R v Stamos, Williams, Stanton and Kapovic No. Sccrm-03-158, Sccrm-04-12, Sccrm-04-11, Sccrm-03-159 APL Appellant:

R v STAMOS, WILLIAMS, STANTON and KAPOVIC
[2004] SASC 132
Court of Criminal Appeal: Perry, Gray and Sulan JJ

PERRY J I agree in general with the joint reasons for judgment of Gray and Sulan JJ and with the orders which they propose in each case.
I add that I have entertained considerable hesitation as to the appropriateness of the order proposed with respect to Kapovic, given that he has been at large for some time after release on a suspended sentence.
I am satisfied that the decision of the sentencing judge to suspend his sentence was erroneous. Of course, neither that circumstance nor the fact that the term of imprisonment was manifestly inadequate would necessarily justify interference by this Court on an appeal by the Crown.
However, the seriousness of the offending was such, and the disparity between the sentence imposed and an appropriate punishment is so great, that it is proper to allow the appeal. It is necessary to do so in order to maintain appropriate standards of punishment for the offending.
In offences of this kind general deterrence is a major factor in the sentencing process. In cases where general deterrence is a dominant element in sentencing, this object will rarely be achieved by the imposition of a suspended sentence.
Bearing those considerations in mind, I have reached the conclusion that Kapovic should now be ordered to serve a custodial term of imprisonment.
I agree that in the particular circumstances, it would be reasonable to impose a non-parole period very much less than otherwise would be appropriate.
It follows that in the case of Kapovic, the suggested non-parole period should not be regarded as any sort of precedent.
GRAY AND SULAN JJ
Introduction
These are applications by the Director of Public Prosecutions for leave to appeal against sentences imposed by the District Court.
The respondents, Alex Stamos, Linda Anne Williams, Nicholas Stanton and Simon Kapovic were involved in drug offending. They pleaded guilty to a number of cannabis offences. Each offence carried a maximum term of imprisonment of 25 years. The offending involved a large sophisticated operation in which each respondent played a different role.
Cannabis was sourced from home growers in South Australia, packaged and then transported interstate for sale. The cannabis was analysed and assessed by middlemen to determine whether the material was of a satisfactory quality. Couriers were used to transport the cannabis interstate and then to return with the cash proceeds.
The enterprise came to an end when police raided a suburban home used as a safe house to store drugs. But for the police and National Crime Authority investigations, the criminal enterprise would have continued returning substantial financial gains to the participants. When the police searched the home, large quantities of cannabis were located, together with $100,000 cash.
Stamos was in charge of the commercial operation. Williams was involved as an organiser, she gave instructions to the middlemen, dealt with couriers and was in charge of the safe house. Stanton was a middleman playing a role in arranging the collection of the cannabis and addressing issues of quality control. Kapovic was an interstate courier
Stamos and Williams were also involved in dealing in ecstasy. They were selling to street dealers. They were wholesalers of the drug. Each of the ecstasy offences exposed Stamos and Williams to a maximum term of imprisonment of 25 years.
The principles applicable to appeals by the Director were summarised in R v Shepperbottom[1] where Doyle CJ (with whom the other members of the court agreed) observed:
The High Court has held that leave should be granted to the prosecution to appeal against sentence only in a “rare and exceptional case”: Everett v The Queen (1994) 181 CLR 295 at 299 - 300. The Court has affirmed remarks by Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 to the effect that an appeal should be allowed to be brought only
“to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.”
In other words, leave should not be granted to the Director simply for the purpose of correcting an error, even a clear error. Leave should be granted only when it is necessary to do so to establish a principle, or to ensure that adequate sentencing standards are maintained. It is not always necessary to correct an error to achieve this purpose.
This Court has consistently applied the principles stated by King CJ in R v Osenkowski (1982) 30 SASR 212 at 212 - 213. As King CJ said there, the purpose of a prosecution appeal is ‘to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience’.
[1] (2001) 212 LSJS 486 at 486
In determining the sentence in each case we have had regard to the approach stated in Dinsdale v The Queen[2] that an appellate court when allowing a Crown appeal against sentence should impose a sentence towards the lower end of the range of appropriate sentences for the offending.
