R v Scott - [2017] SASCFC 96

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SCOTT
[2017] SASCFC 96
Judgment of The Court of Criminal Appeal
(The Honourable Justice Stanley, The Honourable Justice Parker and The Honourable Justice Lovell)
9 August 2017
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - IMPORT-EXPORT OFFENCES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
The appellant pleaded guilty to the offences of importing a commercial quantity of methamphetamine; importing a marketable quantity of pseudoephedrine; trafficking in a large commercial quantity of cannabis and possessing prescribed equipment. The appellant was sentenced to a total of 19 years and three months imprisonment with a non-parole period of 10 years and eight months.
The appellant appealed the sentence imposed on the basis that it was manifestly excessive in that:
1. the individual sentences were excessive; and
2. the Judge failed to consider properly the principle of totality when imposing the final sentence.
Discussion of principle of totality - discussion of principle of proportionality relating to expression "crushing".
Held Lovell J (Stanley and Parker JJ agreeing):
1. The sentence was not manifestly excessive.
2. The Judge correctly applied the principle of totality.
3. Appeal dismissed.
Criminal Code 1995 (Cth) s 307.1(1) and s 307.12(1); Controlled Substances Act 1984 (SA) s 32(1) and s 33LA; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Smoker (2016) 126 SASR 201, discussed.
House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357; R v Constant (2016) 126 SASR 1; R v Jongewaard (2009) 266 LSJS 283; R v Nguyen (2010) 205 A Crim R 106, considered.

R v SCOTT
[2017] SASCFC 96
Court of Criminal Appeal: Stanley, Parker and Lovell JJ
STANLEY J:

I would dismiss the appeal. I agree with the reasons of Lovell J.
PARKER J:
I would dismiss the appeal. I agree with the reasons of Lovell J.
LOVELL J:
Introduction
The appellant had been a methamphetamine addict for many years. His addiction led to significant health issues. In 2005 he was diagnosed as suffering serious coronary artery disease. This was largely caused by his abuse of methamphetamine. The appellant was told by those medical practitioners treating him that he needed to cease his abuse of methamphetamine to avoid recurrent cardiovascular events. The appellant was unsuccessful in his attempts to cease using methamphetamine. In 2015 his cardiologist advised him “in no uncertain terms” that he was getting close to “the end of the road” unless he were to cease his amphetamine abuse.
The appellant’s response, on receipt of the poor prognosis from his cardiologist, was to involve himself in serious drug trafficking in an effort to provide financially for his family. On 1 December 2015 on returning from a trip to Indonesia the appellant was caught with 1,394 pseudoephedrine tablets at the Adelaide Airport. During the course of that trip the appellant had arranged the importation of 60 kg of “mixed methamphetamine” with a street value of approximately $60 million. The importation of the drug was detected on its arrival in Australia. On 7 January 2016 police raided the premises of the appellant and arrested him for importing the drug. Located at other premises rented by the appellant was approximately 20 pounds of cannabis packaged in one pound lots, along with hydroponic equipment.
The appellant was charged with, and pleaded guilty to, one count each of; importing a commercial quantity of a border controlled drug (methamphetamine) contrary to s 307.1(1) of the Criminal Code 1995 (Cth); importing a marketable quantity of a border controlled precursor (pseudoephedrine) contrary to s 307.12(1) of the Criminal Code 1995 (Cth); trafficking in a large commercial quantity of a controlled drug (cannabis) contrary to s 32(1) of the Controlled Substances Act 1984 (SA); and possessing prescribed equipment contrary to s 33LA of the Controlled Substances Act 1984 (SA).
On 11 November 2016 the appellant was sentenced, for all of the offending, to a sentence of 19 years and three months imprisonment with a non-parole period of 10 years and eight months. The appellant complains that the final sentence is manifestly excessive.
Background
The appellant was the sole director of Volcanrock Pty Ltd (Volcanrock). Volcanrock sold stone pavers and imported tiles from Indonesia. On 23 November 2015 the appellant travelled to Bali. Prior to leaving he communicated with an Indonesian shipping contractor. Whilst in Indonesia he communicated with others regarding the importation of drugs. The appellant arranged for a shipping container to be imported to Australia.
