R v Scuteri

[2018] SASCFC 103

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SCUTERI

[2018] SASCFC 103

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Lovell and The Honourable Justice Doyle)

11 October 2018

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - DELAY BETWEEN OFFENCE AND SENTENCE

CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - REFORMATION AND REHABILITATION

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES

Appeal against sentence for drug offences.

The appellant was sentenced on 8 May 2013 in the District Court to two years imprisonment, with a non-parole period of one year, for two drug offences. The sentence was suspended on the appellant entering into a good behaviour bond for a period of two years. Only 22 days after it was imposed, the appellant breached that bond by committing offending of a very similar nature; namely, one count of trafficking in a controlled drug and one count of manufacturing a controlled drug for sale.

On 15 March 2018, a District Court Judge estreated the bond and ordered that the appellant serve two years and six months cumulatively upon the two year sentence already imposed, resulting in a total head sentence of four years and six months. A new non-parole period of two years and three months was fixed.

Held, per Peek J (Lovell and Doyle JJ agreeing) dismissing the appeal:

1. The degree of leniency to be afforded to an offender for delay between the commission of an offence and sentencing is dependent upon the facts of the case. The Judge had proper regard to relevant matters, including the rehabilitation of the appellant and the reasons for the delay, when sentencing. He afforded significant leniency in the circumstances. R v Todd [1982] 2 NSWLR 517 distinguished.

2.       The Judge gave due consideration to the appellant’s circumstances in declining to estreat or reduce the suspended sentence.

3.       The Judge allowed a generous period of partial concurrency of sentence. He was not required to order full concurrency as between the sentences.

4. An appellable error within the House v The King (1936) 55 CLR 499 precepts must be demonstrated before the discretion of a sentencing Judge to order cumulative sentences will be interfered. No such appellable error is demonstrated.

5.       The head sentence and non-parole period imposed are merciful and not manifestly excessive in all of the circumstances. The Judge demonstrated no error in refusing to suspend the new sentence.

Sentencing Act 2017 (SA) s 114, referred to.
R v Todd [1982] 2 NSWLR 517, distinguished.
House v The King (1936) 55 CLR 499; Mill v The Queen (1988) 166 CLR 59; R v Borkowski (2009) 195 A Crim R 1; R v Buckman (1988) 47 SASR 303; R v Lutze (2014) 121 SASR 144; R v Marston (1993) 60 SASR 320; R v Pickard [2011] SASCFC 134; R v Smith [2014] SASCFC 98; The Queen v H, GJ (No 2) [2014] SASCFC 102; The Queen v Morse (1979) 23 SASR 98; The Queen v R, AW (2012) 113 SASR 179, discussed.
Eedens v The Queen [2009] NSWCCA 254; Kentwell v The Queen (2014) 252 CLR 601; Kernich v Director of Public Prosecutions (Cth) (1997) 68 SASR 454; R v Knight (1981) 26 SASR 573; R v Law; Ex parte Attorney-General (Queensland) [1996] 2 Qd R 63; R v Liddy (No 2) (2002) 84 SASR 231; R v Miceli [1998] 4 VR 588; R v P (2003) 87 SASR 287; R v Suckling (1983) 33 SASR 133; Stanitzki v Higgins (1994) 63 SASR 309, considered.

R v SCUTERI
[2018] SASCFC 103

Court of Criminal Appeal:  Peek, Lovell and Doyle JJ

1. PEEK J.    Appeal against sentence.

   Introduction

2. The appellant, Stefan Scuteri, appeals against a sentence imposed by District Court Judge Chivell on 15 March 2018 for trafficking in, and manufacturing of, a controlled drug on 30 May 2013 and 2 July 2013.

   The previous drug charges

3. There had been relevant prior offending.  On 4 March 2011 and 23 September 2011, the appellant had trafficked in phenylalanine (a controlled drug) and manufactured methylamphetamine for sale.  He had pleaded guilty to the charges.  On sentencing on 8 May 2013, Judge Soulio accepted that the appellant had “taken positive steps towards rehabilitation”, and that his psychologist thought he was at “relatively low risk of re-offending provided [his] rehabilitation continued”.  His Honour sentenced the appellant to two years imprisonment (with a one year non-parole period), suspended upon him entering into a bond to be of good behaviour for two years.  His Honour summarised:

   Dr Mascolo, your GP, confirmed having treated you for anxiety and depression since November 2011 and has referred you to a psychologist.  Ms Lambros, a social worker at Drug & Alcohol Services SA, confirmed that you have attended at Waranilla for relapse prevention counselling since August 2012.

   Mr Broomhall, a psychologist who assessed you for the purposes of sentencing… diagnosed you as suffering an adjustment disorder with depressed mood.

   He noted that you had undertaken counselling at Drug & Alcohol Services SA and that you now require anti-anxiety medication.  He considered that you are generally at low risk of reoffending provided your substance abuse and mental health difficulties are addressed given your stable family situation, your strong work ethic and your lack of offending history.

4. The psychologist’s last remarks were proven incorrect by the appellant’s further offending very soon thereafter.

   The present drug charges

5. Only 22 days after entering into the above bond, the appellant committed the offence in count 1 on the present Information.  Judge Chivell summarised the facts of the present offences as follows:

   … On 30 May 2013, the police stopped and searched a silver Holden hatchback vehicle.  The vehicle was driven by you, Stefan Scuteri, and the front passenger was you, Bruno Scuteri.  During the search, police located in the boot of the vehicle a tub containing a crystalline substance within a padlocked laptop bag.  The substance was analysed and weighed a total of 2.87 g, with 1.61 g being methylamphetamine.

   Bruno Scuteri, you refused to answer questions.  You, Stefan Scuteri, lied to the police and told them you were unaware that the laptop bag was in the boot.  You had been seen by the police putting it in the boot.

