley, The Honourable Justice Nicholson and The Honourable Justice Hinton)
30 June 2017
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
This is an appeal against conviction and sentence.
Following a trial by jury the appellant was found guilty, by majority verdict, of one count of trafficking in a controlled substance, namely methylamphetamine, contrary to s 32(3) of the Controlled Substances Act 1984. The appellant was sentenced to a term of imprisonment of four years with a non-parole period of 19 months.
On 23 September 2014 police searched the appellant’s home and located 8.28g of mixed methylampethamine contained in a small clear tub found within a toolbox inside a cupboard. On a shelf adjacent to the methylamphetamine police found a ‘tick list’ containing the appellant’s fingerprint on the unmarked side of the ‘tick list,’ and at least one fingerprint belonging to a friend of the appellant on the side of the ‘tick list’ with the names and figures written on it. The prosecution ran their case that the appellant was in possession of the methylamphetamine irrespective of the involvement, one way or the other, of his friend.
Central to the District Court trial was the issue of possession.
The appellant’s grounds of appeal against conviction alleged imperfect directions given to the jury by the trial judge.
Whether the directions given by the trial judge disclosed error.
Whether the sentencing discretion miscarried.
The appellant proffered 5 grounds of appeal against sentence:
1. That the sentencing remarks are inadequate.
2. That the judge erred in failing to find that good reason existed to suspend the sentence.
3. That the judge erred in his consideration of whether a home detention sentence was appropriate.
4. That the judge erred in not ordering the sentence of imprisonment be served on home detention.
5. That the sentence imposed is manifestly excessive.
Held, per Stanley J (Nicholson and Hinton JJ agreeing):
1. The directions that Doyle CJ found were required in R v GNN are not to be given in every case where possession is an issue (at [16]).
2. The trial judge’s directions in this case were sufficient (at [18], [19], [29]).
3. Appeal against conviction dismissed (at [70]).
4. Failure to give reasons for sentence may amount to an error justifying the setting aside of that sentence (at [36], [40]).
5. Whether, in the circumstances, the reasons given in the sentencing remarks are so inadequate as to constitute an error need not be decided given my view that the judge has fallen into error in the approach he has taken to sentencing the applicant for the trafficking offence (at [57]).
6. The sentencing judge erred in perceiving that he was constrained to impose a term of imprisonment in the range identified by R v Young and other authorities, whereas the applicant was not an offender who sat in that range (at [62]-[63]).
7. Appeal against sentence allowed (at [70]).
8. Sentence set aside (at [64], [70]).
9. Applicant is resentenced to a term of imprisonment of 2 years and 3 months, with a non-parole period of 14 months to be served on home detention (at [70]).
Controlled Substancese Act 1984 (SA) s 4(1), s 32 ; Criminal Law (Sentencing) Act 1988 (SA) s 6, s 9, referred to.
R v GNN (2000) 78 SASR 293, distinguished.
R v Copeland (No 2) (2010) 108 SASR 398; Hodgson v Police [2002] SASC 35; Lawrie v Police [2015] SASC 98; Wainohu v New South Wales (2011) 243 CLR 181; R v Olbrich (1999) 199 CLR 270; Weininger v The Queen (2003) 212 CLR 629; R v Lobban (2001) 80 SASR 550; Markarian v The Queen (2005) 228 CLR 357; Filippou v The Queen (2015) 256 CLR 47; R v Kong (2013) 115 SASR 425, discussed.
R v Moubarak [2002] SASC 110; R v Feutrill [2010] SASCFC 48; R v Hughes [2006] SASC 305; R v Hogg [2011] SASCFC 127; R v Trewartha (2001) 123 A Crim R 259; DPP Reference No 2 of 1995 (1995) 65 SASR 508; R v Avory; Question of Law Reserved (No 1) of 2003 (2003) 87 SASR 392; Alford v Magee (1952) 85 CLR 437; Shrubsole v Rodriguez (1978) 18 SASR 233; R v Becker (2005) 91 SASR 498; Cross v Police [2001] SASC 47; Corak v Police [2006] SASC 172; Frank v Police [2007] 98 SASR 547; Leslie v Police [2001] SASC 270; M, PA v Police (2012) 218 A Crim R 276; R v Niesen [2015] SASCFC 165; Papps v Police (2000) 77 SASR 210; GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; R v Kreutzer (2013) 118 SASR 211; R v Haydon (2001) 80 SASR 560; Law v Deed [1970] SASR 375; R v Storey [1988] 1 VR 359; R v Vecsey [1962] SASR 127; R v Maitland [1963] SASR 332; R v Filipponi (2016) 126 SASR 464; R v Dell (2016) 126 SASR 571; R v Hosking [2017] SASCFC 50; R v Cetojevic (2005) 92 SASR 451; R v Tran [2000] SASC 431; R v Young [2016] SASCFC 102, considered.

R v SALEH
[2017] SASCFC 75
Court of Criminal Appeal: Stanley, Nicholson and Hinton JJ
STANLEY J.
Introduction

This is an appeal against conviction and sentence.
Following a trial by jury, the appellant was found guilty, by majority verdict, of one count of trafficking methylamphetamine, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (the CSA). The appellant was sentenced to a term of imprisonment of four years with a non-parole period of 19 months.
Factual background
On 23 September 2014 police undertook a search of the residence occupied by the appellant, his wife and infant child. When police entered the premises, they were present together with the appellant’s brother. The brother was permitted to leave the house. Police found a clear plastic tub containing 8.28 grams of mixed methylamphetamine inside a toolbox located on the bottom shelf of a hallway cupboard. On another shelf of the same cupboard police found a folded piece of paper with a number of names and figures written on one side that the appellant conceded was consistent with it being a tick list. There was evidence that the author of the tick list was likely to have been a friend of the appellant, Mr [V].
Fingerprint evidence was called. The expert evidence was that there were a number of fingerprints found on the tick list. On the side of the paper without writing there was one fingerprint consistent with the appellant’s fingerprint and, on the other side, there were two fingerprints, one being identical to Mr [V’s] fingerprint and the second fingerprint being consistent with Mr [V’s] fingerprint.
There was also evidence of telephone intercepts between the appellant and Mr [V]. There were extensive text messages and phone calls between the two in the period between 27 August 2013 and 6 November 2014. Those communications did not evidence involvement in drug trafficking by the appellant. Based on agreed facts, however, there was a high probability that Mr [V] had been involved in selling methylamphetamine on his own account.