The appellant returned to Adelaide on 1 December 2015. During the course of a baggage examination, Australian Border Force officers located two containers that contained a number of tablets. The tablets tested presumptively for pseudoephedrine. In total there were 1,394 tablets weighing a total of 609.1g. Analysis showed the tablets contain 16.7 per cent pure pseudoephedrine. Thus the total weight of pure pseudoephedrine was 101.7g. A marketable quantity of pseudoephedrine is 3.2g.
Unsurprisingly the authorities placed the appellant under surveillance and this included monitoring the shipping container that he was importing from Indonesia. His use of the telephone was also monitored.
On 23 December 2015 the container arrived at Fremantle, Western Australia and was intercepted by officers from the Australian Federal Police. Examination of the shipping container revealed a number of wooden crates most of which contained stone tiles and pavers. One crate however contained four cardboard boxes within which there were 60 individual packages of powder containing methamphetamine, each weighing approximately 1kg. The powder was analysed and found to contain 59.47kg of methamphetamine at 80.3 per cent purity. A commercial quantity of methamphetamine is 0.75kg.
The methamphetamine was substituted with an inert substance by Australian Federal Police (AFP) officers and listening and tracking devices were also inserted in the container. The container was restored to its original state and allowed to be processed normally.
On 7 January 2016 the shipping container was delivered to his business at Royal Park. The appellant unloaded the entire contents of the container into his warehouse including unpacking the four boxes containing the substituted substance. He was later seen to leave the warehouse carrying a box containing substituted drugs and a tracking device. The appellant went to a rubbish pile at the rear of the premises and concealed the box amongst an area of rubbish. He then left the premises.
At about 6 pm on that day AFP and South Australia police officers executed search warrants on his premises at Royal Park as well as his home and another storage facility. On searching the rubbish pile located at the rear of the premises police located eight packages, weighing 8kg cumulatively, containing the substituted substance. The 8kg was later stated by the appellant to be his share of the shipment for arranging the importation. The remaining 52 packets were located in a wheelie bin within the appellant’s warehouse.
On 7 January 2016 police officers executed a search warrant on Lakeside Storage Park and searched a storage container belonging to the appellant. In two cardboard boxes were located 20 bags, each containing cannabis of approximately 450g. A total of 9kg of female cannabis plant material was located. Also located in the shipping container were a number of items consistent with use in the preparation of methylamphetamine as well as a number of items consistent with growing cannabis hydroponically.
The appellant was arrested at his home. When questioned, he refused to answer any questions.
Sentence imposed
The appellant was sentenced, for all of the offending, to a total sentence of 19 years and three months imprisonment with a non-parole period of 10 years and eight months. The appellant complains that the final sentence is manifestly excessive.
The Learned Sentencing Judge (the Judge) nominated a starting point of 18 years for the methamphetamine importation charge. This was reduced by 20 per cent on account of the appellant’s early guilty plea resulting in a sentence of 14 years and five months for that offence.
For the pseudoephedrine charge the Judge started with a sentence of four years which he reduced by approximately 30 per cent to two years and 10 months on account of the appellant’s guilty plea.
These two charges made up the Commonwealth offences and the Judge ordered that they be served partially concurrently. The effect of this was to reduce their otherwise cumulative sentence of 17 years and three months to a sentence of 16 years for both offences. The Judge fixed a non-parole period of nine years in respect of these two offences.
The Judge imposed a single sentence of three years and three months with a non-parole period of one year and eight months for the charges of trafficking cannabis and possessing prescribed equipment. He started with a sentence of four years but reduced this by approximately 20 per cent on account of the appellant’s guilty plea.
As required by law the Judge ordered that the Commonwealth and State sentences be served consecutively. This resulted in a total sentence of 19 years and three months with a non-parole period of 10 years and eight months.
Personal Circumstances of the Appellant.
The Judge outlined the factual basis of the offending before considering the appellant’s personal circumstances.
The appellant at the time of sentence was 45 years of age. His parents separated when he was young and he saw little of his biological father while growing up. At school he had difficulty with literacy leading to some behavioural problems. He was expelled from school whilst in year 10. Despite his poor schooling the appellant had a good work history culminating in the importing business. The appellant had two convictions for minor drug matters.
