R v Tsonis - [2018] SASCFC 86

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TSONIS
[2018] SASCFC 86
Judgment of The Court of Criminal Appeal
(The Honourable Justice Lovell, The Honourable Justice Doyle and The Honourable Justice Hinton)
21 August 2018
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
Appeal against sentence.
Following pleas of guilty, the appellant was convicted of three offences: trafficking in a commercial quantity of a controlled drug; cultivating a controlled plant for sale; and diverting electricity without proper authority. The sentencing judge imposed a sentence of four years six months imprisonment, taking into account a 10 per cent reduction for the appellant’s guilty pleas. The sentencing judge further reduced this sentence by six months on account of the time the appellant had already spent in custody and on home detention bail. A non-parole period of two years imprisonment was fixed.
The appellant complains of three errors, namely that the sentencing judge erred:
1.      in his focus upon, and estimation of, the potential yield and profit from the cannabis plants the subject of the cultivation offence;
2.      in failing to give the appellant proper credit for the time he had spent in custody (seven months) and on home detention bail (13 months); and
3.      in imposing a sentence that was in any event manifestly excessive.
Held by the Court (allowing the appeal on ground 2):
1.      When determining the seriousness of a particular cultivation offence, within the range of cultivation offences attracting a particular maximum penalty, the number of plants is relevant, but so too is a range of other circumstances, including the potential yield and profit from the cultivation.
2.      When a defendant has spent time in custody on remand for the offences for which he is ultimately sentenced, it is appropriate to give full credit for the time spent in custody unless there is a reason founded in sound sentencing principles for exercising the court’s discretion to give less than full credit.
3.      The reason given by the sentencing judge in this case for giving less than full credit (essentially, the appellant’s repeated non-attending court and absconding from the police), was not a proper reason for doing so.
4.      It is unnecessary to determine ground 3.
5.      Appeal allowed. The appellant is resentenced to three years three months imprisonment, with a non-parole period of 14 months.
Criminal Law (Sentencing) Act 1988 (SA) ss 18A, 33BB; Controlled Substances Act 1984 (SA) ss 32(2), 33B(3), 44(1)(d); Electricity Act 1996 (SA) s 85(1); Sentencing Act 2017 (SA) ss 26, 71, referred to.
R v Yavuz (2018) 130 SASR 231; R v Deng [2015] SASCFC 176; Trotta v Police [2008] SASC 16; R v Malesevic [1999] SASC 321; R v Rowe [2016] SASCFC 33; R v Hudson (2016) 125 SASR 171; K v SA Police (1994) 175 LSJS 195; Frank v Police (2000) 77 SASR 273; White v Police [2016] SASC 94; PNJ v The Queen (2009) 83 ALJR 384; R v Sprecher (2015) 123 SASR 15; R v Hughey [2007] SASC 452; R v Witter (2011) 111 SASR 293; Tong v Police (1998) 198 LSJS 398; The Queen v De Simoni (1981) 147 CLR 383, considered.

R v TSONIS
[2018] SASCFC 86
Court of Criminal Appeal: Lovell, Doyle and Hinton JJ

THE COURT:      The appellant was convicted, following his pleas of guilty, of three offences:
·    trafficking in a commercial quantity of a controlled drug[1] (count 1) (maximum penalty of $200,000 or imprisonment for 25 years or both);
·    cultivating a controlled plant for sale[2] (count 2) (maximum penalty of $50,000 or imprisonment for 10 years or both); and
·    diverting electricity without proper authority[3] (count 3) (maximum penalty of $20,000 or imprisonment for two years).
[1] Contrary to s 32(2) of the Controlled Substances Act 1984 (SA).
[2] Contrary to s 33B(3) of the Controlled Substances Act 1984 (SA).
[3] Contrary to s 85(1) of the Electricity Act 1996 (SA).
The sentencing judge imposed a single sentence for these three offences under s 18A of the Criminal Law (Sentencing) Act 1988 (SA). His Honour used a starting point of five years imprisonment, which after a reduction of 10 per cent on account of the pleas of guilty, came to four years six months imprisonment. This was reduced by a further six months on account of the time already spent by the appellant in custody and on home detention bail, resulting in an ultimate head sentence of four years imprisonment. The sentencing judge fixed a non-parole period of two years imprisonment. His Honour declined to suspend the sentence or order that it be served on home detention.
In this appeal against sentence, the appellant complains of three errors, namely that the sentencing judge erred:
1.   in his focus upon, and estimation of, the potential yield and profit from the cannabis plants the subject of the count 2 cultivation offence;
2.   in failing to give the appellant proper credit for the time he had spent in custody (seven months) and on home detention bail (13 months); and
3.   in imposing a sentence that was in any event manifestly excessive.
Circumstances of the offending
On 25 June 2013 police attended at a premises in Taperoo. They discovered that the premises were dedicated to the cultivation of cannabis. They located 12 cannabis plants being grown hydroponically, and some loose cannabis. Electricity to the premises had been diverted so as to avoid the electricity meter.
There were items in the house linking the appellant to the Taperoo premises. Further items were located at his home in Woodville West that also linked the appellant to the Taperoo premises.
The Taperoo premises had been rented by the appellant from 12 June 2012, under a two year lease. By the time the police attended and the offences were discovered, the appellant had paid $7,800 in rent by way of fortnightly cash payments of $600. The appellant had registered the utilities for the Taperoo premises under a false name.
It was apparent that the appellant did not reside at the Taperoo premises. Not only did he give his address as the Woodville West premises, but also the Taperoo premises contained no bed or other amenities suggesting anyone lived there.
As well as the cannabis plants and loose cannabis, the police found hydroponic equipment throughout the house. The sentencing judge accurately described the hydroponic cultivation operation as “a sophisticated set-up involving white-lined walls, specialised lighting, ballast boxes, air extraction ducts, mesh and irrigation”.
