R v Skinner

[2016] SASCFC 106

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SKINNER

[2016] SASCFC 106

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Doyle)

21 September 2016

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT

The appellant was convicted of trafficking in a large commercial quantity of a controlled drug (court 1) and cultivating a commercial quantity of controlled plants for sale (count 2). Count 1 is a serious and organised crime offence, whereas count 2 is not. Under s 38(2)(c) and 38(2ba) of the Criminal Law (Sentencing) Act 1988 (SA), the Court’s discretion to suspend the sentence of imprisonment in respect of a serious and organised crime offence requires satisfaction that exceptional circumstances existed. Using s 18A of the Criminal Law (Sentencing) Act 1988 (SA), the sentencing judge imposed a single sentence of two years eight months imprisonment, reduced from three years four months imprisonment, for the two offences. The sentencing judge was not satisfied that exceptional circumstances did exist, and so did not suspend the sentence of imprisonment.

The appellant appealed on grounds that the sentencing judge erred in using s 18A of the Criminal Law (Sentencing) Act 1988 (SA) in circumstances where the tests for suspension in respect of the two offences differed, and further erred in any event in not finding that exceptional circumstances warranting suspension existed.

Held per Blue and Doyle JJ (Kelly J agreeing):

1. There is nothing in the terms of ss 18A or 38 of the Criminal Law (Sentencing) Act 1988 (SA) that precludes the use of the former to impose a single sentence of imprisonment in respect of two offences where only one of them is a serious and organise crime offence (at [27] and [58]-[61]).

2.       The test for suspension in those circumstance is one of exceptional circumstances (at [70]).

3.       There was no error in the sentencing judge using s 18A to impose a single sentence of imprisonment in this case (at [31] and [75]).

4.       The sentencing judge did not err in finding that exceptional circumstances did not exist in this case (at [19]-[30], [104]).

Controlled Substances Act 1984 (SA) ss 32(1), 33B(2); Criminal Law (Sentencing) Act 1988 (SA) ss 10, 10C, 18A, 20AAC, 32A, 38; Criminal Assets Confiscation Act 2005 (SA) ss 95, 224(c); Bail Act 1985 (SA) s 10A, referred to.
R v O’Toole [2013] SASCFC 18; R v Copeland (No 2) (2010) 108 SASR 398; Hermel v Police (2000) 76 SASR 336; R v Mathew [2001] SASC 390; R v Al– Zuain (2009) 103 SASR 567; R v Wakefield (2015) 121 SASR 569; Wessling v Police (2004) 88 SASR 57; Finance Facilities Pty Ltd v Commissioner of Taxation (Cth) (1971) 127 CLR 106; Mitchell v The Queen (1996) 184 CLR 333; Leach v The Queen (2007) 230 CLR 1; House v The King (1936) 55 CLR 499; R v Ellis (2003) 58 NSWLR 700; R v Carroll (2002) 213 CLR 635; Moran v McMahon (1985) 3 NSWLR 700; R v Blick (2000) 111 A Crim R 326; R v Fowler (2006) 243 LSJS 285; R v Bagguley [2015] SADC 137; R v Kelly [2000] QB 198; R v Lombardi (2013) 115 SASR 577; R v Barnett (2009) 198 A Crim R 251; Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290; R v McPhee [2014] SASCFC 10, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"exceptional circumstances"

R v SKINNER
[2016] SASCFC 106

Court of Criminal Appeal:   Kelly, Blue and Doyle JJ

1. KELLY J:             I agree that the appeal should be dismissed for the reasons given by Doyle J.

   BLUE J:

2. This is an appeal against sentence.

3. The facts, sentencing remarks and contentions on appeal are summarised in the reasons for judgment of Doyle J.

   Exceptional circumstances

4. The first ground of appeal is that the Judge erred in not finding that the appellant had established exceptional circumstances in relation to his offending. The appellant contends on this limb of his argument that, assuming that exceptional circumstances were required in respect of both counts (which assumption the appellant challenges in his second ground of appeal), exceptional circumstances justified suspension of a sentence of imprisonment imposed in respect of the trafficking count and in respect of both counts.

5. The primary rule created by section 38(1) of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) is that a sentencing court is empowered to suspend a sentence of imprisonment upon the defendant entering into a bond to be of good behaviour and comply with any other conditions if it thinks that “good reason” exists for suspending the sentence. The reference to there being “good reason” for suspension requires the court to consider all of the circumstances of the case and whether all the circumstances give rise to good reason to suspend.[1] It has been held that, if the court is satisfied that there is good reason to suspend, no further question arises and the court has no residual discretion not to suspend.[2]

   [1]    R v Fowler [2006] SASC 18, (2006) LSJS 285 at [54] per Gray and Layton JJ.

   [2]    Wessling v Police [2004] SASC 51 at [26]-[27] per Besanko J. This Court proceeded on this assumption in R v O’Toole [2013] SASC 18 at [50] per Peek J (with whom Sulan and Vanstone JJ agreed).

6. Since the enactment of the Sentencing Act, there has always been an exception (subsection (2) – now subsection (2)(a)) if the defendant is being sentenced to imprisonment to be served cumulatively on or concurrently with another term of imprisonment already being served or about to be served.

7. In 1999, an exception to the exception was created (subsection (2a)) empowering the court to partially suspend a sentence, ie suspend the balance of a sentence of imprisonment after serving not less than one month, if the imprisonment to which the defendant is liable under one or more sentences is more than three months but less than one year (a short term).[3] The reference to “one or more sentences” must be a reference to the sentences to be served cumulatively or concurrently referred to in subsection (2a). No prerequisite or criteria is specified in subsection (2a). Given the structure of the section, it is implicit that the test remains whether there is good reason to (partially) suspend the sentence. 

   [3]   Statutes Amendment (Sentencing—Miscellaneous) Act 1999 (SA).

8. In 2013, a secondary rule was created (subsection (2b)(a) and (b) – now subsection (2)(c) and (d)) precluding suspension if the defendant is being sentenced as an adult for one of 21 defined offences[4] (17 “serious and organised crime offences” or four “specified offences against police”, some of which are required to be committed in defined circumstances of aggravation) or for a second “designated offence”[5] committed within five years of imposition of a suspended sentence for the first designated offence.[6] (I refer for ease of reference to “serious and organised crime offences”, “specified offences against police” and a second “designated offence” committed within five years of imposition of a suspended sentence for the first designated offence collectively as defined offences).

   [4]   Offences under sections 83E, 244 and 245 and certain aggravated offences under sections 23(1), 23(3), 244 and 245 of the Criminal Law Consolidation Act 1935 (SA); certain aggravated offences of attempted murder and attempted manslaughter; offences under sections 32(1) and 33(1) and aggravated offences under sections 32(2), 32(2a), 32(3), 33(2), 33(3), 33A(1), 33A(2), 33A(3), 33A(4) and 33A(5) of the Controlled Substances Act 1984 (SA).