The appellant has a daughter, now 12 years of age, from a relationship which lasted 18 years. He also assisted in raising three step children during the time of that relationship. The relationship finished four years ago. At the time of the offending the appellant was in a new relationship and he and his partner have a one year old son.
The Judge had before him a report from a psychologist Ms Darmenia who had assessed the appellant for the purpose of sentencing submissions. Ms Darmenia noted the history of the appellant’s addiction to methamphetamine for approximately 20 years. Unsurprisingly she diagnosed the appellant as suffering from a Stimulant Use Disorder.
Whilst the appellant had previously attempted to cease his drug use he had never been able to remain clean for more than a short period. Despite this, Ms Darmenia described the appellant as being motivated to change and having insight into his level of addiction. She considered that he was a good candidate for drug rehabilitation programs offered in prison.
The Judge took into account the serious health issues the appellant’s sustained by his continued use of methamphetamines. The appellant has suffered a total of five heart attacks, the first of which occurred when he was only 30 years of age. His treating cardiologist had strongly advised him that unless he ceased his use of methamphetamine he was likely to suffer a fatal heart attack within one year. The Judge noted that as a result of his limited life expectancy the appellant decided to attempt to provide for his family by involving himself in the importation of the drugs.
The Judge had regard to the character references tendered on behalf of the appellant. Whilst the Judge accepted that the appellant’s desire to provide financially for his own family was at the heart of the offending, he highlighted the destructive effects that that very same methamphetamine would have inevitably caused on a great many families had the importation been successful.
Specifically, the Judge said:
As was observed during the sentencing process, your criminal actions, carried out in a fatalistic and deluded plan to provide for your family in the longer term, had the potential and indeed the inevitability that it would have brought great misery and suffering to many families had the plan succeeded. Methamphetamine is an insidious and dangerous drug. Those addicted to it commit crimes to fund their addiction. They engage in violent behaviour. Relationships break down because of the use of that drug, as it appears did your long-term relationship. The drug causes damage to health, as it did to your health. The drug causes psychiatric damage to users and, on occasions, causes the death of those who use it.
The Judge considered general deterrence as the crucial factor in imposing his sentence.
After determining the sentences for each of the offences (outlined earlier) the Judge expressly considered the question of totality. In doing so he noted that the sentence, whilst significant, was necessarily so and reflected the seriousness of the offending. He concluded that the sentence did not require any further adjustment in addition to the partial concurrency he had applied to the Commonwealth offences and his application of s 18A of the Criminal Law (Sentencing) Act 1988 (SA) in respect of the State offences.
Appellant’s submissions
The appellant argues only one ground namely that the sentence imposed was manifestly excessive. The test to be applied in determining whether to interfere on appeal with a decision on sentence is set out in R v Jongewaard[1] where Doyle CJ said:[2]
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
[1] (2009) 266 LSJS 283; [2009] SASC 346.
[2] (2009) 266 LSJS 283, 288-289; [2009] SASC 346 at [40].
The appellant’s submissions focussed on two main points. First, that the starting point of 18 years imprisonment for Count 1 was too high when compared to similar cases particularly when proper regard was had to the appellant’s personal circumstances. Secondly that the Judge, when considering the overall sentence, failed to adequately apply the principle of totality.
The appellant submitted that his personal circumstances mitigated the seriousness of his offending. The appellant submitted that the combination of his circumstances, namely his medical condition and his motivation to provide for his family, were “unique”. Due to his sustained addiction he did not view the importation of the methylamphetamine as “momentous” as someone free of addiction might. The appellant referred to the report of Ms Darmenia who described the appellant as feeling like he was in control of his drug use, choosing to use rather than being compelled. These observations, it was submitted stood in contrast to the insight the appellant has developed as to the harmful effects of his drug use since his incarceration. This, it was submitted, showed that his appreciation for the harmful effects of methylamphetamine was dulled at the time of the offending.
Counsel further submitted that the appellant’s previously unsuccessful attempts to cease using methylamphetamine meant that when he received his potentially fatal prognosis he was more desperate than he might have otherwise been. It was submitted that the combination of these features of the appellant’s personal circumstances acted to mitigate the seriousness of his offending.
Further it was submitted by the appellant that his role was that of a “courier” rather than being a “main player” in a criminal organisation. Whilst acknowledging that his role was still serious it was submitted that the proper identification of his role would have led to a lower starting point on sentence.
