R v Strauss

[2015] SASCFC 192

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v STRAUSS

[2015] SASCFC 192

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Nicholson)

17 December 2015

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PRODUCTION OR CULTIVATION

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - OF EQUIPMENT AND IMPLEMENTS

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - JUDGE ACTED ON WRONG PRINCIPLE

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

This is an appeal against sentence.

The appellant pleaded guilty to trafficking in a large commercial quantity, cultivating a commercial quantity, possessing prescribed equipment, diverting electricity and possession of a prescription drug without a lawful prescription. The latter three offences were originally before the Magistrates Court, but were brought up to the District Court on the appellant’s application. A single sentence was imposed being imprisonment for seven years and six months with a non-parole period of five years.

The appellant appeals firstly on the ground that the sentencing Judge erred in the appropriate reduction to be made on account of the guilty pleas, and secondly seeks permission to appeal on the ground that the sentence is manifestly excessive.

Held, dismissing the appeal and refusing permission to appeal (Sulan and Nicholson JJ, Kouarkis CJ concurring):

1. The Judge erred in failing to provide sufficient reasons for the discount applied to the Magistrates Court offences, however this Court is satisfied that the Judge was entitled to limit the discount. The appeal should not be allowed simply on the basis that the precise discount was not identified.

2. The sentence was well within the appropriate range for this offending.

3. The appeal is dismissed in respect of the first ground of appeal, and permission to appeal on the second ground of appeal is refused.

Criminal Law (Sentencing) Act 1988 (SA) s 9, s 10B, s 10B(4), s 10C, s 10C(2)(f), s 10C(4), s 18A; Controlled Substances Act 1984 (SA) s 19(3), s 32(1), s 33B(2), s 33LA; Electricity Act 1996 (SA) s 85(1)(a), referred to.
R v Wakefield (2015) 121 SASR 569, applied.
R v McPhee [2014] SASCFC 107; R v Nguyen [2015] SASCFC 40; R v Copeland (No 2) (2010) 108 SASR 398; R v Dwyer [2015] SASCFC 12; R v Stavreas [2015] SASCFC 68; R v Niesen [2015] SASCFC 165, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED

"sentencing discount, sentence reduction, sentencing procedure, sentence discount procedure"

R v STRAUSS
[2015] SASCFC 192

Full Court:  Kourakis CJ, Sulan and Nicholson JJ

1. KOURAKIS CJ:   I would dismiss the appeal on the first ground and refuse permission on the second for the reasons given by Sulan and Nicholson JJ, supplemented by the following three observations.

2. First, I indicate that, if I had been called upon to resentence, I would have imposed a single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) of seven years and six months with a non‑parole period of five years on the basis that I would have imposed concurrent sentences, for the same terms, on the convictions for trafficking in a large commercial quantity of cannabis and cultivating a commercial quantity of cannabis and concurrent sentences of 14 weeks on the prescribed equipment and diverting electricity convictions. I would have imposed a concurrent sentence of seven days on the conviction for unlawful possession of a prescription drug.

3. Secondly, I would emphasise the importance of paying close attention to the implications which s 10B and s 10C of the Sentencing Act have for sentencing practice. Those sections mandate a staged sentencing process and require some mathematical precision to ensure that a defendant receives a reduction which properly reflects the considerations enumerated in subsection (4) of each of those provisions and no more than the maximum allowable percentage. In addition, s 9 of the Sentencing Act requires Judges to give reasons for any reduction in sentence. Fidelity to those statutory provisions requires Judges to modify any jurisprudential attachment to sentencing by “instinctive synthesis” when reducing sentences in accordance with their terms, to accept the arithmetic challenge the sections pose, and to do so transparently in their reasons. In order to conform to those provisions and reduce the risk of error, the better approach is to:

   ·first, identify the sentence which would have been imposed but for the guilty plea;

   ·secondly, determine the percentage discount; and

   ·thirdly, announce the resulting sentence,

   giving reasons for the first two steps which are adequate having regard to the circumstances of the case.

4. Finally, it should be noted that even though subsection (4) of each of s 10B and s 10C mandates a consideration of the matters specified in its subparagraphs, it allows a judicial discretion to consider other relevant matters. The appellant’s demonstrable lack of contrition in moving a large amount of money beyond the reach of actions to recover proceeds of crime was such a matter. The Judge’s assessment that the appellant’s conduct denied him a substantial part of the reduction, to which he would otherwise have been entitled for pleading at the special directions hearing, was plainly right.

