R v Slaven
[2014] SASCFC 108
•27 October 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SLAVEN
[2014] SASCFC 108
Judgment of The Court of Criminal Appeal
(The Honourable Justice Blue, The Honourable Justice Nicholson and The Honourable Justice Bampton)
27 October 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING CANNABIS, INDIAN HEMP OR HASHISH
Appeal against sentence – appellant pleaded guilty to five counts of trafficking in cannabis and one count of trafficking in a large commercial quantity of cannabis – co-offenders were charged with extra offences including cultivating controlled plants for sale and further offences of trafficking in a large commercial quantity of cannabis – all three offenders sentenced to seven years and six months imprisonment – appellant received a non-parole period of four years and six months whereas the co-offenders each received a non-parole period of three years and nine months – whether parity principle should apply – whether there was a discernible difference between the personal circumstances of the appellant and the co-accused warranting a higher non-parole period.
Held: Appeal allowed – appellant re-sentenced to a head sentence of seven years and six months imprisonment with a non-parole period of three years and nine months.
Controlled Substances Act 1984 (SA) s 32; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Lagana [2012] SASCFC 135; Green v The Queen (2011) 244 CLR 462; The Queen v De Simoni (1981) 147 CLR 383; R v Tran & Tran [2011] SASCFC 153; R v Mangelsdorf & Ors (1995) 66 SASR 60, considered.
R v SLAVEN
[2014] SASCFC 108Court of Criminal Appeal: Blue, Nicholson and Bampton JJ
BLUE J: I agree with Nicholson J and Bampton J.
NICHOLSON J: I have had the benefit of reading the reasons of Bampton J in draft. I adopt her Honour’s description of the factual basis of the offending and agree in substance with her Honour’s analysis of the issues raised on appeal. I also would allow the appeal but only to the extent, upon a re-sentencing, of adjusting the non-parole period to bring it into line with that ordered for each of the two co-accuseds.
I accept the appellant’s submission that when the appellant’s offending and personal circumstances are compared with that of the two co-accuseds, considerations of parity arise. The appellant pleaded guilty to fewer counts as described in the reasons of Bampton J. There was no good reason to merge the appellants and the co-accuseds’ offending in the way the Judge did, when sentencing the appellant. The agreed basis of sentencing described the appellant as being at “arms length” from the co-accuseds. The appellant operated from interstate and his involvement was to purchase from the co-accuseds cannabis grown or otherwise sourced by them in South Australia. There is no direct evidence that the appellant had taken part in the additional trafficking and cultivating offences to which the co-accuseds pleaded guilty.
I also agree, for the reasons given by Bampton J that there was no basis to distinguish between the appellant and the co-accuseds with respect to their respective personal circumstances and prospects for rehabilitation, at least to the extent of justifying a non-parole period for the appellant of 20 per cent greater than that of each co-accused.
Both these factors inform the issue of whether the parity principle has been observed. Considered in isolation, parity has not been observed. However, that does not mean that this Court should necessarily intervene on appeal.
The tension that can arise where parity is not observed with respect to sentences that already might be considered lenient was discussed by White J in R v Lagana[1] with whose reasons Vanstone J agreed.
[1] [2012] SASCFC 135 at [50]-[58] (footnotes omitted).
I am prepared to assume, for the purposes of this appeal and without deciding affirmatively, that there is a relevant disparity in the sentences imposed on the appellant and Mr Keegan. However, I also consider that the sentence imposed on the appellant was appropriate, having regard to the seriousness of the offence and his circumstances. It could not have been very much lower without being regarded as unduly lenient.
The question is how the principle of parity is to be applied in these circumstances. Should this Court intervene on the basis of the assumed disparity if the result would be the imposition of an unduly lenient sentence on the appellant?
In addressing this question, it is to be remembered that this Court may intervene under s 353(4)(a) of the Criminal Law Consolidation Act 1935 (SA) only if it “thinks that a different sentence should have been passed”. The circumstances in which the Court could reach that state of mind in relation to a new sentence which would be unduly lenient are likely to be rare.
Satisfaction by an appellate court that a disparity between sentences exists does not, of itself, mean that the appeal must be allowed. As was observed by the majority in Green v The Queen:
[T]he existence of a discretion, where unjustified disparity is shown, to reduce a co‑offender’s sentence to one which is inadequate does not amount to an obligation to do so.