Finally the appellant submitted that the Judge did not have proper regard to the question of totality in that he failed to evaluate the overall criminality involved given his personal circumstances and did not consider whether the sentence imposed was, in all of the circumstances, crushing.
Respondent’s Submissions
The respondent submitted that mitigating personal circumstances should be a secondary consideration to the objective seriousness of the offending and the sentence on Count 1 could not be said to be “unreasonable or plainly unjust”.[3] The respondent submitted that the role of the appellant was far greater than that of a courier. He had travelled to Indonesia to source the methamphetamine and used his business as a cover to import it.
[3] House v The King (1935) 55 CLR 499, 505.
The respondent submitted that the appellant’s reason for committing the crimes simply did not mitigate the seriousness of his offending. The appellant stood to gain potentially millions of dollars from his criminal activity. Further the respondent submitted that the circumstances of the appellant were not unique. Rather than give up using methamphetamine and improve his prognosis the appellant chose to commit the crime. In essence the motive for the appellant was greed. His poor health could not be used as a “licence to commit crime”.
The respondent highlighted the large quantity of drugs imported, the financial motivation for doing so and the critical role of the appellant in the plan to import the drugs. The sentence needed to signal to potential drug traffickers that the potential “financial reward to be gained would be neutralised by the severe punishment that can be expected”.
The respondent further submitted that the Judge specifically turned his mind to the question of totality. The Judge gave effect to the principle by ordering that the Commonwealth sentences be served partially concurrent and utilised s 18A of the Criminal Law (Sentencing) Act 1988 (SA) with respect to the State offending. Prior to imposing a final sentence the Judge referred to the question of totality and stated that the “sentences properly reflect the significance of your offending and are not so crushing as to require adjustment”.
The respondent submitted that the offending was extremely serious and not confined to a single act of importation but also incorporated trafficking in cannabis. The conduct was motivated by financial reward, involved significant planning and was deliberate and calculated conduct. The appellant’s role was central to the commission of the crimes and the sale of large amounts of the controlled drug would have caused widespread harm to the community. The overall sentence, it was submitted, was not manifestly excessive and the non-parole period was merciful.
Sentencing for Commonwealth Drug Offences

In R v Nguyen,[4] Johnson J, with whom McFarlan JA and Hulme J agreed, conveniently summarised the general principles of sentencing a defendant for serious Commonwealth drug importation offences. The following principles from R v Nguyen[5] were reproduced and approved by this court in R v Constant:[6]
[4] (2010) 205 A Crim R 106.
[5] (2010) 205 A Crim R 106 at [70]-[72] (Johnson J).
[6] (2016) 126 SASR 1.
Some general sentencing principles concerning serious federal drug offences
The importation and possession offences now contained in the Criminal Code (Cth) provide for a structured sentencing regime by reference to the quantity of drug imported. Section 307 adopts “a quantity-based penalty regime” by fixing commercial and marketable quantities of certain drugs, distinguishing between those drugs in setting such quantities, but otherwise making no distinction between them in terms of maximum penalties: Adams v The Queen (2008) 234 CLR 143; 183 A Crim R 534 at [2].
Before turning to the individual sentences imposed in this case, it is appropriate to refer to principles applicable to sentencing for drug importation offences. I include in this offences of attempting to possess a quantity of an unlawfully imported border controlled drug contrary to s 307 Criminal Code (Cth).