5. SULAN AND NICHOLSON JJ:         This is an appeal against sentence. The appellant, Paul Wayne Strauss, pleaded guilty to trafficking in a large commercial quantity of a controlled drug contrary to s 32(1) of the Controlled Substances Act 1984 (SA) (“CSA”)[1] and cultivating a commercial quantity of controlled plants for sale contrary to s 33B(2) of the CSA.[2] He had also pleaded guilty to two counts of possessing prescribed equipment contrary to s 33LA of the CSA,[3] diverting electricity contrary to s 85(1)(a) of the Electricity Act 1996 (SA)[4] and possessing a prescription drug without a lawful prescription contrary to s 19(3) of the CSA.[5]  On 6 March 2015 the appellant received a single sentence of imprisonment of seven years and six months with a non-parole period of five years, to commence on 6 November 2014, being the date he was taken into custody.  The Judge further made a forfeiture order for the drugs, equipment and cash seized by police.

   [1]    Maximum penalty:  $500,000 or imprisonment for life, or both.

   [2]    Maximum penalty:  $200,000 or imprisonment for 25 years, or both (for a basic offence).

   [3]    Maximum penalty:  $10,000 or imprisonment for 2 years, or both.

   [4]    Maximum penalty:  $20,000 or imprisonment for 2 years.

   [5]    Maximum penalty:  $10,000 or imprisonment for 2 years.

6. The appellant contends that the sentencing Judge erred in the appropriate reduction to be made on account of the appellant’s guilty pleas and that the sentence is manifestly excessive.  The appellant was granted permission to appeal his sentence on the ground that the reduction for his guilty pleas was erroneously applied.  Permission was refused on the ground that the sentence is manifestly excessive.

   Background

7. On 24 September 2013, police searched the appellant’s home at St Peters and seized 27.3 kilograms of dried cultivated cannabis with an estimated value between $138,000 and $192,000.  They also seized 24 cannabis plants estimated at yielding between 200 grams and 400 grams of dried cannabis per plant.  The dried cannabis was cultivated from a previous crop that had been grown at the property.  The roof cavity of the property had been fitted with hydroponic equipment, including transformers, globes, shades, a drying rack and a cannabis grinder.  The appellant was diverting electricity from a power source to the cultivation room in order to facilitate the enterprise.  Police also seized $2600 in cash and discovered steroids used by the appellant without a prescription.

8. On 26 September 2013, police searched a National Storage facility at Klemzig and seized equipment used for the cultivation of cannabis, including 26 light shades, two light stands, 15 ballast boxes and eight light fittings.

9. Following his arrest, the appellant withdrew approximately $280,000 from his bank account in order to repay debts arising from the cultivation enterprise.  He transferred his house into his sister’s name.

10. The sentencing Judge observed that some of the funds were proceeds of prior drug trafficking, and the appellant was aware that the money was likely to be the subject of forfeiture proceedings.  The Judge concluded that the appellant’s conduct in diverting funds, which he knew were the proceeds of his illegal conduct, demonstrated that he lacked genuine contrition.  She correctly observed that “contrition does not sit with attempting to move funds beyond law enforcement authorities”.

11. Diary entries kept by the appellant confirmed that he had previously grown crops between July 2011 and June 2013.  The appellant’s bank records revealed substantial deposits in the years prior to the subject offending.

    The appeal

12. Counsel for the appellant contends that the sentencing Judge erred in failing to apply the maximum reduction of 10 per cent to which the appellant was entitled for his guilty pleas.  The sentencing Judge proposed a notional head sentence of eight years’ imprisonment for all the offences, which was reduced to imprisonment for seven years and six months on account of the appellant’s guilty pleas.  As part of this reduction, the Judge allowed for a “further month” for the summary offences which would have otherwise attracted a greater reduction of up to 30 per cent.  It is difficult to calculate the discount in this case because it is unclear which proportion of the sentence for the Magistrates Court matters was concurrent with the District Court offending.  If it is assumed that a discount of one month was allowed for the Magistrate Court matters, allowing that a maximum of three months would have not been concurrent with the District Court offence, then the discount for the District Court offences was in the vicinity of 5.3 per cent.

13. Section 10C of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) provides:

    10C – Reduction of sentences for guilty plea in other cases

    (1) This section applies to a sentencing court other than where section 10B applies.