The effect of an unjustifiable disparity as enlivening a discretion, but not an obligation, in the appellate court to intervene, has been recognised in a number of the earlier authorities. See, for example, Lowe v The Queen; R v MacGowan; Wakely v Police and R v McIvor. However, as King CJ indicated in R v MacGowan, in the absence of strong countervailing considerations the appellate court will interfere to eliminate marked disparities which cannot be justified in the circumstances of the case.
In Green v The Queen, the majority did not express a final view as to whether the discretion, when enlivened, could be exercised so as to reduce a sentence to an inadequate level. Their Honours did, however, endorse the existence of the discretion and said that an appellate court is not required to consider reducing a sentence to a level which would be an affront to the proper administration of justice.
In the present case the discretion is to be exercised in the context of s 10(1)(k) of the Criminal Law (Sentencing) Act 1988 (SA) which requires a sentencing court to have regard to the need to ensure that the defendant is adequately punished for the offence. King CJ referred to this policy consideration in R v MacGowan when he said:
The lower sentence may be so inadequate that to establish parity may be felt to compound the error in a way which would be unacceptable to the public conscience. The sense of grievance experienced by the offender may have to be tolerated in the public interest.
In the earlier case of R v Kite, Bray CJ, Hogarth J and Sangster AJ spoke of the importance of not allowing interference on the grounds of disparity to result in the imposition of an inadequate sentence:
[T]he mere fact that one convicted person has received too light a sentence is no reason why another convicted person should receive similar treatment. If there is excessive disparity, it does not follow that the one with the heavier sentence was treated too severely; it may be that the one with the lighter sentence was treated too leniently. Often in these cases the disparity should ideally be remedied by increasing the sentence of the one, rather than by reducing the sentence of the other. But we can only deal with the appeal before us. We have no power to interfere with the sentence imposed on Beattie.That sentence is not before us. If the applicant was treated justly he has no right to complain if someone else was treated more leniently than he deserved.
(Emphasis added)
Brennan J made a similar observation in Lowe v The Queen when he said:
[I]t is wrong to think that it is “more important that sentences should be proportionate to one another than that they should be proportionate to guilt”.
Finally, I note that in Green v The Queen Bell J referred to a number of decisions in New South Wales in which it had been held that the elimination of disparity is not justified if it requires the reduction of an appropriate sentence to the level of an inadequate sentence. This, of course, does not of itself mean that a sentence may not be reduced to a level which is still within the range of appropriate sentences.
The offences committed by the appellant and the co-accuseds constituted serious examples of offending of this type. This was a sophisticated and well organised syndicate type operation involving very substantial and very valuable quantities of cannabis trafficked interstate over a lengthy period. The sentences imposed on all three offenders were lenient and those for the co-accuseds particularly so. Without deciding, I am inclined to the view that they were not so lenient as would have justified a Crown appeal. Nevertheless and given that the appellant’s sentence is already to be considered lenient it is difficult to justify any further reduction, at least insofar as the head sentence is concerned. The head sentence of seven and a half years imprisonment was appropriate and the appellant has been treated justly notwithstanding that the co-accuseds received the same. Any further reduction of substance would lead to an inadequate head sentence and one that was unduly lenient. Like White J in Lagana, in the circumstances of this case, I would not exercise the discretion to reduce the appellant’s head sentence.
The disparity in the non-parole periods raises different considerations and is not justified upon an application of the parity principle. I am less troubled by any argument that the non-parole period (as a proportion of the head sentence) is already lenient. The non-parole period ordered for the appellant of four years and six months represents 60 per cent of the head sentence. There is scope for further leniency in this respect without leading to an unduly lenient result. The appellant has been sent to prison for the first time in his early 50s. He has no prior criminal record of any significance. There are other aspects of his personal circumstances, as briefly described in the reasons of Bampton J, which support a lenient approach being taken at least as to the non-parole period. The same non‑parole period as ordered for the co-accuseds (50 per cent of the head sentence of seven years and six months) would not be inappropriate in the circumstances of this case and would preserve parity to some degree.
I too would allow the appeal and re-sentence the appellant. However, like the Judge, I would impose the one head sentence for all six offences of seven and a half years imprisonment. I would set a non-parole period of three years and nine months. Both the head sentence and the non-parole period should commence from 21 October 2013, the date bail was revoked by the Judge.
BAMPTON J: This is an appeal against sentence.
The defendant and appellant, Mr Slaven, was sentenced for offending committed between June and December 2011 arising out of his involvement in a syndicate that trafficked cannabis from South Australia to New South Wales. The syndicate became the subject of a lengthy and complex police investigation. The investigation revealed the interstate transport of cannabis and money via Australia Post.
