R v Tran & Tran - [2011] SASCFC 153

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TRAN & TRAN
[2011] SASCFC 153
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)
16 December 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
Prosecution appeals against sentence - respondents found guilty by jury verdicts of trafficking in heroin.
First respondent found to be in possession of $1,340, second respondent found to be in possession of $14,400 and three mobile telephones - police search of property found balloon containing 2.6g of heroin, nine packets of water balloons, passports in the first and second respondents’ names, two sets of digital scales containing traces of heroin on one of the scales, a box containing balloons, strips of plastic, a knife (containing traces of heroin) and a straw, white crystalline substance located in carport.
First respondent sentenced to two years and nine months' imprisonment with a non-parole period of one year and seven months.
Second respondent sentenced to two years and three months' imprisonment with a non-parole period of one year, suspended.
Whether sentences imposed were manifestly inadequate - whether the sentencing Judge erred in failing to make a finding as to whether the offence was committed against a backdrop of an ongoing criminal enterprise.
Held: Appeals dismissed - no submission was made to sentencing Judge that findings should be made that the defendants had engaged in an ongoing course of criminal conduct - Director's application for permission to appeal to contend this finding is rejected - no basis for suggestion that the sentencing Judge did not have regard to the context and surrounding circumstances of offending - sentences within the discretion of the sentencing Judge.
Controlled Substances Act 1984 (SA) s 32; Criminal Law (Sentencing) Act 1988 (SA) s 10, referred to.
R v Tran [2011] SASCFC 85; Everett v The Queen (1994) 181 CLR 295; The Queen v Osenkowski (1982) 20 SASR 212; R v Nemer (2003) 87 SASR 168; R v Knott (2007) 169 A Crim R 291; Dinsdale v The Queen (2000) 202 CLR 321, applied.
R v Bukvic (2010) 107 SASR 405; Muldrock v The Queen (2011) 85 ALJR 1154; R v Olbrich (1999) 199 CLR 270; R v Storey [1998] 1 VR 359; Veen v The Queen (No 2) (1987) 164 CLR 465; Director of Public Prosecutions v Ottewell [1970] AC 642; R v Davidson [2011] SASCFC 132; Markarian v The Queen (2005) 228 CLR 356, considered.

R v TRAN & TRAN
[2011] SASCFC 153
Court of Criminal Appeal: Gray, Sulan and David JJ
GRAY J:

The Director of Public Prosecutions seeks permission to appeal against two sentences imposed in the District Court.
Introduction
The defendants and respondents, Hong Phuc Tran and Jules Thu Tran, were found guilty by jury verdicts in the District Court of trafficking in a controlled drug, contrary to section 32(3) of the Controlled Substances Act 1984 (SA). Particulars of the offences were that the defendants on 26 June 2009 at Angle Park knowingly trafficked in heroin.
On 15 June 2011, the Judge sentenced Mr Tran to a term of imprisonment of two years and nine months and fixed a non-parole period of one year and seven months. The Judge reduced a starting point of three years by three months on account of five days spent in custody and 20 months spent on home detention. The Judge declined to exercise his discretion to suspend that sentence.
On the same occasion, the Judge sentenced Mrs Tran to a term of imprisonment of two years and three months and fixed a non-parole period of one year. The head sentence was arrived at by the Judge having made a reduction of three months on account of time spent in custody and on home detention bail. The Judge exercised his discretion to suspend the sentence.
On 11 August 2011, the Court of Criminal Appeal dismissed an appeal of Mr Tran against conviction.[1]
[1] R v Tran [2011] SASCFC 85.
The Director complains that the sentences imposed were manifestly inadequate. It is said that they fail to maintain adequate levels of punishment for trafficking in a controlled substance. Further, the Director contends that the sentencing Judge erred in failing to make a finding as to whether the offences for which the defendants were found guilty were committed against the background of an ongoing criminal enterprise.
The Director submits that permission should be granted to consider matters of public importance that arise on the appeals. In particular, the Director suggests that the scope and reach of recent amendments to section 32 of the Controlled Substances Act arise for consideration and that there are ambiguities arising from the decision of this Court in Bukvic[2] that require clarification.
[2] R v Bukvic (2010) 107 SASR 405.
