R v Standley - [2016] SASCFC 141

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v STANDLEY
[2016] SASCFC 141
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Doyle)
21 December 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - PRODUCING OR CULTIVATING - CANNABIS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - OF EQUIPMENT AND IMPLEMENTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES
Appeal against sentence.
The defendant was sentenced by a Judge of the District Court to imprisonment for four years, two months and two weeks (reduced from six years on account of his plea) for trafficking in 5.7 kilograms of cannabis in February 2015 and imprisonment for six years (reduced from 10 years on account of his plea) for trafficking in 12.6 kilograms of cannabis in April 2015.
The appellant was sentenced to imprisonment for one year, two months and two weeks (reduced from two years on account of his plea) for cultivating more than the prescribed number of cannabis plants, having possession of prescribed equipment and diverting electricity in April 2015.
The defendant was sentenced to imprisonment for two months (reduced from three months on account of his plea) for driving a motor vehicle while disqualified in February 2015 and imprisonment for two and a half months (reduced from four months on account of his plea) for driving a motor vehicle while disqualified in April 2015.
The five sentences of imprisonment were made cumulative. The total of the sentences was 11 years, nine months and two weeks. The Judge fixed a non-parole period of six years.
The appellant appeals against the sentences on the ground that each head sentence is manifestly excessive and the non-parole period is manifestly excessive.
Held by Blue J (Kelly and Doyle JJ agreeing) (allowing the appeal):
1. A combined starting point of imprisonment for 16 years for the two trafficking counts was not proportionate to the total offending and the sentences for those two counts should be set aside (at [52]).
2. The sentence for the cultivation count is not manifestly excessive but the Judge erred in ordering that it be fully cumulative on the trafficking sentences (at [58]-[59]).
3. The sentences for the driving under disqualification counts are not manifestly excessive and the Judge did not err in ordering that they be fully cumulative (at [64], [66]). However, the sentence actually imposed for the second count of imprisonment for two and a half months is technically defective and should be adjusted to imprisonment for two months and two weeks (at [65]).
4. The appellant is resentenced to:
(a) imprisonment for eight years and eight months for the two trafficking counts and the cultivation-related counts, deemed to have commenced on 14 April 2015;
(b) imprisonment for two months and two weeks for the second driving under disqualification count, to be served cumulatively upon the sentence of imprisonment for two months for the first driving under disqualification count, which is to be served cumulatively upon the sentence of imprisonment for eight years and eight months; and
(c) a non-parole period is fixed of five years, deemed to have commenced on 14 April 2015 (at [72]-[75]).
Bail Act 1984 (SA) s 17; Controlled Substances Act 1984 (SA) s 32, s 33B, s 33K, s 33LA; Criminal Law (Sentencing) Act 1988 (SA) s 10B, s 10C, s 18A; Electricity Act 1996 (SA) s 85; Motor Vehicles Act 1959 (SA) s 91, s 135; Summary Offences Act 1953 (SA) s 74A, referred to.
Attorney-General v Tichy (1982) 30 SASR 84; Jarvis v R (1993) 20 WAR 201; Mill v R (1988) 166 CLR 59; R v Belczacki (2012) 112 SASR 95; R v Blain (1984) 115 LSJS 270; R v Copeland (No 2) (2010) 108 SASR 398; R v Donald; R v Pitt; R v Whitaker [2016] SASCFC 117; R v Faehrmann; R v Moore; R v Price-Austin (2014) 118 SASR 549; R v Hunt; R v Yates [2012] SASCFC 74; R v Mema [2011] SASCFC 56; R v Mustac (2013) 115 SASR 461; R v Stamos [2004] SASC 132, discussed.
AB v R (1999) 98 CLR 111; Dinsdale v R (2000) 202 CLR 321; R v Deng [2015] SASCFC 176; R v Simpson (2016) 125 SASR 352; R v Smoker [2016] SASCFC 114; R v Wakefield (2015) 121 SASR 569; Veen v R (1988) 164 CLR 465, considered.

R v STANDLEY
[2016] SASCFC 141
Court of Criminal Appeal: Kelly, Blue and Doyle JJ

KELLY J: I agree with Blue J.
BLUE J: This is an appeal against sentence.
The appellant, John Francis Standley, pleaded guilty to a series of offences committed between 21 February and 16 April 2015. A Judge of the District Court imposed the following sentences:
1offences committed on 21 February 2015:
(a)    trafficking in a commercial quantity of cannabis[1]: imprisonment for four years, two months and two weeks (reduced from six years on account of his plea) commencing on 14 April 2015;
(b)    driving a motor vehicle while disqualified[2]: imprisonment for two months (reduced from three months) cumulative upon the first sentence;
(c)    providing false details[3]: convicted without further penalty;
2offences committed on 16 April 2015 at Saddleworth:
(a)    trafficking in a large commercial quantity of cannabis[4]: imprisonment for six years (reduced from ten years) cumulative on the previous sentences;
(b)    driving a motor vehicle while disqualified[5]: imprisonment for two and a half months (reduced from four months) cumulative upon the previous sentences;
(c)    providing false details[6]: convicted without further penalty;
3offences committed on 16 April 2015 at Seacliff of cultivating more than the prescribed number of cannabis plants,[7] having possession of prescribed equipment[8] and diverting electricity[9]: a single sentence pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) of imprisonment for one year, two months and two weeks (reduced from two years on account of his plea) cumulative on the previous sentences;
4offences committed between 3 March and 7 April 2015 of four counts of contravening or failing to comply with a condition of bail[10] and furnishing false information[11]: convicted without further penalty.