    (2)     If a defendant has pleaded guilty to an offence or offences –

    (a)not more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences – the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;

    (b)more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences but before the defendant is committed for trial for the offence or offences – the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;

    (c)during the period commencing on the day on which the defendant is committed for trial for the offence or offences and ending 12 weeks after the first date fixed for the arraignment of the defendant (other than in the circumstances referred to in paragraph (d)) – the sentencing court may reduce the sentence that it would otherwise have imposed by up to 20%;

    (d)during the period commencing on the day on which the defendant is committed for trial for the offence or offences but before the commencement of a trial for the offence or offences and if the defendant satisfies the sentencing court that he or she could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of his or her control – the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;

    (e)within 7 days immediately following –

    (i)an unsuccessful application by or on behalf of the defendant to quash or stay the proceedings; or

    (ii) a ruling adverse to the interests of the defendant in the course of a hearing of the proceedings,

    determined during the period commencing on the day on which the defendant is committed for trial for the offence or offences and ending not less than 5 weeks before the commencement of the trial – the sentencing court may reduce the sentence that it would otherwise have imposed by up to 15%;

    (f)in circumstances other than those referred to in a preceding paragraph – the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 10%.

    (3)     If –

    (a)a maximum reduction available under subsection (2) does not apply in relation to a defendant’s plea of guilty because the defendant did not plead guilty within the relevant period;  and

    (b)the court is satisfied that the only reason that the defendant did not plead guilty within the relevant period was because –

    (i)the court did not sit during that period;  or

    (ii)the court did not sit during that period at a place where the defendant could reasonably have been expected to attend;  or

    (iii)the court did not list the defendant’s matter for hearing during that period;  or

    (iv)the court was, for any other reason outside of the control of the defendant, unable to hear the defendant’s matter during that period,

    the court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the relevant period.

    (4)     In determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea made within a particular period, a court must have regard to such of the following as may be relevant:

    (a)whether the reduction of the defendant’s sentence by the percentage contemplated would be so disproportionate to the seriousness of the offence, or so in appropriate in the case of that particular defendant, that it would shock the public conscience;

    (b)the stage in the proceedings for the offence at which the defendant indicated his or her intention to plead guilty (including whether it would, in the opinion of the court, have been reasonable to expect the defendant to have done so at an earlier stage in the proceedings);

    (c)the circumstances surrounding the plea;

    (d)in the case where the defendant has been charged with more than 1 offence – whether the defendant pleaded guilty to all of the offences;

    (e)if the defendant satisfies the court that he or she could not reasonably have been expected to plead guilty at an earlier stage in the proceedings because of circumstances outside of his or her control – that fact;

    (f)whether or not the defendant was made aware of any relevant matter that would have enabled the defendant to plead guilty at an earlier stage in the proceedings,

    and may have regard to any other factor or principle the court things relevant.

    (5)     Nothing in this section affects the operation of sections 15, 16 and 17.

    (6)     For the purposes of this section, a reference to a defendant appearing in a court will be taken to include a reference to a person appearing in a court on behalf of the defendant.

14. The appellant first appeared in the Magistrates Court on 18 November 2013.  There was a special directions hearing in the District Court on 8 October 2014, when the appellant pleaded guilty.  The appellant had been first arraigned in the District Court on 2 June 2014.  On that day, the Court set the date for the special directions hearing and also set a trial date of 4 May 2015.  The plea of guilty was made more than 12 weeks after the arraignment.  It follows that the appellant was entitled to a discount of up to 10 per cent in respect of the District Court offences.[6]

    [6] Section 10C(2)(f) of the Sentencing Act.

15. It is contended by the appellant that he should have received the full reduction of 10 per cent. The sentencing Judge remarked that the reasons for a lower reduction than the maximum was the appellant’s conduct in withdrawing substantial funds of around $280,000 from his bank account after his arrest, indicating a lack of contrition. Counsel for the appellant contends that is not an appropriate factor that may be taken into consideration upon sentencing, pursuant to s 10C of the Sentencing Act.

16. The first ground of appeal is that the sentencing Judge was in error in the approach she adopted in relation to the discount to be applied on account of the appellant’s guilty pleas.  The second ground is that the sentence of seven years and eight months imprisonment, with a non-parole period of five years is manifestly excessive.