In terms of the cannabis plants and loose cannabis, the police found:
·    one room being used to grow three cannabis plants;
·    a second room, which was a bathroom, being used to grow eight cannabis plants. These plants were smaller in size than those in the first room and which (unlike those in the first room) had not yet been trained to grow through the mesh that had been put in place;
·    a third room being used to grow a further three cannabis plants. Two of these plants had been completely harvested, and the third had been partially harvested. Also found spread on the floor in that room was loose cannabis, consisting of flowering head which was apparently in the process of being dried, as well as some leaf and stem material that appeared to have been discarded in the corner of the room; and
·    a fourth room containing assorted items used in cannabis cultivation, as well as two cannabis plant stumps in black pots.
The trafficking charge (count 1) related to the loose cannabis found in the third room. The sentencing judge noted that 4.14 kg of wet cannabis had been located, and that this would likely have resulted in approximately 1.03 kg of dried cannabis.[4] His Honour further noted that this quantity of dried cannabis, if sold wholesale in pounds at the upper end price of $3,800 per pound, “could have been worth up to approximately $8,000”.
[4] Being slightly in excess of the 1.0 kg required for a “commercial quantity” for the count 1 offence.
The cultivation charge (count 2) related to the three cannabis plants found in the first room, the eight cannabis plants in the second room and the one partially harvested cannabis plant in the third room, giving a total of 12 plants. The sentencing judge described the plants as being at different stages of maturity. His Honour noted the prosecution evidence as to the potential yield from the cannabis plants, and the likely proceeds from sale of the cannabis, concluding that it “could have been worth up to approximately $60,000”.
The diverted electricity that was the subject of the count 3 charge was being used to power the hydroponic set-up, and was presumably intended to reduce costs and perhaps also to assist in avoiding detection. As the sentencing judge said, this diversion of electricity was not only unlawful and intended to support the other offending, but also involved dangerous connections and unprotected wiring that constituted a hazard and danger to any person occupying or attending the Taperoo premises.
Simultaneously with the offences committed at the Taperoo premises and the subject of these proceedings, the appellant was also growing four cannabis plants at his grandmother’s house in Woodville North. The appellant pleaded guilty to cultivating those cannabis plants, and on 13 May 2014 was convicted of this charge in the Magistrates Court. He was given a suspended sentence and released on a bond to be of good behaviour for 12 months. He was not charged with cultivating for sale in relation to those four plants; however, the fact that he had access to the cannabis to be derived from those four plants was relevant to his intentions in relation to his cultivation of the 12 plants located at the Taperoo premises.
Turning to the appellant’s intentions, in the course of sentencing submissions the appellant submitted that his offending was motivated by a desire to assist his sister-in-law and was not intended to be a commercial venture. His sister-in-law had been diagnosed with breast cancer in 2012. The appellant claimed that his intention was that half of the total cannabis crop be made into cannabis oil for the purpose of pain relief for his sister-in-law, leaving the remaining half for sale, but only so as to defray costs.
The sentencing judge was not prepared to accept this explanation without evidence. His Honour reasoned that the operation was a highly organised production facility with all the hallmarks of an ongoing commercial operation. In this respect, he noted that the appellant had taken the time and trouble to divert electricity, and that he was also running a parallel hydroponic cultivation at his grandmother’s house. Significantly, there was also no evidence to indicate any cannabis oil production had occurred or had even been attempted or contemplated. As the appellant declined to give evidence, the sentencing judge said he was not able to accept that the operation was in whole, or even in part, dedicated to the appellant’s concern for his sister-in-law’s health, as opposed to being a commercial venture.
Personal circumstances of the appellant
As at the date of sentencing, the appellant was 36 years of age. He was married with two young children. He had a close-knit family, who were continuing to support him.
The appellant completed his schooling through to year 11. He worked as an apprentice chef at a hospital until 2005. He next worked in the building industry as a painter, and then from 2010 with a trucking company. He then started his own demolition business, although that business ultimately failed. Since being on bail for these offences, the appellant had worked in the family business to help his father, who was in poor health.
The appellant relied upon a report from a psychologist, Dr Fugler. Based on this report the sentencing judge accepted that the appellant’s mental health at the time of his offending was affected by the illness of his sister-in-law, compounded by the financial hardship he was enduring as a result of the loss of his business. Indeed, at the time he lost his business he had developed anxiety and depression. His sister-in-law had passed away in late 2016 and this had had a significant impact upon the appellant and his family. However, the appellant’s mental health had stabilised since his release from prison on home detention bail in 2017.
The sentencing judge noted that, according to the appellant, he had begun smoking cannabis in his younger years, and that after the downturn in his business he began using methamphetamine. The appellant denied using any illicit substances whilst on home detention bail. While he did return a positive urine analysis test during this period, he maintains his denial that he used methamphetamine and is contesting the result. The appellant claimed to be strongly motivated to abstain from illicit drugs at any time in the future.
In terms of his criminal history, the appellant has a number of convictions for a range of offences. They include an assault and a number of driving-related offences. In addition to these offences he received a fine in 2003 for producing cannabis. As mentioned, he was also convicted in 2014 of the cannabis cultivation offence relating to the four plants found at his grandmother’s house on the same day that the police located the cannabis at the Taperoo premises.
The sentencing judge was provided with several character references and letters on the appellant’s behalf which detailed his work ethic, reliability and devotion to his family. As the sentencing judge observed, they demonstrated that the appellant was well regarded by the writers of those references and letters.
The sentence imposed
The sentencing judge described the appellant’s offending as serious. It involved the well-organised commercial production of significant quantities of cannabis. The organised nature of the set-up, the varying stages of maturity that the plants had reached, and the two year lease, pointed to it being an ongoing operation.
The sentencing judge observed that the organised and commercial production of cannabis for significant wholesale supply into the drug industry, of which the present offending formed part, could not occur without persons such as the appellant being willing to set up hydroponic grow houses, cultivate and tend to crops, pay rent on premises used for cultivation and then provide cannabis at a wholesale quantity into the wholesale market. His Honour concluded that the appellant’s conduct was considerably more serious than a street level dealer selling small amounts of the drug to end users.