[1] Controlled Substances Act 1984 (SA) s 32(2).
[2] Motor Vehicles Act 1959 (SA) s 91.
[3] Summary Offences Act 1953 (SA) s 74A(3)(b)(i).
[4] Controlled Substances Act 1984 (SA) s 32(1).
[5] Motor Vehicles Act 1959 (SA) s 91.
[6] Summary Offences Act 1953 (SA) s 74A(3)(b)(i).
[7] Controlled Substances Act 1984 (SA) s 33K(1)(b)
[8] Controlled Substances Act 1984 (SA) s 33LA.
[9] Electricity Act 1996 (SA) s 85(1)(a).
[10] Bail Act 1984 (SA) s 17.
[11] Motor Vehicles Act 1959 (SA) s 135.
The total of the sentences imposed was 11 years, nine months and two weeks.[12] The Judge fixed a non-parole period of six years.
[12] The Judge treated the sum of half a month and four weeks as being one month and two weeks.
The appellant appeals against the sentences of imprisonment on the grounds that each head sentence imposed is manifestly excessive and the non-parole period is manifestly excessive. The appellant’s principal contention is that the Judge erred by failing to give proper consideration to whether a degree of concurrency was appropriate or to consider the principle of totality.
Factual circumstances
On 17 February 2015, the police commenced telephone surveillance of the appellant’s mobile phones.
Between 17 and 21 February 2015, the appellant arranged on behalf of a principal P to purchase 13 pounds of cannabis for $36,000 from a supplier S. On 21 February 2015, the appellant collected $36,000 in cash from P, and then collected 5.7 kilograms (12½ pounds) of dried cannabis from S in return for payment of $33,000. The cannabis was intended for export by P to New South Wales, where it would have a mean wholesale value of approximately $50,000 (between $43,000 and $58,000). The appellant was to receive $200 per pound for his part in the operation. The prosecution accepted the characterisation of the appellant’s role as an intermediary during sentencing submissions and it was also accepted by the Director on appeal.
On 21 February 2015, the police stopped the appellant while driving on the Northern Expressway and found the cannabis. He was driving while disqualified from holding or obtaining a driver’s licence. He provided a false name and produced a driver’s licence in a false name, which the police confiscated.
On 21 February 2015, the appellant was arrested and spent two days in custody before being granted bail. It was a term of his bail agreement that he not travel interstate and that he report periodically to the Port Adelaide police station. He first appeared in the Magistrates Court in relation to the 21 February 2015 offending on 23 February 2015 and ultimately pleaded guilty on 13 May 2015.
On 3 March 2015, the appellant obtained from Service SA a replacement driver’s license in the same false name.
Between 20 and 23 March 2015, the appellant travelled interstate in contravention of his bail agreement. Between 29 March and 1 April and between 3 and 7 April 2015, he twice more travelled interstate in breach of his bail agreement.
On 16 April 2015, the police stopped the appellant at Saddleworth while driving on the Barrier Highway destined for Broken Hill. They found 12.6 kilograms of dried cannabis (28 pounds). The appellant was driving while disqualified from holding or obtaining a driver’s licence. He provided the same false name and produced the replacement driver’s licence in the false name.
The cannabis had a wholesale value in New South Wales of approximately $110,000 (between $92,000 and $126,000). The appellant undertook this trafficking to compensate P for loss of his cannabis on 21 February 2015 and in part for his own profit. The prosecution accepted this characterisation during sentencing submissions and it was also accepted by the Director on appeal.
The appellant was sentenced against the background that he was engaged in a course of conduct and the trafficking on 21 February and 16 April 2015 was not isolated.
On 16 April 2015, the police attended at the appellant’s house at Seacliff. They found in one room six semi-mature cannabis plants (one to 1.2 metres high) in pots being grown using hydroponic equipment comprising ten high-intensity light globes, light shades and transformers (light sets) and a carbon filter. They found in a second room six semi-mature cannabis plants in pots being grown using nine light sets and a carbon filter. There were also a total of 25 small plants in the pots. The appellant was diverting electricity without authority.
The appellant was arrested and remained in custody from 16 April 2015. He first appeared in the Magistrates Court on the 16 April 2015 offending on 13 May 2015, when he pleaded guilty to all of the charges.
The appellant was born in 1946. He left school at the age of 14 and qualified as a plasterer. He was employed and self-employed as a plasterer until the age of approximately 64, when he retired.
The appellant married his first wife in 1971 and divorced in 1982, and has three children aged between 46 and 42 from that marriage. He married his second wife in 1993 and divorced in 2002 and has two children aged 20 and 17 from that marriage. He married his third wife in 2011 and has a three-year-old son from that marriage. His third wife and their son returned to live in Cambodia following the appellant’s arrest.
The appellant has five previous convictions for dishonesty offences. In 1987, he was sentenced in the District Court to imprisonment for 11 years, with a non-parole period of seven years and six months, for 67 counts of receiving stolen cars. In 1993, he was sentenced in the Local Court in New South Wales to imprisonment for four years, with a non-parole period of three years, for two counts of obtaining money by deception and two counts of disposing of stolen property which involved taking rented cars and selling them. In 1996, he was sentenced in the Supreme Court to imprisonment for just under seven years and six months, with a non-parole period of five years, for armed robbery. In 2003, he was sentenced in the Magistrates Court to imprisonment for four years, with a non-parole period of two years, suspended on his entering into a bond to be of good behaviour for two years for two counts of larceny and two counts of assist an offender involving taking stolen cars to wrecking yards. In February 2014, he was sentenced in the Local Court in New South Wales to imprisonment for four months for unlawful possession and fined $780 for possessing a thing like a driver’s license with intent to deceive committed in April 2013.