There was no forensic evidence that linked either the appellant or Mr [V] to the tub of methylamphetamine found in the appellant’s house. At trial, the issue was whether the drugs were in the possession of the appellant, either solely or jointly with Mr [V]. The prosecution case was that the appellant was in possession of the methylamphetamine found in his house, either on the basis that he intended to sell the drugs himself or that he was taking part in the process of sale by storing the drugs for another person, knowing they would be sold.
Grounds of appeal on conviction
There are two grounds of appeal.
Ground 1 complains that the directions on possession were inadequate and that it was necessary for the judge to give a direction in the terms that were found to be required in R v GNN[1] that, in order to convict the appellant, the jury would have to exclude the possibility that he had merely acquiesced in Mr [V] hiding the methylamphetamine in his hallway cupboard without any intention to exercise custody or control over the drugs.
[1] [2000] SASC 447, (2000) 78 SASR 293.
Ground 2 complains that the judge failed to direct the jury, that if they were not satisfied beyond reasonable doubt that the appellant was in possession of the drugs, to prove trafficking, the prosecution had to prove beyond reasonable doubt that the appellant stored the drugs for someone else, knowing that they were to be sold or at least that it was in contemplation that they would be sold. In these circumstances, there was no statutory presumption that he was storing the drugs for that purpose, and they would have to be satisfied of that fact beyond reasonable doubt. The judge should have directed the jury accordingly.
The directions in relation to possession
The judge gave extensive directions to the jury in relation to the issue of possession. The judge directed the jury that an ingredient the prosecution needed to prove was that the accused was in possession of the drug. He identified this as the main issue in the trial. He said that the legal concept of possession is “when a person knows about some object and has the power and intention to exercise control over it”[2] (the initial general direction). He said:[3]
Possession is not the same as ownership. A person can be in possession of something that belongs to someone else. ... [P]ossession and ownership can coincide but they don’t have to. Possession can be by one person or it can be joint possession by more than one person. To have possession of something you do not actually have to have it on your person or even in your immediate vicinity.
[2] Summing up, p 3.
[3] Summing up, p 3.
His Honour then provided some examples. He continued:[4]
[4] Summing up, pp 4, 7, 8.
Importantly, to be in possession of something you do have to know about it. So, to go back to the examples of your bags in the jury room or your car in the car park. If while you are in here someone sneaks something into your bag without you knowing of it you are not in possession of it because you don’t know about it. On the other hand, if with your knowledge and agreement someone puts something in your car to take home, or for you to deliver somewhere; if it is with your knowledge and agreement then ... you are in possession of it.
So I have talked about possession and ownership being different, but can coincide. I have talked about possession necessarily entailing knowledge. Knowledge alone is not sufficient but possession does entail knowledge. I have talked about possession can be solely yours or solely your possession or possession with others.
So, that is what is meant when we say the legal concept of possession is someone knows about something and has the power and intention to exercise control over it.
...
Knowledge alone is not possession. Possession is knowing of an item and having intention to exercise some sort of control, do something with it either for yourself or for someone else. So that is the legal concept of possession.
...
[V] may be involved in the enterprise. That has always been the prosecution case. If the accused is hiding, storing, looking after the drugs for [V] or anyone else for that matter, then he is still in possession of it. He would not, of course, be in possession if [V] or someone else had snuck into his house and put the drugs in the hallway cupboard without his knowledge.
...
The Crown case has always been that the accused was in possession of the drugs. Whether he was in possession for himself, or for [V], or for both he and [V] jointly, or for anyone else, doesn’t matter at the end of the day. The issue was whether it has been proved that he was knowingly in possession. It follows from that, of course, if someone else was solely in possession of them and they have put them in his house without his knowledge then he is not knowingly in possession of them at all.
At the conclusion of the summing up, counsel for the appellant asked the judge to redirect on the basis that if the jury were to convict the appellant they would have to exclude the possibility that he had merely acquiesced in some other person hiding the methylamphetamine in the toolbox, and a warning was required that possession is not established by proving that the appellant allowed [V] or someone to hide methylamphetamine in his house. In response, the judge delivered the following further direction to the jury:[5]
You will remember I told you and I reminded you that to be in possession, someone has to know about something and have an intention to exercise some sort of control over it. So knowledge alone, knowing it was there but having no intention to have anything to do with it, does not make out possession; it has to be knowledge plus an intention to do something with it. The doing something with it can be on his own account, or on behalf of him and others, and it could include concealing it, hiding it, storing it, whatever. But knowledge without something more, knowledge that something is there but having nothing to do with it, is not possession.
[5] Summing up, p 12.
The requirement to direct the jury in relation to possession
In R v GNN,[6] the appellant was found guilty of one count of possessing heroin for sale. Police had raided a house at which a number of persons, some of whom had just come from interstate, were present. There were two packages of heroin concealed in different places in the kitchen. There was heroin found in a bedroom which the appellant shared with another person. The evidence was that the appellant occupied the house with her young children. Police were observing the house because they suspected that a consignment of heroin was being brought from Sydney and the appellant was involved in dealing with heroin. Police observed an unidentified man exit the house and drive a car from the driveway of the house to the street before parking the car and returning to the house. About half an hour later another vehicle containing two men arrived. When police entered the house they found three men, all of whom had come from Sydney. A fourth man was apprehended outside the house with the appellant. One of the men inside the house was in a relationship with the appellant. They shared a bedroom in the house. The cars were searched and police found heroin in the vehicle in which two of the men had arrived at the house. In the house police found two small packages in the kitchen. They also found heroin in the bedroom between the mattress and the base of the bed.
[6] [2000] SASC 447, (2000) 78 SASR 293.
The prosecution case against the appellant was that she was the occupant of the house and it was unlikely that the heroin found in the house had been moved from the car to the house in the short period between the vehicle being observed arriving and the police conducting their search. The appellant denied any knowledge of the heroin. It was her case that any one of the three men could have been responsible for storing the heroin in her house.
Doyle CJ said:[7]
First, it was important to explain to the jury that, in the circumstances, knowledge of the presence of the heroin was not enough. For example, satisfaction on the jury's part that Ms GNN knew that one of the men had concealed the heroin in the house was not sufficient to establish that she was in possession of the heroin. Another matter which called for particular attention was to explain to the jury that before finding Ms GNN guilty they had to be satisfied that the heroin was not in the exclusive possession of one of the men who were at the house that night. Thirdly, it was necessary to emphasise the requirement to prove physical control over the heroin and an intention to exercise control over it. It was necessary to relate these matters to the facts, in a practical way, to avoid the risk of the jury convicting on an unreliable basis. It was necessary to give directions that dealt adequately with the possibility that the heroin was in the possession of one of the men found in the house.
...