The following general propositions emerge from the authorities:
(a)the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation: R v Lee at [27];
(b)problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court: R v Olbrich (1999) 199 CLR 270; 108 A Crim R 464 at [19]; R v Lee at [25];
(c)it is the criminality involved in the importation which must be identified - the fact that another person may be characterised as the “mastermind” does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility: R v Lee at [26];
(d)although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: Wong v The Queen at [64]; R v Lee at [23]-[24];
(e)the statements by the High Court in Wong v The Queen; do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar: R v Nguyen (2005) 157 A Crim R 80-110]; Sukkar v The Queen (No. 2) (2008) 178 A Crim R 433 at [46];
(f)as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit R v Kaldor (2004) 150 A Crim R 271 at [104]; R v Lee at [32];
(g)the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case: Wong v The Queen at [64];
(h)the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment: R v Chen (2002) 130 A Crim R 300 at [286]; R v Stanbouli (2003) 141 A Crim R 531 at [114];
(i)involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served: R v Pang (1999) 105 A Crim R 474 at [6];
(j)the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence R v Barrientos [1999] NSWCCA 1 at [52]-[57]; R v Paliwala (2005) 153 A Crim R 451 at [20]-[25]; R v Lee at [14]; good character is not an unusual characteristic of persons involved in drug importation: Okafor v The Queen [2007] NSWCCA 147 at [47]; Onuorah v The Queen (2009) 76 NSWLR 1; 197 A Crim R 430 at [49];
(k)where offenders are not young …, the immaturity of youth cannot be claimed as a factor bearing upon their transgressions: Tyler v The Queen; (2007) 173 A Crim R 458 at [98];
(l)where an offender … is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, is relevant to determining the degree of moral culpability attached to the act of attempted possession itself, so that a sentencing judge should have regard to the offender’s involvement in the overall transaction for the purpose of determining the offender’s degree of involvement in a drug-smuggling enterprise: El-Ghourani v The Queen (2009) 195 A Crim R 208 at [33]-[37];
(m) offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs: R v Ferrer-Esis (1991) 55 A Crim R 231 at 230;
(n)the range of sentences referred to in the decision of the Court of Criminal Appeal in R v Wong remain useful to sentencing for offences of this type; although they have no validity as guidelines, their utility results from the fact that they are based on the patterns of actual sentences, although allowance must be made for the repeal of s 16G Crimes Act 1914 (Cth): R v Taru [2002] NSWCCA 391 at [12]; R v Bezan at [34]-[36]; R v Mas Rivadavia (2004) 61 NSWLR 63; 149 A Crim R 1 at [65]-[66]; R v SC at [27]; R v Chea [2008] NSWCCA 78 at [40];
(o)insofar as each respondent asked the sentencing judge to take into account on sentence offences under s 16BA Crimes Act 1914 (Cth), it is necessary for a sentencing court to comply with the general principles applicable to the State regime for taking offences into account in accordance with Re Attorney-General’s Application (No 1 of 2002) (NSW) (2002) 56 NSWLR 146; 137 A Crim R 180: R v Poynder (2007) 171 A Crim R 544 at [28]; Assafari v The Queen [2007] NSWCCA 159 at [9].
The Court in R v Constant added:[7]
We add one further observation, drawn from this Court’s judgment in R v Kong - having regard to what fell from the High Court in Markarian v The Queen as to the use of maximum penalties, courts sentencing for drug offences must “have regard to the scaled penalties in order to maintain some relativity in the spread of sentences both within, and between, the categories.”
(Footnotes Omitted)
[7] R v Constant (2016) 126 SASR 1, 14 [34].
They further said:[8]
Consistent with this we note that in Wong v The Queen, Gaudron, Gummow and Hayne JJ observed that, whilst there are a whole range of matters relevant to determining the appropriate penalty in a given case,
… [i]n general, however, the larger the importation, the higher the offender’s level of participation, the greater the offender’s knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted. It is by these kinds of criteria that comparisons are to be made between examples of the offence and the sentences that are or were imposed.
(Footnotes Omitted)
[8] R v Constant (2016) 126 SASR 1, 14 [38] citing Wong v The Queen (2001) 207 CLR 584, 607-608 at [64] (Gaudron, Gummow and Hayne JJ).
I have had regard to these principles when considering whether the sentence was manifestly excessive.
Was the sentence on Count 1 manifestly excessive?
Here the appellant pleaded guilty of importing 59.47kg of methylamphetamine. Under the regulations a commercial quantity of the drug is 0.75kg and the offence carries a maximum penalty of life imprisonment. The estimated value of the drugs is $60 million. Clearly this importation was a serious incursion into crime. The role of the appellant was not that of a “mere” courier. He travelled to Indonesia to arrange the importation. He used his business as a cover for the importation. He was to receive 8kg of methamphetamine as payment for his involvement in the importation. The appellant’s motive was greed in the sense that he wanted to provide for his family as he considered he did not have long to live. Leaving aside his medical condition a motive of attempting to make a lot of money for his family is not unusual.