In March 2013, the appellant was sentenced in the Magistrates Court for cultivating cannabis, possessing cannabis, possessing prescribed equipment and interference with electricity supply without authority committed in August 2012, being placed on a bond to be of good behaviour for 12 months.
The appellant has numerous previous convictions for traffic offences summarised below.
Sentencing remarks
The Judge summarised the circumstances of the offending and the appellant’s personal circumstances and referred to the fact that he was then 69 years old and in good health.
The Judge sentenced S and another supplier to P at the same time and also summarised the circumstances of their offending and their personal circumstances.
The Judge referred to the maximum penalties:
1for trafficking in a commercial quantity of a controlled drug being imprisonment for 25 years and/or a fine of $200,000;
2for trafficking in a large commercial quantity of a controlled drug being imprisonment for life and/or a fine of $500,000;
3for cultivating more than the prescribed number of cannabis plants being imprisonment for two years and/or a fine of $2,000;
4for possessing prescribed equipment being imprisonment for two years and/or a fine of $10,000;
5for diverting electricity without authority being imprisonment for two years and/or a fine of $20,000;
6for a subsequent offence of driving while disqualified being imprisonment for two years.
The Judge identified that the appellant was eligible for a maximum discount of 30 per cent in respect of the 21 February 2015 offences, 40 per cent in respect of the 16 April 2015 offences, and 30 per cent in respect of the other offending.
The Judge said:
I now turn to sentence. Trafficking in cannabis is very serious offending. Each of you were involved, albeit at different levels in a sophisticated and ongoing operation. You each had your own role to play in relation to it. The sentences that I must impose today for the offences involving cannabis must have a significant component that relates to specific and general deterrence. The Court of Criminal Appeal have been quite clear about the fact that commercial dealing in drugs will generally result in a term of imprisonment being imposed unless there is good reason, that term of imprisonment will have to be served.
…In relation to you Mr Standley, I have taken into account your age, your criminal history, your personal circumstances and the circumstances of the offending in determining your sentence.
The Judge then sentenced the appellant as summarised above, resulting in head sentences totalling 11 years, nine months and two weeks. In relation to the non-parole period, the Judge said:
In setting your non-parole period I have more scope to take into account your personal circumstances. I consider taking into account in particular your age, a lower than usual non-parole period is warranted. I set a non-parole period of six years.
Trafficking counts
Although the appellant contends that the starting points of imprisonment for six years and ten years respectively for the two trafficking counts are manifestly excessive, the thrust of his submissions is that, relying on the totality principle, the combined starting point of imprisonment for 16 years is manifestly excessive and the Judge erred by making the sentences wholly cumulative.[13]
[13] This submission is made in respect of all five custodial sentences but it is convenient initially to consider the two trafficking offences.
The Director accepts that the combined starting point is high but contends that it is not manifestly excessive and the Judge did not err by making the sentences wholly cumulative.
The appellant refers to several recent decisions of this Court on sentence appeals involving large quantities of cannabis in support of his contention that the combined starting point of imprisonment for 16 years is manifestly excessive. In R v Faehrmann,[14] this Court observed that there have been only relatively few occasions on which this Court has considered sentencing for trafficking in large quantities of cannabis.[15] This Court emphasised that there is no tariff for drug trafficking and determination of an appropriate sentence depends on the particular circumstances of the offending and the offender.[16] This Court observed that dismissal of an appeal or refusal of leave to appeal against sentence on the ground that it is manifestly excessive or manifestly inadequate is of limited assistance because it does not imply that the same sentence would have been imposed by the appeal court.[17]
[14] [2014] SASCFC 25, (2014) 118 SASR 549.
[15] At [48] per Kourakis CJ, Blue and Nicholson JJ.
[16] At [39] per Kourakis CJ, Blue and Nicholson JJ.
[17] At [39] per Kourakis CJ, Blue and Nicholson JJ.
In R v Stamos,[18] Stamos pleaded guilty to five counts of taking part in the wholesale sale of cannabis totalling approximately 100 kilograms over four months. He also pleaded guilty to three counts of taking part in the sale of 900 ecstasy tablets. On a Crown appeal, this Court adopted a starting point of imprisonment for 12 years for the combined cannabis and ecstasy offending (reduced to ten years on account of Stamos’ pleas). This Court observed that the sentence was towards the lower end of the range because it was a Crown appeal.[19] It is not possible to discern what component of the total sentence was attributable to the additional ecstasy charges but it must have been several years.
[18] [2004] SASC 132.
[19] At [16] per Gray and Sulan JJ (with whom Perry J agreed). This was in accordance with the principle referred to in Dinsdale v R[2000] HCA 54, (2000) 202 CLR 321. This was before the enactment in 2008 of section 340 of the Criminal Law Consolidation Act 1935 (SA) (see R v Abdulla [2011] SASCFC 20, (2011) 109 SASR 258 at [24]-[25] per Gray J and [64] per Vanstone J (with whom White J agreed).