   [5] Offences under sections 12, 12A, 13, 13A, 19, 19AA, 19AC, 19A, 23, 24, 29A, 39, 48, 48A, 49, 50, 58, 59, 137 and 170 of the Criminal Law Consolidation Act 1935 (SA) or assault with intent to commit one of those offences.

   [6]    Criminal Law (Sentencing) (Suspended Sentences) Amendment Act 2013 (SA).

9. At the same time, an exception to the secondary rule was created (subsection (2ba)(a)) empowering the court to suspend the sentence if satisfied that exceptional circumstances exist for doing so. A second exception was created (subsection (2ba)(b)) enabling the court to utilise the exception referred to at [7] above if satisfied that exceptional circumstances exist for doing so.

10. In 2014, a tertiary rule was created (subsection (2)(b)) precluding suspension if the defendant is being sentenced as an adult to imprisonment for two years or more for manslaughter or causing serious harm with intent to cause serious harm (“prescribed designated offences”). An exception was created empowering the court to suspend the balance of a term of imprisonment after serving not less than one fifth of any non-parole period fixed. Given the structure of the section, it is implicit that the test remains whether there is good reason to (partially) suspend the sentence.

11. Both the secondary and tertiary rules do not apply to a person who is being sentenced as a youth. This exclusion has no application in the present case. For ease of reference, I ignore that exclusion and address only the sentencing of a defendant as an adult.

12. Section 38 now relevantly provides:

    38—Suspension of imprisonment on defendant entering into bond

    (1)     Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—

    (a)     to be of good behaviour; and

    (b)     to comply with the other conditions (if any) of the bond.

    (2)     A sentence of imprisonment may not be suspended under this section if the defendant is being sentenced—

    (a)to a sentence of imprisonment that is to be served cumulatively on another term of imprisonment, or concurrently with another term of imprisonment then being served, or about to be served, by the defendant; or

    (b)as an adult to a period of imprisonment of 2 years or more for a prescribed designated offence; or

    (c)as an adult for a serious and organised crime offence or specified offence against police; or

    (d)as an adult for a designated offence and, during the 5 year period immediately preceding the date on which the relevant offence was committed, a court has suspended a sentence of imprisonment or period of detention imposed on the defendant for a designated offence.

    (2a)   Despite subsection (2)(a), if the period of imprisonment to which a defendant is liable under 1 or more sentences is more than 3 months but less than 1 year, the sentencing court may, by order—

    (a)direct that the defendant serve a specified period (being not less than 1 month) of the imprisonment in prison; and

    (b)suspend the remainder of the sentence on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant's release from prison.

    (2b)   Despite subsection (2)(b), if a defendant is being sentenced as an adult to a period of imprisonment of 2 years or more for a prescribed designated offence, the sentencing court may, by order—

    (a)direct that the defendant serve a specified period of the imprisonment in prison (which, if a non‑parole period has been fixed in respect of the defendant, must be a period that is one‑fifth of the non‑parole period fixed); and

    (b)suspend the remainder of the sentence on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant's release from prison.

    (2ba)  Despite subsection (2)(c) and (d), the court may, if satisfied that exceptional circumstances exist for doing so—

    (a)suspend a sentence of imprisonment imposed on a defendant for a serious and organised crime offence or specified offence against police, or for a designated offence in the circumstances described in subsection (2)(d), on condition that the defendant enter into a bond of a kind described in subsection (1); or

    (b)make an order under subsection (2a) in respect of a defendant being sentenced for a serious and organised crime offence or specified offence against police, or for a designated offence in the circumstances described in subsection (2)(d), if the period of imprisonment to which the defendant is liable under 1 or more sentences is more than 3 months but less than 1 year.

    …

    (4)     In this section—

    …

    serious and organised crime offence means—

    (a)any of the following offences under the Criminal Law Consolidation Act 1935:

    (i)    an offence under section 83E;

    (ii)an aggravated offence under section 172 or 251, where the aggravating circumstances of the offence are the circumstances referred to in section 5AA(1)(ga)(i) or (ii) of that Act;

    (iii) an offence under section 244 or 245; or

    (b)any of the following offences under the Controlled Substances Act 1984:

    (i)    an offence under section 32(1);

    (ii)    an aggravated offence under section 32(2), 32(2a) or 32(3);

    (iii)     an offence under section 33(1);

    (iv)     an aggravated offence under section 33(2) or 33(3);

    (v)an aggravated offence under section 33A(1), 33A(2), 33A(3), 33A(4) or 33A(5);

13. The reference in subsection (2ba) to “exceptional circumstances” is to be contrasted with the reference to “good reason” in subsection (1). On the one hand, the “good reason” test relates to the circumstances of the instant case, whereas the exceptional circumstances test involves comparison between the circumstances of the instant case and the general run of cases.[7] On the other hand, the “good reason” test extends to all of the circumstances of the instant case, whereas the exceptional circumstances test invites focus on those circumstances which are exceptional or out of the ordinary compared to the general run of cases.[8]

    [7]    R v Fowler [2006] SASC 18, (2006) LSJS 285 at [54] per Gray and Layton JJ.

    [8]    R v Fowler (2006) LSJS 285 at [54] per Gray and Layton JJ.

14. The clear legislative intention is that the exceptional circumstances test is to be a more stringent test that the good reason test, ie that the former test will not be satisfied unless the latter test is satisfied but mere satisfaction of the latter test is insufficient. If subsection (2ba) were construed in isolation and purely literally, it is conceivable that in some cases there might be an exceptional circumstance justifying suspension but if all circumstances – exceptional and non-exceptional – are considered together they do not justify suspension. This construction (which is not advanced by the appellant on this appeal) should be rejected in favour of one or other of two alternative constructions.

15. One possible construction is that, before a court can suspend a sentence of imprisonment for a serious and organised crime offence, the court must be satisfied both that there are exceptional circumstances justifying suspension and also that there is good reason to suspend the sentence. In this regard, subsection (2ba)(a) would be construed in the same manner as subsections (2a) and (2b) immediately preceding it which both implicitly carry forward from subsection (1) the requirement that there be good reason to suspend the sentence. It was the manifest intention of the legislature that the court should make the ultimate decision whether or not to suspend by reference to all of the relevant circumstances, provided that the court is satisfied that exceptional circumstances exist justifying the suspension.

16. Another possible construction is that, before a court can be satisfied that “exceptional circumstances exist for doing so” within the meaning of subsection (2ba), the court must identify one or more circumstances favouring suspension which are exceptional and conclude that all of the circumstances – being exceptional and non-exceptional alike – justify the exceptional step of suspending the sentence for the exceptional offences to which subsection (2ba) applies.

17. Regardless of whether the proper construction is that identified at [15] or [16] above, the exceptional circumstances test will not be satisfied unless the good reason test is satisfied but mere satisfaction of the good reason test will be insufficient.

18. It is unnecessary in this case to decide whether a court has a residual discretion not to suspend a sentence for a serious and organised crime offence if the court reaches the necessary satisfaction. The existence of such a discretion would appear to be otiose but for the purposes of this appeal it is sufficient to assume in favour of the appellant that there is no residual discretion.