The sentencing judge said that personal and general deterrence must form a significant part of sentencing in such circumstances.
The sentencing judge added that the appellant had “consistently attempted to derail these proceedings through [his] non-appearances before the Court and through evasion of the authorities.” (This is a matter to which we shall return later in these reasons.) The sentencing judge observed, however, that in more recent times the appellant had been largely compliant with the conditions of his home detention bail.
As the offending represented a single course of involvement in the cannabis production and trafficking industry, the sentencing judge imposed a single sentence under s 18A of the Criminal Law (Sentencing) Act to reflect the overall criminality of the offending. As mentioned earlier, from a notional starting point of five years imprisonment, this was reduced by 10 per cent on account of the appellant’s late guilty plea to a head sentence of four years six months imprisonment. The sentencing judge then reduced this by a further six months for time served, resulting in a head sentence of four years imprisonment.
The sentencing judge fixed what he described as a moderate non-parole period of two years. The sentence was to commence from the date of sentence, namely 28 February 2018. Given the seriousness of the offending, the sentencing judge was not satisfied there was good reason to suspend the sentence. His Honour also declined to order that the sentence be served on home detention. He made an order that the cannabis seized by the police be forfeited.
Potential yield and profit from the cultivation
As mentioned, the count 2 cultivation charge related to 12 cannabis plants at varying stages of maturity. In considering the seriousness of this offending, the sentencing judge made reference to the potential yield and profit that might have been realised from those plants.
The sentencing judge’s reasoning in that respect was as follows:
The plants were in different stages of maturity. Whilst police evidence is that a good sized mature plant would likely yield 600-900 g of dry usable cannabis, the more mature plants in your house would have yielded between 400-500 g if harvested at that time. The 12 plants, if all had been grown to and then harvested just at that level of maturity, would likely therefore have each yielded at least 400-500 g of dried, usable material. So, in total, between approximately 4.8 and 6 kilos. At 454 g a pound, this equates to between approximately 10 and 13 pounds.
Police evidence is that each crop takes about three months to fully mature in a hydroponic environment such as yours. Police evidence establishes that if sold by the pound at the upper end of the scale of possible values extant at that time the price could have been up to $3,800 per pound. 10-13 pounds may therefore have fetched up to between $38,000 and $49,000. If eventually sold on the street in the commonly sold size of a 2-4 g deal bag, for between $25 to $50, let us say $50 for a 4 g bag, what you were growing could have been worth up to approximately $60,000.
Similarly, the loose, wet cannabis which would have ultimately equated, I am told, to about 1.03 kg of dried cannabis also found at the property, being a little over two pounds, if sold wholesale in pounds at the upper price of $3,800 a pound could have been worth up to approximately $8,000.
The prices I have mentioned are maximum prices, of course, and so indeed the values and prices may have been less, depending on the circumstances of the ultimate sale of the drug.
There was no evidence of individual trafficking sales, so in light of police expert evidence it is most likely you would have sold the cannabis wholesale, perhaps in pound lots, rather than have trafficked it yourself on the street for a higher price.
The appellant makes two broad complaints about the sentencing judge’s assessment of the potential yield and profit of the appellant’s cannabis cultivation. The first is that the sentencing judge erred in focusing upon the potential yield and profit when the better indicator of the seriousness of cannabis cultivation was the number of plants. The second is that the sentencing judge’s estimate of the yield was inflated. It is contended that the sentencing judge took an optimistic view of the likely yield of the plants, when “the evidence called for a more moderate assessment of the yield”. This contention was based in part upon a submission that the sentencing judge overlooked that the prosecution evidence as to yield was based upon dry usable material (that included, but was not confined to, flowering head from the female plant) whereas the evidence as to prices was based upon flowering head only.
Addressing the first of these complaints, it is true that in the case of offences involving the cultivation of cannabis for sale it is the number of plants that determines the maximum penalty to which an offender is exposed. Here the offending involved 12 plants, leading to a maximum penalty under s 33B(3) of the Controlled Substances Act of $50,000 or imprisonment for 10 years or both. The more serious offence of cultivating a commercial quantity of a controlled plant for sale (maximum penalty of $200,000 or imprisonment for 25 years or both) required at least 20 plants; and the more serious again offence of cultivating a large commercial quantity for sale (maximum penalty of $500,000 or life imprisonment or both) required at least 100 plants.

However, it does not follow from this that the number of plants is a decisive, or even the most significant, indicator of the seriousness of offending within the category of offending attracting a particular maximum penalty. Nor does it follow that the potential yield and profit from the cultivation are not relevant considerations. To the contrary, when determining the seriousness of a particular cultivation offence within the range of cultivation offences attracting a particular maximum penalty, it remains relevant to consider not only the number of plants but also a range of other circumstances, including the potential yield and profit from the cultivation. Consideration of the potential yield and profit will be relevant to an understanding of the significance and extent of the commerciality of the offending, and hence the significance and extent of any financial or profit motive on the part of the offender. It will also give some insight into the amount of cannabis that was to be introduced into the community, and hence the potential for harm to the community by reason of the offending.
Thus, while the fact that a cultivation involves 12 plants will determine the maximum penalty, and say something about the seriousness of the offending, consideration of the potential yield and profit from the cultivation will also assist in determining the seriousness of the offending. By way of example, the cultivation of 12 struggling cannabis plants in a simple backyard set-up would, all other things being equal, involve less serious offending than the cultivation of 12 thriving plants in an elaborate hydroponic set-up.