[2] (2000) 202 CLR 321
Counsel for the Director submitted that the sentence imposed on each respondent was so manifestly inadequate that the sentence in itself amounted to an error of principle. The Court should, it was said, interfere and correct the error. In this way adequate sentencing standards would be maintained. Counsel for the Director contended that the sentencing judge had failed to recognise the seriousness of the offending of each of the respondents. It was said that they all had important roles in a large-scale commercial operation. The operation was several levels above street level. The court was sentencing those engaged in wholesale activities that are difficult to detect and prosecute.
Counsel for the Director further submitted that the judge had been misled. In the case of Williams and Kapovic information was placed before the sentencing judge without a disclosure that the author of the information was a de-registered psychologist.[3] The judge acted on the basis of this information understanding the author to be a professional psychologist providing information and opinions formed in that professional capacity. Evidence before this court established that the author had been de-registered and had been refused registration on several occasions.
[3] Counsel acting for Williams and Kapovic on appeal did not appear for them at the time of sentencing submissions.
Stamos
Stamos was arrested on 12 February 2001. He pleaded guilty to five counts of taking part in the sale of cannabis and three counts of taking part in the sale of ecstasy. He was granted bail on 13 February 2001.
The five counts of taking part in the sale of cannabis related to a course of conduct between October 2000 and February 2001. During this period Stamos organised the sale of more than 100 kilograms of cannabis.
The quantity of ecstasy involved in his offending was substantial. The three counts of ecstasy involved 900 ecstasy tablets each containing about 20 grams with a value of about $4,000. The ecstasy enterprise operated “above street level”. It was a wholesale operation. The offending was spread over a period of some months and only ceased as a result of the police raid.
Stamos’ operations were sophisticated. The judge took the view that Stamos was involved as a principal in both the cannabis and ecstasy enterprises. He was described as the driving force. The enterprises were extremely profitable. Stamos involved his brother Stanton to source cannabis from buyers. On discrete occasions Stamos used Kapovic, Williams’ brother, to transport cannabis interstate.
Stamos was 41 years old at the time that he was sentenced. His criminal antecedents included cannabis offences in 1983, 1989 and 1996 and an amphetamines offence in 1996. In respect of the 1996 offending Stamos received a suspended sentence of two months imprisonment.
Counsel for Stamos outlined his personal circumstances to the judge. A report from a psychiatrist was tendered and character evidence led. Stamos had developed an “appalling” gambling habit in 1986. This led to the loss of his businesses and bankruptcy in 1992. It was said that he then became involved in a successful coin operated massage chair business.
In April 2000 Stamos met Williams. She had an ecstasy and cocaine habit and was involved in the sale of drugs to maintain her habit. It was claimed that Stamos became involved in the sale of ecstasy tablets because of his association with Williams.
Stamos was sentenced on the basis that he was a “very major player” in the enterprise. His sole motivation was greed. The judge had regard to Stamos’ prior criminal history and personal antecedents, his pleas of guilty, his change of character and his recent marriage and expected child. The judge was invited to sentence Stamos on the basis that he had changed his lifestyle and had been rehabilitated. The judge noted that the evidence and material supported the suggested change of character. Pursuant to section 18A of the Criminal Law (Sentencing) Act1988 (SA) (“the Sentencing Act”), a sentence of five years’ imprisonment was imposed and non parole period of three years and six months fixed. Had it not been for the plea of guilty the judge would have imposed a head sentence of five years and nine months.
As earlier observed counsel for the Director submitted that the sentence imposed was manifestly inadequate. It was said that this court should intervene for the purpose of providing guidance to courts having the duty of sentencing and to maintain adequate standards of punishment.
As far as the cannabis offending was concerned each count involved more than ten kilograms of cannabis. As earlier indicated a total of more than 100 kilograms of cannabis were involved. The operation called for significant planning and sophisticated implementation. It was a large-scale commercial enterprise.
Counsel for Stamos acknowledged that he was the principal organiser and that his offending was serious. The conduct only ceased following a police raid. It was accepted that the sentence was lenient. However it was submitted that the sentence could not be said to be significantly inadequate such as to bring the administration of criminal justice into disrepute.