19. On the facts of this case, I agree with Doyle J that the test in subsection (2ba) is not satisfied in respect of the trafficking count. There are not exceptional circumstances in this case that justify suspension. In any event, considering the whole of the circumstances and having regard to the seriousness of the offence and the quantity of cannabis involved, there is not good reason to suspend in respect of the trafficking count.

20. The first ground of appeal is not established.

    Interaction between sections 18A and 38

21. The second ground of appeal is that the Judge erred in her Honour’s use of section 18A of the Sentencing Act and in imposing one sentence.

22. The appellant accepts that in some circumstances a sentencing court is empowered, and it is appropriate, to utilise section 18A of the Sentencing Act to impose a single sentence of imprisonment for a serious and organised crime offence[9] in respect of which the test for suspension encompasses exceptional circumstances for suspension and an ordinary offence in respect of which the sole test for suspension is good reason to suspend. One such circumstance is that in which the court first determines that there is not good reason to suspend in the case of either offence.

    [9]    The same reasoning applies to sentencing a defendant for a specified offence against police or for a second “designated offence” within five years of imposition of a suspended sentence for the first designated offence. However, those circumstances do not arise in the present case.

23. However, the appellant contends that, where there is or may be good reason to suspend in respect of the ordinary offence but there are not or may not be exceptional circumstances for suspension in respect of the serious and organised crime offence, a court should not utilise section 18A to impose a single sentence of imprisonment in respect of both offences in a manner that would deprive the defendant of the opportunity of suspension of a sentence of imprisonment for the ordinary sentence.

24. It is important to separate the question of power of a court to utilise section 18A from the question whether and in what circumstances the court should exercise the discretion to utilise that power.

25. Although there is no issue as to power, it is instructive to consider why the court has power in an appropriate case to utilise section 18A to impose a single sentence of imprisonment in respect of a serious and organised crime offence and an ordinary offence.

26. The position can be contrasted with the lack of power of the court to utilise section 18A in respect of two offences when the form of punishment proposed to be adopted by the court is not available as a matter of law in respect of both offences. For example, if one offence is punishable by imprisonment (whether or not it is also punishable by a fine) and another offence is punishable only by a fine and the court proposes to impose imprisonment in respect of the first offence, it is clearly established by decisions of this Court that it is implicit in section 18A that the court has no power to impose a single sentence of imprisonment in respect of both offences.[10]

    [10]   R v Mathew [2001] SASC 390 at [4] per Martin J (with whom Wicks and Besanko JJ agreed); R v Al-Zuain [2009] SASC 123; (2009) 103 SASR 567 at [19] per Doyle CJ, [70] and [75]-[76] per Sulan J and [99] per Vanstone J; R v O’Toole 2013] SASCFC 18 at [24] per Peek J (with whom Sulan and Vanstone JJ agreed).

1. There is nothing explicit in section 18A or section 38 that precludes the use of section 18A to impose a single sentence of imprisonment in respect of a serious and organised crime offence and an ordinary offence, in contrast to the explicit preclusion in subsection 18A(2) that precludes the use of section 18A to impose a single sentence of imprisonment in respect of a prescribed designated offence and an ordinary offence. There is nothing implicit in the sections precluding the use of section 18A to impose a single sentence of imprisonment in respect of a serious and organised crime offence and an ordinary offence, in contrast to the implicit preclusion when the form of punishment proposed to be adopted by the court is not available as a matter of law in respect of both offences. In particular, the references to a “sentence of imprisonment” throughout section 38 are capable as a matter of construction of applying to a single sentence imposed in respect of multiple offences pursuant to section 18A. The position is analogous to the references to “sentence” in section 10C which are capable as a matter of construction of applying to a single sentence imposed in respect of multiple offences pursuant to section 18A.[11]

   [11]   R v Wakefield [2015] SASCFC 10 at [38] per Blue J (with whom Kourakis CJ and Peek J agreed).

2. Turning to the question of discretion, when sentencing a defendant for two offences in respect of which there is a potential that a different discount for guilty pleas might be appropriate, the sentencing court needs to ensure that the defendant is not prejudiced by the utilisation of section 18A to fix a single starting point and applying a single discount to the starting point to arrive at a single sentence. There are various ways in which such prejudice can be avoided, which without being exhaustive include the following. First, the court can identify separate notional starting points and separate discounts before arriving at separate notional sentences that are ultimately combined into a single sentence pursuant to section 18A.[12] Secondly, if the court first determines that the same discounts would be appropriately allowed in respect of separate sentences independently considered, the court can proceed to fix a single starting point and apply the common discount to arrive at a single sentence pursuant to section 18A.[13] Thirdly, if the court first determines that separate sentences would have been made wholly concurrent, the court can proceed to fix a single starting point and apply one discount to arrive at a single sentence pursuant to section 18A.[14]

   [12]   R v Wakefield [2015] SASCFC 10 at [39] per Blue J (with whom Kourakis CJ and Peek J agreed).

   [13]   R v Wakefield [2015] SASCFC 10 at [41] per Blue J (with whom Kourakis CJ and Peek J agreed). This occurred in R v McPhee [2014] SASCFC 107 at [53] per Nicholson J (with whom Kelly and Blue JJ agreed)

   [14]   R v Wakefield [2015] SASCFC 10 at [42] per Blue J (with whom Kourakis CJ and Peek J agreed).

3. Similarly, when sentencing a defendant for a serious and organised crime offence and an ordinary offence in respect of which different tests for suspension apply and there is a potential that a different decision on suspension might be appropriate, the sentencing court needs to ensure that the defendant is not prejudiced by the utilisation of section 18A to fix a single sentence. There are various ways in which such prejudice can be avoided, which without being exhaustive include the following. First, if the court first determines that there is not good reason to suspend a separate sentence imposed for either offence, the court can proceed to fix a single sentence, which will not be suspended. Secondly and conversely, if the court first determines that there are exceptional circumstances and good reason to suspend separate sentences imposed for both offences, the court can proceed to fix a single sentence, which will be suspended. Thirdly, if the court first determines that there are not exceptional circumstances to suspend the serious and organised crime offence and that the court would be precluded from suspending the sentence for the ordinary offence by section 38(2)(a) even if considered in isolation there would be good reason to suspend that sentence, the court can proceed to fix a single sentence, which will not be suspended.

4. In the present case, the Judge rightly determined, for the reasons given above, that there are not exceptional circumstances to suspend the serious and organised crime offence. There was a close connection and interrelationship between the trafficking offence (which related to past crops produced by previous cannabis plants cultivated on the appellant’s property) and the cultivation for sale offence (which related to present and future crops produced or to be produced by current cannabis plants cultivated on the appellant’s property). If the Judge had imposed separate sentences for each offence, the Judge would therefore have been obliged to impose those sentences at the same time and make one of the sentences at least partially cumulative on the other sentence.