As I have said, the judge adequately identified and explained the basic legal concepts involved - possession, knowledge, custody and control. But, in my respectful opinion, his directions did not give the jury the assistance that they needed in applying those concepts to the facts of the case.
It was particularly important to identify the circumstances which, if proved to the jury's satisfaction, would establish that the heroin was in the possession of Ms GNN as distinct from being in the possession of one or other of the men found in the house. The judge's direction does not really grapple with that issue. It is an issue which cannot be resolved solely by reference to the knowledge of Ms GNN. It required some further explanation of the practical application of the concept of control. It was not a case that required further general discussion of the nature of the relevant concepts, but rather an explanation of how they were to be applied. The jury needed further guidance on the issue of control because, in this case, it was quite possible that the heroin had been brought into the house by one of the men, but with the knowledge and acquiescence of Ms GNN. The judge's directions gave no assistance on that issue, other than by referring to the concept of custody or control. As well, in my opinion the directions that the judge gave might have misled the jury in two respects. First, the judge referred to a person possessing an object which was in a place such as a person's home, and said that in that situation although the person did not have immediate control of the object, the person could still claim an exclusive right or power over it. There is a risk of the jury interpreting this as meaning that their satisfaction that Ms GNN knew the heroin was hidden in her kitchen was sufficient to constitute possession. As well, in the circumstances of this case I consider that the emphasis on knowledge might have caused that to assume undue importance in the jury's mind. Of course, knowledge was a critical issue, but in the circumstances of this case so was control, and so was the issue of whether the jury were satisfied that Ms GNN, and not some other person, was exercising the relevant control or had an intention to assert control. In particular, the judge did not tell the jury that to convict Ms GNN they would have to exclude the possibility that she had merely acquiesced in one of the men hiding the heroin in the kitchen, in the sense of merely permitting him to conceal his heroin in her house.
I understand the difficulty in crafting appropriate directions, and the need to avoid confusing the jury by the elaboration of legal concepts, or by multiplying examples. But the facts of this case required that the jury be told specifically that proof that GNN knew that the heroin was hidden in her kitchen did not establish that she was in possession of it. The jury should have been told that they would also need to be satisfied either that she had hidden the heroin there herself, and was intending to exercise or assert control over it, or that the heroin had been hidden there by one of the men at her request, she intending thereafter to assert control over it. In that context it would be appropriate to warn the jury that possession by Ms GNN was not established by proving that she allowed one of the men to hide his heroin in her house.
[7] [2000] SASC 447 at [20], [24]-[26], (2000) 78 SASR 293 at 296-298.
It is important to recognise that the reasons of Doyle CJ in GNN were focussed on the particular facts of that case. The directions that Doyle CJ found were required in GNN are not to be given in every case where possession is an issue.

Subsequent authorities have emphasised that while possession is a notoriously difficult legal concept to explain to juries, the required explanation depends very much on the particular facts of the case.[8]
[8] R v Moubarak [2002] SASC 110 at [18]. See also R v Feutrill [2010] SASCFC 48; R v Hughes [2006] SASC 305; R v Hogg [2011] SASCFC 127; R v Trewartha (2001) 123 A Crim R 259.
In this case, the appellant submits that the judge was required to direct the jury, as was done in GNN, that mere acquiescence by him in allowing Mr [V] or someone else to store the methylamphetamine in his house was insufficient to prove possession. In my view, the direction given by the judge was adequate given the circumstances of this case. The facts of this case are distinguishable from the facts in GNN. On the one hand there was no evidence of Mr [V] being in the appellant’s house. On the other hand, there was no evidence how the methylamphetamine came to be in the house. In these circumstances, the judge was required to direct the jury that proof of possession required the jury to be satisfied beyond reasonable doubt, not only that the appellant knew of the presence of the methylamphetamine in his house, but that it was there for the purpose of him storing it, either for his own purposes or the purposes of Mr [V] or someone else. In other words, it was necessary that the jury be directed that possession required the exercise of an intention to control the drugs in addition to knowledge of their presence in his house. I consider that the initial general direction together with the later explanatory direction, then redirection given by the judge satisfied that requirement.
The facts of this case were not complicated. In order to find the appellant guilty of possession, the jury had to be satisfied beyond reasonable doubt that he knew of the presence of the methylamphetamine in his house and that he had the intention to store it for his own purposes or the purposes of another or others, such as Mr [V]. The jury had to be satisfied to the requisite degree of the fact of his knowledge of the presence of the drugs, together with an intention to exercise some sort of control over those drugs. That is how the judge directed the jury. He explained to the jury how that related to the facts of the case, namely, knowledge of the presence of the drugs in his house, together with an intention to hide and/or store those drugs. That was sufficient.
I would dismiss ground 1.
I turn to ground 2. In order to understand the appellant’s submission on ground 2, it is necessary to refer to the provisions of s 32 of the CSA. Section 32(3) makes it an offence to traffic in a controlled drug. Section 32(5) provides:
32 – Trafficking
...
(5)If, in any proceedings for an offence against subsection (1), (2), (2a) or (3) it is proved that the defendant had possession of a trafficable quantity of a controlled drug, it is presumed, in the absence of proof to the contrary—
(a)     in a case where it is alleged that the defendant was taking part in the process of sale of the drug, that the defendant—
(i)    was acting for the purpose of sale of the drug; and
(ii)had the relevant belief concerning the sale of the drug necessary to constitute the offence; or
(b)     in any other case—that the defendant had the relevant intention concerning the sale of the drug necessary to constitute the offence.
Section 4(1) defines “traffic” in a controlled drug to mean –
(a)sell the drug; or
(b)have possession of the drug intending to sell it; or
(c)take part in a process of sale of the drug.
The prosecution conducted its case on the basis that the evidence proved possession of a trafficable quantity of a controlled drug by the appellant. On that basis, it sought to rely upon the statutory presumption in s 32(5).
The prosecutor made it plain that absent proof of possession, the appellant was to be acquitted.[9] Likewise, the defence conducted the trial on the basis that the critical issue was possession. That approach was reflected in the directions given to the jury by the judge. He told them that the main issue in the trial was whether the prosecution could prove that the appellant was in possession of the methylamphetamine.
[9] Closing address, trial transcript p 72 ln 9.