Whilst the appellant’s personal health issues are a relevant consideration the difficulty in detecting this type of offence and the great social harm that the drug causes means that general and personal deterrence must be given significant weight.
I have had regard to the table of comparative sentences tendered in this matter. Only limited assistance can be gained from a comparison with other cases. However the table of comparative sentences supports my view that this sentence is within the range of comparable sentences. In my view the starting point of the Judge of 18 years imprisonment on Count 1 was within the range of appropriate sentences.
Totality
The second point argued by the appellant was that the Judge failed to adequately consider the principles of totality. The respondent further submitted that in doing so the Judge failed to characterise the sentence as “crushing”.
In R v Smoker[9] this court considered the application of the principles of totality including what, if any, relevance the concept of a “crushing” sentence had to its application. The following principles can be distilled from that case:
[9] (2016) 126 SASR 201.
a)The principle of totality requires the sentencing Judge in matters concerning multiple sentences to take one final look at the cumulative effect of the sentence and ensure that it is appropriate when considered in light of the criminal behavior;[10]
b)The concept of proportionality underpins the principle of totality;[11]
c)It is not uncommon that a sentence that could be considered crushing is required, especially for serious offending;[12]
d)“Crushing” is not a term of art in the context of cumulative sentences and the principle of totality. Consideration as to discounting a so called “crushing” sentence is merely an application of the principle of proportionality;
e)Considerations of promoting rehabilitation and ensuring that an offender does not lose complete incentive to reform are part of the proportionality considerations;
f)An appropriate sentence is one that is proportionate to both the objective criminality and maximum penalty, and the subjective, mitigating circumstances of the offender in the light of all relevant circumstances;[13]
g)This application of the principle of proportionality is in accordance with the “instinctive synthesis” approach to sentencing approved of in Markarian v The Queen;[14]
h)The principle of proportionality is exercised at two points during the sentencing process for multiple offences. It is first used in determining the appropriate sentence for each individual offence. It must then be used a second time in considering the cumulative effect of each of the sentences and whether the total sentence is proportionate to the criminality of the offences when viewed collectively. If required, the total sentence must be adjusted to ensure proportionality. This second application of the principle of proportionality is the application of the principle of totality;[15]
i)Aside from s 18A of the Criminal Law (Sentencing) Act 1988 (SA), the principle of totality can be given effect in either of two ways. First, the sentencing Judge can fix appropriate sentences for each offence and consider cumulation and concurrency or second, the Judge may lower the sentence for any subsequent offences below that which would otherwise have been imposed.[16]
[10] Mill v The Queen (1988) 166 CLR 59.
[11] Mill v The Queen (1988) 166 CLR 59 at [63].
[12] R v E, AD (2005) 93 SASR 20 at [38] (Doyle CJ).
[13] Veen v The Queen (No 2) (1988) 164 CLR 465.
[14] (2005) 228 CLR 357, 373-374.
[15] Postiglione v The Queen (1997) 189 CLR 295, 308.
[16] Pearce v The Queen (1998) 194 CLR 610 at [40]; Mill v The Queen (1988) 166 CLR 59.
The Judge, with respect to the Commonwealth offences, ordered that the sentences be served partially concurrently resulting in a reduction from an otherwise cumulative sentence of 17 years and three months imprisonment to one of 16 years. With respect to the State offences the Judge used s 18A of the Criminal Law (Sentencing) Act 1988 (SA) and imposed a single sentence of three years and three months for the two offences. The cannabis offending was a separate incursion into crime and the Judge appropriately accumulated the sentences.
Significantly, in his sentencing remarks the Judge stated that he considered the question of totality. The Judge appropriately considered the question of whether the sentence was “crushing” in the correct context. The Judge had applied concurrency in the Commonwealth sentences. However he was required to have a “last look”. The Judge was required to consider whether the sentences were proportionate to the criminality of the offences when viewed collectively; he did so. The Judge stated that the “sentences properly reflect the significance of your offending and are not so crushing as to require adjustment”. The Judge clearly considered the principle of proportionality before pronouncing the final sentence.
The non-parole period imposed by the Judge was merciful.
No error has been demonstrated in the approach of the Judge.
Conclusion
The sentence imposed is not manifestly excessive. I would dismiss the appeal.