This Court recently said as much in R v Yavuz:[5]
Something more should be said regarding the tiered structure of cultivation for sale offences. In relation to these offences, unlike the trafficking offences, the measure of gravity embodied in the scale of penalties is not the weight (or street value) of the expected yield but the number of plants. Generally speaking the greater the number of plants being cultivated, the greater the penalty. This is reflected in the tiered structure of the offences created by s 33B of the Controlled Substances Act and related maximum penalties and the choice of plant numbers as the relevant discrimen. Of course, regard must be had to the nature of the cultivation and the motivation of the offender. The aim of the tiered offences and related penalties remains the same as that of the trafficking offences (ie to strike more strongly at commerciality). Accordingly, it will be important to know whether the venture was a purely commercial enterprise requiring significant capital outlay or was a more modest venture intended in the main to satisfy a personal habit. Was the cultivation part of a broader enterprise involving others and other cultivations? What was the role of the offender in the cultivation? Was the crop comprised of female plants or were the male plants yet to be culled? Were the plants seedlings or mature female plants that were flowering? Had the plants been tended in a manner intended to increase the yield per plant, or been left to mature and flower naturally? Was the plant type a variant with a greater cannabinoid or THC level than normal? What was the anticipated yield and related street value? The answers to these questions are all relevant to assessing the gravity of the offending. It is also important, as with trafficking, to note that the number of plants may be a matter of happenstance; circumstantial evidence may reveal the number of plants to be all that remains of a more significant crop or that the crop found is a second or third crop. Of course, the cultivator is only to be punished for those plants being cultivated, but, again, past activity is relevant to any assessment of the leniency that may be extended.
[5] R v Yavuz (2018) 130 SASR 231 at [77] (omitting citations).
While the appellant focussed upon the reference to the number of plants in the third sentence of this passage, it is important that this sentence be read in the context of the passage a whole. The third sentence does emphasise the relevance of the number of plants, but the second to last sentence also acknowledges that, by analogy with a trafficking offence, it is important to remember that the number of plants may be a matter of happenstance. Further, the balance of the passage also makes it plain that the nature of the cultivation and the motivation of the offender will be relevant, and that these matters are in turn informed by consideration of a range of matters including “the anticipated yield and related street value”.
Consideration of a defendant’s “commercial or other motives”, and the “financial gain that is likely to have accrued … as a result of the commission of the offence”, is also mandated by s 44(1)(d) of the Controlled Substances Act.
There can be no doubt then that it was relevant and appropriate for the sentencing judge to undertake some rudimentary assessment of the potential or anticipated yield and value of the cultivation. Further, we do not accept that the sentencing remarks establish that the sentencing judge focussed unduly on this matter at the expense of consideration of the number of plants. His Honour mentioned that there were 12 plants both at the outset of his sentencing remarks and again immediately prior to assessing the yield and profit. While the latter took a few paragraphs to explain, that is not to be taken as an indicator of the relative weight attached to the consideration of yield and profit, as opposed to this being merely a function of the need to explain how the assessment was carried out.
The first limb of the appellant’s complaint about the sentencing judge’s assessment of yield and profit has not been made out.
Turning to the complaint that the sentencing judge’s assessment was overly optimistic, and led to the appellant being sentenced on an incorrect factual basis, the prosecution evidence as to yield was given by Ms McKew. Her evidence was that the size of an individual plant will be determined by a range of factors, but that a good-sized mature plant would be approximately 1.0 to 1.5 metres tall. She said that such a plant would yield between approximately 600 grams and 900 grams of dry leaf and flower material (which she referred to collectively as “dry usable material”).
In relation to the 12 plants located at the Taperoo premises and forming part of the cultivation offence, Ms McKew said (based upon photographs of the plants):
·    The three plants growing in the first room appeared to healthy, female flowering and at least 1 metre tall. She estimated that each of these plants would yield between approximately 400 grams and 500 grams of dry usable material if harvested as photographed.
·    The eight plants in the second room (the bathroom) appeared to be healthy, immature, with no flowers visible, and approximately 60 cm tall. She estimated that each plant would yield up to approximately 100 grams of dry usable material if harvested as photographed.
·    The one partially harvested plant in the third room appeared to be female flowering, between 1.0 and 1.5 metres tall and to have been heavily pruned. She estimated that it would yield up to approximately 300 grams of dry usable material if harvested as photographed, but that the yield would be greater had it not been previously pruned.
The prosecution evidence as to the likely sale value of the cannabis was given by Detective Brevet Sergeant Hudson. His evidence was that in the past distributors had mixed the flowering head with the dry leaf in varying proportions. However, more recently distributors have tended to package the cannabis in 1 pound bags consisting of almost exclusively flowering head. He said that while prices vary according to quality and availability, the price of 1 pound of flowering head in South Australia in June 2013 was between $2,800 and $3,800; and the price of a bag containing approximately 2 to 4 grams was between $25 and $50.
In challenging the sentencing judge’s assessment of the potential yield and profit, the appellant first contended that his Honour erred in assuming that all the plants were female. While it was not apparent from the photographs whether the eight plants in the second room were female (because no flowering heads could be seen), it was not suggested to the sentencing judge that they were not female, or might not all be female. Of course, if the plants had been grown from seed then one would expect about half of them to be male. However, as Officer Hudson explained, in recent times most plants located in cultivations such as the present have been grown from cuttings or clones taken from mature female plants. Consistently with this, it is apparent from the photographs that each of the three more mature plants in the first room were female. In the circumstances, there was no error in the sentencing judge approaching his assessment of the potential yield and profit on the basis that all 12 plants were female plants.
As for the yields used by the sentencing judge, his Honour noted Ms McKew’s evidence that the more mature plants (being the three plants in the first room) would have yielded between 400 to 500 grams of dry usable material, if harvested at the date of the photographs. His Honour then said that if all 12 plants had been grown to, and harvested at, that level of maturity then each would have yielded the same, giving a total yield of between approximately 4.8 kilograms and 6.0 kilograms of dry usable material.