This submission should be rejected. If this sentence is permitted to stand, adequate sentencing standards for this level of offending will not be maintained. The expectation of the legislature in cases involving commercial quantities of prohibited substances is that sentences will be imposed that will deter persons from engaging in such criminal conduct. It is essential that adequate sentencing standards are maintained.[4]
[4] R v Mangelsdorf (1995-96) 66 SASR 60 at 65
The drug problem has been described as a very serious evil in our society. Those involved as organisers and wholesalers must expect substantial custodial sentences. Stamos’ offending was grave. He was the major organiser giving directions to others. He received significant profits from his illegal activities. General deterrence must be a significant consideration in offending of this magnitude. The sentence imposed was manifestly inadequate. It fell so far short of an appropriate sentence that the application for leave should be granted and the appeal allowed. The sentence imposed by the judge should be set aside.
For the purposes of re-sentencing it is to be accepted that Stamos was involved in an ecstasy enterprise conducted by Williams. This is the most favourable view that could be taken of the facts. In delivering the sentence we have imposed a sentence towards the lower end of the range for this offending.
Pursuant to section 18A of the Sentencing Act the one sentence should be imposed for all of Stamos’ offending. Although different drugs were involved, each individual offence attracts the same maximum penalty.
An appropriate minimum sentence for Stamos’ conduct is imprisonment for 12 years. Having regard to his pleas of guilty a reduction of two years should be made. They were not early pleas and as a result a sentence of ten years should be imposed and a non-parole period of six years fixed.
Regard has been had to the principle of totality.
Both the head sentence and non-parole period should be backdated to commence on 18 December 2003, the day on which Stamos was taken into custody.
Williams
Williams pleaded guilty to three counts of taking part in the sale of ecstasy, one count of possession of ecstasy for sale and three counts of taking part in the sale of cannabis. Each offence exposed Williams to a maximum term of imprisonment of 25 years.
The judge summarised Williams’ involvement in the offending in the following terms:
The four counts of taking part in the sale of ecstasy involve you arranging for the sale of ecstasy to contacts who would then sell it on the street. From the transcripts of summaries of telephone intercepts, it is clear that on these occasions you were in deep negotiations with people who you knew to supply them with ecstasy to be sold on the street.
The material before me indicates that this was a well organised lucrative commercial enterprise.
On the three counts of taking part in the sale of cannabis, on three separate occasions, over a period of about six weeks, you were deeply involved in the transport of a great deal of cannabis. Each count to which you pleaded guilty relates to cannabis in excess of 10 kilograms. You were part of co-ordinating the transport of that cannabis through your brother.
I’m told you also rented a safehouse at Burnside which was used by the syndicate as the safehouse for bringing and loading the cannabis.
…
It is put to me that although this was a fairly large commercial enterprise you yourself wee (sic) not going to benefit economically in a direct sense. However, what you did was obviously to feed your lifestyle with Mr Stamos and what makes these offences so serious, especially in relation to the ecstasy counts, is that you were in the organization at a fairly high level. Unlike many people who come before me you were not dealing on the streets to feed your habit but you were part of a commercial enterprise several levels above those unfortunate people.
Counsel for Williams outlined her background to the judge. She had no relevant criminal antecedents. Williams had an unexceptional upbringing. She married in the early 90s and separated in 1999. Some time later she met Stamos who introduced her to the recreational use of cocaine. He then drew her into his drug activities. She was aged 29 years. Since being released on bail she had returned to Melbourne and been in employment, before she was sentenced to imprisonment.
The judge proceeded to sentence Williams on the basis that she was rehabilitated. He was confident that Williams would not offend again:
In my view, despite those very important factors personal to yourself the seriousness of this course of conduct is so great that a suspension is not appropriate. However, all those matters raised by your counsel and the evidence heard on your behalf and the many references that have been tendered to me will be taken into account in setting your non parole period.
Importantly I take into account that you are effectively rehabilitated and have got on with your life and you have now got nothing to do with the scene that led you into this evil mess that you got yourself into.
The judge imposed one sentence pursuant to section 18A of the Sentencing Act. A reduction of one year was made on account of the early pleas of guilty. The judge imposed a sentence of three years imprisonment. He fixed a non parole period of 12 months.
During sentencing submissions counsel for Williams tendered a psychological report from Timothy Watson-Munro and called evidence to supplement the report.