5. It follows that, if the Judge had imposed separate sentences for each offence, and found that there were not exceptional circumstances justifying suspension of the trafficking sentence, the Judge would have been precluded by section 38(2)(a) from suspending the cultivation sentence because it would have been a sentence to be served cumulatively on or concurrently with the term of imprisonment about to be served for the trafficking offence. In the circumstances, the situation fell within the third example identified in paragraph [29] and there was no impediment to the Judge utilising section 18A to impose a single sentence.

6. The second ground of appeal is not established.

   Conclusion

7. I would dismiss the appeal.

   DOYLE J:

8. The appellant was convicted, on his pleas of guilty, of two offences under the Controlled Substances Act 1984 (SA). The first involved trafficking in a large commercial quantity of a controlled drug contrary to s 32(1), for which the maximum penalty is a fine of $500,000 and life imprisonment (count 1). The second involved cultivating a commercial quantity of controlled plants for sale contrary to s 33B(2), for which the maximum penalty is a fine of $200,000 and imprisonment for 25 years (count 2).

9. Using s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act), the Judge imposed a single sentence of imprisonment for the two offences.  From a starting point of three years four months imprisonment, her Honour reduced this by 20 per cent on account of the appellant’s guilty pleas to a sentence of two years eight months imprisonment. 

10. On the issue of suspension of this sentence of imprisonment, the count 1 offence was a serious and organised crime offence under s 38(4) of the Sentencing Act, whereas count 2 was not. By reason of ss 38(2)(c) and 38(2ba) of the Sentencing Act, the Court’s discretion to suspend the sentence of imprisonment in respect of a serious and organised crime offence required satisfaction that exceptional circumstances existed.  The Judge was not satisfied that exceptional circumstances did exist, and so did not suspend the sentence of imprisonment that she had imposed.

11. In this appeal against his sentence, the appellant relies upon two grounds of appeal.

    1.   That the Judge erred in failing to find that the appellant had established exceptional circumstances in relation to his offending.

    2. That the Judge erred in her use of s 18A of the Sentencing Act and in imposing one sentence.

12. It is convenient to commence by summarising the circumstances of the offending and personal circumstances of the appellant, before then considering the two grounds of appeal in reverse order.

    Circumstances of the offending

13. In December 2014, police conducted a routine traffic stop of a vehicle in the vicinity of Denial Bay.  The presence of cannabis in that vehicle led the police to conduct a search of a nearby farming property owned by the appellant.

14. During a search of that property, the police located a quantity of cannabis in numerous sheds and outbuildings on the farming property.  The police located dried cannabis in chest freezers, and in a shed which had been set up as a drying room.  In addition to this harvested cannabis, the police located a number of cannabis plants being cultivated on the farming property.

15. In total the police located approximately 28 kilograms of dried cannabis material (the subject of the count 1 trafficking charge), and 32 cannabis plants being cultivated both in pots and in the ground (the subject of the count 2 cultivation charge).  The potential commercial value of the cannabis seized, at the higher end of the scale, was approximately $120,000.

16. At the time of the offending, the appellant and his wife were the owners of several farming properties, including the one upon which the cannabis was located.  However, they did not reside at the property involved in the offending.

17. The factual basis for the plea was not agreed and so the matter proceeded to a disputed facts hearing.

18. The appellant gave evidence that his cousin was responsible for running the farm in question, and was the principal offender in relation to the cannabis offending.  The effect of the appellant’s evidence was that his own criminal culpability was limited to permitting his cousin to use the farm for the purpose of cannabis cultivation and trafficking.  While accepting a general awareness of the cannabis activities of his cousin, the appellant claimed not to have had responsibility for the day to day cultivation of the crop, nor any responsibility for selling the cannabis.  He gave evidence that in return for his involvement he received cannabis for his personal use, and limited amounts of cash (totalling between $4,000 and $5,000) by way of profits from the offending.

19. The Judge accepted the evidence that the appellant gave as to his involvement, and sentenced the appellant on the basis of that limited involvement.

    Personal circumstances of the appellant

20. In sentencing the appellant, the Judge had regard to the following circumstances personal to the appellant:

    ·    The appellant’s age (46 years) and family circumstances (he was married with two children, aged nine and 11).

    ·    His lack of any relevant prior convictions.

    ·    His good standing in the local Ceduna community and his excellent character references.

    ·    The financial difficulties faced by the appellant both before, and as a result of, the offending.  The Judge referred in particular to the appellant having historically struggled to maintain the family farming property, resulting in him having to seek off-farm income, including through labouring, bar work and contract harvesting interstate.  Her Honour observed:

    More recently you entered into a share farming agreement with a local indigenous community.  This was a successful arrangement and contributed up to 85% of your family’s income.  It was because you were working in that venture that you engaged your cousin to, in effect, run your own farm. 

    … You have been unable to continue the share farming agreement because the local indigenous community has an anti-drug policy.  This has dramatically reduced your income. 

    · The amount of $30,000 paid by the appellant (as a pecuniary penalty under s 95 of the Criminal Assets Confiscation Act 2005 (SA)) in order to retain ownership of the farm. The Judge noted that the farm had been purchased many years earlier, and there was no suggestion it was paid for with the proceeds of offending.

    ·    The appellant’s good prospects of rehabilitation.

    Section 18A of the Sentencing Act

21. As mentioned at the outset of these reasons, count 1 involved a serious and organised crime offence within the meaning of s 38(4) of the Sentencing Act.  It followed, by reason of ss 38(2)(c) and 38(2ba) of that Act, that the Judge was required to be satisfied that exceptional circumstances existed before suspending the sentence of imprisonment imposed in respect of that offence.  However, as count 2 was not a serious and organised crime offence,[15] there was no threshold requirement of exceptional circumstances in respect of that offence. Rather, the Judge was required only to be satisfied under s 38(1) that “good reason” existed to suspend a sentence of imprisonment imposed in respect of that offence.

    [15]   And not a prescribed designated offence, specified offence against police, or designated offence within the meaning of ss 38(2)(b)-(d) and 38(4).

22. The appellant contends that in circumstances where, as here, a defendant is sentenced for offences which give rise to differing tests for suspension, it is not appropriate to use s 18A of the Sentencing Act.  In support of this contention it was said that to do so would give rise to difficulties and produce potentially anomalous outcomes.  Using this case as an illustration of the asserted difficulties and anomalies, it was submitted that it was not clear whether the test for suspension of a single sentence imposed under s 18A would be one of good reason or exceptional circumstances.  It was further submitted that even if the latter was the correct test, in a case where good reason existed, but not exceptional circumstances, the defendant would lose the opportunity of a favourable exercise of the discretion to suspend in respect of the count 2 offence.

23. The respondent’s contention is that there is no reason why s 18A cannot be used in circumstances such as the present.  To the contrary, there are various factors which make it clear that Parliament did intend s 18A to be available in circumstances such as the present.  Further, the respondent contends that the difficulties and anomalies relied upon by the appellant will not arise, or at least are addressed and resolved by the Sentencing Act (and in particular, s 38(2)).