The appellant submits that while the prosecution relied on proof of possession to enliven the statutory presumption in s 32(5) that the appellant was taking part in the process of sale of the methylamphetamine, proof of possession was not essential for the appellant to be taking part in a process of sale of the drug. He submits that if the jury was not satisfied that he was in possession of the methylamphetamine, it nonetheless remained open to the jury to reason to a verdict of guilty of taking part in a process of sale, if it was proven that the appellant was storing the drugs for Mr [V], knowing they were to be sold or at least that there was the contemplation they would be sold.[10]
[10] DPP Reference No 2 of 1995 (1995) 65 SASR 508 at 513; ReAvory; Question of Law Reserved (No 1 of 2003) (2003) 87 SASR 392.
The appellant submits that in these circumstances no statutory presumption applied. On that basis, he submits that the judge should have directed the jury as to the onus and standard of proof required to prove the appellant was taking part in a process of sale, if they were not satisfied possession had been proved. Alternatively, the appellant submits that the judge was required to direct the jury that they could only consider taking part in a process of sale as a basis upon which they could find the appellant guilty if possession was proven.
I do not accept this submission.
The trial judge was required to decide what the real issues in the case were and to direct the jury on only so much of the law as they needed to know to guide them to a decision on those issues.[11]
[11] Alford v Magee (1952) 85 CLR 437 at 466.
Given the way in which the trial had been conducted, I consider that the directions the appellant submits should have been given were not required. Notwithstanding the notorious difficulty presented in directing a jury in relation to possession, the crucial issue for the jury to decide was clear. Not only would those directions have been a distraction from the real issue at trial but they would, if given, have created a real risk that the summing up would have been less favourable to the appellant as suggesting a different way by which the jury could have reasoned to a verdict of guilty on a basis which had not been put and upon which counsel for the appellant had not addressed the jury. That would have denied the appellant a fair trial. It is unsurprising that counsel for the appellant at trial did not ask that such directions be given.
I would dismiss ground 2.
Grounds of appeal on sentence
The applicant seeks permission to appeal against sentence. There are five grounds of appeal. Ground 1 is that the sentencing remarks are inadequate. Ground 2 is that the judge erred in failing to find that good reason existed to suspend the sentence. Ground 3 is that the judge erred in his consideration of whether a home detention sentence was appropriate. Ground 4 is that the judge erred in not ordering that the sentence of imprisonment be served on home detention. Ground 5 is that the sentence imposed is manifestly excessive.
Sentencing remarks
In imposing sentence, the judge said:[12]
Mr Saleh was found guilty by jury of trafficking methylamphetamine on 23 September 2014. Police found 8.28 g of substance containing methylamphetamine in a tool box in his hallway cupboard. In the same cupboard was a tick list with Mr Saleh's fingerprints. The tick list also had fingerprints of a name [sic] named [V]. The matter was put to the jury on the basis that Mr Saleh was in possession of the drugs either himself; or jointly with [V]; or effectively, storing them for [V] using Saleh's family home as a safe place to store the drugs. The jury verdict entails that he was in possession on some basis with the requisite intent for trafficking.
That is as far as I am able to take the facts, as he maintains his innocence. So I sentence on no more and no less than the facts necessarily entailed in the verdict. This matter plainly calls for imprisonment and no-one has suggested otherwise. Mr Barklay seeks suspension of the imprisonment or alternatively home detention.
Mr Saleh is 33 years of age. He is married with two very young children. He has no antecedents at all. He has good family background and support and a good work record. A number of references were tendered. It is regrettable and in some sense catastrophic for a court to imprison a family man with no convictions. The law relating to drug trafficking, being the penalties applied by Parliament, and the approach taken by sentencing courts and appellate courts make it very plain that the expectation of anyone contemplating any form of drug trafficking is that the outcome will be imprisonment actually served. Of course, every case needs to be looked at on its individual merits. That needs to be done within the context of consistently applying the sentencing regime that has been reiterated in numerous appellate cases and routinely applied by sentencing judges.
When I give this matter the individual consideration within that context, regrettably for Mr Saleh and his family, I do not consider any or all of the matters thoroughly and comprehensively canvassed by Mr Barklay amount to good reason to suspend. I do not consider Mr Saleh suitable for home detention. As the offence was committed in his home, he would manifest an unacceptable risk to the public. I do consider the factors that have been canvassed by Mr Barklay enable me to impose a sentence at the bottom of the range that has been clearly enunciated by the Court of Criminal Appeal, and also what I consider to be a merciful proportion of the head sentence as a non-parole period.
I impose four years imprisonment with a non-parole period of 19 months, both to commence forthwith.
[12] Sentencing Remarks of Judge McEwen, 12 May 2017 (DCCRM-15-348).
Inadequacy of reasons
I commence with ground 1. The applicant submits the sentencing remarks fail to disclose the factual basis for sentencing and the approach taken in rejecting an order that the sentence be served on home detention.
It is important to recognise that sentencing remarks are not reasons for judgment. Sentencing remarks are primarily an oral explanation to an offender for the sentence to be imposed.[13] Sentencing remarks are not required to deal with every matter which may be relevant to the sentence ultimately imposed.[14]
[13] Shrubsole v Rodriguez (1978) 18 SASR 233 at 235.
[14] R v Becker [2005] SASC 186 at [20], (2005) 91 SASR 498 at 503.
Nonetheless, while, as Gray J said in R v Copeland (No 2),[15] the primary purpose of sentencing remarks is to provide an explanation to an offender for the sentence imposed, they must also demonstrate the correct principles have been applied. He said that when sentencing remarks address these concerns, not only is the offender informed about the punishment to which he or she is subject, but it also assists the appellate court in understanding the basis of a sentence when performing its appellate function.[16] So sentencing remarks must be sufficient to enable an appellate court to identify and understand the reasoning of the judge to permit it to properly perform its appellate function. This principle is reinforced by the provisions of s 9 of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act) which provide:
(1)A court must, on sentencing a defendant who is present in court (whether in person or by video or audio link) for an offence or offences, state the sentence that it is imposing for the offence or offences and its reasons for imposing that sentence, including (for example) any reason why a sentence that would otherwise have been imposed for the offence or offences has been reduced.
(1a)Nothing in subsection (1) requires a court to state any information that relates to a person's cooperation, or undertaking to cooperate, with a law enforcement agency.
(2)The validity of a sentence is not affected by non-compliance or insufficient compliance with this section.
[15] [2010] SASCFC 61, (2010) 108 SASR 398.
[16] [2010] SASCFC 61 at [29], (2010) 108 SASR 398 at 409.
The provisions of s 9 and, in particular, sub-sections (1) and (2) create an obvious tension. Section 9(1) imposes a mandatory obligation to give reasons for the imposition of sentence including any reason why a sentence that would otherwise have been imposed for the offence or offences has been reduced. That construction is supported by authority establishing that a failure to give reasons for sentence may amount to an error justifying the setting aside of that sentence.[17] This construction appears to conflict with the terms of s 9(2) which provides that the validity of a sentence is not affected by non-compliance or insufficient compliance with the section.