The Trial
The prosecution case at trial was that at about 10.25pm on 25 June 2009 police stopped a motor vehicle near 39 Angle Road, Angle Park. That vehicle was being driven by Mrs Tran and Mr Tran was a passenger. The property at 39 Angle Road was leased by Mrs Tran. Mrs Tran was found to be in possession of $14,400.00 and three mobile telephones and Mr Tran was in possession of $1,340.00.
In the early hours of the following morning, the police searched the property at 39 Angle Road. The search revealed a balloon containing two pieces of a rock substance which was found to contain 2.6 grams of heroin. The rock substance was wrapped in plastic and was located in a large box of rice in a kitchen cupboard. DNA matching Mr Tran’s DNA was located on the plastic. The search also revealed nine packets of water balloons in a child’s bedroom; passports in the names of Mr and Mrs Tran; and two sets of digital scales in the kitchen. Examination revealed traces of heroin on one of the sets of scales. A box containing balloons, strips of plastic, a knife and a straw were located in the kitchen. Traces of heroin were found on the knife; a white crystalline substance, predominantly sucrose, was located in the carport. Sucrose is used as a cutting agent for heroin.
The evidence established that on 6 April 2009, Mrs Tran obtained a quote for a $2,920.00 pendant and on 24 March 2009 she obtained three quotes; earrings - $4,350.00, a ring - $2,650.00 and a diamond bangle - $10,000.00. A search of Mrs Tran’s car led to the discovery of a receipt for a bed worth $4,500.00 on which a $500.00 deposit had been paid the previous day.
Mr Tran gave evidence that he was unemployed at the time of his arrest and that he had been unemployed for about the previous five years. When interviewed by the police, Mrs Tran disclosed that she was receiving unemployment benefits at the time of her arrest.
Expert evidence was given that heroin is commonly sold by wrapping a small amount of heroin in plastic wrap and then placing that plastic wrap into a balloon, thereby making the heroin ready for sale. It was said that the balloons and plastic strips located in the Angle Street property were consistent with the types of balloons and plastic strips used in the sale of heroin.
When sentencing the Judge remarked:
You were born in Vietnam in 1978 and came to Australia in 1998. You were sponsored by your father, who had served in Vietnam as a United States soldier and had met and married your Vietnamese mother. Your father fled the country in 1979, fearing for his life, and he came to Australia. You remained with your mother and stayed in Vietnam but she soon afterwards entered into a new relationship and you found that your stepfather was a violent person, so you left home at the age of 13 and lived on the streets for some years before your father was able to sponsor your transfer to Australia. You lived with him for six months after you came here but did not get on with his new wife.
…
You have had a limited working life in South Australia.
You met Jules Tran in 2006 and have been in a relationship with her since that time. She then had her own child and together you now have a 15-month-old child and your wish is to continue with that relationship.
…
… I am prepared to accept the submission, which was supported by some of the evidence, that you, Hong Tran, had used and intended to use for yourself some of the substance found there. I do not find it necessary nor am I disposed to make any particular findings about the quantity that you would have retained for yourself.
The Judge then turned to Mr Tran’s criminal antecedents:
You then fell into bad company and began to use and trade in heroin.
In that respect I note that you were convicted of possession of heroin for sale and selling heroin in this court in the year 2000. It was put that you have been addicted to that substance since that time.
For the past five years you have attempted to deal with your addiction and you have been on a methadone program since being on home detention bail. You breached the conditions of that bail once, when you used heroin.
…
As to you, Mr Hong Tran, I have considered everything that has been put on your behalf and I have had particular regard, as I have said, to what the court said when you were sentenced in the year 2000. The court then sentenced you to three years and four months imprisonment with a non-parole period of four months after taking account of seven and a half months you had already spent in custody.
Following that time, you appear to have offended on many occasions with respect to motor vehicle use and on 10 November 2008 you were convicted of possessing heroin and fined $400.
When sentencing Mrs Tran, the Judge made reference to her antecedents in the following terms:
You, Ms Tran, are 32 years old and it was your first offence. It was put that you have had an unfortunate background. You came to Australia to be with your father but he then returned to Vietnam and was killed in a motor vehicle accident. Your mother remained there, where she cares for your sister, who is HIV positive. You are a 32-year-old single mother with no support in the community and you have been ostracised by your ethnic group as a result of these matters.