In R v Mema,[20] Mema pleaded guilty to two counts of trafficking in a large commercial quantity of cannabis, his involvement being to package and load the cannabis for transport to New South Wales for wholesale sale. The first count involved 15 kilograms and the second count involved 7.3 kilograms of cannabis. The second offence was committed one month after the first offence, and after the men transporting the cannabis the subject of the first offence had been arrested en route to New South Wales. The sentencing Judge adopted a starting point of imprisonment for six and a half years (reduced to six years on account of Mema’s pleas). This Court dismissed Mema’s appeal on the ground of manifest excess, observing that “only by having regard to the appellant’s prior good character and limited role in the trafficking operation, could the judge have commenced at a starting point as low as six and a half years” and characterising the sentence as “a moderate sentence for offending of this nature”.[21]
[20] [2011] SASCFC 56.
[21] At [11] and [15] per Vanstone J (with whom Kourakis and Peek JJ agreed).

In R v Hunt; R v Yates,[22] Yates pleaded guilty to one count of trafficking in a large commercial quantity of cannabis and one count of trafficking in cocaine. Yates purchased 45 kilograms (99 pounds) of cannabis and arranged for it to be transported to New South Wales for wholesale sale. Yates was the principal and was sentenced against the background that this was part of a pre-existing course of conduct and that he intended to offend in the same manner on a weekly basis in the future. He was also found in possession of 215 grams of powder containing 158 grams of pure cocaine the subject of the cocaine trafficking count. The sentencing Judge adopted a starting point of imprisonment for 12 years (reduced to ten years on account of his pleas). It is not possible to discern what component of the total sentence was attributable to the additional cocaine charge but it must have been several years. This Court dismissed Yates’ appeal on the ground of manifest excess, observing that the overall sentence was “well within the sentencing discretion of the Judge”.[23]
[22] [2012] SASCFC 74.
[23] At [29] per Gray J (with whom David and Kelly JJ agreed).
In R v Mustac,[24] Mustac pleaded guilty to one count of trafficking in a large commercial quantity of cannabis totalling 20.9 kilograms. Mustac acquired a purpose-built trailer with a secret compartment, travelled from New South Wales to South Australia, sourced the cannabis, secreted it in the secret compartment and returned towards New South Wales for wholesale sale of the cannabis. He was sentenced on the basis that he was a “middleman” willingly participating in a major interstate cannabis trading enterprise. He was sentenced on the basis that this was his first drug offence since a previous conviction in 2007 for supplying a commercial quantity of cannabis, being 14.2 kilograms of cannabis. On a Crown appeal, this Court adopted a starting point of imprisonment for eight years (reduced to seven years and six months on account of Mustac’s plea).[25]
[24] [2013] SASCFC 21, (2013) 115 SASR 461.
[25] At [40] per Kourakis CJ (with whom Sulan and Stanley JJ agreed).
In R v Faehrmann; R v Moore; R v Price-Austin,[26] Faehrmann pleaded guilty to one count of trafficking in a large commercial quantity of cannabis (approximately 3.6 kilograms) and two counts of trafficking in cannabis over the course of two months. Moore pleaded guilty to one count of trafficking in a commercial quantity of cannabis (1.8 kilograms) and four counts of trafficking in cannabis over the course of two months. Faehrmann and Moore (together with a third man) were the principals in a cannabis trading operation which purchased cannabis in Adelaide and sold it to retailers and consumers at Mintabie, which served as the gateway to the APY Lands. The operation commenced before the first of the trafficking counts, extended over at least five months and generally involved the supply of four pounds of cannabis every fortnight. The offending was aggravated by the purpose of supply to disadvantaged peoples on the APY Lands. This Court allowed appeals by Faehrmann and Moore on the ground of manifest excess. On resentencing, this Court adopted a starting point for each of them of imprisonment for ten years (reduced to seven years and six months on account of their pleas).[27]
[26] (2014) 118 SASR 549.
[27] At [65], [70] per Kourakis CJ, Blue and Nicholson JJ.
In each of the above cases except Mustac where there was only one count, the sentencing Judge and (where applicable) this Court on resentencing utilised section 18A of the Sentencing Act to impose a single sentence of imprisonment. In the present case, because the two trafficking counts attracted different maximum potential discounts under section 10C of the Sentencing Act, the Judge was not able to impose a single sentence under section 18A without disclosing separate notional sentences and separate discounts used to calculate a single sentence.[28] Instead of imposing two separate sentences, after identifying separate notional sentences and discounts, the Judge could have utilised section 18A to adopt a combined starting point of imprisonment for 16 years and imposed a single sentence for the two trafficking offences of imprisonment for ten years, two months and two weeks (representing an average discount of approximately 36 per cent).
[28] R v Wakefield [2015] SASCFC 10 (2015) 121 SASR 569 at [38]-[39] per Blue J (with whom Kourakis CJ and Peek J agreed); R v Donald; R v Pitt; R v Whitaker [2016] SASCFC 117 at [31.5] per Lovell J (with whom Nicholson and Parker JJ agreed).
The cases of Mema and Yates are of limited assistance because this Court did not resentence them. The cases of Stamos, Mustac and Faehrmann/Moore cannot be directly compared with the present case because of differences in charges, role, duration of offending, background course of conduct, prior convictions and rehabilitation prospects. Without being comprehensive, in the present case, on the one hand the appellant was an intermediary like Mustac rather than a principal like Stamos and Faehrmann/Moore, and on the other hand the offending the subject of the second count was aggravated because the appellant was on bail for the offending the subject of the first count. Notwithstanding the inability to make any direct comparison, the sentences imposed by this Court in those cases strongly suggest that a combined starting point of imprisonment for 16 years for two counts of trafficking in 5.7 kilograms and 12.6 kilograms of cannabis is manifestly excessive. This in turn strongly suggests that either one or both of the individual sentences are manifestly excessive or they should have been reduced or made partially concurrent in accordance with the totality principle.