Counsel for Williams was aware that Watson-Munro was de-registered at the time that he was presented as an independent expert witness to the court. In August 1999 Watson-Munro pleaded guilty in the Melbourne Magistrates Court to using and possessing cocaine, a prohibited drug. He received a bond. In December 1999 Watson-Munro had been found guilty of professional misconduct relating to a personal relationship with a client. The Board reprimanded him. In 2000 the Psychologists Registration Board of Victoria determined that Watson-Munro was not a person of good character. The Board declined to renew his registration.
In December 2002 the Board refused to register Watson-Munro as a psychologist. The Board concluded that he had deceived the Board twice within the last four years. It considered that:
given the established flaws in Mr Watson-Munro’s character, it is too soon for the Board to have sufficient confidence in his protestations to conclude that his character is such that it would be in the public interest to allow him to resume registered practice as a psychologist.
In his report relating to Williams, Watson-Munro disclosed previous cocaine use. However he did not inform the judge that he had been de-registered or the reason why he had been refused registration when he applied to be registered.
Neither counsel representing the Director of Public Prosecutions, nor the sentencing judge, were informed of Watson-Munro’s de-registered status. The judge was misled about the true position of Watson-Munro when the report was tendered and later when he was presented to give expert psychological evidence. The fact that Watson-Munro had been de-registered and the reasons for his de-registration were material matters for consideration by the judge.
In an adversarial system, in order for courts to function effectively and efficiently, and in order that there be a fair trial, there is an obligation on the prosecution to disclose material matters. There are stringent obligations upon the prosecution to make full disclosure to the defence of all material which may be relevant, not only to the prosecution case, but which may assist the defence.
The defence is not required to make disclosure of material it has obtained, or of which it may be aware. However, this is subject to counsel’s overriding obligation to ensure that the court is not misled. In the case of a plea of guilty, counsel for a defendant has a duty to ensure that the court is not misled when making submissions in mitigation. A court may be misled by the provision of false or inaccurate information. A court may also be misled by the failure to disclose material information. It is not to the point to say that the prosecution can challenge material put before the judge and to suggest, therefore, there is simply no obligation upon a defence counsel to disclose material information.
During the course of a plea in mitigation, counsel may place before the court material without formal proof[5]. The material may include written character references, written material from an employer or prospective employer, and other relevant material. This material is frequently provided at the time that counsel is making submissions. The prosecutor may only be shown the material at the time that counsel delivers it to the judge.
[5] Criminal Law (Sentencing) Act 1988 (SA), s 6
The business of the courts would become unworkable if prosecutors insisted on strict proof of material placed before a sentencing judge. The system would “grind to a halt”. There would be the spectre of constant delays and adjournments. In many cases evidence would need to be called. The cost to both the defence and prosecution would escalate.

To minimise these problems the commendable practice has developed that, unless there is a dispute, the requirements of proof are waived and information is placed before the judge. The accuracy of that material is accepted on its face.
In the case of psychiatric, psychological and other medical evidence, reports are frequently tendered by consent. Qualifications or expertise of an expert are often assumed or accepted. Opinions expressed in the reports are generally not challenged. The judge is urged to give weight to the material and, in many cases, judges act upon it. At times an expert is known to the court, but there are many instances when an expert is not known. This is often so in the case of an interstate expert. To suggest that it is the prosecutor’s responsibility in those circumstances to check the qualifications of the expert and, to ensure that an expert is what he or she appears to be, would place an unnecessary obligation on prosecutors and would result in delays and added expense.
If a defendant wishes to rely upon a report or other evidentiary material, whether from an expert or a lay witness, defence counsel has a clear obligation to advise the court of any material fact which may be relevant to the weight to be given to the report or other material, including the qualifications or standing of its author.
The fact of de-registration was a material matter relevant to the judge’s assessment of Watson-Munro and the weight if any to be given to his opinion. As earlier observed counsel, who relied on Watson-Munro’s report and evidence, was aware of his de-registered status and failed to inform the judge. It is not to the point for counsel to say, as has been asserted in an affidavit placed before this court, that the fact of Watson-Munro’s de-registration was well known as there had been “enormous” publicity surrounding his various matters.