[17] R v Becker [2005] SASC 186, (2005) 91 SASR 498; Cross v Police [2001] SASC 47 at [32]; Hodgson v Police [2002] SASC 35; Corak v Police [2006] SASC 172; Frank v Police (2007) 98 SASR 547; Leslie v Police [2001] SASC 270.
The apparent conflict between s 9(2) and the obligations imposed by s 9(1) was considered in Hodgson v Police[18] where Doyle CJ said:[19]
Does that mean that the sentence is valid but wrong in law and liable to be set aside? Or, does it mean that the sentence is valid and not liable to be set aside unless the absence of reasons is such that a court on appeal cannot properly discharge its functions, or unless the court takes the view that having regard to the sentence imposed, it was necessary for the court to give reasons?
[18] [2002] SASC 35.
[19] [2002] SASC 35 at [7].
However, Doyle CJ did not consider it necessary to resolve this issue in that case.
This tension was considered by Gray J in Jones v Police.[20]Gray J analysed various authorities which construe s 9. He said that common to the approach of the authorities has been a distinction between the concepts of validity and error. While a failure to comply with s 9(1) will not prevent a sentence delivered from standing as a valid and enforceable order of the Court, s 9(2) does not preclude a separate challenge alleging that the otherwise valid order was reached by a faulty means such as an error of law or fact, with the result that it should be set aside.[21] He said:[22]
The provisions of section 9 do not prevent a Court from setting aside a decision where a failure to provide adequate reasons frustrates the discharge of the appellate function by a court of review, or where such failure results in justice being not seen to be done. Section 9(2) saves such a sentence from being regarded as “invalid” in the sense that the sentence will remain a valid order of the Court. However, section 9(2) will not save such an order from being set aside in the event that it was arrived at in error.
[20] [2009] SASC 137 at [23] – [42], (2009) 263 LSJS 71 at 74 – 80.
[21] [2009] SASC 137 at [37], (2009) 263 LSJS 71 at 79.
[22] [2009] SASC 137 at [39], (2009) 263 LSJS 71 at 79 – 80.
In M, PA v Police[23] the Full Court cited Jones with apparent approval.[24] Recently, in Lawrie v Police[25] Sulan J considered the operation of s 9. After referring to Corak v Police[26] and Jones, he said that a failure to give adequate reasons will not in itself invalidate a sentence, however, a failure to give adequate reasons may amount to error.[27] I discussed this tension in R v Niesen.[28]
[23] [2012] SASCFC 24, (2012) 218 A Crim R 276.
[24] [2012] SASCFC 24 at [30] and [32], (2012) 218 A Crim R 276 at 284.
[25] [2015] SASC 98.
[26] [2006] SASC 172.
[27] Lawrie v Police [2015] SASC 98 at [22]. See also Papps v Police [2000] SASC 183, (2000) 77 SASR 210; Cross v Police [2001] SASC 47 at [24] – [26].
[28] [2015] SASCFC 165 at [29]-[33].
This analysis must be reconsidered in light of the High Court’s reasons in Wainohu v New South Wales.[29]In Wainohu legislation enacted by the New South Wales Parliament empowered an eligible judge of the Supreme Court to make a declaration in respect of a declared organisation. To make the declaration the judge had to be satisfied of certain matters relating to the members and activities of declared criminal organisations. Section 13(2) provided that the judge was not required to provide any grounds or reasons for the declaration. By majority the High Court held the legislation invalid. The primary feature identified was that it is a defining characteristic of a court that reasons be provided for a decision and the eligible judge was not required to provide reasons for making a declaration. Accordingly the legislation was repugnant to or incompatible with the court’s institutional integrity and therefore was incompatible with the proper discharge of the court’s judicial function, in accordance with the Kable[30] doctrine. In their joint reasons French CJ and Kiefel J said:[31]
[29] [2011] HCA 24, (2011) 243 CLR 181.
[30] Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
[31] [2011] HCA 24 at [54]-[57], (2011) 243 CLR 181 at 213-215.
The centrality, to the judicial function, of a public explanation of reasons for final decisions and important interlocutory rulings has long been recognised. In a passage from the first edition of Broom's Constitutional Law, published in 1866, the author said:
"A public statement of the reasons for a judgment is due to the suitors and to the community at large – is essential to the establishment of fixed intelligible rules and for the development of law as a science … A judgment once delivered becomes the property of the profession and of the public; it ought not, therefore, to be subsequently moulded in accordance with the vacillating opinions of the judge who first pronounced it."
That passage was said in the Supreme Court of Victoria to have "general application to all persons exercising judicial functions". Its universality was qualified in Public Service Board of New South Wales v Osmond by Gibbs CJ, who said that there was no "inflexible rule of universal application" that reasons be given for judicial decisions. His Honour, however, accepted that the requirement to give reasons is "an incident of the judicial process".
The duty upon judges to give reasons for their decisions has often been linked to the availability of rights of appeal against those decisions. A wider rationale, foreshadowed in the passage quoted from Broom, can be derived from the nature of the judicial function. In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd, Mahoney JA, after referring to the importance of reasons for decision to the effective exercise of appeal rights, said:
"But, in my opinion, the requirement that reasons be given should not be limited to cases where there is an appeal. There is as yet no finally authoritative decision on this question. I think that the requirement should be seen as an incident of the judicial process."
The proposition that the provision of reasons for decision is an aspect of the judicial function has been supported by other decisions of the Supreme Courts of New South Wales, Victoria and Queensland.
Gummow J in Grollo described the essential attributes of the judicial power of the Commonwealth in familiar terms by reference to the resolution of justiciable controversies by ascertainment of the facts, application of the law and the exercise where appropriate of judicial discretion, adding "which are delivered in public after a public hearing, and, where a judge is the tribunal of fact as well as law, are preceded by grounds for decision which are animated by reasoning”. Heydon J in AK v Western Australia described the duty of judges to give reasons for their decisions after trials and in important interlocutory proceedings as "well-established". His Honour adopted as a summary of the objectives underlying that duty an extra-curial statement by Gleeson CJ:
"First, the existence of an obligation to give reasons promotes good decision making. As a general rule, people who know that their decisions are open to scrutiny, and who are obliged to explain them, are more likely to make reasonable decisions. Secondly, the general acceptability of judicial decisions is promoted by the obligation to explain them. Thirdly, it is consistent with the idea of democratic institutional responsibility to the public that those who are entrusted with the power to make decisions, affecting the lives and property of their fellow citizens, should be required to give, in public, an account of the reasoning by which they came to those decisions."