The defendant was jointly charged with co-accused, Western and Lawson, with five counts of trafficking in cannabis (Counts 1, 5, 9, 15 and 17) and one count of trafficking in a large commercial quantity of cannabis (Count 19).
The defendant pleaded guilty to the five trafficking counts in the Magistrates Court on 17 May 2013 and to the large commercial trafficking count in the District Court on 9 August 2013.
The defendant was sentenced to a head sentence of seven years and six months imprisonment with a non-parole period of four years and six months. His appeal is against the length of the head sentence and the non-parole period. He complains that there is a marked disparity between his sentence and the sentences imposed on his co-offenders, who were sentenced to seven years and six months imprisonment for the same and additional offences and received lower non‑parole periods of three years and nine months.
The appellant contends that he should have received a lower sentence than his co-offenders because:
·Mr Western pleaded guilty to two more counts of trafficking in a large commercial quantity of cannabis and one count of cultivating cannabis; and
·Mr Lawson pleaded guilty to two more counts of trafficking in a large commercial quantity of cannabis and three counts of cultivating cannabis.
Another co-offender, Mr Lackey, was dealt with in the New South Wales Magistrates Court. The appellant does not contend that a parity issue arises vis‑à-vis Lackey.
The maximum penalty for the offence of trafficking in a controlled drug and cultivating controlled plants for sale is imprisonment for 10 years or a $50,000 fine, or both. The maximum penalty for trafficking in a large commercial quantity of a controlled drug is life imprisonment or a $500,000 fine, or both.
Background
Five counts of trafficking (Counts 1, 5, 9, 15 and 17)
The defendant pleaded guilty to and was sentenced for:
·count one – trafficking in cannabis on 1 June 2011;
·count five – trafficking in cannabis on 6 August 2011;
·count nine – trafficking in cannabis on 2 September 2011;
·count 15 – trafficking in cannabis on 22 November 2011; and
·count 17 – trafficking in cannabis on 2 December 2011.
The agreed factual basis for the five counts of trafficking was:
(a)Each count reflected a transaction whereby a parcel of cash was sent by the defendant from Queensland in exchange for cannabis to be sent by Western and Lawson to New South Wales. The parcels of cash were sent from a variety of Queensland post offices.
(b)The cannabis was bought at $3,600 per pound.
(c)The five parcels of cash contained a total of $110,200.
(d)In total 52 parcels of cash were sent from Queensland to South Australia between 5 January 2011 and 14 December 2011. Eighteen of the parcels were opened in transit by police. Each parcel contained cash in amounts ranging from $20,200 to $50,400.
Trafficking in a large commercial quantity of cannabis (Count 19)
The agreed factual basis for the count of trafficking in a large commercial quantity of cannabis was that:
(a)It related to a parcel sent by Western and Lawson to New South Wales on 13 December 2011 in exchange for cash sent by the defendant from Queensland. Police seized the parcel of cannabis immediately upon Mr Lackey collecting it from the post office box on 14 December 2011.
(b)The parcel contained 2.7 kilograms of dried cannabis bud in six vacuum-sealed pound bags. The value of the cannabis in the charged parcel was $21,600.
The operation of the trafficking syndicate
A statement of agreed facts that was provided to the sentencing Judge described how the syndicate operated as follows.
Mr Western and Mr Lawson co-ordinated the cultivation of cannabis in South Australia and posted the female cannabis product to New South Wales. They set up grow houses, grew, harvested and packaged the cannabis. They also assisted family members and associates to set up grow houses and to cultivate cannabis that they purchased and sent interstate at a profit. The defendant and Mr Lackey coordinated the purchasing of the cannabis with a view to on-selling. The defendant sent payments for the cannabis from Queensland to two South Australian post office boxes registered to Mr Western and Mr Lawson. Mr Lackey received the cannabis in New South Wales. The defendant and Mr Western communicated on behalf of the two sides of the operation.
Between January and December 2011, 52 parcels of cash were sent by the defendant to South Australia. The amount of cash sent by the defendant over the course of the time was estimated to be in the order of about $1.4 million. Between 18 August and 13 December 2011, telephone intercepts and postal records confirm that 150 pounds of cannabis were sent in 52 parcels from South Australia to New South Wales. The value of the cannabis was in the order of $540,000.
The parcels of cannabis were sent from various post offices in South Australia to a post office box in Adamstown, New South Wales where they were collected predominantly by Mr Lackey but occasionally by the defendant. That post office box was registered to the defendant from 11 February 2010. The mobile phone associated with the post office box was the number the defendant used for drug trafficking.