In the most recent case of R v Donald; R v Pitt; R v Whitaker,[29] Whitaker pleaded guilty to two counts of trafficking in a commercial quantity of cannabis (involving 1.36 kilograms each) and three counts of trafficking in cannabis (two counts involving 450 grams each and one count involving 28 grams), together with one count of trafficking in methylamphetamine (14 grams), in respect of which he was entitled to eligible to receive a maximum discount of 30 per cent. He pleaded guilty to four counts of trafficking in a commercial quantity of cannabis (three counts involving 1.36 kilograms and one count involving 1.81 kilograms) and nine counts of trafficking in cannabis (ranging from 14 grams to 900 grams), together with six counts of trafficking in methylamphetamine (28 grams each), in respect of which he was eligible to receive a maximum discount of ten per cent. This trafficking was part of a course of conduct extending over six months in which Whitaker purchased cannabis and methylamphetamine, and sold it to regular buyers in the Port Augusta, Port Pirie, and Whyalla region. The course of conduct involved a total of 16 kilograms of cannabis and 215 grams of methylamphetamine.
[29] [2016] SASCFC 117.
This Court allowed appeals by Whitaker and the other two appellants because of the manner in which the sentencing Judge structured and arrived at their sentences. On resentencing, this Court adopted a starting point for Whitaker of imprisonment for eight years (reduced to five years and eight months on account of his pleas) for the offending for which he was eligible to receive a maximum discount of 30 per cent, and imprisonment for 13 years (reduced to 11 years and nine months on account of his pleas) for the offending for which he was eligible to receive a maximum discount of ten per cent.[30] This Court allowed partial concurrency to arrive at a single sentence of imprisonment for 14 years utilising section 18A of the Sentencing Act. It is not possible to discern what component of the total sentence was attributable to the additional methylamphetamine charges but it must have been several years. The sentence imposed involved an implicit notional combined starting point of imprisonment for 17 years and 5 months for offending which included substantial trafficking in methylamphetamine as well as in cannabis. The offending was significantly more serious than in the present case due to the methylamphetamine trafficking and Whitaker’s role as a principal.
[30] At [94]-[95] per Lovell J (with whom Nicholson and Parker JJ agreed).
The appellant contends that, assuming that the individual sentences are not manifestly excessive, the Judge erred in not allowing a degree of concurrency. In very broad terms, there are potentially two fundamental rationales for ordering that sentences be made wholly or partially concurrent. The first rationale is the principle of double jeopardy in its application to sentencing (as opposed to conviction) pursuant to which a defendant is not to be punished twice for the same crime. Where there is an overlap between the elements of two offences committed by engaging in a single criminal activity, a sentence that would be appropriate for the second offence if it were committed independently should not be fully accumulated with a sentence that would be appropriate for the first offence if it were committed independently. For example, in R v Belczacki,[31] this Court held that partial concurrency was required in respect of an offence of serious criminal trespass with intent to steal, and an offence of stealing in the course of that trespass.[32] Peek J (with whom I agreed) said:
… there is a substantial overlap of the ingredients of the two charges. In most offences, the offender is punished for both the act and the intention with which the act was committed. This is certainly true of the offence of “serious criminal trespass” where the intent with which entry was made will often be more important than the mere fact of entry itself. Against that background, one notes that each charge of serious criminal trespass here consists of an action (“entry”) and an intention (to steal goods) while each charge of theft consists of an action (to steal goods) and an intention (again, to steal goods). The intention to steal goods is common to both charges and would ordinarily be punished under both charges. This being so, the danger of double punishment looms large.[33]
[31] [2012] SASCFC 4, (2012) 112 SASR 95.
[32] At [56]-[61] per Peek J (with whom Blue J agreed).
[33] At [60].
The first rationale has no application in the present case and can be put aside.
The second rationale is the principle that the punishment should be proportionate to the crime.[34] When a defendant is sentenced for a single crime, the sentence must be proportionate to the criminality (the principle of proportionality). When a defendant is sentenced for multiple crimes, the total sentence (if section 18A is utilised) or total of the sentences (if separate sentences are imposed) must be proportionate to the total criminality.[35] This is sometimes called the principle of totality,[36] which is a specific application of the principle of proportionality to the case of multiple offending. Application of the totality principle often results in a non-linear increase in the total sentence as total length of imprisonment increases. The principles of proportionality and totality have application together with the principle of double jeopardy in the situations referred to in [40] above. Leaving aside that situation, the principle of totality applies in various circumstances, of which two are the most common.
[34] Veen v R [No 2] (1988) 164 CLR 465 at 472-473 per Mason CJ, Brennan, Dawson and Toohey JJ, 485-486 per Wilson J, 490-491 per Deane J and 496 per Gaudron J; AB v R [1999] HCA 46, (1999) 198 CLR 111 at [121] per Hayne J; R v Smoker [2016] SASCFC 114 at [70] per Lovell and Hinton JJ.
[35] R v Knight (1981) 26 SASR 573 at 576 per Walters, Zelling and Williams JJ; Mill v The Queen (1988) 166 CLR 59 at 62-63 per Wilson, Deane, Dawson, Toohey and Gaudron JJ.