The appellant complains that the sentencing judge should have used the yield achievable from the plants as at the date they were each photographed. We do not accept this submission. It was obvious from the photographs that the plants were at varying stages of maturity. It was also obvious that the operation involved training the plants to grow through the mesh that was in place. In the case of three of the plants, they had grown through the mesh and to a size of at least 1 metre. The sentencing judge was entitled to proceed on the basis that the other eight plants would have been given an opportunity to mature further, and not harvested at the date they were located and photographed. As such, his Honour’s use of a potential yield of 400 to 500 grams per plant was appropriate.
The final complaint made by the appellant in relation to the sentencing judge’s assessment of the potential yield and profit is that in determining the latter, his Honour used a price range based upon 1 pound of flowering head whereas the yield estimates were referable to dry usable material (which included leaf as well as flowering head).
The respondent accepts the factual premise of this submission and that the assessment of the anticipated yield was thus potentially inflated to some extent.[6] However, the respondent contends that the significance of any such inflation is immaterial and not a sufficient basis for finding error in the sentencing discretion.[7]
[6]    Subject to the qualification that Officer Hudson did acknowledge that even in recent times there might be some (unspecified) proportion of dry leaf in the 1 pound bags sold.
[7]    While the Court should not engage in any fine analysis of the extent of the influence that a particular matter had on the sentencing outcome, there is authority to the effect that an error of fact must nevertheless be material to warrant a finding of error in the sense required by House v The King (1936) 55 CLR 499 at 504-505; see Kentwell v The Queen (2014) 252 CLR 601 at [42]; R v McPhee [2014] SASCFC 107 at [24]; R v De La Cerna [2015] SASCFC 115 at [39].
In this context, it is important to bear in mind that the sentencing judge was not purporting to undertake a precise calculation or estimate of the yield and profit. The intention of the exercise was to give some broad approximation or indication of the potential yield. That this was the nature of the exercise is plain from the terms in which the sentencing judge expressed himself, which made it clear that the assessment was based upon an assumption about the level of maturity the plants might reach (“if all had been grown to and harvested at just that level of maturity”), was intended only to indicate a “likely” or “approximate” yield, and involved the use of “maximum” prices when the real prices achievable “may have been less”.
In the context of what was plainly intended to be nothing more than a rudimentary projection in order to ascertain the approximate potential yield and profit of the appellant’s cultivation, we consider that any inflation inherent in the sentencing judge’s use of the price for flowering head in respect of yields which included some (unspecified) component of leaf was immaterial.
This immateriality is inherent in the nature of the task which the sentencing judge, being an approximation of the cultivation’s potential yield and profit that, through the use of various identified assumptions, implicitly acknowledged that this potential may well not have been realised. This immateriality is also reinforced, in our view, by the fact that any inflation inherent in the use of the prices given by Officer Hudson may well have been counteracted to some extent by various other assumptions made by the sentencing judge.
For example, while Ms McKew estimated that the three plants in the first room would have yield at about 400 to 500 grams of usable material if harvested as at the date they were photographed, these plants may well have grown further before being harvested. In other words, some or all of the 12 plants may well have achieved more than the 400 to 500 gram yield assumed by the sentencing judge, and closer to the high end of the range given by Ms McKew for plants of 1 to 1.5 metres in height (namely, 600 to 900 grams of usable material). Further, as the sentencing judge noted, he used wholesale prices rather than the higher prices that could have been achieved through sales on the street.
Finally, and in any event, as the respondent points out, there was an alternative method of assessing the potential yield and profit of the appellant’s cultivation which supported the appropriateness of the sentencing judge’s approximation.
It will be recalled that the police located 4.14 kg of flowering head material in the third room. While it was suggested by the appellant that it could not be assumed that this material all came from the three plants in that room (two of which had been completely harvested, and one partially harvested), and that some of it may have come from the two plants found in the fourth room, we do not accept this submission. Not only was this not suggested below, it is implausible given that the two plants in the fourth room appear to have been dead stumps rather than recently harvested plants.
In the context of the trafficking offence, the sentencing judge proceeded on the basis there was “approximately 1.03 kg of dried cannabis”. This was based upon an assumption that cannabis will generally lose about 75 per cent of its weight on account of moisture loss following harvest. However, given that the cannabis in question was already drying when located by the police, and was not weighed for a further nine days, the use of a weight of 1.03 kg (being approximately 25 per cent of 4.14 kg) was probably conservative and favourable to the appellant.
In any event, even assuming there was “only” 1.03 kg of flowering material, if it were to be assumed that this was the yield from, say, two and a third plants,[8] then this suggests a yield of 441 grams of flowering head per plant. Even if it were assumed that this was the yield from two and a half plants, this would still suggest a yield slightly in excess of 400 grams of flowering head per plant.
[8] That is, assuming the partially harvested plant had been harvested as to one third of its yield. This seems reasonable given Ms McKew’s evidence that it would have yielded about 300 grams if harvested as at the date it was photographed.
Approached in this way, and hence by reference to an estimated yield of flowering head (as opposed to dry usable material more generally) there would have been no inflation inherent in using Officer Hudson’s prices, and no basis for complaint about an approximate potential profit very close to the figure used by the sentencing judge.
For all of these reasons, no error has been identified in the sentencing judge’s approach to the anticipated yield and profit of the cannabis plants the subject of the cultivation offence.
Credit for time spent in custody and on home detention bail
There was no dispute that prior to his sentencing on 28 February 2018, the appellant had spent almost seven months in custody, and almost 13 months on home detention bail; and that both of these periods were attributable to the present offending and could be taken into account.
In relation to the period spent in custody, the prosecutor did not submit that the sentencing judge could, or should, give less than full credit for the time spent in custody. She merely referred to the seven months spent in custody that “your Honour can take into account when imposing a sentence for this matter”. While the sentencing judge at one point adverted to “a lot of the reason for his custody [being] his failure to attend”, and the possibility that the appellant might receive less than full credit, this was in the context of a broader discussion that included credit for home detention, and was not a matter addressed by either counsel.
In his sentencing remarks, the sentencing judge acknowledged that the appellant was entitled to “significant credit for time served”. However, his Honour only reduced the head sentence by six months on this account.