…
Your eight-year-old son, born of another relationship, suffers from epilepsy brought on by increases in body temperature and you are thus concerned to look after him carefully. You receive a carer’s pension in this respect and those circumstances cause you great concern, given the prospects of imprisonment.
Your counsel asked the court to consider that you are a first offender, that you are without support in the local community, that you are needed to care for both of your children, in particular the eight-year-old, and you are not a user yourself. It was therefore submitted that the sentence of imprisonment which your offending would ordinarily attract ought to be suspended. …
It would appear that the prosecutor did not seek a finding that Mr and Mrs Tran were engaged in an ongoing course of criminal conduct. Nothing was said on this topic at all. Unsurprisingly in these circumstances the Judge did not address this issue.
The Appeal
Permission to Appeal
It is well established that the Court should grant leave to the Director to appeal against sentence only in a rare and exceptional case.[3] In Everett,[4] the High Court explained that the underlying rationale is the principle of double jeopardy:
[3]    Everett v The Queen (1994) 181 CLR 295 at 299.
[4]    Everett v The Queen (1994) 181 CLR 295 at 299-300.
An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed. That being so, a “court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified.” In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick C.J. in Griffiths v The Queen:
“an appeal by the Attorney-General should be a rarity, 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.”
The reference to “matters of principle” in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick C.J. saw as constituting “error in point of principle”.
[Footnotes omitted.]
In Osenkowski, King CJ observed:[5]
The proper role for prosecution appeals, in my view, 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.
In Nemer,[6] Doyle CJ said that it has been established by the High Court that in order to obtain leave to appeal against sentence, the Director must do more than establish that an error has occurred:[7]
The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”. Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case.
[Footnotes omitted.]
[5]    The Queen v Osenkowski (1982) 30 SASR 212 at 213.
[6]    R v Nemer (2003) 87 SASR 168.
[7]    R v Nemer (2003) 87 SASR 168 at [24].
An error must be identified before a sentence may be interfered with.[8] This may, however, be inferred from a sentence that is manifestly unreasonable or plainly wrong. However, a sentence will not be disturbed merely because an appellate court would itself have reached a different result.[9] As Kirby J explained in Dinsdale:[10]
… As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.
[8] R v Knott (2007) 169 A Crim R 291.
[9] Dinsdale v The Queen (2000) 202 CLR 321 at 339-340.
[10] Dinsdale v The Queen (2000) 202 CLR 321 at 339-340.
Course of Conduct
The Director submits that Mr and Mrs Tran had committed the offences in circumstances where they were engaged in a course of conduct consisting of a series of criminal acts of the same or a similar character. The Director accepts that the prosecution carried the onus of establishing beyond reasonable doubt that the defendants were engaged in ongoing criminal conduct. The Director further submits that having regard to the facts outlined earlier in these reasons, the inference should be drawn beyond reasonable doubt that Mr and Mrs Tran were so engaged. The Director asks this Court to find that there was an “ongoing enterprise” and that as an aggravating circumstance, a higher penalty should be imposed.
In the course of submissions, the Director drew attention to the observations of this Court in Bukvic.[11] Attention was drawn to observations of White J that were said to suggest that unless such an ongoing enterprise is specifically admitted by a defendant, it is not a matter that could be used against that defendant. The Director contends that there is no reason in principle why, if relevant to the sentencing processes, the existence of an ongoing enterprise could only be established by a defendant’s admission to that effect.
[11] R v Bukvic (2010) 107 SASR 405.
The Director developed the submission that it has been long recognised that a sentencing Judge is entitled to take into account the context and surrounding circumstances of a crime, and in particular, whether the act charged is an isolated offence or is part of an ongoing course of conduct.
A sentencing court should begin its consideration with the terms of section 10 of the Criminal Law (Sentencing) Act 1988 (SA):
(1)     A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
(a)    the circumstances of the offence;
(b)     other offences (if any) that are to be taken into account;
(c)if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct;
…
(j)the deterrent effect any sentence under consideration may have on the defendant or other persons;
(k)the need to ensure that the defendant is adequately punished for the offence;
(l)the character, antecedents, age, means and physical or mental condition of the defendant;
(m)    the rehabilitation of the defendant;
…
(o)     any other relevant matter.
…
(1b)   A primary policy of the criminal law is to protect the safety of the community.
It is to be borne in mind, however, that the common law principles of sentencing stand alongside the Sentencing Act.[12]
[12] Muldrock v The Queen (2011) 85 ALJR 1154 at [18].