   On 2 July 2013, police stopped a white Fiat driven by you, Stefan Scuteri.  Again, Bruno Scuteri, you were in the front passenger seat.  The vehicle was stopped as it entered Loddon Street at Ferryden Park.  Inside the vehicle, a bottle of Dettol hand sanitiser was located in the passenger foot well.  The contents of the bottle was analysed and contained 15 ml of hypophosphorous acid.

   Following the search of the vehicle, police entered Loddon Street premises, which were owned by Ms Leuzzi.  Upon entering the premises, police immediately saw, through an open door, glassware consistent with a clandestine laboratory resting on a table in the centre of the garage.  All of the chemicals and equipment required for the extraction of pseudoephedrine and the production of methylamphetamine were present.  Police also located 6.5 g of powder containing approximately 5.3 g of pseudoephedrine in a form that was ready to be converted to methylamphetamine.  The quantity of methylamphetamine that could have been produced was about 4 g.

   There were also traces of methylamphetamine detected in a plastic tub and on digital scales.  This established that there had been previous manufacturing at the site.  …  You, Stefan Scuteri, denied that you were driving into Loddon Street at all, let alone that you were involved in the manufacture of methylamphetamine.  …  Your association with the clandestine laboratory in Loddon Street was more extensive than the single instance of your delivery of the 15 ml of hypophosphorous acid on 2 July.  Evidence of text messages and your DNA on gloves found at the laboratory, as well as evidence of previous manufacture at the laboratory, indicates that your association had been more substantial than that. 

6. On 15 March 2018, almost five years after the offending, Judge Chivell sentenced the appellant to imprisonment for two years and six months.  He had obviously breached the bond suspending the sentence of two years imprisonment imposed by Judge Soulio.  Judge Chivell ordered that the suspension of the previous sentence be revoked and that that sentence be served cumulatively with the present sentence, resulting in a total head sentence of four years and six months.  His Honour fixed a new non-parole period of two years and three months.

   The grounds of appeal

7. The appellant appeals against sentence and complains that the Judge did not afford sufficient leniency having regard to asserted rehabilitation between the offending and the sentencing.  The grounds of appeal as drafted are as follows:[1]

   [1]    The “grounds” were not numbered.  On the hearing of the appeal, counsel for the appellant suggested that the numbers one and two be inserted (as presently appears above).

   1.   In focusing, erroneously, on the Appellant’s contribution to the delay between offending and sentencing, the Learned Sentencing Judge failed to give any, or any appropriate, weight to the rehabilitation of the Appellant, in particular in relation to:

   1.the estreatment of the suspended sentence;

   2.the sentencing for the subject offences;

   3.the ordering of concurrency;[2] and

   4.the suspension of the imprisonment ultimately imposed.

   2.     In all the circumstances, relating to the offending and the offender:

   1.the sentence ultimately imposed was manifestly excessive; and

   2.the Learned Sentencing Judge erred in the exercise, or the failure to consider the exercise, of the discretion to suspend the sentence ultimately imposed.

   [2]    The wording of 1.3 was amended at the permissions hearing on 7 May 2018.

   The nature and extent of the delay between offending and sentencing

8. The periods of delay may be briefly summarised as follows:

   -On 2 July 2013, the appellant was arrested for the second of the present offences.

   -On 17 September 2013, an answer charges date was fixed in the Magistrates Court for 25 October 2013.  On that date the appellant indicated an intention to make a no case to answer submission and the matter was adjourned with the prosecution to file an outline of argument by 6 December 2013.

   -On 16 January 2014, the appellant abandoned his no case submission, conceded there was a case to answer, and the matter was committed to the District Court for trial.

   -The appellant first appeared for arraignment in the District Court on 17 February 2014, and entered not guilty pleas in respect of the two counts.  The matter was adjourned for directions and on 1 April 2014, a trial date was fixed for 2 February 2015.

   -On 10 April and 4 September 2014, further directions hearings occurred and the existing trial date was confirmed on each occasion.

   -On 4, 5, 9, 13 and 16 February 2015, a voir dire proceeding was held before Lovell J, upon which his Honour ruled on 12 March 2015 and adjourned the matter for further directions.

   -On 2 April 2015, at a directions hearing, a new trial date was set for 7 March 2016.  Due to the District Court listings practice, this trial date was not reached, and after a further directions hearing on 17 March 2016, a new trial date of 13 February 2017 was set. 

   -On the morning of 13 February 2017, the trial commenced with the appellant pleading not guilty to both counts; however, that afternoon the appellant was re-arraigned and pleaded guilty.  The matter was listed for sentencing submissions on 4 April 2017.

   -Adjournments of sentencing submissions were twice sought by defence counsel before the date for submissions was fixed for 22 May 2017.

   -On 22 May 2017, Mr Twiggs for the appellant sought a further adjournment to obtain instructions in relation to count 2.

   -On 7 June 2017, Mr Twiggs applied to be released from the file on the basis that the appellant had instructed that he was not guilty.

   -On 26 June 2017, Mr Marshall, the appellant’s new solicitor, requested that the matter be adjourned to hear an application on behalf of the appellant to vacate his guilty pleas.

   -The application was adjourned on four occasions before being heard on 26 October 2017 when Mr Algie SC appeared for the appellant.

   -On 17 November 2017, Judge Chivell refused the application to set aside the pleas.  His Honour adjourned the matter of sentencing submissions to 2 February 2018.

   -On 2 February 2018, final sentencing submissions were made and the appellant was remanded to 15 March 2018 for sentence

   -On 15 March 2018, Judge Chivell passed sentence.

   Principles relevant to asserted rehabilitation during a period of delay

9. Without being exhaustive, there are different ways in which a delay between offending and sentencing may affect the sentence imposed.  For the purposes of present analysis, one may distinguish between a “usual degree of leniency” and a “very high degree of leniency”.[3]

   [3]    The words "very high degree of leniency" paraphrase the statement in R vTodd [1982] 2 NSWLR 517 at 520 that sometimes lengthy delay “can require what might otherwise be a quite undue degree of leniency being extended to the prisoner” discussed below at paragraph [15].