24. For the reasons which follow, I accept the respondent’s submissions in relation to this issue, at least in the circumstances of the present case.

25. Section 18A of the Sentencing Act is in the following terms:

    18A—Sentencing for multiple offences

    (1)    If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.

    (2)    However, if any of the offences for which the person is being sentenced is a prescribed designated offence, subsection (1) does not apply to the sentencing of the person for that offence (but nothing in this subsection affects the operation of subsection (1) in respect of the other offences).

    (3)    In this section—

    prescribed designated offence has the same meaning as in section 38.

26. Section 38 of the Sentencing Act relevantly provides:

    38—Suspension of imprisonment on defendant entering into bond

    (1)   Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—

    (a)   to be of good behaviour; and

    (b)   to comply with the other conditions (if any) of the bond.

    (2)   A sentence of imprisonment may not be suspended under this section if the defendant is being sentenced—

    (a)to a sentence of imprisonment that is to be served cumulatively on another term of imprisonment, or concurrently with another term of imprisonment then being served, or about to be served, by the defendant; or

    (b)as an adult to a period of imprisonment of 2 years or more for a prescribed designated offence; or

    (c)as an adult for a serious and organised crime offence or specified offence against police; or

    (d)as an adult for a designated offence and, during the 5 year period immediately preceding the date on which the relevant offence was committed, a court has suspended a sentence of imprisonment or period of detention imposed on the defendant for a designated offence.

    (2a) Despite subsection (2)(a), if the period of imprisonment to which a defendant is liable under 1 or more sentences is more than 3 months but less than 1 year, the sentencing court may, by order—

    (a)    direct that the defendant serve a specified period (being not less than 1 month) of the imprisonment in prison; and

    (b)    suspend the remainder of the sentence on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant's release from prison.

    (2b)Despite subsection (2)(b), if a defendant is being sentenced as an adult to a period of imprisonment of 2 years or more for a prescribed designated offence, the sentencing court may, by order—

    (a)    direct that the defendant serve a specified period of the imprisonment in prison (which, if a non-parole period has been fixed in respect of the defendant, must be a period that is one-fifth of the non-parole period fixed); and

    (b)    suspend the remainder of the sentence on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant's release from prison.

    (2ba)Despite subsection (2)(c) and (d), the court may, if satisfied that exceptional circumstances exist for doing so—

    (a)   suspend a sentence of imprisonment imposed on a defendant for a serious and organised crime offence or specified offence against police, or for a designated offence in the circumstances described in subsection (2)(d), on condition that the defendant enter into a bond of a kind described in subsection (1); or

    (b)   make an order under subsection (2a) in respect of a defendant being sentenced for a serious and organised crime offence or specified offence against police, or for a designated offence in the circumstances described in subsection (2)(d), if the period of imprisonment to which the defendant is liable under 1 or more sentences is more than 3 months but less than 1 year.

27. Section 38(4) contains definitions of the various categories of offences referred to in s 38(2), namely designated offences, prescribed designated offences, serious and organised crime offences and specified offences against police.

28. By way of background, the Sentencing Act was amended to include s 18A in 1992 in order to provide a more streamline means of crafting an appropriate punishment for multiple offences than was available through the use of the common law principles governing the imposition of concurrent and cumulative sentences.  However, it was not intended to, and did not, displace or render redundant those common law principles.  Those principles continue to inform the application of s 18A.[16]

    [16]   R v O’Toole [2013] SASCFC 18 at [24], and the authorities referred to therein.

29. In R v Copeland (No 2),[17] Kourakis J (as he then was) explained the purpose of s 18A in the following terms:[18]

    The power conferred by s 18A CLSA provides a procedural faculty which is calculated to avoid inadvertent error in the announcing and recording of multiple sentences and the calculation of release dates for those sentences by the correctional authorities.  Section  18A of the CLSA does not abrogate sentencing principles governing the accumulation of sentences nor was it intended to render the sentencing process inscrutable.  There is obvious utility in explaining how a single sentence imposed pursuant to s 18A of the CLSA is arrived at by reference to the individual sentences which would otherwise have been imposed for a series of offences.  The offender, and the community on whose behalf the prosecution is brought, have a real interest in knowing how the criminality, of each of the individual offences, was evaluated and the relative contribution each made to the ultimate sentence.  That interest is not as acute, and the practicality of differentiating between offences is more difficult, in the case of multiple charges arising out of a single criminal episode.

    [17]   R v Copeland (No 2) (2010) 108 SASR 398.

    [18]   R v Copeland (No 2) (2010) 108 SASR 398 at [93] (omitting citations).

1. The section was amended to include ss 18A(2) and (3) in 2014.  Those amendments were made at the same time as the amendments to s 38 to introduce the regime governing the suspension of sentences of imprisonment imposed for the categories of offences mentioned in ss 38(2)(b), (c) and (d).[19]

   [19] The provision preventing the suspension of a sentence to be served cumulatively upon, or concurrently with, another sentence being, or to be served, existed prior to the 2014 amendments in s 38(2), but was renumbered s 38(2)(a) at the time of those amendments.

2. In determining whether it was open to the Judge to use s 18A(1), the starting point is, of course, the terms of that section.  The precondition to the operation of that section is that a person is found guilty of “a number of offences”.  As the applicant here was found guilty of two offences, that precondition was satisfied. 

3. There is nothing in the balance of the text of s 18A that prevents the use of s 18A(1) in a case where one of the offences is a serious and organised crime offence.

4. Section 18A(2) does prevent use of s 18A(1) in a case where any of the offences for which the defendant is being sentenced is a prescribed designated offence, this being the category of offence mentioned in s 38(2)(b).  It is significant that no equivalent carve out was included in respect of serious and organised crime offences (or the other categories of offences mentioned in ss 38(2)(c) and (d)).  This omission is a strong indication that Parliament did not intend that use of s 18A be precluded in the case of a defendant being sentenced for offences including one or more serious and organised crime offences.

5. This indication is reinforced by the provisions in Division 2AA of the Sentencing Act dealing with serious firearm offenders.  In particular, the effect of s 20AAC(1)(d) is that in a case of a person being sentenced for offences which include a serious firearm offence and a non-serious firearm offence, “section 18A does not apply to the sentencing of [that] person”.  Again, the express preclusion of the use of s 18A in this category of case supports an inference that Parliament did not intend to preclude its use in respect of serious and organised crime offences.

6. As well as there being nothing in the text of s 18A, there is also nothing in the nature or operation of that section that implicitly precludes its use in cases involving one or more serious and organised crime offences.  I contrast, for example, cases in which a defendant is sentenced for offences which include one or more offences which are punishable by a term of imprisonment and one or more which are not.  It is well established that s 18A cannot be used in that category of case.[20]  No analogous concern arises in the present context.