17. In sentencing the appellant, the Judge said:

    In the case before me, I think that the discount for your guilty pleas which, in respect of the principal charges, that is the charges committed for trial to this court, were entered late, at the stage of a special directions hearing, should be less than 10% given your conduct in moving funds from your bank account shortly after your arrest for those offense [sic].  There is no genuine contrition arising from your guilty pleas.

    I fix one penalty pursuant to s 18A of the Criminal Law (Sentencing) Act, when sentencing you for all of the offending.  Were it not for your guilty pleas I would have imposed a sentence of eight years imprisonment.  I reduce that sentence to seven years, six months in light of your pleas.

    In respect of the topic of discount, the most serious offences were committed for trial to this court and the pleas were, as I have mentioned, entered quite late.  In respect of the Magistrates Court charges that have been brought to this court (at your request) for pleas and sentence, those matters would ordinarily attract a more substantial discount.  But those offences would have been mostly concurrent with the sentences for the more serious offences.  I indicate that in arriving at the head sentence I have made allowance for the different reductions on account of guilty pleas made at different times.  I have made a further reduction of one month on account of the guilty pleas for the matters ordered up from the Magistrates Court.  That allowance was made when I arrived at the sentence of seven years and six months.

    Discussion

18. The appellant is not a first offender.  In 2006 the appellant pleaded guilty to three counts of taking part in the sale of cannabis and one count of taking part in the supply of methylamphetamine.  He was sentenced to two years’ imprisonment with a non-parole period of 12 months, suspended upon entering into a good behaviour bond for 18 months.  He completed the bond without any breaches.  The appellant had previously been convicted of two separate counts of possession of cannabis.  He received relatively small fines.  He has a number of convictions for minor driving offences.

19. The operation of s 10C of the Sentencing Act has been discussed in a number of recent authorities. A sentencing judge has a discretion not to give the maximum discount available but, if the judge chooses to do so, it is necessary that the judge explain why that course has been adopted.

20. In R v McPhee,[7] Nicholson J, with whom Vanstone and Blue JJ agreed, in discussing s 10C said:[8]

    ... In my view, sentencing judges should take a robust view with respect to pleas which satisfy the various criteria set out in s 10C relevant to the different maxima provided for.  Ultimately, the actual discount provided remains discretionary and each case will need to be determined according to its own facts.  Nevertheless, if guilty persons are to be encouraged to plead early so as to provide the utilitarian benefits to the administration of justice contemplated, they will need to be confident that their expectations of a substantial discount in accordance with the requirements of the legislative regime will be met.  Related to this is the need for defence counsel to be in a position to advise their clients on this topic with confidence.

    [7] [2014] SASCFC 107.

    [8] [2014] SASCFC 107 at [46].

1. In R v Dwyer,[9] Stanley J, with whom Kourakis CJ and Gray J agreed, observed that the scheme established by s 10C is utilitarian in approach.  The purpose of the section is to provide an incentive to defendants to enter early pleas.  It is designed to encourage persons who are intending to plead guilty to declare their position at the earliest possible point in time.  In order to provide the incentive to defendants, it is therefore necessary that there is a high degree of certainty that, if they plead early, they will receive the discount contemplated by the section. 

   [9] [2015] SASCFC 12.

2. Stanley J observed:[10]

   ... There is no doubt that s 10C, like s 10B, confers a discretion upon a sentencing court. Recognition that the power conferred by s 10C is discretionary does not detract from the utilitarian purpose of the provision. The purpose of s 10C is to regulate and make transparent sentencing discounts for guilty pleas and to encourage offenders to plead early, thereby decreasing delays in the criminal justice system. The power conferred must be construed accordingly. ...

   [Citation omitted.]

   [10] [2015] SASCFC 12 at [34].

3. The observations of Nicholson J in McPhee and Stanley J in Dwyer are to the effect that the scheme requires that defence counsel can advise clients with some degree of comfort of the discount their clients can expect to receive. This approach ensures the effective working of the scheme. The section contemplates that there will be factors which justify departure from the maximum discount provided. Section 10C(4) provides that the court, in determining the percentage reduction, may have regard to any other factors or principles the court thinks relevant.

4. It is necessary for the judge to give an adequate explanation why there is to be a departure from the maximum permitted discount.  In Dwyer, Stanley J made it clear that it is incumbent upon the judge to provide adequate reasons for a departure from the maximum allowed.  He made the observation:[11]

   ... The efficacy of the scheme will be undermined if defence counsel and their clients cannot be confident in their expectations of the advantage of an early guilty plea.  None of this detracts from the power undoubtedly reposed in the sentencing judge to depart from the maximum where good reason exists but if that is to occur, the sentencing judge must explain why.