   A “usual” degree of leniency associated with the matter of rehabilitation

10. In cases of significant delay between offending and sentencing, a usual effect of such delay is that the Judge will be given an opportunity to assess what progress the defendant has made towards rehabilitation since the date of the last offending.[4]  The present appellant fell into this category and was entitled to the benefit of the submission that over the period since committing the second of the two subject offences he had not committed any serious criminal offending.  However, the degree of leniency that should be awarded is very much a matter of discretion having regard to all other factors relevant to sentence.

    [4]    There is a practical distinction between this situation and that which exists when a defendant is sentenced shortly after offending such that submissions concerning rehabilitation must be entirely predictive.  See The Queen v R, AW (2012) 113 SASR 179, 197.

11. Judge Chivell expressly took into account all matters relevant to the appellant’s rehabilitation.  His Honour referred to the favourable psychological reports of Dr Lim, dated 4 May 2017, and of Dr Tony De Blasio, dated 30 January 2018, who was the appellant’s treating psychologist, since 2014.  His Honour was wise to proceed with some caution in regard to submissions asserting rehabilitation in circumstances where very similar submissions had been accepted by the previous sentencing Judge, only to be proven baseless soon thereafter.

12. The Judge also referred to the pre-sentence report, dated 27 April 2017, which concluded that in 2013 the appellant was placed in the medium range of likelihood to reoffend, and that his risk assessment was unlikely to have improved during this time.[5]  His Honour also had before him the appellant’s affidavit of 3 August 2017 in support of his application to withdrawal his guilty pleas from which it appears that he still did not accept that he was guilty of trafficking and manufacturing a controlled drug; that he asserted that he had solely “purchased the meth for [his] own personal use” and that his brother was chiefly responsible for the drugs. 

    [5]    It is stated therein: that the appellant had been addicted to methamphetamines, but that he had not used any illicit substance in over two years; that he had previously served a period of imprisonment, from 3 July 2013 to 25 September 2013; and, that he had a history of non-compliance with supervision conditions which included: three convictions for failing to comply with bail agreements, three positive urinalyses and seven occasions when he “refused to provide samples”.

13. It is to be deduced from the mercifully low sentence imposed, that his Honour gave significant leniency by reference to first, the fact that over the period of the delay the appellant had exhibited substantial progress towards his rehabilitation; and second, to the fact that the appellant had had to live through a period of uncertainty as to what would be the outcome of the legal proceedings.

    A “very high” degree of leniency associated with the matter of rehabilitation

14. Senior counsel for the appellant submitted that insufficient leniency had been afforded and that a very high degree of leniency should have been afforded by reference to the matter of rehabilitation.  He submitted, ostensibly on the basis of the well-known judgment of Street CJ in R v Todd,[6] that the substantial delay here required a very high degree of leniency, namely that no custodial sentence should be imposed for either the serious subject drug offending or the beach of the previous suspended sentence for the same conduct.  This was said to be because the delay “would render it oppressive to order a sentence of imprisonment now”; and further, the delay would render it “oppressive to enforce the breached bond”, which had been breached only 22 days after being imposed.

    [6] [1982] 2 NSWLR 517, 519-520: “Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.”

    Consideration

15. “Todd was a very singular case”.[7]  The statement in Todd that sometimes lengthy delay “can require what might otherwise be a quite undue degree of leniency being extended to the prisoner”[8] very much needs to be read against the background of the facts of the case.  In Todd, the circumstances had denied the later New South Wales court of any power to backdate the later New South Wales prison sentence and thus there was no ability to afford a usual measure of concurrency of sentence with the earlier Queensland sentence (because he had already fully served it).  This unusual pattern of circumstances, arising from two separate jurisdictions imposing separate prison sentences for what was largely one course of conduct, led to the need to impose a sentence for the New South Wales offending, the length of which would otherwise have appeared to be unduly lenient and distinctly out of line with sentences usually imposed for that sort of offending. 

    [7]    R v Borkowski (2009) 195 A Crim R 1, 12 (Howie J, with whom McClellan CJ at CL and Simpson J agreed).

    [8] [1982] 2 NSWLR 517, 520.

1. That this was an important feature in Todd was emphasised by the High Court in Mill v The Queen when their Honours stated:[9]

   The principle is not confined in its operation to the fixing of a non-parole period.  It applies also to the fixing of a head sentence which, when considered in association with the head sentence imposed by the first sentencing court, must be seen to be appropriate in all the circumstances.  In the absence of statutory provisions enabling the new sentence to be backdated to a time when the offender was in custody serving the earlier sentence in the other State, it is not correct for the second sentencing court to determine the head sentence by reference to the normal tariff applicable to the offence for which he is then being sentenced, leaving the fixing of a non-parole period alone to reflect the principles laid down in Todd.The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raise considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence.  The intervention of a State boundary denies to an offender the opportunity of having the series of offences dealt with together by a sentencing court which can avail itself of the flexibility in sentencing provided by concurrent sentences.

   [9] (1988) 166 CLR 59, 66 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).

2. On a correct view of the authorities decided since Todd, it is clear that, in the circumstances of the present case, a submission that an unusually high degree of leniency was necessary could only have had any chance of success if the delay was clearly not the fault of the appellant and was either the fault of the prosecuting authorities or was “unexplained”.  This proposition is supported by the various New South Wales decisions since Todd, a number of which are collected by the New South Wales Court of Criminal Appeal in the prosecution appeal, R v Borkowski.[10]  There, the sentencing Judge had treated delay between offending and sentencing as a mitigating factor in circumstances where (not dissimilar to those in the present case) the delay was largely due to the respondent’s own conduct.  The Court of Criminal Appeal found that the Judge had erred and allowed the prosecution appeal.  Howie J (with whom McClellan CJ at CL and Simpson J concurred) stated:[11]

   [38]    The Crown contends that it was an error for the judge to apply the principles arising from R v Todd [1982] 2 NSWLR 517 in the circumstances of this particular case. It is noted that the respondent had sought, and was granted, an order for the attendance of witnesses for cross-examination at the committal proceeding. The respondent was committed to stand trial on 18 June 2008 and the matter was listed for arraignment in the District Court on 31 July and 28 August 2008. On both occasions the matter was adjourned on the application of the respondent.