   [20]   R v O’Toole [2013] SASCFC 18 at [24]-[30]; Hermel v Police (2000) 76 SASR 336 at 337-338; R v Mathew [2001] SASC 390 at [4]; R v Al– Zuain (2009) 103 SASR 567 at [19].

7. Further, in my view, there is nothing in the terms of s 38, or the nature or operation of the regime for the suspension of sentences in that section, that makes a case such as the present unsuitable for the use of s 18A.

8. I contrast in this context the interaction between s 18A and the operation of the regime for guilty plea discounts in s 10C of the Sentencing Act.  In R v Wakefield,[21] Blue J (with whom Kourakis CJ and Peek J agreed) referred to the mandatory provisions of s 10C of the Sentencing Act, and in particular the requirement that the Court have regard not only to the prescribed maxima in s 10C(2), but also the s 10C(4) prescription of criteria to which the sentencing court must have regard, where relevant, at the level of individual offences. His Honour explained that in cases involving offences attracting differing discounts under s 10C, while s 18A might still be utilised, it will be necessary to explain how the sentencing court arrived at the single sentence after application of the differential discounts.

   [21]   R v Wakefield (2015) 121 SASR 569 at [36]-[39].

9. In my view, equivalent concerns do not generally arise in respect of offences that would have attracted differing tests for the suspension of the resultant terms of imprisonment had individual sentences for individual offences been imposed.  While the effect of using s 18A is to impose “one penalty” (here, one sentence of imprisonment), that will generally not interfere with the sentencing court’s application of the provisions dealing with the suspension of that sentence under s 38 of the Sentencing Act. 

10. There are two aspects to this conclusion.  The first is that the language or text of s 38 can accommodate sentences imposed under s 18A in respect of multiple offences (including where some, but not all, of those offences are serious and organised crime offences).  The second is that the regime for suspending sentences under s 38 (unlike the regime for guilty plea discounts under s 10C) focuses and operates upon the ultimate sentence or sentences imposed, and not at the level of individual offences, or by reference to offence specific considerations.

11. As to the language or text of s 38, I consider that the references to “a sentence of imprisonment” in ss 38(1) and 38(2) include reference to any sentence of imprisonment imposed under s 18A. In that sense, ss 38(1) and (2) contemplate, and can accommodate, single sentences imposed in respect of multiple offences under s 18A.

12. It might be said that even if the terms of ss 38(1) and (2) can accommodate sentences imposed under s 18A, nevertheless the more detailed terms of ss 38(2)(b)-(d) and ss 38(2a)-(2ba), and the regime they contemplate, are predicated upon a consideration of the issue of suspension by reference to individual offences rather than an overall sentence.

13. Taking the present case as an example, the issue is whether the appellant can be described as a person “being sentenced as an adult for a serious and organised crime offence” within the meaning of s 38(2)(c), despite the fact that he is also being sentenced for another offence which is not a serious and organised crime offence.  In my view, while the terms of s 38(2)(c) are more naturally referable to the situation of a single sentence for a single serious and organised crime offence, they do nevertheless extend to cases (such as the present) where a defendant is sentenced to a single period of imprisonment for a number of offences, as long as one or more of those offences is a serious and organised crime offence. 

14. It is also my view that the single sentence imposed in those circumstances falls within the notion of “a sentence of imprisonment imposed on a defendant for a serious and organised crime offence” within the meaning of s 38(2ba).  While the sentence is also one imposed in respect of another offence, it is nevertheless aptly described as a sentence imposed on the defendant for a serious and organised crime offence.  Put another way, it is a sentence imposed for the serious and organised crime offence even though it is not solely for that offence. 

15. The net effect of my analysis is that the provisions of ss 38(2)(c) and 38(2ba) can accommodate, and operate upon, sentences imposed for multiple offences even in circumstances where those offences include one or more serious and organised crime offences.  The test for suspension of any such sentence is one of “exceptional circumstances” under s 38(2ba).

16. An equivalent analysis would apply in respect of the other categories of offence identified in s 38(2)(c) and (d), namely specified offences against police and designated offences (committed in the circumstances described in s 38(2)(d)). An equivalent analysis does not, however, apply in respect of prescribed designated offences under s 38(2)(b).  As mentioned earlier, that category of offence has been expressly excluded from the operation of s 18A(1) by the terms of s 18A(2).

17. In my view, not only is the approach I have described permitted by the terms of ss 18A and 38, but also the decision to use s 18A, rather than identify and impose individual sentences for each individual offence, will not (in a case such as the present) make any difference to whether the appellant will receive a suspended sentence. Under either scenario, as soon as one or more of the offences for which the defendant is to receive a sentence of imprisonment is a serious and organised crime offence (or a specified offence against the police or designated offence), then the sentence cannot be suspended unless the defendant meets the “exceptional circumstances” test. The reason for this is that even if individual sentences were to be identified and imposed without using s 18A, under s 38(2)(a) none of the individual sentences could be suspended unless all of them are to be suspended, and hence unless the “exceptional circumstances” test is satisfied.

18. If follows that the use of s 18A will not, in a case such as the present, result in the difficulties or anomalous outcomes suggested by the appellant.

19. I have in several places expressed myself in terms of concerns of the type identified in R v Wakefield[22] generally not arising in the present context, or qualified my views by reference to the circumstances of this case.  I have done so because I do not intend to suggest that there may not be circumstances in which the nature and combination of the offences will make the use of s 18A inappropriate or at least undesirable.  In the present case, although only one of the two offences was a serious and organised crime offence, nevertheless the two offences were related and involved a single criminal episode.  It may be that different considerations will arise in circumstances where the nature and combination of the offending suggests that a closer focus on the individual offences is appropriate or required.  Examples may include cases involving multiple offences (some of which are serious and organised crime offences, and others of which are not) which are entirely unrelated, or cases involving a large number of offences where only one or a small proportion of them are serious and organised crime offences.  In such cases, it may be that “exceptional circumstances” warranting suspension will be found to exist vis-à-vis the serious and organised crime offence when considered in isolation, but not when considered by reference to one overall sentence under s 18A.  Whether the considerations that might arise in such cases will render the use of s 18A inappropriate, or modify the way in which that section is to be applied, is an issue that does not need to be determined in this case.

    [22]   R v Wakefield (2015) 121 SASR 569.

20. It is enough to dispose of the second ground of appeal in this case that it was appropriate for the Judge in this case to use s 18A in the manner in which she did in respect of counts 1 and 2. 

21. Finally, I mention that in addressing the issue of suspension, the Judge referred to the “offences” (plural) as serious and organised crime offences.  This was obviously a slip or error on the part of her Honour, as only one of them was such an offence.  However, given my view that it was appropriate to use s 18A even in circumstances where only one of two offences is a serious and organised crime offence, and that the sentence of imprisonment to be imposed could only be suspended if the Judge was satisfied as to the existence of “exceptional circumstances” regardless of whether one or both offences are serious and organised crime offences, this slip or error is of no consequence.