   [11]   [2015] SACFC 12 at [35];  see also R v Nguyen [2015] SASCFC 40 at [16] and R v Stavreas [2015] SASCFC 68 at [18].

5. A further question arises in this case as to how the Court is to approach a case in which there are multiple counts and in which pleas are taken to some counts which attract a greater percentage of discount than later pleas taken in respect of other counts. The question arises whether, in those circumstances, a judge can pass one overall sentence pursuant to s 18A of the Act, or whether it is necessary to pass individual sentences.

6. There is some tension between the provisions, as one of the purposes of s 18A is to enable the Court to pass one sentence which encompasses more than one offence. It is not a requirement that the Court identify the sentence it would have passed in respect of each offence. It is necessary that, for the sentencing judge to adequately explain how the total sentence was arrived at, the preferred approach is for the judge to indicate a notional sentence for each offence and indicate what proportion of the notional sentence is concurrent or cumulative.[12]  That approach is particularly desirable in cases such as this in which there is a disparity in the maximum discounts for pleas of guilty.

   [12]   R v Copeland(No 2) (2010) 108 SASR 398 at [92] and [94] per Kourakis J.

7. In R v Wakefield,[13] the question arose as to whether, in complying with s 10B and s 10C of the Sentencing Act, a court could impose one sentence pursuant to s 18A. The Court held that s 18A could be utilised in those circumstances, but that the judge should identify how the judge arrived at the single sentence imposed.

There is no error in a court imposing one overall sentence pursuant to s 18A for multiple offences where separate discounts may apply to the offences. Blue J observed:

[14]

When a sentencing court utilises s 18A to impose a single penalty and application of s 10C requires differential discounts in respect of the individual offences, the sentencing court is obliged to explain how it has arrived at the single sentence imposed after application of the differential discounts. This, in turn, requires identification of the notional starting head sentences for the individual offences and the notional discounts applied.

When a sentencing court utilises s 18A to impose a single penalty and there is a factual or legal dispute whether the application of s 10C results in differential discounts, it is incumbent on the sentencing court to rule on the dispute and give reasons for its ruling.

When a sentencing court utilises s 18A to impose a single penalty and the parties accept or the court rules that the application of s 10C necessarily results in a common discount for all offences dealt with under s 18A, s 10C does not require the sentencing court to determine or identify separate starting points and discounts for the individual offences dealt with under s 18A. Whether the court should do so will depend upon other considerations which it is not necessary to examine for the purposes of this appeal.

When a sentencing court utilises s 18A to impose a single sentence when several sentences would otherwise have been imposed concurrently and the overall sentence will be solely determined by the reduction made to the primary sentence, the court need only give reasons for the reduction made to that sentence.

[13] (2015) 121 SASR 569.

[14] (2015) 121 SASR 569 at [39]-[42].

1. In R v Niesen,[15] Nicholson and Lovell JJ discussed Wakefield.  They said:[16]

   The Court held that while ultimately one sentence could be imposed, the Judge was required to identify the notional starting points for the individual offences and the differing discounts to be applied.  The Judge had simply imposed one sentence with one discount without explaining, at all, how he arrived at the final sentence.  Not surprisingly the Court found that “the failure of the judge to give reasons concerning the calculation of the discount and the resulting sentence vitiates the exercise of the sentence discretion”.  The Court in R v Wakefield did not have to decide whether the failure to nominate starting points, in the absence of differing applicable discounts or as a general rule, in isolation, would amount to an error of law.

   [Citations omitted.]

   [15] [2015] SASCFC 165.

   [16] [2015] SASCFC 165 at [78].

2. We consider that where there are differing discounts applicable and s 18A is invoked, it is highly desirable for the judge to nominate the notional starting point for each offence or group of offences which attract one discount and nominate a notional starting point for the offence or offences which attract a different discount, and indicate the discount applicable in each case before determining the overall sentence. The judge should articulate notionally what part of each sentence is to be concurrent or cumulative with other sentences. The judge should arrive at a final sentence pursuant to s 18A. In so doing, the judge must ensure that the overall discount does not result in too much or too little discount having regard to the legislative regime.

3. A failure to follow the steps referred to in [30] may make the task of those who are interpreting the sentence difficult and may lead to error.  However, the approach which we have indicated is not mandatory.  What is mandatory is that it must be possible to discern from the reasoning of the judge how the ultimate sentence was arrived at including, in the present context, the actual discount or discounts given on account of guilty pleas.