By way of explanation for this conclusion, the sentencing judge made reference to the appellant having “consistently attempted to derail these proceedings through [his] non-appearances before the court and through evasion of the authorities”. Then, after announcing a head sentence of four years six months imprisonment (after a 10 per cent discount on account of the appellant’s late guilty plea), the sentencing judge said:
The court takes into account the time you have already spent in custody as well as on home detention bail. It must be borne in mind that that time in custody and on home detention was largely due to your repeated non-attendance and absconding from police. However, it is still appropriate that you receive significant credit for time served.
In the totality of the circumstances, the sentence will be reduced by a further six months to four years. There will be a moderate non-parole period of two years, particularly in light of all the matters urged by your counsel.
Earlier in his sentencing remarks, the sentencing judge had described in quite some detail the conduct of the appellant upon which he relied. He said:
This matter has been ongoing for a considerable length of time. Following a series of non-attendances before this court, on 7 November 2014 a bench warrant for your arrest was issued. You were arrested and brought to court, whereupon you were released on bail to await your trial on 8 December 2014. The trial was not reached and was relisted for 29 June 2015.
On 24 June 2015 a further bench warrant was issued when you again failed to attend at the District Court. Police attended at your Woodville home the following day and ascertained that the house had been sold and you were no longer residing there. At 9.14 p.m. on 7 November 2015 you were stopped by police at a static driver testing site on the Port River Expressway. You gave the police details of your brother George Tsonis and you returned a sample which tested positive to methamphetamine. That matter is still pending in the Magistrates Court.
On the morning of 12 December 2015 police attended at your brother's address on Newcastle Street, Rosewater, to speak with you about the traffic matter and to arrest you on the outstanding bench warrant. When they advised you that you were under arrest you pushed the police officers away and jumped over a fence in order to avoid apprehension. This comprises charges of escape lawful custody and resisting police, which the court has been told are listed for trial to commence in this jurisdiction on 15 October 2018.
You cannot be penalised for that offence as you have not been convicted of it. You did, however, by that conduct, continue to actively avoid answering the charges now before the court.
At 1.10 a.m. on 8 January 2016 police attempted to stop a white Mercedes registered to your mother, Maria Tsonis. The vehicle stopped briefly allowing the passenger, Maria-Anna Georgiadis, to exit before speeding away from police. A high-speed pursuit began but police terminated this due to the speed and dangerous driving exhibited by the white Mercedes. Police allege that you were the driver of the Mercedes, however Ms Georgiadis, who is an associate of yours, has stated that she did not know the driver. You cannot be penalised for that offending as you have not been convicted of it and the evidence before this court does not prove that you were the driver. However, during that period you did continue to not answer your pending charges.
On 19 January 2016 police observed you entering your brother George's house at Rosewater. Police then entered and searched the premises in order to arrest you. Again you decamped, this time over a side fence, so an arrest could not be made. Your wife Rachel assisted with this and later told police that you had not been at the house at all.
At 11.30 p.m. on 15 March 2016 you were the driver involved in a vehicle collision at Jetty Road and Gordon Street, Glenelg in a vehicle registered to Maria-Anna Georgiadis. At this time, you again wrongly identified yourself to police as your brother George and you were later treated at hospital under his name. A blood sample was obtained from you and returned positive for methamphetamine.
On 31 March 2016, while driving a Holden Statesman registered to Ms Georgiadis who was a passenger in the car at the time, you again evaded arrest by police.
On 5 July 2016 police attended at an old address of Ms Georgiadis at Haynes Avenue, Richmond and located you in the rear yard of the property. You were finally arrested, and police also located two Holden Statesman vehicles previously used by you on occasions detailed above. Police were required to use force to arrest you, as you again attempted to actively resist. You pled guilty to all charges three days later but later withdrew these pleas due to disagreements with the factual basis put forward in regards to those matters.
A fresh trial was listed for the third time for 20 November 2017 and 10 days before this you entered guilty pleas. You were in custody for seven months until released on home detention bail on 2 February 2017.

The almost seventh month period of custody to be taken into account was from 7 July 2016, following the appellant’s arrest in the circumstances described in the second to last paragraph above, through 2 February 2017, when the appellant was released on home detention bail. The precise period in custody was six months and 26 days. He then spent the period of approximately 13 months from this date through to his sentencing on 28 February 2018 on home detention bail. The precise period on home detention bail was 12 months and 26 days.
The appellant does not challenge the factual accuracy of the matters recounted by the sentencing judge,[9] or indeed that they might be relevant in the overall exercise of the sentencing discretion (for example, as shedding some light upon the appellant’s prospects of rehabilitation). However, the appellant contends that the sentencing judge erred in relying upon these matters in declining to give the appellant full credit for at least the time served in custody.
[9] Except to the extent the sentencing judge acknowledged that they were disputed.
The first step in considering this contention is to understand the sentencing judge’s treatment of the time spent in custody and on home detention bail. While his Honour expressed his ultimate conclusion in terms of credit for “time served”, it is apparent from the relevant passage of his remarks that he was intending to take account of both the time in custody and the time on home detention bail. Unfortunately, however, the sentencing remarks are not transparent as to the amount of credit given for each of these two components of the time served.
Despite the lack of transparency as to the precise breakdown of the credit given, it is nevertheless plain that the sentencing judge gave the appellant less than full credit for the seven months he spent in custody. Even if it could be inferred that his Honour gave no credit, or essentially no credit, for the 13 months the appellant spent on home detention bail, that would still leave only six months credit for the seven months spent in custody. Of course, if the sentencing judge intended that some of the six months credit be attributed to the period spent on home detention bail, then he gave correspondingly less than six months credit for the seven months spent in custody.
In our view, regardless of precisely how much of the six months credit was referable to the time spent in custody, his Honour fell into error. While the sentencing judge had a discretion in relation to the credit to be given for time served in custody, for the reasons that follow, we do not accept that his Honour’s reason for departing from the usual approach of giving full credit was a proper reason for doing so.