    Exceptional circumstances

22. The appellant contends that the Judge erred in holding that exceptional circumstances had not been established. 

23. Before considering whether any error has been established, two issues of principle arise. The first is the nature of the test for suspension under s 38(2ba) in the Sentencing Act, and the second is the meaning of the term “exceptional circumstances”.

24. As to the first, s 38(2ba) provides that “the court may, if satisfied that exceptional circumstances exist for doing so” suspend the sentence of imprisonment imposed on a defendant for a serious and organise crime offence.

25. Read literally, this suggests a two staged approach, with the first stage involving satisfaction as to the existence of exceptional circumstances, and the second stage involving an exercise of the discretion indicated by the word “may”.

26. However, in the analogous context of the “good reason” test for suspension in s 38(1), this Court has rejected a two staged approach in favour of an approach involving consideration of one issue or question, namely whether, having regard to all the relevant sentencing considerations in the particular circumstances of the case, good reason exists for suspending the sentence in question.[23]  This reflects an approach, taken in various other contexts, that construes the word “may” as conferring a power which is to be exercised upon the court being satisfied of a certain matter, and not as conferring a separate or residual discretion as to the exercise of that power.[24]

    [23]   Wessling v Police (2004) 88 SASR 57 at [26]-[27]; R v O’Toole [2013] SASCFC 18 at [50].

    [24]   Finance Facilities Pty Ltd v Commissioner of Taxation (Cth) (1971) 127 CLR 106 at 134-135; Mitchell v The Queen (1996) 184 CLR 333 at 345; Leach v The Queen (2007) 230 CLR 1 at [38].

27. Given the very similar form of words used in s 38(2ba), it is appropriate that it also be approached on the basis of a single question, namely whether exceptional circumstances warranting suspension exist.  In other words, the power to suspend a sentence of imprisonment conferred under s 38(2ba) is one conditioned solely upon satisfaction as to the existence of “exceptional circumstances” warranting suspension.  Upon satisfaction as to that matter, the sentence must be suspended.  There is no residual discretion.

28. However, the absence of a separate or residual discretion in the exercise of the power to suspend does not mean that the exercise of the power does not involve the exercise of a discretion. To the contrary, like the power under s 38(1) to suspend a sentence where “good reason” to do so exists, I consider that the power to suspend where “exceptional circumstances” exist does involve the exercise of a discretion, at least in the sense that appellate challenge to the exercise of that power will be governed by the principles of appellate restraint in House v The King.[25]

    [25]   House v The King (1936) 55 CLR 499 at 504-505.

29. The term “discretion” is not always used in a consistent way.  Its use is sometimes confined to what might be described as a “pure” or “strong” discretion (where a power is to be exercised free of any binding criterion or criteria) as opposed to a “weak” discretion (where a power is to be exercised by reference to conditions or criteria, but where those conditions or criteria allow for a degree of personal or subjective judgment).  A distinction is also sometimes drawn between discretions and judgments (including evaluative judgments).[26]  In my view, not only are these labels and distinctions somewhat difficult to apply, but also they do not always assist in determining whether a challenge to an exercise of the power is to be governed by the principles in House v The King.  Those principles have been held to apply in some contexts which are not universally regarded as involving the exercise of a discretion (at least not in the strong sense) – for example, in ordering a stay for abuse of process,[27] in the assessment of damages in personal injury cases,[28] and in excluding evidence on the ground it is more prejudicial than probative.[29]  Ultimately it is the nature of the decision or issue under review that determines whether those principles apply.

    [26]   R v Ellis (2003) 58 NSWLR 700 at [95].

    [27]   R v Carroll (2002) 213 CLR 635 at [73].

    [28]   Moran v McMahon (1985) 3 NSWLR 700 at 716-717.

    [29]   R v Blick (2000) 111 A Crim R 326 at [20].

30. In the context of the exercise of the power to suspend a sentence of imprisonment where there is “good reason” to do so, it is well accepted that any challenge to the exercise of this power is governed by the principles in House v The King.  The reason for this is that in determining whether “good reason” exists, the Court must have regard to the full range of sentencing considerations.  The nature of the sentencing exercise is such that it inherently permits differing views as to the relative weight to be attached to each of a range of considerations, and hence differing views as to the appropriate outcome.  There is no “right” or “wrong” outcome.  There is a range of appropriate outcomes, or in the case of the decision whether to suspend, scope for a choice as to the appropriate outcome.  It follows that the process of identifying error on appeal must take account of this.  Hence the applicability of the principles of appellate restraint in House v The King.

31. In the context of the power to suspend a sentence where “exceptional circumstances” exist, the same reasoning applies.  The nature of the exercise is such that it involves a consideration of the full range of the usual sentencing considerations, with a significant element of personal judgment inherent in the weighing of those various considerations.  It follows that the identification of an error in the determination of whether or not exceptional circumstances warranting suspension exist (for the purposes of s 38(2ba)) requires an application of the principles governing the identification of error set out by the High Court in House v The King.[30]  That is so despite the “discretion” in question being one which is conditioned upon satisfaction as to the existence of “exceptional circumstances”.

    [30]   House v The King (1936) 55 CLR 499 at 504-505.

32. As to what is meant by “exceptional circumstances”, I commence by emphasising that while some consideration of, and elaboration upon, the words chosen by Parliament may assist in applying the test, the test remains one solely referrable to those words.  The test is, and is only, whether, having regard to all the relevant sentencing considerations in the particular circumstances of the case, there exist exceptional circumstances warranting suspension of the sentence of imprisonment.

33. However, in applying this test, it is plain that it was intended by Parliament to be a higher, or more demanding, test than the “good reason” test for suspension in s 38(1). This is plain not only from the words chosen to articulate the test, but also the reference during the Second Reading Speech (in relation to the 2014 amendments to s 38) to the distinction drawn between “good reason” and “exceptional circumstances” in R v Fowler.[31]  However, the Second Reading Speech does not provide any assistance as to what is meant by “exceptional circumstances” beyond the reference to R v Fowler, and a reference to the situations in which suspension will be warranted being “truly exceptional.”

    [31]   R v Fowler (2006) 243 LSJS 285; [2006] SASC 18.

34. In R v Fowler, consideration of what was meant by exceptional circumstances occurred in the context of the Court emphasising that despite reference in some of the authorities to the test for suspension of some categories of offence requiring “exceptional circumstances”, the ultimate test for suspension under s 38(1) remained one of “good reason” and not one of “exceptional circumstances”.

35. In considering the meaning of “exceptional circumstances” in that context, Gray and Layton JJ said:[32]

    There is a substantial and important difference between the “exceptional circumstances” test as discussed in Manglesdorf and the “good reason” test to draw from the wording of the statute.  The “good reason” test established by the legislature requires the sentencing judge to consider all of the circumstances of the instant case and make an assessment as to whether those circumstances give rise to good reason to suspend the sentence.