4. In this case, the Magistrates Court matters attracted a maximum sentence of two years’ imprisonment.  The Judge indicated that most of the sentence for those matters should be concurrent.  She said:

   In respect of the topic of discount, the most serious offences were committed for trial to this Court and the pleas were, as I have mentioned, entered quite late in respect of the Magistrates Court charges that have been brought to this Court (at your request) for pleas and sentence, those matters would ordinarily attract a more substantial discount.  But those offences would have been mostly concurrent with the sentences for the more serious offences. 

5. The Judge stated that she had made allowances for the different reductions on account of guilty pleas made at different times.  She indicated that she had made a “further reduction” of one month on account of the guilty pleas for the matters ordered up from the Magistrates Court.  Although she did not expressly identify notional sentences, it is clear from her reasons that the period of imprisonment that her Honour had in mind for the Magistrates Court offences was to be substantially concurrent with that for the more serious offences with which she was dealing. 

6. Had the Judge indicated full concurrency or full accumulation it would have been possible to calculate the precise discount allowed for the District Court offences.  The overall starting point of eight years, the finishing point of seven years and six months, the nominated discount of 30 per cent for the Magistrates Court offences and the assumption of either full concurrency or full accumulation, would comprise sufficient known variables to enable the precise discount allowed for the District Court offences to be calculated.  Of course, this was not a case where either full concurrency or full accumulation was adopted by the Judge, a matter to which we will return.

7. Nevertheless, staying with the assumption for the present, an accused or their counsel if they have counsel, will need to undertake this calculation in order to determine whether or not the requirements of s 10C have been observed and in order to assess whether or not an appeal might be open.  The Judge will necessarily have done the calculation or calculations and will know the final discount actually allowed.  The actual discount allowed or a means to calculate the discount allowed should be included in the reasons.  The simplest and fairest way of doing this is, as stated in Wakefield, to nominate notional starting points and the notional discounts that have been applied. 

8. In the present case, and again on the assumption that either full concurrency or full accumulation have been adopted, the actual discount allowed for the District Court offences would have been 6.25 per cent or 5.3 per cent respectively.  However, the Judge indicated that the Magistrates Court offences were to be dealt with on a “mostly concurrent” basis.  As a consequence, it is not possible to know by calculation or otherwise the discount that was actually given for the District Court offences.

9. The Judge erred in failing to provide sufficient reasons.  However, for the reasons given below, we are satisfied that the Judge was entitled to limit the discount to the extent she did, that is, to something between 5.3 and 6.25 per cent.  If we were to resentence, we would arrive at the same single sentence as did the Judge.  In the circumstances, we would not allow the appeal simply on the basis that the Judge failed to identify the precise discount given for the District Court offences and failed to provide adequate reasons in this respect. 

10. The Judge gave reasons for not discounting the head sentence by 10 per cent.  She considered that the conduct of the appellant after his arrest was relevant.  The appellant diverted funds in an attempt to avoid forfeiture proceedings with the knowledge that some of those funds were the product of his illegal activities.  The Judge was entitled to regard that as a relevant matter.  She expressed it in terms of “lack of contrition”.  We consider it is a matter relevant to determining whether the appellant was due to the full 10 per cent discount.  In our view, the Judge’s reasons were adequate in this respect.

11. For the reasons given, the first ground of appeal is dismissed.

    Manifestly excessive

12. It is contended on behalf of the appellant that the sentence, in all the circumstances, was manifestly excessive.  We disagree.  This was an ongoing operation. It was well-planned and it was extremely profitable.  The sentence in respect of the offences of trafficking in a large commercial quantity of cannabis and cultivating a commercial quantity of cannabis was committed in the background of an ongoing enterprise.  Large amounts of money were involved.  This was a significant commercial enterprise.  The appellant was a central figure in that enterprise. 

13. The appellant was not a first offender.  He had previous convictions involving the sale of illicit drugs and the possession of cannabis.  In 2006, he received a suspended sentence for two years’ imprisonment for taking part in the sale of a controlled substance.  In our view, the sentence was well within the range appropriate for this offending. 

14. This ground of appeal is not reasonably arguable.

15. The appeal is dismissed in respect of the first ground of appeal, and we would refuse permission to appeal on the ground that the sentence was manifestly excessive.