Even if a fact were to be well known, counsel is not relieved of the obligation to formally advise the court of the position. There is always the danger that the court may not be aware of the facts, particularly if those facts relate to events in another jurisdiction. Similarly, the court may have imperfect knowledge of a matter. This may lead to the drawing of conclusions about a witness, including an expert witness, which are unjustified.
The court can only rely on material placed before it. The suggestion by counsel that Watson-Munro’s de-registered status was well known demonstrates counsel’s misunderstanding of his obligations to the court.
As it turned out, the prosecutor was not aware of Watson-Munro’s status, nor is there anything to suggest that the judge was aware of it.
The obligations upon counsel who appear in courts are to ensure that judges act upon accurate information. As earlier indicated, the system would “grind to a halt” if courts were unable to trust those who appear before them to make known relevant information about material upon which the court is asked to rely.
It is to be accepted that from time to time counsel may be misled and, therefore, the court may be misled. However, those occasions should be rare if counsel and solicitors are aware of their obligations and discharge them conscientiously.
If opinions of an expert are to be relied upon, it is incumbent upon those calling that evidence to ensure that the expert is properly qualified. This is particularly so when opposing counsel is asked to waive strict compliance with the rules of evidence and agree to the material being placed before the court in a less formal way.
When sentencing Williams the judge made specific reference to the evidence of Watson-Munro:
Your counsel has provided me with a numerous number of character references which I have read very carefully. I have had the benefit of a psychological report from Mr Alan Fugler and another psychological report from Professor Tim Watson-Munro. I also heard Professor Watson-Munro give evidence orally.
…
In my view, despite those very important factors personal to yourself the seriousness of this course of conduct is so great that a suspension is not appropriate. However, all those matters raised by your counsel and the evidence heard on your behalf and the many references that have been tendered to me will be taken into account in setting your non parole period.
The judge was influenced favourably towards Williams by Watson-Munro’s opinions. It was inappropriate that the judge should have been so influenced.
The judge exercised his sentencing discretion having regard to potentially unreliable material and under a serious misapprehension about the level of independent professional assistance provided by Watson-Munro.
Williams’ offending was serious. Those involved as wholesalers must expect lengthy custodial sentences. Williams was such a wholesaler who conducted her criminal activities over a six month period.
The sentence imposed of three years’ imprisonment was manifestly inadequate and failed to maintain proper sentencing standards. The Director should be granted leave to appeal. The appeal should be allowed. The sentence imposed by the judge should be set aside.
It is to be observed that Williams had no relevant criminal antecedents. The judge sentenced Williams on the basis that she was fully rehabilitated. This view was too favourable. Two psychological reports before the court both contained the opinions that Williams was in need of ongoing treatment to assist her continuing rehabilitation. However, there is no doubt that she had taken steps to rehabilitate herself. Her efforts in this respect are important and allow the court to fix a shorter than usual non parole period. The sentence we impose is at the lower end of the scale for Williams’ offending.
It is appropriate to fix the one sentence of seven years and six months imprisonment for all Williams’ offending. This sentence is arrived at having made a reduction of two years and six months on account of Williams’ pleas of guilty. Regard has been had to the principle of totality.
A non parole period of three years and six months should be fixed. The sentence and non parole period should be backdated to commence on 12 June 2003, the day on which Williams was taken into custody.
Stanton
Nicholas Stanton pleaded guilty to five counts of taking part in the sale of cannabis. Each offence involved more than 10 kilograms of cannabis.
Stanton became involved in the enterprise following an invitation from Stamos. It is not disputed that Stanton was motivated by financial greed. His involvement occurred over a six week period during January and February 2001. He acted as a middleman in the organisation between the growers and the purchasers. He was involved in the collection of cannabis and its on-selling interstate. He would contact growers and arrange for the purchase of cannabis. At times he would weigh the cannabis and be involved in packaging the cannabis in bags ready for transport interstate. The total weight of cannabis involved in the five offences exceeded 70 kilograms.
Stanton at the time was aged 46 years. He was married but separated. He has two sons by that marriage. Stanton had no relevant criminal antecedents. He was treated by the judge as a first offender. Psychological evidence placed before the judge suggested that Stanton was rehabilitated and unlikely to offend in the future.