   [39]    Todd was a very singular case where the sentencing proceedings for a “stale offence” had been delayed for 5 years while the offender served a period of custody in another state.  The judgment of the Court is principally concerned with the issue of totality but so far as the judge in the present case sought to rely upon the judgement of Street CJ, the headnote to the case adequately summarises the sentencing principle derived from that decision as follows:

   (2)     Where an interstate sentence has postponed a sentence hearing, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of the earlier sentence, to the fact that he has been left in a state of uncertain suspense as to the subsequent sentence and to the fact that when sentencing for a stale crime a considerable measure of understanding and flexibility is necessary.

   [40]    Of course the principle in Todd has general application where there has been extensive delay for whatever reason between the date of the commission of the crime and the date upon which sentence is imposed.  But the decision does not stand for the proposition that delay will result in leniency being afforded to the offender regardless of the reason for the delay, the extent of the delay, or the impact of the delay upon the offender: R v V (1998) 99 A Crim R 297. The degree to which leniency will be granted to the offender will depend upon the particular facts of the case. For example, little leniency is granted where the delay is a result of the offender fleeing the jurisdiction: R v Shore (1992) 66 A Crim R 37 and none where the offender has not disclosed other criminality at the time of the imposition of the earlier sentence: Lewins v The Queen.  Where the offender is responsible for the delay “it is more difficult for him to call in aid the principle in Todd”: R v Carter [1999] NSWCCA 376.

   [41]    I do not believe that Todd had any significant operation in the present case.  The delay, while not to be encouraged, was not in the order of those cases where the principle has operated.  It was largely due to the fact that the respondent wished to dispute a fact relied upon by the prosecution rather than to seek to avoid committal for the offences of manslaughter.  There was no evidence of any deleterious impact upon the respondent by reason of the delay.  He could have hardly been in any doubt about his fate given the fact that he must have known that he was guilty of a very serious offence, if not manslaughter, and that it was inevitable that a lengthy gaol sentence ultimately would be imposed upon him.  The sword of Damocles analogy was misplaced in this case.  The judge must have taken into account any rehabilitation achieved by the respondent during the delay when deciding, as a mitigating factor, that he had “substantial prospects of rehabilitation”.  The fact that he had been in custody during the period between arrest and sentence was taken into account by backdating the sentence.

   [10] (2009) 195 A Crim R 1.

   [11] (2009) 195 A Crim R 1, 12-13. These statements were endorsed by Howie J (with whom Macfarlan JA and Hislop J agreed) in Eedens v The Queen [2009] NSWCCA 254, [47].

3. The case of Todd has also been considered in a number of South Australian decisions and the position reached is essentially the same as that reached in Borkowski.  Such decisions include Kernich v Director of Public Prosecutions (Cth);[12] R v Knight;[13] R v Suckling;[14] The Queen v R, AW;[15] R v Pickard;[16] and, The Queen v H, GJ (No 2).[17]

   [12] (1997) 68 SASR 454.

   [13] (1981) 26 SASR 573.

   [14] (1983) 33 SASR 133.

   [15] (2012) 113 SASR 179.

   [16] [2011] SASCFC 134.

   [17] [2014] SASCFC 102.

4. These decisions all stress the importance of the reason for the delay.  Thus in Pickard, Blue J formulated his “general principles” very much by reference to the premise that the delay is shown by the defendant to have been the responsibility of the prosecution authorities.  His Honour stated: [18]

   [95]    The following general principles have been established as to whether or not unnecessary delay in the investigation and prosecution of an offence is a factor to be taken into account in favour of the defendant.

   1      Mere unnecessary delay, without being coupled with relevant changes occurring during the delay, is not usually a reason in itself to reduce or suspend a sentence if otherwise indicated (although this will obviously depend on the length of the delay and the particular circumstances).[19]

   2      Where, during the period of the unnecessary delay, the defendant has taken major steps in the progress of his or her life resulting in a substantial change in his or her personal circumstances, the combined effect of the unnecessary delay and the changed life circumstances may play a dominant role in the determination of an appropriate sentence.[20]

   3      Where, by the time of sentencing, the defendant has undergone rehabilitation, the combined effect of the unnecessary delay and rehabilitation will usually be taken into account in favour of the defendant.[21]

   4      The existence of genuine remorse and contrition are taken into account in conjunction with, or as part of, rehabilitation.[22](Emphasis added)

   [18]   R v Pickard [2011] SASCFC 134.

   [19]   Kernich v Director of Public Prosecutions (Cth) (1997) 68 SASR 454, 459 (Debelle J); R v Miceli [1998] 4 VR 588, 591 (Tadgell JA, with whom Winneke P and Charles JA agreed); R v Liddy (No 2) (2002) 84 SASR 231, [42]-[43] (Mullighan J, with whom Williams J agreed at [148] and Gray J agreed at [182]-[183]); R v P (2003) 87 SASR 287, [31]-[35], [78]-[79] (Perry J, with whom Besanko J agreed).

   [20]   Kernich v Director of Public Prosecutions (Cth) (1997) 68 SASR 454, 459 (Debelle J) (quoting and applying R v Todd [1982] 2 NSWLR 517, 519 (Street CJ, with whom Moffitt P and Nagle CJ at CL agreed)); R v Miceli [1998] 4 VR 588, 591 (Tadgell JA, with whom Winneke P and Charles JA agreed); R v P (2003) 87 SASR 287, [31]-[35], [78]-[79] (Perry J, with whom Besanko J agreed).