Several parcels, including the parcel which was the subject of Count 19, and sender receipts pertaining to the parcels, were marked to the attention of “Borris”. “Borris” is a pseudonym for the defendant. The sender details were false.
Telephone intercepts revealed a pattern whereby Mr Western and Mr Lawson sent text messages to the defendant detailing the number of pounds and quality of cannabis posted.
The defendant’s role in the enterprise
It was agreed that the defendant’s role in the enterprise was:
(a)He was not working for anyone else and was at arm’s length to Mr Western and Mr Lawson. He was either working in a joint enterprise with Mr Lackey or was purchasing from Mr Western and Mr Lawson to sell to Mr Lackey at a profit believing that Mr Lackey would on-sell.
(b)Most of the on-selling was carried out by Mr Lackey but the defendant also on-sold some of the cannabis.
(c)Telephone communications relating to the defendant’s dealings with Mr Lackey indicate that:
· on numerous occasions he attended Newcastle to check the quality of the cannabis himself; and
· he appeared to have considerable personal discretion about ordering more cannabis.
Western and Lawson’s additional charges
Mr Western and Mr Lawson were respectively charged with three and five other offences arising from police searches on 14 December 2011.
Mr Western and Lawson pleaded guilty to trafficking in a large commercial quantity of cannabis in relation to 4.5 kilograms of cannabis located in a car at Salisbury Downs.
Mr Western pleaded guilty to one count of trafficking in a large commercial quantity of cannabis in relation to 3.6 kilograms of female cannabis found at that address.
Mr Lawson pleaded guilty to trafficking in a large commercial quantity in relation to 4.9 kilograms of female cannabis located at an address at Seaton.
Mr Lawson pleaded guilty to three counts of cultivating cannabis for sale at two Seaton addresses and at Kadina and Mr Western pleaded guilty to one count of cultivating 12 controlled plants for sale at Paralowie.
The defendant’s personal circumstances
The Judge was informed that the defendant was 53 years of age. He grew up in the central coast of New South Wales and suburban Sydney. At the age of 11, he learnt that his violent alcoholic stepfather was not his father and the realisation about his true paternity was very distressing to him. Five years ago he located his biological father and established contact with him. As a result of this offending, his biological father no longer wishes to maintain contact with him.
The defendant had a dysfunctional childhood and a poor relationship with his mother who was a sole parent for many years. He was a victim of sexual abuse at the age of 11. He attended 12 different schools. His literacy and numeracy skills are poor. At the age of 16, he moved to live with his step‑grandmother and had a more stable family life.
The sentencing Judge noted that the defendant had a good work history and had been employed between the ages of 16 to 48. At the age of 19, the defendant joined the Army for two years. He then worked for Armaguard for five years and Westinghouse for two years. He was a member of the RAAF for 10 years. After leaving the RAAF, he worked selling cooking oil for about 12 months. He then became a self-employed timber floor installer. He has also worked as a volunteer fire fighter.
The defendant stopped working at age 48 following the birth of his son. He became engaged in his son’s full-time care although, as the Judge noted, he was also involved in the cannabis business. The Judge noted his devotion to his five year old son and that he would suffer from separation from his son as a consequence of his sentence.
The sentence
In her sentencing remarks, the Judge said that the defendant was actively involved in organising cannabis, the quality and quantity of cannabis, the on‑selling of cannabis and the sending of money to post office boxes in South Australia to Mr Lawson and Mr Western.
The Judge noted that, at some stage before establishment of the syndicate with Mr Lawson and Mr Western, the defendant became involved in dealing with the cannabis. Her Honour said that she did not know the precise scope of the dealing but that upon his arrest he was found in possession of a very large amount of cash; the sum of $377,100.
The Judge did not accept the defendant’s submission that, of the $377,100 cash found in his possession, only $110,000 related to this offending. Her Honour noted that the defendant chose not to give evidence about his possession of the money.
In submissions the prosecution accepted that the principle of parity applied. The prosecution went on to submit that to impose the same sentences would not give rise to a justifiable sense of grievance or give the appearance that justice had not been done. The Judge said she was bound to sentence the offenders only for the offences to which they had pleaded guilty.
Her Honour said that the Director of Public Prosecutions had provided her with no adequate explanation why there were different charges and pleas in respect of the three offenders with different maximum penalties. Her Honour observed that the Director had not pressed charges in respect of the defendant’s involvement in growing the cannabis and Mr Western and Mr Lawson were charged with additional offences carrying a much higher maximum penalty and that, according to the authorities, is a relevant matter in fixing penalty.