The duty does not apply to every interlocutory decision, however minor. Its content – that is, the content and detail of the reasons to be provided – will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision.
The connection between the duty to give reasons and the nature of the judicial power enunciated in Grollo, and the objectives which that duty serves, explained in AK, marks the duty as an incident of the judicial function whether or not the court making the relevant decision is subject to appeal.
[Citations omitted].

Whether the reasoning in Wainohu necessarily means that s 9(2) of the Sentencing Act is invalid depends on the applicability of the majority’s reasoning in relation to sentencing remarks which, for the reasons I have explained above, are to be treated differently from reasons for judgment. It is unnecessary to decide this question because I am satisfied that, for reasons I will come to, the exercise of the sentencing discretion miscarried for other reasons. Further, the Court did not hear argument on this question. In these circumstances it is not appropriate to decide the issue of the validity of s 9(2).
Against that background I turn to consider the principles applicable to the factual basis for sentencing.
Sentencing and fact finding
In sentencing, the prosecution and the offender are not joined in an issue.[32] It is for the sentencing judge alone to decide the sentence to be imposed.[33] For that purpose, the judge must find the relevant facts.[34]
[32] R v Olbrich (1999) 199 CLR 270 at 281.
[33] GAS v The Queen; SJK v The Queen (2004) 217 CLR 198 at 211.
[34] GAS v The Queen; SJK v The Queen (2004) 217 CLR 198 at 211.
For the purposes of fact finding in sentencing, a court is not bound by the rules of evidence and may inform itself on matters relevant to the determination of penalty as it thinks fit.[35]
[35] Criminal Law (Sentencing) Act 1988 (SA) s 6.
With the exception of the elements of an offence. Where a matter goes to trial, proof is only required if a particular fact or issue is disputed or if the judge is not prepared to accept the assertion. In R v Olbrich, Gleeson CJ, Gaudron, Hayne and Callinan JJ said:[36]
Much of the discussion of fact finding for the purposes of sentencing addresses questions of onus and standard of proof. References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say "if necessary" because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)
[Citation omitted.]
[36] R v Olbrich (1999) 199 CLR 270 at 281.
With respect to sentencing and the burden and standard of proof, in Olbrich the majority further said:[37]
As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey, that a sentencing judge
"may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities."
[Citation omitted.]
[37] R v Olbrich (1999) 199 CLR 270 at 281; see also Weininger v The Queen (2003) 212 CLR 629 at 635_636; R v Lobban (2001) 80 SASR 550 at 556-557; R v Kreutzer (2013) 118 SASR 211 at 219-220.
To the extent that an issue is disputed the prosecution must decide whether to call evidence to prove it beyond reasonable doubt. If the offender then wishes to draw any additional material to the attention of the court (whether it relates to the offending or to his or her personal circumstances), then, he or she may do so from the bar table unless it is disputed. If it is disputed, the offender must decide whether or not to call evidence to establish the fact on the balance of probabilities.
That said, it must be borne in mind that issues of fact are not resolved by the inflexible application of the burden and standard of proof. In Weininger v The Queen, Gleeson CJ, McHugh, Gummow and Hayne JJ said:[38]
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.
...
Further, a sentencing hearing is not an inquisition into all that may bear upon the circumstances of the offence or matters personal to the offender. Some matters may be fixed by the plea or verdict of guilty although, even there, there may be ambiguities (as for example, in some homicide cases where a verdict of manslaughter is returned). Many of the matters relevant to fixing a sentence are matters which either the prosecution or the offender will draw to the attention of the sentencing judge. Some matters will remain unknown to the sentencing judge. The question then becomes, what use is the sentencing judge to make of what is known, and of the matters urged by the parties? This is not just a series of choices for the judge between alternatives. Not only may some things be unknown, some will concern matters in which a range of answers may be open.
As was pointed out in Storey, it is important to avoid introducing “excessive subtlety and refinement” to the task of sentencing. That object is advanced if sentencing and appellate courts pay close attention to identifying those matters that the sentencing judge takes into account in a way that is adverse to the interests of the accused, and those matters that the sentencing judge takes into account in favour of the accused. It must be recognised that not every matter urged on the judge who is to pass sentence has to be, or can be, fitted into one or other category. The judge may be unpersuaded of matters urged in mitigation or in aggravation. The absence of persuasion about a fact in mitigation is not the equivalent of persuasion of the opposite fact in aggravation. So to conclude would ignore the different standards of proof that are to be applied. It would also be wrong because it would assume that human behaviour can always be described as a dichotomy. It cannot. Human behaviour and characteristics are more varied than that. Further, it would be wrong because it would assume that sentencing is a syllogistic process. It is not. It is a synthesis of competing features which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money.
[Citations omitted.]
[38] Weininger v The Queen (2003) 212 CLR 629 at 636-638; see also R v Kreutzer (2013) 118 SASR 211 at 221-222.
In R v Lobban, the Court of Criminal Appeal drew a distinction between the factual circumstances in which an offence was committed and personal factors. Martin J, with whom Mulligan and Bleby JJ agreed, said:[39]
Leaving aside matters disputed by the Crown, submissions as to personal matters put in mitigation of penalty stand in a different position from submissions concerning the criminal conduct. The court does not usually have the assistance of verified statements. Pre‑sentence reports are largely based upon information from an offender. The Crown is frequently not in a position to challenge particulars of a personal nature advanced in mitigation. As a matter of sentencing practice, generally speaking judges accept personal matters put forward in submissions unless they are inherently implausible or are, to the knowledge of the offender, contradicted by other material before the sentencing judge.
...
... if a submission as to personal circumstances advanced in mitigation is not disputed by the Crown, or an offender is on notice by some other means that a submission might not be accepted, in my opinion an offender is ordinarily entitled to assume that a sentencing judge will accept the submission at face value unless the judge indicates otherwise.
[39] (2001) 80 SASR 550 at 555-556.
This statement of principle was approved by a differently constituted Court of Criminal Appeal in R v Haydon.[40]
[40] [2001] SASC 407 at [34], (2001) 80 SASR 560 at 567-568.
Ultimately the task is to take account of all (but only) relevant considerations in order to reach an “instinctive” conclusion as to the penalty that should be imposed. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen:[41]
In general, a sentencing court will, after weighing all of the relevant factors, reach a conclusion that a particular penalty is the one that should be imposed.
...
Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison.
[41] (2005) 228 CLR 357 at 373-375.