Stamos was the younger brother of Stanton. Stanton had cared for Stamos during his formative years. As a result it was said that Stanton felt pressured to join the enterprise. He was vulnerable to the entreaties of his brother. These circumstances may provide some explanation for his conduct but they do not provide an excuse.
Information before the court disclosed that Stanton suffered from rheumatoid arthritis and depression. His depression appears to have been exacerbated by his being placed in a position where he was exposed to double jeopardy.
The judge imposed one sentence pursuant to section 18A of the Sentencing Act of three years and six months imprisonment. He fixed a non parole period of two years. A head sentence of four years and six months would have been imposed but for the pleas of guilty.
Counsel for the Director accepted that Stanton had become involved in the business at the request of his brother Stamos. It was also accepted that Stanton would act at Stamos’ direction.
Stanton took part in a sophisticated commercial criminal activity. He played an important role at a level of seniority within the organization. The role of such a person as Stanton in the operation was critical to its success.
The sentence imposed by the judge was manifestly inadequate. Stanton’s conduct called for a substantially greater sentence. General deterrence is of particular significance. The minimum starting point should have been a sentence of eight years imprisonment. A reduction of two years on account of Stanton’s early pleas of guilty is appropriate. Regard has been had to the principle of totality.
As a result a head sentence of six years should be imposed. In the circumstances a non parole of three years should be fixed.
Counsel for Stanton submitted that such a sentence would lack parity with the sentence imposed on another offender John Athanassopoulous who offended in a similar manner to Stanton.
The judge sentenced Athanassopoulous to three years imprisonment and fixed a non parole period of 18 months. There has been no application for leave to appeal by the Director against this sentence. Counsel made a detailed comparison of the circumstances of the two offenders and suggested that parity required that they be treated equally.
The judge saw reason to differentiate between the two offenders. Stanton’s offending took place over a longer period and involved a substantially greater weight of cannabis. He also pleaded guilty to five offences whereas Athanassopoulous was convicted of three.
The judge was correct to differentiate between the two offenders. An analysis of the involvement of Stanton in the enterprise discloses the more significant role he played.
For these reasons the Director should be granted leave to appeal. This appeal should be allowed. The sentence imposed by the judge should be set aside. Stanton should be imprisoned for a period of six years. A non parole period of three years should be fixed. The sentence should be backdated to commence on 18 December 2003, the date on which Stanton was taken into custody.
Kapovic
Kapovic pleaded guilty to four counts of taking part in the sale of cannabis. On four separate occasions he transported cannabis interstate. He returned with cash proceeds for Stamos. Kapovic used his own vehicle for the transportation.
In all Kapovic transported more than 60 kilograms of cannabis. He received a financial benefit of $12,000. Each offence involved cannabis of a weight of more than 10 kilograms. Kapovic was a first offender and otherwise of good character. He was aged 31 years.
The judge imposed a term of imprisonment of two years and six months and set a non parole period of 18 months. But for Kapovic’s pleas of guilty a head sentence of three years and six months would have been imposed.
A report from Watson-Munro was placed before the sentencing judge. The circumstances of the tender of this report are subject to the earlier criticism identified when addressing the tender of the Watson-Munro report and evidence concerning Williams. The earlier remarks about the inappropriateness of the tender apply to the tender in the case of Kapovic.
It is clear from the sentencing remarks that the judge when dealing with Kapovic was influenced by Watson-Munro’s opinion. It follows that the judge had regard to potentially unreliable material when sentencing and for this reason it is necessary for this court to reconsider the sentence imposed.
At the time of sentencing the judge also had a psychological report from a properly qualified psychologist. On appeal a further report from a qualified psychologist was received.
These two reports allow the conclusion that Kapovic is contrite, has a clear understanding of the inappropriateness of his conduct and “has learnt his lesson”. There is no need for further punishment to provide personal deterrence. Kapovic is unlikely to offend again.
The issue raised by the Director was whether the offending was so serious that the principles of general deterrence call for a lengthier term of imprisonment and whether suspension of the sentence has led to the imposition of a manifestly inadequate sentence.