[36] Sometimes the “principle of totality” is used in the broader sense used here to refer to the application of the principle of proportionality in sentencing for multiple offending. Sometimes it is used in a narrower sense to refer to the late stage in the process of arriving at an appropriate sentence for multiple offending at which a final check is made to ensure that the total sentence or sentences is or are proportionate to the totality of the offending. The broader sense encompasses the narrower sense.
The first circumstance occurs when a defendant engages in a course of criminal conduct involving the repeated commission of multiple crimes of the same nature. In this circumstance, the total criminality will often be assessed differently to the sum of the criminality involved in each individual crime. Once a certain point is reached, the total sentence appropriate to the totality of the offending will be less than the sum of individual sentences that would have been imposed for isolated offences. If separate sentences are imposed, this can be achieved by ordering a measure of concurrency or by reducing the individual sentences. If a single sentence is imposed pursuant to section 18A, this can be achieved directly by fashioning the single sentence so that it is proportionate to the course of conduct as a whole. In R v Blain,[37] King CJ said:
… generally speaking it is desirable that the sentencing judge should impose for each of the crimes charged in the counts in the information a punishment which reflects the degree of criminality involved in the facts of that particular crime and that a punishment commensurate with the total course of conduct involved should be achieved by accumulating the sentences on the charges in the information to a sufficient degree to reach a total punishment which is the proper punishment for the course of conduct disclosed…[38]
[37] (1984) 115 LSJS 270.
[38] At 273.
The second circumstance occurs when merely accumulating individual sentences for individual crimes (whether related or unrelated) would result in a total sentence or sentences that is or are disproportionate to the total offending, having regard in particular to the defendant’s life expectancy. This applies particularly to heavy sentences. In Jarvis v R,[39] Ipp J said:
The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct…
What then is the explanation for the phenomenon that it is not unusual for an overall term of imprisonment to be reduced even though the individual sentences are proportionate to the gravity the particular crimes for which they were imposed? In my opinion the reason for such a reduction is that the severity of a term of imprisonment increases exponentially as it increases in length. Thus, for example, whereas a sentence of seven years may be appropriate for one set of crimes and a sentence of eight years may be appropriate for another set of crimes, a sentence of 15 years for both sets may be out of proportion to the degree of criminality involved, simply because of the additional severity brought about by the significantly longer period the defendant will be required to spend in prison.[40]
[39] (1993) 20 WAR 201.
[40] At 207. (Citations omitted)
In R v Copeland (No 2),[41] Kourakis J (as his Honour then was) said:
First, there is the consideration, which applies in all cases when sentences of imprisonment are made cumulative, that the deprivations of a sentence of a particular length will be suffered all the more deeply if it is served after the completion of one or more earlier terms...
Secondly, in my view, the length of imprisonment necessary to achieve specific and general deterrence in the case of sentences imposed for a single course of conduct will generally be less than the result of the multiplication, by the number of offences committed, of the sentence which would have been imposed for a single offence.
Thirdly, where the offences are committed within a very short space of time it may be that the limited time and capacity which the offender had to reflect on whether or not to commit the subsequent offences mitigates his or her moral culpability.[42]
[41] [2010] SASCFC 61, (2010) 108 SASR 398.
[42] At [103]-[105]. (Citations omitted)
There can of course be overlap between the circumstances in a case of a course of criminal conduct involving the repeated commission of serious multiple crimes of the same nature. The paradigm case of a course of criminal conduct is when a defendant carries on a business of drug trafficking in which the repetitive and variable nature of the business often results in a non-linear relationship between the number of offences and the total punishment proportionate to the total offending.
The principle of totality does not necessarily require a reduction in the total sentence or sentences or degree of concurrency between sentences when a defendant is sentenced for multiple offences. Whether and to what extent this is required depends on all of the circumstances, including in particular the length of the sentences proportionate to the individual offences. In Attorney-General v Tichy,[43] Wells J emphasised the need for a flexible approach in applying the totality principle in the following oft-cited passage:
It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. … a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. … Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty.[44]
[43] (1982) 30 SASR 84.
[44] At 92-93.
Although no hard and fast rules can be devised or applied, as a guide or rule of thumb, the greater the length of the total sentences imposed, the more likely it is that the principle of totality will require a reduction in the total of the sentences or a degree of concurrency between the sentences.
In Mill v The Queen,[45] the High Court articulated the totality principle in general terms. Wilson, Deane, Dawson, Toohey and Gaudron JJ said:
The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57, as follows (omitting references):
"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: … 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."
…Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.[46]
[45] (1988) 166 CLR 59.
[46] At 62-63.

When a court imposes separate sentences or identifies for the purpose of section 10B or 10C of the Sentencing Act separate notional sentences, and application of the principle of totality results in total sentences less than the sum of the individual sentences that would have been imposed for the individual offences, the court has a discretion whether to achieve this by making the individual sentences partially concurrent or reducing the individual sentences.[47]
[47] Mill v The Queen (1988) 166 CLR 59 at 62-63 per Wilson, Deane, Dawson, Toohey and Gaudron JJ in a passage cited in the previous paragraph; R v Smoker [2016] SASCFC 114 at [79] per Lovell and Hinton JJ.
When differential discounts for guilty pleas are to be given, it will often be preferable to make the adjustment by reduction rather than partial concurrency where this will ensure that the statutory discount in respect of each offence is fairly applied to the contribution that each sentence makes to the total of the sentences.