When a defendant has spent time in custody on remand for the offences for which he is ultimately sentenced, s 30(2) of the Criminal Law (Sentencing) Act provides that the sentencing judge “may … take into account” that time and either make “an appropriate reduction in the term of the sentence” (s 30(2)(a)) or direct that the sentence be taken to have commenced on the day the defendant was taken into custody or some intermediate date (s 30(2)(b)). Further, s 30(6) provides that in default of the sentencing judge specifying the date of commencement of the sentence, the sentence will be taken to have commenced on the date on which the defendant was (last) taken into custody.
It is accepted that by reason of the use of the word “may” in s 30(2), the sentencing judge has a discretion as to the extent of any credit given for time served in custody.[10] The reference to an “appropriate” reduction rather than a reduction that necessarily reflects precisely the time spent in custody is also consistent with the sentencing judge having some discretion as to the extent of the credit given.
[10] R v Deng [2015] SASCFC 176 at [11], [42].
That said, the practice which has developed is to give the defendant full credit for the time spent in custody. This practice has variously been described as the usual practice,[11] the typical practice,[12] and an almost universal practice.[13] Further, when full credit is given, it is generally calculated to the day, although it is accepted that mathematical precision is not necessarily required.[14]
[11] Trotta v Police [2008] SASC 16 at [18].
[12] R v Deng [2015] SASCFC 176 at [42].
[13] R v Deng [2015] SASCFC 176 at [11].
[14] R v Malesevic [1999] SASC 321 at [41]; R v Deng [2015] SASCFC 176 at [11], [42].
When giving credit, the sentencing judge has a discretion whether to do so by reducing the sentence or backdating the sentence. However, at least when the time spent in custody is continuous, the preferable course is to backdate the sentence and non-parole period to the day on which the defendant was taken into custody, rather than to reduce their length.[15] When this course is followed, it has the effect of giving the defendant full credit for the time spent in custody. When s 30(6) operates it has a like effect.[16]
[15] R v Deng [2015] SASCFC 176 at [12]-[14].
[16] Assuming only one continuous period in custody in respect of the offending for which the defendant is being sentenced.
In the present case, the appellant was on home detention bail at the time of sentencing and so it was appropriate to give credit for the earlier time spent in custody by reducing the sentence rather than backdating it. When reducing a sentence for time served a common approach is to fix both the head sentence and non-parole period, and then reduce both for the time served. The sentencing judge in this case took a different approach. His Honour reduced the head sentence for time served and then fixed a non-parole period by reference to this reduced head sentence; he did not directly reduce the non-parole period for time served. While perhaps not the usual or preferable approach, the approach adopted by the sentencing judge is permissible as long as the time served is not overlooked when fixing the non-parole period.[17] Given that the sentencing judge in this case fixed the non-parole period in the very next sentence following reference to the time served, and imposed a relatively modest non-parole period, we are not satisfied that his Honour did overlook this matter.[18]
[17] R v Malesevic [1999] SASC 321 at [35]-[47]; R v Rowe [2016] SASCFC 33 at [25]-[28]; R v Hudson (2016) 125 SASR 171 at [26]-[27].
[18] cf R v Malesevic [1999] SASC 321 at [47] where the Court did infer error on the part of the sentencing judge.
Nevertheless, the issue remains whether, in the circumstances of this case, it was within the sentencing judge’s discretion to give the appellant less than full credit for the time served in custody when making “an appropriate reduction in the term of the sentence” under s 30(2)(a).
As the reduction made by the sentencing judge by way of credit for time served was at least one month[19] less than the period spent in custody, the shortfall cannot be justified as immaterial rounding or a mere want of mathematical precision. Rather, it was an intentional exercise of the sentencing judge’s discretion under s 30(2)(a) to give materially less than full credit for the time spent in custody.
[19] Or at least 26 days, to be precise.
The authorities provide little guidance as to when it might be appropriate to exercise the discretion under s 30(2) of the Criminal Law (Sentencing) Act in this way, beyond observing that the discretion must be exercised judicially and in accordance with sound sentencing principles.[20]
[20] K v SA Police (1994) 175 LSJS 195 at [9].
However, in light of the usual practice of giving full credit, it would seem that there must be some good reason – that is, some reason or circumstance that reflects sound sentencing principles – before it is appropriate to give less than full credit.[21] Further, where a sentencing judge does decide to give less than full credit, it is incumbent upon that judge to disclose both the extent of the credit given for the time spent in custody (and hence the extent of the shortfall), and the reason or reasons for giving less than full credit.[22]
[21] K v SA Police (1994) 175 LSJS 195 at [10].
[22] Frank v Police (2000) 77 SASR 273 at [55]-[59]; R v Deng [2015] SASCFC 176 at [42]-[45]; White v Police [2016] SASC 94 at [32].
In this case, by rolling up the credit given for time spent in custody and on home detention bail, the sentencing judge did not make the extent of the shortfall as clear as it should have been. That said, his Honour at least made it plain there was a material shortfall and identified the reason for the shortfall – namely his conclusion that the appellant’s time in custody (and on home detention bail) was largely due to the appellant’s repeated non-attendance and absconding from police.
In considering the soundness of this reason for giving less than full credit, the first point to make is that even if the most immediate reason the appellant was in custody and then on home detention bail in the lead up to his sentencing, as opposed to remaining on ordinary bail throughout that period, was the appellant’s non-attendance and absconding, this does not mean that the time in custody was not time in custody “in respect of” the offending for which the defendant was being sentenced for the purposes of s 30(2).
The words “in respect of” appearing in s 30(2) are not to be given a narrow construction.[23] They entitle a court, for example, to take into account a period of remand in custody for the offending for which the defendant is being sentenced even if some or all of that time is also referable to other offending.[24] It is necessary merely that there be some connection between the period in custody and the subject offending, as opposed to the sole or dominating reason for the period of custody being some other unrelated offending.[25]
[23] PNJ v The Queen (2009) 83 ALJR 384 at [17]-[18]; see also R v Galgey [2010] SASC 134 at [10].