In R v Morton[6] Olsson J made observations that remain apposite:
It is stating the obvious that the drug courier is also an important link in the overall chain of drug dealing, without which an effective system of distribution could not be maintained … The plain fact is that, given the inherent seriousness of offences of this type and the difficulties of detection involved, this Court has stressed on numerous occasions that the element of deterrence must stand paramount; and that there are very real limits to which even strong mitigating personal features can be given recognition in the sentencing process.
[6] (1987) 136 LSJS 182 at 189-190
Kapovic’s criminal conduct was serious. On four separate occasions he transported substantial quantities of cannabis interstate. He carefully concealed the cannabis in his vehicle. He returned with substantial cash. He played an important and ongoing role. Each offence exposed him to a maximum term of 25 years imprisonment. The sentence of two years and six months imprisonment was manifestly inadequate. The sentence must be set aside.
Kapovic’s offending called for a minimum sentence for all offences of imprisonment of five years to be imposed pursuant to section 18A of the Sentencing Act. A reduction of 25% was appropriate on account of his early pleas of guilty. This results in a head sentence of three years and nine months. Regard has been had to the principle of totality. In the ordinary course a non parole period of one year and six months should be fixed.
The observations in Morton also suggest that than an immediate custodial term should be imposed.
Section 11 of the Sentencing Act renders imprisonment a sentence of last resort.[7] Once a court has decided to impose a term of imprisonment a discretion to suspend the sentence is provided by section 38 of the Sentencing Act. That discretion is only circumscribed by the need for the court to consider that good reason exists for doing so. Otherwise the discretion is unfettered.[8]
[7] 11. (1) A sentence of imprisonment may only be imposed—
[8] 38. (1) Where a court has imposed a sentence of imprisonment upon 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 suspended sentence is a very real punishment. Notwithstanding suspension an order for imprisonment remains with all the consequences of such an order on a defendant’s record and future. The remarks of Bray CJ in Elliot v Harris (No 2)[9] are apposite:
So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant’s record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency. A liability over a period of years to serve an automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, no matter how slight, can hardly be described as no punishment.
[9] (1976) 13 SASR 516 – see also Wood v Samuels (1974) 8 SASR 465 at (468-469)
In R v Mangelsdorf[10] Doyle CJ observed:
This Court has established standards for the punishment of crimes of the type dealt with by the judges in the cases the subject of the present application. The court has referred time and again to the severe penalties imposed by s 32 of the Controlled Substances Act, in particular to the severe penalties imposed for commercial activity in relation to the drugs dealt with by s 32; and to the evident expectation of Parliament that the courts will impose penalties which will deter people from engaging in commercial activity with respect to these drugs. The court has also made it clear that a suspended sentence will be justified only in truly exceptional circumstances when the offence is one involving, or committed against, a background of involvement in commercial trading or dealing in the drugs dealt with by s 32.
[10] (1995) 66 SASR 60 at 63 see also R v Harris (2001) 122 A Crim R 241, R v Cristol [2002] SASC 288
A literal reading of these remarks suggests that in other than the exceptional case an offender involved in commercial trading or dealing in drugs dealt with by section 32 of the Controlled Substances Act1984 (SA) can expect to receive an immediate custodial term. However in R v Gjoka[11], Doyle CJ (with whom Olsson and Lander JJ agreed) noted that despite the remarks in Mangelsdorf the discretion to suspend a sentence is a statutory discretion to be exercised in accordance with the statutory criterion:
...it is appropriate for this Court in particular cases to determine, as it did in Mangelsdorf, that the nature or gravity of an offence is such that suspension will not be appropriate unless exceptional circumstances are present. To do so is not to displace the statutory criterion. It is to do no more than to indicate that because the statutory criterion has to be applied in the light of the circumstances of the case, the seriousness of a certain type of offence and the appropriate approach to punishment for that offence may combine to mean that it will be very difficult to justify suspension.
[11] S6211 1 July 1997 CCA
There are examples of couriers of drugs having leniency extended through the suspension of custodial sentences. A recent example is the decision of this court in R v Kane[12] where the relative youth of the offender, the isolated nature of the offending and the fact that rehabilitation had occurred allowed a custodial sentence to be suspended. However at the time of re-sentencing on appeal the offender had been in custody for 12 months.