In the present case, a combined starting point of imprisonment for 16 years was not proportionate to the total offending. It follows that either the starting points of imprisonment for six years and ten years were excessive, or the individual sentences should have been reduced (or made partially concurrent) so that the combined starting point was proportionate to the total offending. The resultant sentences for the two trafficking counts were manifestly excessive. As the sentencing discretion miscarried, it is necessary for this Court to exercise that discretion afresh.
Cultivation counts
The appellant had set up two grow rooms in his house at Seacliff. There were six semi-mature cannabis plants, between one and 1.2 metres tall, in large pots in each room. The plants were supplied with light and heat by ten light sets and their odour captured by a carbon filter in one room, and supplied by nine light sets and their odour captured by a carbon filter in the other room. There was one spare light set in a third room. Each pot contained one or two small immature cannabis plants, of which there were 25 in total. The appellant was diverting electricity without authority.
During sentencing submissions, counsel for the appellant submitted that the 25 small plants just sprouted up, the light sets were only capable of supporting the large plants and the small plants were not of any worth as they were. He submitted that, although the appellant had pleaded on the basis that he had the 27 plants, really there were only 12. Surprisingly, the prosecutor took no issue with these submissions.
The appellant was charged with cultivation (section 33K of the Controlled Substances Act 1984 (SA)) rather than cultivation for sale (section 33B). The maximum penalty for the former is imprisonment for two years and/or a fine of $2,000; whereas the maximum penalty for the latter (less than a commercial quantity of plants) is imprisonment for ten years and/or a fine of $50,000. It was submitted to the Judge on behalf of the appellant that the appellant started to grow cannabis before he met P. Surprisingly, no submission was made by the prosecutor that the cultivation was part of the trafficking operation.
The maximum penalty by way of imprisonment for each of the counts of possessing prescribed equipment and diverting electricity without authority is also imprisonment for two years, resulting in a combined maximum penalty of six years if all three counts were the subject of cumulative maximum sentences.
The Judge, utilising section 18A of the Sentencing Act, adopted a starting point of imprisonment for two years for the three counts in combination.
The number of semi-mature cannabis plants coupled with the number of light sets rendered this offending a serious case of non-commercial cannabis cultivation. Given the number and wattage of the light globes, the diversion of electricity was a serious case of diverting electricity. The appellant was not entitled to leniency as a first offender because he had a previous conviction in 2013 for cannabis cultivation. In the circumstances, a starting point of imprisonment for two years, while high, was not manifestly excessive.
The Judge ordered that this sentence be fully cumulative on the trafficking sentences. Given the length of the trafficking sentences and the incremental effect of this additional sentence, the principle of totality required that this sentence be reduced (or made partially concurrent) so that the total of the sentences was proportionate to the totality of the offending.
Driving while disqualified counts
On 21 February 2015, the appellant drove a vehicle while disqualified from holding or obtaining a driver’s licence. On 16 April 2015, the appellant again drove a vehicle while disqualified from holding or obtaining a driver’s licence. This latter offence was aggravated because it was committed while the appellant was on bail for the former offence.
The maximum penalty for driving while disqualified is imprisonment for six months for a first offence and imprisonment for two years for a subsequent offence. The appellant had two prior convictions in South Australia for driving while disqualified. In January 2011, he was fined $200 for driving while disqualified in October 2010. In July 2011, he was sentenced to imprisonment for 28 days, suspended on his entering into a bond to be of good behaviour for 12 months, for driving while disqualified in November 2010.
The appellant also has two prior convictions in New South Wales for driving while disqualified. In September 2011, he was fined $600, entered into a bond to be of good behaviour for two years, and was disqualified from holding or obtaining a driver’s licence for two years, for driving while disqualified in October 2010. In February 2014, he was sentenced to imprisonment for three months for driving while disqualified in April 2013 and disqualified from holding or obtaining a driver’s licence for two years.
The appellant has six prior pairs of convictions for driving an uninsured and unregistered motor vehicle. In December 2003, he was fined $200 for driving an unregistered and uninsured motor vehicle in February 2003. In January 2006, he was fined $200 for driving an unregistered and uninsured motor vehicle in July 2005. In February 2006, he was fined $750 for driving an unregistered and uninsured motor vehicle in July 2005. In June 2006, he was fined $250 each for two counts of driving an unregistered and uninsured motor vehicle in February and May 2003. In June 2007, he was fined $150 for driving an unregistered and uninsured motor vehicle in March 2005. The defendant also has convictions for other driving offences, including six convictions for driving with excess blood alcohol and one conviction for driving at a dangerous speed.
The Judge adopted starting points of imprisonment for three months for the 21 February 2015 offence and imprisonment for four months for the 16 April 2015 offence. Given the appellant’s previous record, he was not entitled to leniency and there is no foundation for a conclusion that the two sentences for driving while disqualified were manifestly excessive.
However, the Judge reduced the second sentence by just under 40 per cent on account of the appellant’s guilty plea to imprisonment for two and a half months. This is uncertain in operation and technically defective. That sentence should be adjusted to imprisonment for two months and two weeks.[48]
[48] The Judge reduced the sentence for the first disqualification count by 33.3 per cent from three months to two months. This exceeded the maximum permissible discount of 30 per cent. This type of arithmetical error has been identified by this Court in previous appeals (see for example R v Simpson [2016] SASCFC 83, (2016) 125 SASR 352 at [13]-[14] per Blue, Nicholson and Doyle JJ; R v Deng [2015] SASCFC 176 at [47], [51]-[53] per Nicholson J (with whom Kelly J agreed)). However, as there is no application for permission to appeal by the Director, there is no basis to adjust that sentence upwards.