Section 10 of the Sentencing Act obliges the court when sentencing to take into account such matters referred to in section 10 “as are relevant and known to the court”. In Weininger, Gleeson CJ, McHugh, Gummow and Hayne JJ discussed the significance of this wording:[13]
The phrase "known to the court" which qualifies the list of "matters" in pars (a)-(p) of s 16A(2) which the court "must take into account" presents the evidentiary and other procedural questions upon which this appeal turns. By what means and at whose instigation are these "matters" to be made known? Are issues of fact to be tendered for resolution by the judicial officer who constitutes "the court" for this purpose? If so, do questions of onus of "proof" arise? Are there here the distinctions found elsewhere between ultimate and evidentiary burdens? To what degree, if at all, is the procedure inquisitorial rather than adversarial?
Their Honours then referred to the earlier observations of the Court in Olbrich:[14]
In R v Olbrich, the Court examined a number of questions relating to fact finding in sentencing, usually discussed under the rubric of the onus and standard of proof in sentencing. As the joint reasons point out, "[r]eferences to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings". The Court adopted what was said by the majority in the Court of Appeal of Victoria, in R v Storey, that a sentencing judge:
"may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities."
[Footnotes omitted.]
[13] Weininger v The Queen (2003) 212 CLR 629 at [17]-[18].
[14] R v Olbrich (1999) 199 CLR 270.

Their Honours discussed in some detail how undue attention to issues of onus and the standard of proof may distract from other important aspects of sentencing:[15]
To frame the relevant question in terms of the onus and standard of proof may also suggest that the only material which may be treated as being "known to the court", and on which the judge may act in sentencing an offender, is material revealed by the plea or verdict of guilty, admission by the offender, or evidence received on the sentencing hearing. The use of the phrase "known to the court", rather than "proved in evidence", or some equivalent expression, suggests strongly that s 16A was not intended to require the formal proof of matters before they could be taken into account in sentencing. Rather, having been enacted against a background of well-known and long-established procedures in sentencing hearings, in which much of the material placed before a sentencing judge is not proved by admissible evidence, the phrase "known to the court" should not be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally proved or admitted.
In addition to the points just made about what is known to the sentencing judge, there is another important feature of fact finding in sentencing which must be recognised. Many matters that must be taken into account in fixing a sentence are matters whose proper characterisation may lie somewhere along a line between two extremes. That is inevitably so. The matters that must be taken into account in sentencing an offender include many matters of and concerning human behaviour. It is, therefore, to invite error to present every question for a sentencer who is assessing a matter which is to be taken into account as a choice between extremes, one classified as aggravating and the opposite extreme classified as mitigating. Neither human behaviour, nor fixing of sentences is so simple.
Further, a sentencing hearing is not an inquisition into all that may bear upon the circumstances of the offence or matters personal to the offender. Some matters may be fixed by the plea or verdict of guilty although, even there, there may be ambiguities (as for example, in some homicide cases where a verdict of manslaughter is returned). Many of the matters relevant to fixing a sentence are matters which either the prosecution or the offender will draw to the attention of the sentencing judge. Some matters will remain unknown to the sentencing judge. The question then becomes, what use is the sentencing judge to make of what is known, and of the matters urged by the parties? This is not just a series of choices for the judge between alternatives. Not only may some things be unknown, some will concern matters in which a range of answers may be open.
[15] Weininger v The Queen (2003) 212 CLR 629 at [21]-[23].
Kirby J similarly observed:[16]
… It is fundamental that the respondent only be sentenced in respect of the particular offence to which he had pleaded guilty and of which he had been convicted. Where there are multiple offences of possible relevance to the facts but the accused has been charged and convicted of one or some only, it is a fundamental error to punish the accused on a basis dependent upon particular circumstances of aggravation which would constitute a different offence of which the accused has not been charged or convicted. If the Crown wishes to secure the punishment of an accused in respect of such aggravated circumstances, it is obliged to lay the charge which would present the guilt of the accused of such offence as an issue for trial. This is a rule of law derived from the basic requirements of fair procedure. This Court has insisted upon it and it has been regularly applied.
[Footnotes omitted.]
[16] R v Olbrich (1999) 199 CLR 270 at [53].