[12] [2003] SASC 237 at [19-22] – but see R v Harris (2001) 122 A Crim R 241
This is not the case of a youthful offender addicted to drugs acting as a courier on an isolated occasion. Kapovic was a mature adult engaged in ongoing serious offending purely for commercial reasons. He transported large quantities of cannabis for sale interstate. He effected the sales and returned to South Australia with the substantial proceeds of sale. He then delivered those proceeds to Stamos. He used his own vehicle in which he concealed the cannabis. He was paid a substantial sum in the order of $12,000 for his criminal conduct.
The gravity of Kapovic’s conduct and the need for general deterrence require that he serve an immediate term of imprisonment. As earlier observed in the ordinary course a non parole period of one year and six months would have been appropriate. However in this case a more lenient approach should be taken. Kapovic has been at liberty for almost twelve months, as a result of the suspended sentence imposed by the judge. Kapovic has been rehabilitated and has been subject to the risk of double jeopardy. In these circumstances it would be appropriate to fix a non parole period of nine months.
Conclusion
The applications for leave to appeal should be granted and the appeals allowed. The following orders should be made:
-in respect of Stamos, the sentence imposed by the District Court should be set aside. Stamos should be re-sentenced to a term of imprisonment of 10 years. A non parole period of six years should be fixed. The head sentence and non parole period should be backdated to commence on 18 December 2003.
-in respect of Williams, the sentence imposed by the District Court should be set aside. Williams should be re-sentenced to a term of imprisonment of seven years and six months. A non parole period of three years and six months should be fixed. The head sentence and the non parole period should be backdated to commence on 12 June 2003.
-in respect of Stanton, the sentence imposed by the District Court should be set aside. Stanton should be re-sentenced to a term of imprisonment of six years. A non parole period of three years should be fixed. The head sentence and the non parole period should be backdated to commence on 18 December 2003.
-in respect of Kapovic, the sentence imposed by the District Court should be set aside. Kapovic should be re-sentenced to a term of imprisonment of three years and nine months. A non parole period of nine months should be fixed. Kapovic should be required to surrender forthwith. The sentence and non parole period should take effect on his surrender.

JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1 (2001) SASC 31
2 (2000) 202 CLR 321
3     R v Mangelsdorf (1995) 66 SASR 60 at 65
4     Dinsdale v The Queen (2000) 202 CLR 321
5     The Sentencing Act, section 6
6 (1987) 136 LSJS 182 at 189-190
7     11. (1) A sentence of imprisonment may only be imposed—
         (a)     if, in the opinion of the court—
(i)     the defendant has shown a tendency to violence towards other persons; or
(ii)    the defendant is likely to commit a serious offence if allowed to go at large; or
(iii)   the defendant has previously been convicted of an offence punishable by imprisonment; or
(iv)   any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or
(b)if a sentence of imprisonment is necessary to give proper effect to the primary policy stated in section 10(2).
…
8 38. (1) Where a court has imposed a sentence of imprisonment upon 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.
See Dinsdale v R (2002) 202 CLR 321 as per Kirby J at 344-348, R v Wacyk (1995-1996) 66 SASR 530 at 535
9(1976) 13 SASR 516 – see also Wood v Samuels (1974) 8 SASR 465 at (468-469)
10(1995) 66 SASR 60 at 63 see also R v Harris (2001) 122 A Crim R 241, R v Cristol [2002] SASC 288
11 S6211 1 July 1997 CCA
12 [2003] SASC 237 at [19-22] – but see also R v Harris (2001) 122 A Crim R 241

(a) if, in the opinion of the court—

(i) the defendant has shown a tendency to violence towards other persons; or

(ii) the defendant is likely to commit a serious offence if allowed to go at large; or

(iii) the defendant has previously been convicted of an offence punishable by imprisonment; or

(iv) any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or

(b)if a sentence of imprisonment is necessary to give proper effect to the primary policy stated in section 10(2).

…

(a) to be of good behaviour; and
(b) to comply with the other conditions (if any) of the bond.
See Dinsdale v R (2002) 202 CLR 321 as per Kirby J at 344-348, R v Wacyk (1995-1996) 66 SASR 530 at 535

[2004] SASC 132

13 May 2004