In a jury trial, the sentencing judge has heard the evidence upon which the jury’s verdict is based. It is for the judge to find the factual basis for sentence consistent with the jury’s verdict. Some of those facts are necessarily inherent in the verdict of guilty. However, some facts relevant to the exercise of the sentencing discretion may not be inherent in the verdict. It is the function and responsibility of the judge to make findings subject only to two matters. First, the findings must be consistent with the jury’s verdict. The source of the facts will be the evidence adduced at trial. Second, some findings will be either favourable or adverse for the purposes of sentencing. In making findings in either category the judge does so on a differential onus and standard of proof. A sentencing judge may not take facts into account in a way which is adverse to an offender unless those facts have been established beyond reasonable doubt, and that the offender bears the burden of proving on the balance of probabilities matters which are favourable.[42] Necessarily, that requires the judge to characterise the finding the judge is asked to make in sentencing.
[42] R v Olbrich (1999) 199 CLR 270 at 281.
Where the prosecution fails to prove a fact or circumstance which is adverse to an offender, but the judge is not satisfied on the balance of probabilities of an alternative version more favourable to the offender, the judge is not bound to sentence the offender on a basis which accepts the accuracy of the more favourable version. If the prosecution fails to prove beyond reasonable doubt a possible circumstance of the offending which, if proved, would be adverse to the offender, but the offender fails to establish on the balance of probabilities a competing possibility which, if proved, would be favourable to the offender, the judge may proceed to sentence the offender on the basis that neither of the competing possibilities is known.[43] As French CJ, Bell, Keane and Nettle JJ said in their joint reasons in Filippou v The Queen:[44]
Certainly, a sentencing judge must do his or her best to find the facts which determine the nature and gravity of the offending, including the facts which inform the offender’s moral culpability. Even so, it is sometimes not possible for the judge to ascertain everything which is relevant, especially where an offender chooses not to offer any evidence on the plea. Where that occurs, the judge must proceed on the basis of what is proved and leave to one side what is not proved to the requisite standard. As was stated in Weininger v The Queen:
“The sentencing judge may not be able to make findings about all matters that may go to describe [the] circumstances. In particular, an offender may urge a particular view of the nature and circumstances of the offence, favourable to the offender. The sentencing judge may be unpersuaded that the view urged is, more probably than not, an accurate view of the circumstances. In such a case, it is not correct that the judge is bound to sentence the offender on that favourable basis, unless the prosecution proves the contrary beyond reasonable doubt. Accordingly, in the particular facts of Olbrich, where the offender asserted that he was no more than a courier of the drugs, but the sentencing judge disbelieved him, it was neither necessary nor appropriate to sentence him on the basis that he was a courier.”
That accords with the requirements in s 21A(1) of the Sentencing Act that facts be taken into account only in so far as they are “known to the court” according to the principles of proof laid down in Olbrich.
[Citation omitted].
[43] Filippou v The Queen [2015] HCA 29 at [64], (2015) 256 CLR 47 at 69-70.
[44] [2015] HCA 29 at [70], (2015) 256 CLR 47 at 72.
Where there are competing possibilities, one which would be aggravating and the other mitigating, and where neither is established to the requisite standard, the judge should proceed on the basis that neither of the competing possibilities is known. The absence of proof beyond reasonable doubt of an aggravating circumstance does not equate to proof of a mitigating circumstance on the balance of probabilities.[45]
[45] Filippou v The Queen [2015] HCA 29 at [69], (2015) 256 CLR 47 at 72.
Where the defendant has pleaded guilty, by the plea he or she admits all of the elements of the offence with which he or she is charged. A plea of guilty does not amount to an admission of the factual background to the offending.[46] On a plea of guilty, the court will consider the content of the material that has been tendered at the preliminary examination in addition to any other material that has been filed or tendered for the purpose of determining the factual circumstances of the offending.[47]
[46] R v Olbrich (1999) 199 CLR 270 at 275; R v Haydon (2001) 80 SASR 560 at 563; Law v Deed [1970] SASR 375 at 377.
[47] R v Haydon (2001) 80 SASR 560 at 563, 565; R v Storey [1998] 1 VR 359 at 367. See also R v Vecsey [1962] SASR 127; R v Maitland [1963] SASR 332.
In this matter, the judge’s sentencing remarks are concise. Before the judge there was an issue whether the applicant had obtained a financial benefit from his offending and whether his conduct was motivated by the desire to make a profit. The judge does not refer to this issue. He does refer to the prosecution putting the case for a guilty verdict on one of two bases. The judge was required to make findings of fact, consistent with the jury’s verdict, which formed the basis for the imposition of sentence. The sentencing remarks do not disclose how he did this. The judge says no more than that he sentences “on no more and no less than the facts necessarily entailed in the verdict”. The opacity of that pronouncement renders it difficult for an appeal court to identify the basis for the sentence. Likewise, this Court is left in a state of some confusion as to the basis upon which the judge rejected the submission that the court should order that any sentence of imprisonment be served on home detention. The judge said he did not consider the applicant suitable for home detention. He said that as the offence was committed in the applicant’s home, he would manifest an unacceptable risk to the public. That appears to conflate issues relevant to whether a home detention order is appropriate with whether the applicant is a suitable candidate for home detention.[48] Whether, in the circumstances, the reasons given in the sentencing remarks are so inadequate as to constitute an error need not be decided given my view that the judge has fallen into error in the approach he has taken to sentencing the applicant for the trafficking offence. I turn to that now.
[48] R v Filipponi (2016) 126 SASR 464; R v Dell (2016) 126 SASR 571; R v Hosking [2017] SASCFC 50.
Sentencing for trafficking offences
In sentencing for trafficking offences general deterrence is a primary consideration.[49] In R v Kong[50] this Court said:[51]
There continues to be concern about the prevalence of drug abuse in our community. Since Mangelsdorf, the variety of illicit drugs available has increased. Twenty years ago, heroin was a primary concern and was considered to be the most harmful of illicit drugs. The position has changed with the promotion of methylamphetamine and the availability of a variety of illicit drugs, all of which are addictive and have very harmful effects. Research and knowledge about the effects of drugs known as “speed” and “ice” has developed. The so-called party drugs are readily available. The manufacture and importation of drugs is prevalent. The abuse of illicit drugs causes great social harm. The treatment and the management of drug addiction places a substantial financial burden on the health budgets of this State and the Commonwealth. The crimes committed by addicts to support their habits cause much loss and suffering to the community. Those who organise and participate in the distribution of illicit drugs create a serious risk of collateral injury to innocent members of the public. It is, therefore, nor surprising that in an effort to tackle the social harm caused by the abuse of illicit drugs, Parliament has imposed substantial penalties for dealing in commercial drugs to both punish and deter those who are attracted by the large profits that dealing can generate. For those reasons, general deterrence must be given great weight in the balancing of the competing sentencing objectives in the case of commercial drug dealers.