Gleeson CJ, McHugh, Gummow and Hayne JJ also addressed the approach to sentencing and affirmed the following observations of the Victorian Court of Appeal in Storey:[17]
As was pointed out in Storey, it is important to avoid introducing "excessive subtlety and refinement" to the task of sentencing. That object is advanced if sentencing and appellate courts pay close attention to identifying those matters that the sentencing judge takes into account in a way that is adverse to the interests of the accused, and those matters that the sentencing judge takes into account in favour of the accused. It must be recognised that not every matter urged on the judge who is to pass sentence has to be, or can be, fitted into one or other category. The judge may be unpersuaded of matters urged in mitigation or in aggravation. The absence of persuasion about a fact in mitigation is not the equivalent of persuasion of the opposite fact in aggravation. So to conclude would ignore the different standards of proof that are to be applied. It would also be wrong because it would assume that human behaviour can always be described as a dichotomy. It cannot. Human behaviour and characteristics are more varied than that. Further, it would be wrong because it would assume that sentencing is a syllogistic process. It is not. It is a synthesis of competing features which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money.
[Footnotes omitted.]
[17] R v Storey [1998] 1 VR 359.
The Director, against the background of the above observations, turned to the approach that should be taken by a sentencing Judge to bring to account the context and surrounding circumstances of a crime and in particular whether the act charged is an isolating offence or whether it forms part of an ongoing course of conduct. Attention was drawn in particular to section 10(1)(c) as set out above.
Context and Surrounding Circumstances
The following may be accepted as established; the context and surrounding circumstances include a consideration of whether the act charged is isolated or forms part of an ongoing course of conduct; the offence for which a defendant is to be sentenced may take its colour from, and its character is affected by, the context in which it was committed; a sentencing Judge is entitled to take into account the context and the surrounding circumstances of a crime; the context and surrounding circumstances may be bought to account in considering whether to extend leniency so as to reduce what would otherwise be a proper sentence; the commission of other crimes not asked by a defendant to be taken into account cannot be used to increase what would otherwise be a proper sentence and a defendant is not to be punished for conduct which is said to be criminal unless the defendant is charged with a relevant offence and has the opportunity to defend the charge.
When uncharged acts are of a similar character to the offence for which the defendant is to be sentenced, they may have relevance to several sentencing considerations that do not amount to matters of aggravation. For example; to militate against leniency on the basis of the offence being isolated or an aberration; to consider the importance of personal deterrence in the sentencing process; to indicate the defendant’s moral culpability; to assess the defendant’s prospects of rehabilitation; to diminish the importance of a lack of prior convictions when such offending has been occurring for some length of time; and finally, as part of the defendant’s “character and antecedents” pursuant to section 10 of the Sentencing Act. These matters are relevant to sentencing as they may indicate that a defendant has had time to reflect on his offending and yet has determined to proceed with the subject offence; has engaged in the subject offending in an organised and planned manner; intends to continue with the offending; or was motivated by greed.
These considerations are all matters relevant to the assessment of personal deterrence, prospects of rehabilitation and the protection of the community. As such, they are relevant to the determination of the appropriate sentence for the offence and for the particular defendant. They are factors that may lead to the imposition of a more severe sentence than might have otherwise been imposed. It does not follow, however, that the sentence to be imposed will be increased beyond that which is proportionate to the offence for which the defendant is to be sentenced. It does not follow that the defendant is being sentenced for uncharged acts.
A proportionate sentence for the subject offence should take into account the moral culpability of the defendant, the need for personal deterrence, the defendant’s prospects for rehabilitation and the protection of the community.
In Veen (No 2), Mason CJ, Brennan, Dawson and Toohey JJ made the following observations about the principle of proportionality:[18]
However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.
…
There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell.[19] The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.
[18] Veen v The Queen (No 2) (1987) 164 CLR 465 at 476-478.
[19] Director of Public Prosecutions v Ottewell [1970] AC 642 at 650.
As discussed above, the Director expresses concern as to what he describes as possible ambiguities arising from the decision of this Court in Bukvic.[20] In particular, the Director draws attention to the following observation of White J:[21]
As the matter asserted by the appellant was mitigatory in nature, the appellant had the onus, as the Judge correctly found, of establishing on the balance of probabilities the circumstance which he asserted. There was ample evidence justifying the Judge's rejection of the appellant's claim. Having rejected the claim, the Judge was not bound to sentence the appellant on the basis that it was correct, simply because it was not open to the prosecution to prove the contrary.