   [21]   R v Law; Ex parte Attorney-General (Queensland) [1996] 2 Qd R 63, 66 (Pincus and Davies JJA and Demack J); R v Liddy (No 2) (2002) 84 SASR 231, [42]-[43] (Mullighan J, with whom Williams J agreed at [148] and Gray J agreed at [182]-[183]); R v P (2003) 87 SASR 287, [31]-[35], [78]-[79] (Perry J, with whom Besanko J agreed).

   [22]   R v Liddy (No 2) (2002) 84 SASR 231, [48]-[51] (Mullighan J, with whom Williams J agreed at [148]).

5. The later decision of this Court in The Queen v H, GJ (No 2) also has clear relevance in the present circumstances.  The defendant had committed sexual offences against three victims in the 1980s and 1990s but the charges were not laid until 2011.  In 2014, after the defendant had made various unsuccessful applications to have the proceedings stayed and evidence excluded, he pleaded guilty to five charges.  He was sentenced in the District Court to 11 years and eight months imprisonment with a non-parole period of six and a half years.  On appeal, this Court distinguished cases such as Todd, Pickard and R, AW, and stated:[23]

   [11]    The appellant relies on the decision of the New South Wales Court of Criminal Appeal in R v Todd.[24]  In that case a number of offences were committed within a short period of time in two adjoining States; the problem was that each jurisdiction sentenced without reference to the other (thus negating partial concurrency of sentence) and substantial delay was generated by the involvement of two jurisdictions rather than one.  The decision establishes a principle that extends beyond that particular factual situation, but at base the Court in Todd was primarily concerned with three things.  First, the ability to allow a measure of concurrency, should that be called for by the circumstances under which multiple offences were committed.  Second, mitigation by reason of delay that was not the fault of the accused.  Third, (and associated with the second), mitigation by reason of an accused having already undergone a degree of rehabilitation during the period of delay preceding his ultimate sentencing.

   [12]    The appellant also relies on the decision of this Court in R v Pickard,[25] where Gray J and Blue J each considered in detail the development of the law in this area since Todd.  Reference to the authorities there discussed suggests that hypothetically the most powerful mitigating combination would be one of substantial delay, due entirely to the fault of governmental agencies, together with major changes in the situation of the accused, together with strong evidence of complete rehabilitation having been achieved.  Obviously, the permutations of fact and degree in cases coming before the courts will be highly variable.

   [13]    In Pickard, the case for mitigation was strong on the basis that:

   ·        it was remarkable and deplorable that such long delays occurred in the prosecution of the offences between January 2008 and July 2010;

   ·        no explanation whatsoever was proffered for the delays, which were clearly the fault of the investigating and prosecution authorities”;[26]

   ·        there were findings of “very substantially changed life circumstances of the defendant occurring during that delay”[27] ─ “she had moved to Perth, taken employment and was pregnant”;[28] and,

   ·        she “had completely rehabilitated herself from her earlier alcohol and drug abuse.  Her earlier dysfunctional existence, the result of a poor family background, had been replaced by a responsible lifestyle of a young married mother”.[29] (Emphasis added)

   [23] [2014] SASCFC 102 (Peek J, with whom Blue and Stanley JJ agreed).

   [24] [1982] 2 NSWLR 517.

   [25] [2011] SASCFC 134.

   [26] Blue J at [94].

   [27] Blue J at [116].

   [28] Gray J at [26].

   [29] Gray J at [27].

   The present decision of the sentencing Judge

6. There are a number of clear differences between the present case and that of Todd.  One is that no difficulty here arose concerning an inability to backdate the sentence because the present appellant, unlike Todd, was (except for a short period) on bail throughout the whole period of asserted “delay” and right up to sentencing on 15 March 2018.  Accordingly, the matter of backdating of sentence did not arise here.  Another is that the Judge was not denied the mechanism of concurrency or partial concurrency of sentence.  To the contrary, the Judge granted the appellant a not insignificant measure of partial concurrency of nine months as between the two subject offences.

7. As for the claim for a further “very high degree of leniency” in the present case, the Judge proceeded thus:

   All of those delays could have been avoided if you had chosen to plead guilty at an early stage.  The time since then has been taken up with applications made by you to avoid the eventual outcome.  Even since your pleas of guilty you have tried to avoid the consequences of your behaviour.  You still do not acknowledge your guilt.  The only time the matter was adjourned other than on your application was the time when the matter was not reached in the trial list.

   … In my view, it is not oppressive to impose a sentence of imprisonment in these circumstances.  The delay has been of your own making.

8. As to this approach, the appellant contended, as I understood it, as follows.  First, he submitted that the periods of delay referred to above must be divided into two categories: delays due to the appellant’s own choices; and, delays due to unavailability of court facilities (this latter period of delay not being “caused” by the appellant).  Secondly, he submitted that in the passage culminating in “[t]he delay has been of your own making”, his Honour wrongly attributed all of the delay (in the sense of both of the two categories of delay) to the fault of the appellant.  Thirdly, he submitted that the appellant has therefore been unfairly saddled with the second category of delay, which is due to the unfortunate nature of the court system (including an insufficiency of Judges and court rooms).  Fourthly, he submitted that the appellant was penalised for exercising his legal rights to contest the charges and for not pleading guilty as soon as possible.  The appellant contended that, having regard to all of these matters, the appellant is entitled to a re-sentencing on appeal.

9. I reject this contention.  I consider that the Judge was simply commenting (in remarks that the appellant himself could understand) on the rather obvious fact that if the appellant had pleaded guilty at an early stage of the committal proceedings he could have been committed for sentencing and swiftly sentenced in the District Court; and he would thus have avoided all of the delay referred to.  It is both unnecessary and irrelevant to divide the delay that actually occurred into the two categories postulated because neither category would have arisen but for the decisions that the appellant took to conduct the proceedings in the way that he has.  He was, and remains, the author of his own misfortune.  Further, I reject the suggestion that the appellant has been penalised for exercising his legal rights to contest the charges and for not pleading guilty as soon as possible; this is a clear case of a Judge legitimately refraining from granting a further degree of leniency that might have been forthcoming if the appellant had manifested the degree of contrition and rehabilitation that an early plea of guilty would have indicated.