[49] R v Cetojevic (2005) 92 SASR 451 at 455.
[50] [2013] SASCFC 15 (2013) 115 SASR 425.
[51] [2013] SASCFC 15 at [90], (2013) 115 SASR 425 at 443.
As a consequence, while the court must consider the prospects of an offender’s rehabilitation in fixing sentence, except in quite exceptional circumstances, rehabilitation must be subservient to the need for deterrence.[52] As this Court recently made clear in R v Young[53] addressing sentencing for trafficking in a controlled substance, sentences in the range of four to seven years are appropriate for offenders who are motivated, whether to a greater or lesser extent by profit, to engage in trafficking of hard drugs.[54]
[52] R v Tran [2000] SASC 431 at [34].
[53] [2016] SASCFC 102, (2016) 126 SASR 41.
[54] [2016] SASCFC 102 at [66], (2016) 126 SASR 41 at 62.
In formulating this range, Kourakis CJ, with whom Vanstone J and I agreed, made the following observations:[55]
The offending of a street dealer whose addiction has left him or her largely impoverished and who trades in very small amounts only to feed his or her addiction is at the lower end of the scale of objective seriousness. Other street dealers may not use at all or may be only occasional or social users who engage in street trading primarily to fund a comfortable, usually hedonistic, lifestyle. Other street-level dealers, motivated by profit alone, may sell drugs directly to the end user but not use drugs at all.
…
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.
[55] [2016] SASCFC 102 at [65] and [67], (2016) 126 SASR 41 at 62.

Sentences approaching the 10 year maximum must be reserved for profit driven middle order dealers and persistent or recidivist street dealers.
None of these authorities detract from the proposition that the function of a sentencing judge is to impose a sentence appropriate to the offending and the offender. It is apparent from a consideration of the reasons of Kourakis CJ in Young that he was addressing the circumstances of offending and offenders different from the facts and circumstances of the applicant. The applicant is not a street dealer. His offending was not motivated by addiction and the evidence does not establish that his possession of the methylamphetamine was for the purpose of funding a comfortable lifestyle. The applicant was a first offender. The offending fell at the very lower end of the range of objective seriousness. There were and are strong prospects for his rehabilitation. However, the judge appears to have felt constrained to impose a sentence within the four to seven year range identified by the Chief Justice in Young for offenders who are motivated to a greater or lesser extent by profit.
In my view in doing so the judge fell into error. The circumstances of this offending and this offender fell into a different and less serious category. The judge was entitled to impose a sentence of imprisonment of less than four years. In sentencing on the basis that he was constrained to impose a sentence of no less than four years he fell into error.
In the circumstances I would set aside the sentence and resentence. That relieves me of the need to address the remaining grounds of appeal except to the extent that they inform my approach to resentencing.
Circumstances of the offending
I have set out the circumstances of the offending earlier in these reasons.
Personal circumstances of the applicant
At the time the applicant was sentenced he was 33 years of age, married with two children aged four and two years. He had no prior convictions. He had completed Year 12 and gone on to complete a TAFE course in hospitality and management. He did this while employed in cafes. In 2010 he completed an apprenticeship in painting and worked as a painter until 2014.
In 2014 the applicant commenced his own business delivering mini-skip bins. He took out a personal loan of $50,000 to purchase a truck. He worked hard, 10 hours a day every weekday and every second Saturday. He has a supportive family. The Court received references as to his good character. The applicant is involved in his church community and has undertaken voluntary work. His wife and children are financially dependent upon him. He had good prospects for rehabilitation notwithstanding the absence of contrition, remorse and insight into his offending evident from his failure to acknowledge his wrongdoing.
Resentencing
The prosecution did not dispute that it is open to the Court to sentence on the basis that the applicant was storing the methylamphetamine for his friend, Mr [V]. I consider it appropriate to do so. On the evidence this is the more likely of the two bases upon which the prosecution put the case for a guilty verdict. The evidence does not permit a finding to be made whether the applicant did or did not obtain any financial benefit for his offending of whether or not he was motivated to offend by the desire to make a profit. The offending is serious. The storing of drugs so that they are available for later sale is an integral aspect of many drug trafficking operations. Nonetheless, the applicant is a first offender. He has a dependent wife and two small children. He is hard working. He has otherwise been a solid member of the community. His prospects for rehabilitation are good. In my view this is offending which falls at the lower end of the range of objective seriousness, which combined with his strong prospects of rehabilitation, attracts a favourable exercise of the sentencing discretion. Nonetheless, a term of imprisonment should be imposed. I do not understand that to be resisted by the applicant. I would impose a sentence of two years and three months. I would fix a non-parole period of 14 months. Given the importance of general deterrence in sentencing for trafficking offences, I do not consider good reason exists in this case to suspend. However, I do consider that the applicant is a suitable person to serve a sentence on home detention. I have already referred to his prospects for rehabilitation. There is no evidence of the applicant’s involvement in crime of any kind between 23 September 2014, when he was charged, and 12 May 2017 when he was sentenced. In deciding whether to order that a term of imprisonment be served on home detention, the paramount consideration is the safety of the community. A significant risk of reoffending will often present a threat to the safety of the community. Such reoffending includes offences involving the trafficking of illegal drugs. I am satisfied however that this applicant does not pose such a risk.
The Court has received a home detention inquiry report that was prepared in June of this year. It was prepared for the purposes of bail. It is nonetheless relevant to the question of whether the Court should make an order pursuant to s 33BB of the Sentencing Act. The report finds that the proposed residence is suitable. I am satisfied that the residence is suitable and available for the detention of the applicant and the applicant will be properly maintained and cared for while detained in his residence. In the circumstances I am satisfied that it is appropriate that the applicant serve his sentence on home detention.
Conclusion
I would dismiss the appeal against conviction. I would allow the appeal against sentence. I would set aside the sentence. I would resentence the applicant to a term of imprisonment of two years and three months. I would impose a non-parole period of 14 months. I would suspend the sentence and order that the applicant serve the sentence on home detention pursuant to s 33BB of the Sentencing Act. The sentence and non-parole period are backdated to commence on 12 May 2017.
NICHOLSON J: I agree with the orders proposed by Stanley J for the reasons his Honour has given.
HINTON J: I agree that the appeal against conviction should be dismissed and that the appeal against sentence be allowed for the reasons given by Stanley J.