    On the other hand, the “exceptional circumstances” test implies that a sentencing judge ought to compare the circumstances of the instant case with other cases and determine whether there are aspects of the instant case that set it apart from the other cases and thereby justify an exercise of the discretion to suspend.  This may lead the court to be asked to first consider what the common or typical features of drug trafficking cases are and then compare such features with the case at bar to decide whether such circumstances may be characterised as “exceptional” before considering then whether to suspend.  Such an approach would require the fulfilment of conditions which contradict the statutory requirement.  In this way, the “exceptional circumstances” test represents a significant departure from the test set down by Parliament.

    [32]   R v Fowler (2006) 243 LSJS 285; [2006] SASC 18 at [54]-[55].

1. A number of decisions have considered the concept of “exceptional circumstances” in different legislative contexts.  Some of those authorities were conveniently collected and summarised by Muscat DCJ in R v Bagguley,[33] a decision referred to by the Judge in this case.

   [33]   R v Bagguley [2015] SADC 137 at [65]-[70].

2. For example, in R v Kelly,[34] Lord Bingham said:

   It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon.  To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

   [34]   R v Kelly [2000] QB 198 at 208.

3. In my view, this elaboration upon the meaning of exceptional circumstances is apposite in the present context. 

4. I also consider that some assistance can be derived from this Court’s consideration of “special reasons” in the context of minimum non-parole periods under s 32A of the Sentencing Act, and “special circumstances” in the context of s 10A of the Bail Act 1985 (SA). In those contexts, while emphasising the wide and flexible content of those terms, it has been held that their content is to be informed by the relevant statutory context, and in particular the objects of the provision in question and the mischief to which it was directed. It has been held that special reasons or circumstances connote reasons or circumstances which take the particular case out of the contemplated scope of the statutory provision, or outside of the circumstances contemplated by Parliament.[35]

   [35]   R v Lombardi (2013) 115 SASR 577 at [20]-[23]; R v Barnett (2009) 198 A Crim R 251 at [75]-[85].

5. While “exceptional circumstances” does connote circumstances outside of the range of circumstances ordinarily or normally encountered, the Court must be careful not to set the test so high that it becomes near impossible to satisfy.  As Lord Bingham cautioned, in the passage extracted above, the circumstances need not be unprecedented or very rare.

6. The exceptional nature of the circumstances may emerge from consideration of a single circumstance or a combination of circumstances.  It may emerge from consideration of the circumstances of the offending, the circumstances personal to the offender or some combination of both.  It may emerge from qualitative considerations (in the sense of circumstances of a type that do not commonly arise) or quantitative considerations (in the sense of circumstances arising to an uncommon extent or degree).[36]

   [36]   Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66].

7. Beyond these very general observations, it is neither possible nor desirable to be more prescriptive as to what will be required to establish “exceptional circumstances” sufficient to warrant suspension of a sentence of imprisonment under s 38(2ba).  It will depend upon the facts of the particular case. 

8. In support of his contention that the Judge erred in not finding that exceptional circumstances warranting suspension of his sentence of imprisonment existed, the appellant relied upon the combination of his limited role in the activities of his cousin, his character and background, and the size of the financial loss to him and his family as a result of the offending.  The focus of the argument was upon the last of these matters, and in particular the payment by him of a $30,000 pecuniary penalty under the Criminal Assets Confiscation Act, and the loss of 85 per cent of his family’s income as a result of losing the share farm arrangement he had with the local indigenous community.

9. The background to those financial consequences of the appellant’s offending was that a restraining order was made over all four of the appellant’s farming properties under s 24 of the Criminal Assets Confiscation Act. Ultimately the proceedings under that Act were finalised on the basis of a payment by the appellant of a pecuniary penalty of $30,000 under s 95 of the Act. This figure was said to reflect the appellant’s equity in the particular farming property that was used for the subject offending. Upon payment of this amount, the restraining order over all properties was lifted. The appellant thus ultimately retained ownership of all four properties.

10. Prior to the present offending coming to light, the appellant and his family had been grossing approximately $600,000 per annum pursuant to a share farming arrangement with the local indigenous community.  This represented 85 per cent of his family’s income.  The arrangement has not been renewed.  The indigenous community has entered into alternative arrangements with other local farmers.  It appears that one reason for this was the inability of the appellant to raise the funds necessary to finance the arrangement while there was a restraining order over his farming properties.  It appears that another reason may have been the anti-drugs policy of the relevant indigenous community.

11. By reason of s 224(c) of the Criminal Assets Confiscation Act, and s 10(1)(k) of the Sentencing Act, the pecuniary penalty was a relevant sentencing consideration.  So too was the loss of the share farming arrangement.  However, both of these matters were taken into account by the Judge.  Further, I do not consider that the Judge erred in not concluding that these matters, either on their own or in combination with all of the other relevant sentencing considerations constituted “exceptional circumstances” warranting suspension of the sentence of imprisonment to be imposed. 

12. It is relatively common that drug offending will result in orders being made under the Criminal Assets Confiscation Act.  There is nothing about the nature, circumstances or quantum of the pecuniary penalty in this case that in my view warrants it being described as “exceptional”. 

13. The loss of the share farming arrangement is on one view a relatively unique consequence of the appellant’s offending.  However, in my view, this consequence is better seen as no more than a particular example of the relatively common consequence that offenders lose employment or business opportunities as a result either of their offending being exposed or their being imprisoned.  Families often suffer the loss of some or all of their family income when the main earner in the family engages in serious offending.  Viewed in this way, I do not consider that the loss of the share farming arrangement rendered the circumstances of this case “exceptional”.

14. In summary, I do not think the circumstances relied upon by the appellant, either individually or in combination, sufficed to establish error in the Judge’s decision that she was not satisfied that there existed “exceptional circumstances” warranting suspension of the sentence of imprisonment imposed.

    Addendum

15. Since preparing these reasons, I have had the opportunity to read the draft reasons of Blue J. As I understand his reasons, they are generally consistent with mine and so I agree with the observations he has made as to the availability and operation of s 18A of the Sentencing Act in the context of serious and organised crime offences.

16. The only qualification to this is that in my view, when the “exceptional circumstances” test for suspension applies under s 38(2ba), it applies as the sole criterion for determining whether the sentence should be suspended.  I do not consider that it is necessary to establish that both “good reason” and “exceptional circumstances” exist.  The latter applies instead of the former.  I thus prefer the second of the two constructions of s 38(2ba) identified by Blue J.

17. That said, I do not consider it to be of any practical significance which of the two constructions is adopted.  The reason for this is that on my construction of “exceptional circumstances”, while it ultimately requires a focus upon whether the circumstances said to warrant suspension take the case outside the range of circumstances ordinarily or normally encountered when considering the issue of suspension, it nevertheless requires consideration of the full range of sentencing considerations, and also presupposes the existence of circumstances that would ordinarily suffice to warrant suspension.  Thus, while not expressly or directly requiring the existence of “good reason” to suspend, satisfaction of the higher or more demanding test of “exceptional circumstances” implicitly assumes the existence of circumstances that would otherwise constitute “good reason” to suspend.

    Conclusion

18. I would dismiss the appeal.