The Judge was concerned that, whichever way she proceeded with respect to the matter, she could fall into error because of the manner in which the matter had been charged and pleas accepted by the prosecution.
Her Honour found that the three offenders had equal involvement in operating the enterprise which was a large scale, longstanding, high-level organised cannabis dealing with substantial profits that were made and to be made.
The Judge was faced with a situation in which the defendant pleaded guilty to a lesser number of offences with a lower level of penalty overall. Her Honour concluded that the only fair way to proceed was to deal with the defendant and the two other offenders as if their involvement was similar and as if they had been charged with the same offences.
The Judge concluded that, notwithstanding the different maximum penalties and the offences charged, the justice of the situation required a degree of parity that was not reflected in the charges.
It was noted by the Judge that the defendant and his co-offenders had no relevant prior convictions.
The appeal
Grounds of appeal
The defendant submitted that the Judge erred in failing to:
(a)reflect the differences in the charges for which the appellant was convicted and those for which his co-offenders were convicted thereby causing a justifiable sense of grievance on the part of the appellant.
(b)give sufficient weight to the personal circumstances peculiar to the appellant causing a disparity in the non-parole period imposed on the appellant and the non‑parole period imposed on the co-offenders Lawson and Western.
The defendant’s submissions on appeal
It was submitted that the Judge failed to take into account that the sentence to be imposed upon the defendant was for different and a lesser number of offences than those to which Mr Western and Mr Lawson pleaded.[2]
[2] Green v The Queen (2011) 244 CLR 462 at [127] per Bell J.
The defendant submitted that the Judge fell into error when she said:
Yet, the situation that I am faced with is that Mr Slaven has pleaded guilty to a lesser number of offences and with a lower level of penalty overall.
… It seems to me that the only fair way for me to proceed is to deal with you as if, broadly speaking, your involvement was similar and as if you had all been charged with similar offences. Notwithstanding the different maximum penalties and offences charged, the justice of the situation requires a degree of parity which is not reflected in the charges.
It was argued that the Judge was bound to impose a sentence that reflected the charges and in failing to do so, she fell into error.
It was submitted that it was not open to the Judge to “redress the imbalance” she perceived through the exercise of her sentencing discretion.
The defendant contended that the length of the sentence and the length of the non-parole period should reflect the different charges to which he pleaded guilty. In support of this contention counsel referred to the High Court’s decision in The Queen v De Simoni, where Gibbs CJ noted:[3]
However, where the Crown has charged the offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot rely, or ask the judge to rely, on the facts that would have rendered the offender liable to a more serious penalty.
[3] (1981) 147 CLR 383 at 392 per Gibbs CJ.
Finally, the defendant contended that his personal circumstances were not such as to permit the Judge to determine that “there is to be a difference with the non-parole period which reflects my view that Mr Lawson and Mr Western are not only younger but have demonstrated better prospects of rehabilitation”.
Prosecution submissions on appeal
The prosecution submitted that the appeal should be dismissed as the sentence imposed was appropriate. The defendant and his co-offenders were sentenced in relation to their involvement in an extremely serious and extensive cannabis trafficking operation. It was submitted that the defendant was sentenced against a background of ongoing prolific trafficking throughout 2011. The numerous uncharged acts of a similar character to the offences for which he was sentenced were relevant to sentencing.
It was submitted that the defendant was not entitled to the leniency that might have been afforded to him if his offending were isolated. The uncharged conduct was also relevant to the importance of personal deterrence, an assessment of his moral culpability and prospects for rehabilitation. It was submitted that this diminished the importance of his lack of relevant prior convictions.[4]
[4] R v Tran & Tran [2011] SASCFC 153 at [29] per Gray J.
It was submitted that a severe sentence was warranted in this case and that deterrence had to be uppermost in the Judge’s mind.[5]
[5] R v Mangelsdorf & Ors (1995) 66 SASR 60 at 70 per Doyle CJ.
The offenders were sentenced on the basis that, broadly speaking, they had equal involvement in operating the enterprise. It was submitted that this factual finding by the Judge was not challenged by the defendant.
It was contended that, although the defendant was sentenced for fewer offences than the other offenders, it was open to the Judge to impose the same head sentence on all three offenders. The principle of parity did not require different sentences to be imposed. It was argued that the greater the number of offences for which an offender is sentenced, the less significance the precise number of offences and their maximum penalty will have.