10. The Judge was correct in his view and expressed it with clarity and a high level of restraint.  Indeed, it is closely aligned with the statement of this Court in The Queen v H, GJ (No 2) when considering and upholding the approach of the sentencing Judge in that case:[30]

    [21]    As his Honour points out, the appellant had the chance of cleaning the slate in relation to SC and JC in 1987 but chose not to do so.  Again in 2011, the appellant had the chance of cleaning the slate in relation to SC and JC.  However, although he did eventually plead guilty in 2014 and stopped short of giving false evidence on oath, his pleas were belated and entered only after his best efforts to defeat the charges proved unsuccessful.

    [30] [2014] SASCFC 102 (Peek J, with whom Blue and Stanley JJ agreed).

11. I turn to the appellant’s specific grounds of appeal.

    Was the sentence for the subject offending manifestly excessive?

12. In The Queen v Morse, King CJ stated:[31]

    This Court can interfere only if it is convinced that the sentence was manifestly excessive.  To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.

    [31] (1979) 23 SASR 98, 99.

13. The present sentence is quite merciful having regard to the above criteria and the following matters:

    -the present offending was committed only 22 days after the appellant was sentenced mercifully to a suspended sentence bond for his earlier offending;

    -not only did he breach his bond, but he did so by committing drug offending of a very similar nature to his original offending;

    -the starting point for each offence was only two and a half years;

    -the Judge gave the maximum ten per cent discount for pleas of guilty in circumstances where that discount might well have been reduced having regard to the inordinate delays caused by the appellant;

    -the Judge gave a six month reduction for the count two offence on account of time spent in custody and home-detention bail, although the appellant spent only two months and three weeks actually in custody; and

    -the Judge ordered a nine month period of partial concurrency of sentence which was arguably generous in that it would have been open to order a lesser degree of partial concurrency.

14. Counsel for the appellant specifically conceded that he did not assert that this was a “manifestly excessive sentence” by reference to factors other than delay; he could not have sensibly done otherwise. 

    A failure to give “any” weight to the appellant’s rehabilitation?

15. The present assertion that the Judge “failed to give any weight to the rehabilitation of the appellant” by reference to the four numbered paragraphs then following must be rejected.  In the course of his sentencing reasons, the Judge clearly took into account each of the four matters referred to in the grounds of appeal when considering the matter of the appellant’s rehabilitation.  There can be no suggestion here that the Judge did not take into account and give weight to the relevant material.

    A failure to give “any appropriate” weight to the appellant’s rehabilitation?

16. No appellable error is here demonstrated.  The principles applicable to appellate review of the exercise of sentencing discretion are well understood: it must be established that the exercise of the discretion was infected by some error, or that the decision ultimately made is, on its face, unreasonable or plainly unjust.[32]  A complaint that a Judge failed to give appropriate or adequate or sufficient weight to a factor(s) really equates to a complaint that the sentence is manifestly excessive (accompanied by suggestions as to how that manifest excess may possibly have occurred).  Thus, in R v Lutze, Vanstone J (with whom Parker J concurred) stated:[33]

    [45]    In Kentwell the High Court again examined the nature of the error sufficient to enliven the jurisdiction of the Court of Criminal Appeal to interfere in a sentence.  The plurality judgment of French CJ, Hayne, Bell and Kean JJ echoed the analysis of Hayne J in AB v The Queen (1999) 198 CLR 111 at 160, where his Honour posited the distinction between “specific error” of the types identified in House, as against manifest excess or inadequacy.  The same dichotomy was referred to by Kourakis J (as he then was) in R v Horstman (2010) 269 LSJS 42, where his Honour compared “process errors” with “outcome error”.

    [46]    The sort of error referred to as “specific” or “process error” is not merely a perceived failure to give appropriate weight to a particular factor.  It is an identifiable error of fact or law, which in all but the rare case will be express.  Indeed, it is no part of the task of a sentencing judge to expressly ascribe weight to the myriad factors which inform the sentencing process, that is, the instinctive synthesis referred to by McHugh J in Markarian v The Queen (2005) 228 CLR 357. It is very often impossible to discern the relative weight given to a particular factor; and the exercise is rarely profitable.

    [47]    A submission that the sentencing judge did not give adequate weight to a factor is not, of itself, capable of enlivening the appeal court’s authority to intervene.  Such a submission falls short of an assertion that no account was taken of a material consideration.  It is not a complaint of specific error. At most, it can form part of a submission that there was manifest error; that is, that only by failing to give adequate weight to the material consideration could the judge have reached a sentence which is so unreasonable or plainly unjust, or, as the High Court recently put it, “outside the permissible range of sentences for the offender and the offence”: Kentwell at [35] set out above.

    A contention that the suspended sentence should not have been estreated or, in the alternative, should have been reduced

    [32]   House v The King (1936) 55 CLR 499.

    [33] (2014) 121 SASR 144, 153-154.

1. For the sake of simplicity, I will refer to the current provision, s 114 of the Sentencing Act 2017 (SA) rather than its previous equivalents (which are to the same effect). Under s 114, the Court is required to first address the question as to whether there are proper grounds to excuse the breach of bond and, if the answer to that question be in the negative, consider whether there are special circumstances justifying a reduction of the term of the suspended sentence.

2. The approach of the South Australian courts has been to excuse breaches of suspended sentence bonds, or reduce the length of the period of suspended imprisonment, only in the clearest of cases.  Thus, in R v Buckman, King CJ, in reference to the predecessors to the current provisions, stated:[34]

   There is a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended.  A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law-abiding life.  It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non-law-abiding ways.  The court will not lightly interfere with the ordinary consequence of a breach of the recognisance.