[Footnotes omitted.]
The Director’s concern relates to the words “because it was not open to the prosecution to prove the contrary”.
[20] R v Bukvic (2010) 107 SASR 405.
[21] R v Bukvic (2010) 107 SASR 405 at [50].
In my view, it is clear that White J had in mind the observations made by the High Court in Weininger as earlier in his reasons, those observations were specifically referred to. The remarks in Bukvic, as I understand them, relate to the discrete topic of matters in mitigation and aggravation. I do not understand any of the observations made in Bukvic to in any way depart from the above analysis.
Reduction in Maximum Penalties
Prior to 3 December 2007, the Controlled Substances Act provided that a person who trafficked in a controlled drug was liable to a maximum penalty not exceeding $200,000 or imprisonment for 25 years, or both.[22] On 3 December 2007, the statute was amended to provide that a person who trafficked in a controlled drug which is less than the commercial quantity as defined, intending to sell any of it, is liable to a maximum term of imprisonment for ten years.
[22] Controlled Substances Act 1984 (SA), s 32(5)B(b)(ii).
In Davidson[23] this Court addressed the relevance of this statutory amendment. Attention was drawn to the observations of the High Court as to the significance of a maximum sentence and a change in a maximum sentence. In Markarian,[24] Gleeson CJ, Gummow, Hayne and Callinan JJ relevantly observed:[25]
[23] R v Davidson [2011] SASCFC 132.
[24] Markarian v The Queen (2005) 228 CLR 357.
[25] Markarian v The Queen (2005) 228 CLR 357 at [30]-[31].
Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing, Stockdale and Devlin observe that:
"A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century ... or because it has more recently been set at a high catch-all level ... At other times the maximum may be highly relevant and sometimes may create real difficulties ...
A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate]."
It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case. That he used the maximum penalty impermissibly appears from his Honour's particular deference to it in this passage:
"Parliament cannot have intended that, other things being equal, the penalty for supplying more than 250 g should be less than for supplying that quantity."
The form of the statement is explained by the fact that his Honour did not start with the maximum penalty for an offence involving the quantity in question, but used another maximum penalty as his starting point, that is, the maximum for an offence in the category of seriousness immediately below that of the principal offence.
[Footnotes omitted.]
McHugh J expressed the matter as follows:[26]
Secondly, a judge is sensitive to legislative trends. A change in the maximum penalty for an offence or in the elements of an offence may indicate a shift in the values to be applied when sentencing for that offence. In New South Wales there is also a statutory system of guideline judgments and standard minimum non-parole periods that give more specific guidance in common offences and operate as a starting point from which departure is intended to be the exception or at least require explanation. In recent times, both methods have been used to increase the prevailing median sentence for particular classes of offences. That does not mean that the judge must start with a specific number but knowledge of the median or the extent of the range guides the judicial "instinct".
[26] Markarian v The Queen (2005) 228 CLR 357 at [80].
It is to be accepted that when imposing sentence a Court will always have regard to the maximum penalty set by Parliament for the offence. Earlier sentencing practices and ranges of penalties fixed by reference to different maximum penalties are of limited relevance.
Conclusion
As noted above there was no submission made to the sentencing Judge that findings should be made that the defendants had engaged in an ongoing course of criminal conduct and that the subject offending formed part of that ongoing course of conduct. In these circumstances the Director’s applications for permission to appeal to contend that such a finding now be made should be rejected.
The defendants were not to be sentenced for offences other than those charged. The defendants were not to be sentenced on the basis that their crimes were aggravated by other criminal conduct. However, the circumstances surrounding the defendants’ offending suggested an involvement in heroin beyond the one transaction of trafficking. The Court was entitled to have regard to these surrounding circumstances when considering issues of personal deterrence, rehabilitation and the protection of the community. The surrounding circumstances formed the context in which the offending for which the defendants were convicted took place.
No basis has been established to suggest that the Judge did not have regard to the context and surrounding circumstances when sentencing the defendants.
The sentences imposed were merciful. They were however within the sentencing discretion of the Judge.
The appeals should be dismissed.
SULAN J: I agree with the reasons of Gray J and the orders he proposes.
DAVID J: In both cases I would refuse permission to appeal. I agree with the reasons of Gray J.