It was submitted that even if the Court took the view that different sentences should have been imposed because the defendant was charged with fewer offences, there is no basis for this Court to intervene. In utilising s 18A of the Criminal Law (Sentencing) Act 1988 (SA), the Judge could impose the same head sentence on all three offenders which properly reflected the criminal and moral culpability of each whilst taking into account the notion of totality.
It was submitted that the Judge imposed the same sentence on all three offenders and purported to “flatten out” the sentences of Mr Lawson and Mr Western to their benefit, rather than bringing the defendant’s “conduct up to their level”. The prosecution contended that the sentences imposed on Mr Lawson and Mr Western were arguably too lenient. The Court should not intervene in order to establish parity and thereby impose an unduly lenient sentence on the defendant. To do so, it was contended, would compound an arguable error that was made in relation to the other offenders.
Referring to the decision in R v Lagana,[6] the prosecution highlighted that an unjustifiable disparity enlivens a discretion, but not an obligation, to intervene.
[6] [2012] SASCFC 135 at [50]-[60] per White J.
Is the defendant’s sense of grievance justified?
In summary:
·the defendant pleaded guilty to six cannabis offences, five counts of trafficking and one count of trafficking in a large commercial quantity of cannabis;
·Mr Western pleaded guilty to nine cannabis offences, five counts of trafficking, three counts of trafficking in a large commercial quantity of cannabis and one count of cultivating; and
·Mr Lawson pleaded guilty to 11 cannabis offences, five counts of trafficking, three counts of trafficking in a large commercial quantity of cannabis and three counts of cultivating.
The defendant was charged with three counts less than Mr Western and five counts less than Mr Lawson. In particular, Mr Western and Mr Lawson were charged with two more counts of trafficking in a large commercial quantity than the defendant.
Having regard to the background to the defendant’s offending and the part he played in the syndicate, it is understandable that the Judge perceived there to be an injustice in the way the matters were charged and pleas accepted.
The Judge, in noting the prosecution submission that she should sentence the defendant and his co-offenders on the basis of an ongoing course of conduct, mentioned that the “longstanding common law principle still applies, namely, that I must only sentence a person for the offences charged and pleaded to”. However, the Judge appears to have determined that as, in her view, the prosecution had not dealt with the matters in a just manner, “the only fair way” for her to proceed was to deal with the defendant, Mr Western and Mr Lawson as if, “broadly speaking”, their involvement was similar and as if they “had all been charged with the same offending”.
The fact that the defendant was charged with fewer offences and Mr Western and Mr Lawson were charged with more counts of significant serious drug offending is suggestive that prima facie the defendant should have received a lower sentence, unless there is a basis for differentiation when the personal circumstances of each of the co-offenders are taken into account. However, the defendant was to be sentenced against a background of sophisticated, ongoing, prolific cannabis trafficking. The offending of the defendant, Mr Western and Mr Lawson demanded a severe sentence. In my view, the head sentence imposed on the defendant was not, in the circumstances of his offending, manifestly excessive.
Other than the defendant’s age, there is no discernible difference between his personal circumstances and that of Mr Western and Mr Lawson. The defendant has two convictions for minor offending committed in 1980 and 1997. Mr Western has four convictions and Mr Lawson has three convictions for minor offending all dealt with by the Magistrates Court. Mr Western’s and Mr Lawson’s last offences were committed in 2010.
There are no proper grounds to distinguish the defendant from Mr Western or Mr Lawson in relation to their prior criminal records or their personal circumstances. In my view there was no justification to set a non-parole period for the defendant higher than for Mr Lawson and Mr Western on the ground that the latter “are not only younger but have demonstrated better prospects of rehabilitation”.
In the circumstances, I am of the view that the sentencing Judge’s discretion miscarried with respect to the setting of the non-parole period.
I would allow the appeal.
Resentence
In resentencing, like the Judge, I would impose one penalty for all six offences using s 18A of the Criminal Law (Sentencing) Act 1988 (SA) of imprisonment for seven years and six months. I would set a non-parole period of three years and nine months, bearing in mind that the non-parole period is a minimum term of imprisonment to meet the punitive, protective and rehabilitative purposes of punishment.
The sentence would commence from 21 October 2013, the day bail was revoked by the Judge.
The orders I would make are:
1Allow the appeal.
2Maintain the head sentence of seven years and six months imprisonment.
3Set a non-parole period of three years and nine months.
4The head sentence and non-parole period commence from 21 October 2013, the date bail was revoked by the Judge.
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