   Parliament has recognised, however, that in some cases the rigorous application of the ordinary consequences of breach can be oppressive and even unjust.  It has therefore provided to the courts the means of ameliorating those consequences in exceptional cases.  Subsection (5) of s 9 of the Offenders Probation Act 1913 empowers the probative court to refrain from ordering that the sentence be carried into effect where the failure to observe the conditions of the recognisance is trivial or there are proper grounds for excusing it.  Subsection (6) authorises the reduction of the term of imprisonment in “special circumstances”.

   I agree with what Jacobs J has said as to the meaning and relationship of these two subsections.  It is to be remembered that the sentence which is activated is the sentence for the original offence.  The special circumstances which must exist to authorise a reduction, must therefore be such as render the original sentence inappropriate for that offence in the special circumstances now existing.  The probative court must be able to say that if those circumstances, which I should think would almost always be circumstances personal to the offender, had existed at the time of the passing of sentence, the sentence imposed would have been thereby rendered inappropriate.  It cannot be too strongly emphasised that where a suspension is revoked, the consequence, in the absence of special circumstances so understood, is that the offender is ordered to serve the sentence which the original court judged to be proper.  Subsection (6) exists to enable the probative court to avoid the injustice of activating a sentence the length of which has been rendered oppressive or inappropriate by subsequent circumstances of a special nature.

   The purpose of subs (5) is different.  It authorises the probative court to avoid altogether the revocation of the suspension where there are factors relating to the breach itself which justify that course.  One such factor is the trivial character of the breach.  The other is the existence of proper grounds upon which the breach might be excused.  I think that Parliament had in mind that a breach, although not trivial, might be of such a character that the activation of the sentence might be a quite disproportionate consequence of it.  I think that the notion of excuse is not employed in the absolute sense of the breach being excusable in itself but rather in a relative sense of being excusable in relation to the consequences which would otherwise ensue.  The notion is that of the failure being excused from being the catalyst of the activation of the sentence.

   [34] (1988) 47 SASR 303, 304. See also R v Smith [2014] SASCFC 98.

3. His Honour also emphasised in the later case of R v Marston:[35]

   It is of great importance that the courts adhere to that principle.  Departure from it by the non-revocation of suspended sentences tends to undermine the integrity of the system of suspended sentences and their effectiveness as a means of deterring future offenders.

   [35] (1993) 60 SASR 320, 322.

4. More recently in R v Smith, Kourakis CJ (with whom Vanstone and Blue JJ agreed), stated:[36]

   [25]    Both the “trivial” and “proper grounds” limbs of s 58(3) of the CLSA invite attention to the nature, extent and circumstances of the breach of the condition to be of good behaviour.  The word “proper” is a protean expression which takes its meaning from its context.  In the context of s 58(3) of the CLSA, the word takes its meaning both from the other ground, the triviality of the breach, and the condition that the circumstances must be such as to “excuse” the breach.  For that reason, the disproportion of which King CJ spoke in Buckman is between the extent of the departure from the obligation to be of good behaviour and the severity of the penalty resulting from revocation of the suspension.  As King CJ observed, differences between the original offence and the breaching offence are not irrelevant but their relevance is limited.  The question is whether the circumstances in which the breach was committed are of a nature which excuses the failure to abide the condition of the bond having regard to the purpose for which it was imposed.

   [36] [2014] SASCFC 98.

5. As noted above, Judge Soulio’s sentence was merciful.  The purpose for which the original bond was imposed was to give the appellant “the opportunity to set things right” in respect of the “great damage” that can be caused by the drugs the appellant was involved in the manufacture and trafficking of.  The Judge did not err in failing to be convinced that the central aim of the original sentencing strategy, namely the rehabilitation of the offender, had, at the time of the breach, “amply been achieved” (to employ the words in Stanitzki v Higgins).[37]  I consider that in the present circumstances there were no proper grounds to warrant either the breach of the bond being excused or the original sentence being reduced.  No error in the sentencing Judge’s approach is demonstrated.

   [37] (1994) 63 SASR 309, 316 (Olsson J).

   A contention that the appellant was entitled to full concurrency of sentences

6. The first point to note is that the ground of appeal fails to acknowledge that the Judge did order partial concurrency of sentences.  His Honour stated:

   Although the two offences were committed some months apart, I accept that some partial concurrency should be allowed, having regard to the similarity of the context in which they were committed. I therefore fix a single sentence pursuant to s 18A of the Sentencing Act of two years six months in relation to both counts. 

7. However, I assume that the ground of appeal is intended to assert that the Judge erred in failing to order that all sentences should be fully concurrent and that the Judge should have ordered that the sentence previously suspended be served concurrently with the sentence for the subject offending.

8. As to ordering full, rather than partial, concurrency as between the sentences for the two new charges, the decision to order only partial concurrency was here well within the Judge’s discretion.  No appellable error within House v The King precepts[38] is demonstrated.

   [38] (1936) 55 CLR 499.

9. As to ordering concurrency as between the sentence of imprisonment for the new charges and the estreated period of imprisonment, the Sentencing Act 2017 (SA) s 114 does confer a discretion as to whether such a suspended sentence, once estreated, is to be served cumulatively or concurrently. However, once again, this Court will not interfere with the exercise of that discretion unless it is vitiated by an error of the kind described in House v The King.  No such error was asserted by the appellant beyond a general assertion that insufficient weight was given to the asserted rehabilitation of the appellant in accordance with ‘the Todd principles’.  It is clear that no appellable error is demonstrated.

   A contention that the new sentence should have been suspended

10. As to the Judge’s decision not to suspend the new sentence of imprisonment, the correct approach was that taken by Vanstone and Parker JJ in Lutze:[39]

    [49]    … Where such a complaint is made the question for the appellate court is: “Was it open to the court to suspend the sentence?”  Only if the decision to suspend fell outside the range of permissible dispositions — having regard to the nature of the offending and the characteristics of the offender — would it be open to the appellate court to intervene.