The Judge ordered that these two sentences be fully cumulative on the trafficking and cultivation-related sentences. Given the relatively short length of the drive while disqualified sentences and the very different nature of this offending compared to the trafficking and cultivation-related offending, the Judge did not err in making these sentences fully cumulative.
Resentencing
In respect of the two trafficking counts, it is relevant to take into account the quantity of cannabis involved (5.7 kilograms and 12.6 kilograms respectively); the fact that the cannabis was to be sold by wholesale; the appellant’s role as an intermediary in the cannabis operation conducted by P; the prospective financial return to the appellant; the fact that the appellant committed the second offence while on bail in respect of the first offence; the appellant’s previous conviction for cannabis cultivation and previous convictions more generally, and the appellant’s age and personal circumstances.
In respect of the cultivation-related offences, as observed above the appellant was charged with cultivation simpliciter, rather than cultivation for sale, and the prosecutor accepted that the appellant was to be sentenced on this basis. The prosecutor also accepted that the gravamen of the offending related to the cultivation of, and use of the prescribed equipment and diverted electricity for, the 12 large plants rather than the 25 small plants. If the appellant were being sentenced at first instance rather than resentenced on appeal, the objective circumstances called for these bases to be questioned. However, on appeal, the Director accepts that the appellant’s sentence for the cultivation-related offences is to be considered on these bases.
It is relevant to take into account the nature, scale and purpose of the cultivation operation; the fact that the scale of the operation entailed that substantial amounts and values of electricity were being diverted; the fact that the appellant committed the offences while on bail in respect of the 21 February 2015 cannabis trafficking offence; the appellant’s previous conviction for cultivation and prior convictions more generally, and the appellant’s age and personal circumstances.
There is no reason not to utilise section 18A of the Sentencing Act to impose a single sentence for the cannabis-related offending provided that separate notional individual sentences and discounts for the appellant’s guilty pleas are identified to the extent that different discounts will be applicable to different groups of offences.[49]
[49] R v Wakefield (2015) 121 SASR 569 at [38]-[39] per Blue J (with whom Kourakis CJ and Peek J agreed); R v Donald; R v Pitt; R v Whitaker [2016] SASCFC 117 at [31.5] per Lovell J (with whom Nicholson and Parker JJ agreed).
I would start with notional sentences of imprisonment for five years for the February 2015 trafficking and eight years for the April 2015 trafficking. I would utilise section 18A to start with a notional sentence of imprisonment for 18 months for the three April 2015 cultivation-related offences.
There is no reason not to allow the maximum discount of 30 per cent in respect of the February 2015 trafficking and 40 per cent in respect of the April 2015 trafficking and cultivation-related offences on account of the appellant’s guilty pleas. This results in notional head sentences of imprisonment for three years and six months for the February 2015 trafficking and imprisonment for five years, eight months and two weeks for the April 2015 trafficking and cultivation-related offending. Making a small allowance for totality, I would impose a single sentence pursuant to section 18A of the Sentencing Act of imprisonment for eight years and eight months.
In respect of the driving while disqualified offences, for the reasons given above, there is no reason to interfere with the Judge’s sentences other than to adjust the second sentence to imprisonment for two months and two weeks. These two offences involved quite different incursions into crime and, for the reasons given above, the sentences for these two offences ought to be cumulative on the sentence for the cannabis-related offences. This results in sentences for the driving while disqualified offences of imprisonment for two months (unchanged) and two months and two weeks respectively.
The total of the head sentences is nine years and two weeks. On a final review for totality, the total of the starting points and the total of the head sentences imposed after discounts are proportionate to the totality of the appellant’s offending.
Notwithstanding the appellant’s criminal history and, leaving aside his age, his apparent poor prospects of rehabilitation, in fixing a non-parole period it is important to take into account the fact that the appellant is now aged 70 and will be further advanced into his 70s when parole is to be considered. This last consideration was the reason that the Judge fixed a very low non-parole period as a proportion of the total head sentences given the objective circumstances other than the appellant’s age. In the circumstances, a non-parole period of five years should be fixed.
Conclusion
I would make the following orders:
1Appeal allowed.
2The sentences imposed by the Judge for trafficking in a commercial quantity of cannabis; trafficking in a large commercial quantity of cannabis; cultivating more than the prescribed number of cannabis plants; having possession of prescribed equipment; diverting electricity and driving a motor vehicle on 16 April 2015 while disqualified are set aside.
3The appellant is re-sentenced to:
(a) imprisonment for eight years and eight months pursuant to section 18A of the Sentencing Act for trafficking in a commercial quantity of cannabis; trafficking in a large commercial quantity of cannabis; cultivating more than the prescribed number of cannabis plants; having possession of prescribed equipment and diverting electricity, which sentence is deemed to have commenced on 14 April 2015;
(b) imprisonment for two months and two weeks for driving a motor vehicle on 16 April 2015 while disqualified, to be served cumulatively upon the sentence of imprisonment for two months for driving a motor vehicle on 21 February 2015, which latter sentence is to be served cumulatively upon the sentence in (a),
and a non-parole period is fixed of five years, which is deemed to have commenced on 14 April 2015.
DOYLE J: I agree with the reasons of Blue J, the orders he would make and the sentence he would impose.