    [39] (2014) 121 SASR 144, 154.

11. In my view, the Judge’s decision not to suspend was well open to him.  I would go further and say that it was clearly correct not to suspend the sentence in all of the circumstances.

    Conclusion

12. I conclude that no ground of appeal is made out.  I would add that I am satisfied that, if it had been established that a re-sentencing was required, the same or a greater sentence would be imposed on such re-sentencing.[40]

    [40]   Kentwell v The Queen (2014) 252 CLR 601, 618 (French CJ, Hayne, Bell and Keane JJ).

13. I would dismiss the appeal.

14. LOVELL J:          I have had the advantage of reading Peek J’s draft judgment.  I gratefully adopt his summary of the facts. I agree that the appeal should be dismissed and generally for the reasons expressed by him. I add the following remarks.

15. The appellant committed the two offences, for which he was sentenced, on 30 May and 2 July 2013 respectively. He was sentenced for both offences on 15 March 2018. During the time between the offending and the time of sentence the appellant had taken significant steps toward his rehabilitation.

16. In his sentencing remarks, the Sentencing Judge stated:

    Your counsel, Mr Algie SC, gave me the same details in relation to your background as had been given to Judge Soulio. Mr Algie also pointed out that following your arrest on 2 July 2013, the time you spent in custody was a bad experience for you. He described it as cathartic.

    Since then you have taken positive steps toward your rehabilitation. He pointed out that there has been a substantial delay since your arrest which would render it oppressive to order a sentence of imprisonment now. He cited a number of cases, including Todd, Kernich, Pickard and C, M. He submitted that it would be oppressive to enforce the breach bond. He submitted the your offending was relatively low level, as to which I would comment it was about the same level as the previous offending.

17. Later in his remarks, having set out the reasons for the delay the Sentencing Judge stated:

    All of those delays could have been avoided if you had chosen to plead guilty at an early stage. The time since then has been taken up with applications made by you to avoid the eventual outcome. Even since your pleas of guilty you have tried to avoid the consequences of your behaviour. You still do not acknowledge your guilt. The only time the matter was adjourned other than on your application was the time when the matter was not reached in the trial list.

    … In my view, it is not oppressive to impose a sentence of imprisonment in the circumstances. The delay has been of your own making.

18. The appellant submitted: that the reasons for the delay were “intractably neutral” in the sense that the appellant was doing no more than exercising his legal rights; that the Sentencing Judge erred in making the above comments and in particular his emphasis on the fact that the delay was “of his own making”;  that the question of the cause of the delay simply distracted the Sentencing Judge from the central question before him, namely giving proper credit for the significant rehabilitation undertaken by him during the delay; that, in effect, the Sentencing Judge punished him for causing the delay and did not give significant weight to his rehabilitation during that period of time.

19. The authorities establish that if the prosecuting authorities have been the cause of a delay in bringing the matter to court then this is a factor that may lead to a court exercising a degree of leniency. If an accused has caused a delay then such leniency may not be available. Rehabilitation of an accused is always relevant irrespective of delay.

20. In R v Borkowski, Howie J (with whom McLellan CJ and Simpson J concurred) stated:

    Of course the principal in Todd has general application where there has been extensive delay for whatever reason between the date of the commission of the crime and the date upon which sentence is imposed. But the decision does not stand for the proposition that delay will result in leniency being afforded to the offender regardless of the reason for the delay, the extent of the delay, or the impact of the delay upon the offender. The degree to which leniency will be granted to the offender will depend upon the particular facts of the case. For example, little leniency is granted where the delay is a result of the offender fleeing the jurisdiction and none where the offender has not disclosed other criminality at the time of the imposition of the earlier sentence. Where the offender is responsible for the delay “it is more difficult for him to call in aid the principal in Todd”.[41]

    [41]   R v Borkowski (2009) 195 A Crim R 1 at 12 [40] (citations omitted).

21. These principles have been followed in a number of South Australian cases.[42]

    [42]   R v Pickard [2011] SASCFC 134; R v H, G J (No 2) [2014] SASCFC 102.

22. The appellant did not seek to argue against the above- mentioned principles. The appellant submitted that he had not, and did not, suggest that the delay was caused by the prosecuting authorities; nor however did he flee the jurisdiction such as to cause delay. He simply exercised his legal rights and therefore the question of delay was “intractably neutral”.

23. The appellant did not submit that the delay of itself entitled him to any special leniency. The question of delay was only relevant as it had given him time to rehabilitate himself.

24. I do not accept the appellant’s submission that the Sentencing Judge punished him for causing the delay. In context, the Sentencing Judge was addressing the principles arising from Todd[43] and emphasising that the question of delay was not caused by the prosecuting authorities; therefore, the appellant was not entitled to the extra degree of leniency that may be required in those circumstances.

    [43]   R v Todd (1982) 2 NSWLR 517.

25. Rehabilitation is of course always an important factor to consider when sentencing an offender.  The Sentencing Judge clearly took into account the significant steps the appellant had taken in regard to his rehabilitation. I do not accept that the Sentencing Judge failed give significant weight to the rehabilitation undertaken by the appellant. Indeed, the Sentencing Judge accepted the contents of the reports of two psychologists and noted that “your rehabilitation has been successful, so much so that you are an entirely different man from the one who committed these offences in 2013.”

26. The overall sentence, in my view, reflects the fact that the Sentencing Judge gave significant weight to the rehabilitation undertaken by the appellant.  The sentence imposed, given the seriousness of the offending was at the lower end of the available range of sentences.  In my view no error in the approach of the Sentencing Judge has been identified.  I would dismiss all grounds of appeal

27. DOYLE J:             I would dismiss the appeal.  I agree with the reasons of Peek J.