[24] R v Sprecher (2015) 123 SASR 15 at [30], applying R v Al-Zuain (2009) 103 SASR 567 at [44]-[67].
[25] R v Hughey [2007] SASC 452 at [6]; although even this limitation upon the breadth of s 30(2) may be open to reconsideration in light of PNJ v The Queen (2009) 83 ALJR 384 – see the discussion in Police v Elmes [2016] SASC 188 at [31]-[50].
Indeed, it is common that a defendant’s subsequent conduct will result in him being remanded in custody on a matter on which he was originally granted bail. And consistently with the broad scope given to s 30(2), this is not usually treated as a reason to depart from the practice of granting full credit for the time served in custody.
By way of illustration, the defendant in Trotta v Police[26] was repeatedly taken into custody after being bailed for the subject offending. The Court held that the Magistrate nevertheless erred in not giving the defendant credit for this time served, and on resentencing gave him full credit for this time.[27] Similarly, in R v Witter,[28] the defendant, while on remand for the subject offending, spent time in custody that was directly related to allegations of breaches of bail and a restraining order. Despite the fact that the defendant’s bail in respect of the subject offending was not formerly revoked, the Court nevertheless held that the sentencing judge erred in giving the defendant less than full credit for the time spent in custody when sentencing him for the subject offending.[29] Further, in Tong v Police,[30] while the defendant was on remand in custody for the subject offending, at least part of the reason he remained in custody was the execution of various warrants for the non-payment of fines. Despite the period in custody operating to reduce the amount of the outstanding fines, it was nevertheless held that the Magistrate erred in failing to give credit for the time spent in custody when sentencing the defendant for the subject offending.[31]
[26] Trotta v Police [2008] SASC 16.
[27] Trotta v Police [2008] SASC 16 at [17]-[19].
[28] R v Witter (2011) 111 SASR 293.
[29] R v Witter (2011) 111 SASR 293 at [20]-[22].
[30] Tong v Police (1998) 198 LSJS 398; [1998] SASC 6813.
[31] Tong v Police [1998] SASC 6813 at [10]-[14].
Here, it cannot be said that any part of the approximately seven months spent in custody was referable only to some other offending. Rather, the reason given for declining to give full credit was, in effect, the appellant’s interference with the progress of these proceedings through his non-attendances in court and evasion of police. But even if it be accepted that the appellant’s disobedient conduct more generally was the reason he was taken into custody, the time then spent in custody remained time spent in respect of the subject offending. The disobedient conduct was thus not a barrier to the giving of credit, or indeed full credit, for the time spent in custody.
The issue that remains is the relevance, if any, of the appellant’s disobedient conduct. We accept that this conduct may properly have informed the sentencing discretion more generally (for example, by negatively impacting upon the assessment of the appellant’s prospects of rehabilitation). There would be an analogy in this respect with the relevance of poor compliance by a defendant with the requirements of his bail while awaiting sentence. However, we are not satisfied that this conduct was relevant to whether or not full credit should be given.
Indeed, it seems to us that there is a difficulty associated with relying upon this conduct to give less than full credit for the time spent in custody. In particular, the refusal to give full credit for the time spent in custody on account of this conduct would in our view be tantamount to imposing an additional punishment upon the appellant for his disobedience. Consistently with the principle in The Queen v De Simoni,[32] the appellant ought not have been punished, when being sentenced for the subject offending, for any disobedience in his approach to the Court and the authorities. Certainly he should not be punished for those matters which are the subject of ongoing dispute; although the sentencing judge did expressly purport to put those aspects of the chronology to one side. But in our view he should also not have been punished for his admitted disobedience in the absence of separate charges and convictions for that conduct (for example, for breach of bail, obstructing the police or contempt of court).
[32] The Queen v De Simoni (1981) 147 CLR 383.
Counsel for the respondent quite properly acknowledged the risk inherent in the sentencing judge’s approach of inappropriately punishing a defendant for his conduct unrelated to the subject offending. However, in contending that the sentencing judge did not ultimately err in this respect, he submitted that, on a strict analysis, by refusing to give full credit the sentencing judge did not punish the appellant. Rather, his honour rather merely withheld a measure of leniency that might otherwise have been afforded to the appellant. While acknowledging that this distinction is a fine one, and that it has been said to have a somewhat metaphysical character to it,[33] he pointed out that it is a distinction that is well recognised and often applied in the context of sentencing.
[33] R v Reiner (1974) 8 SASR 102 at 105.
While accepting the validity of this distinction in certain contexts, we do not consider it appropriate to rely upon it when determining the significance of something as real and fundamental as time served in custody. Certainly the distinction that the law sometimes draws between punishing and withholding leniency would be lost on the person who has served time in custody. The significance of the deprivation of liberty and hardship associated with every day spent in custody should never be overlooked. And in the face of a usual, if not almost universal, practice of giving full credit for time served in custody, we consider it would be artificial to regard the withholding of full credit as a mere withholding of leniency as opposed to an outcome tantamount to punishment.
In the context of determining the extent of any credit to be given for time spent on home detention bail (as opposed to time spent in custody), the courts do exercise a very broad discretion having regard, inter alia, to the nature and extent of the conditions imposed upon the defendant, the imposition they represent for the defendant, and the defendant’s compliance with them.[34] In some cases the sentencing judge may quite appropriately give no credit at all for the time spent on home detention bail, although depending upon the length of time involved and other matters, such as those mentioned above, that will not always be appropriate.[35] And further, where credit is given, there is no formula for determining the extent of the credit to be given. While full credit (in the sense of day for day credit) will rarely if ever be appropriate, the permissible range will generally be quite broad.
[34] R v Franceshini (2015) 123 SASR 396 at [42]; R v Taylor [2016] SASCFC 54 at [19]-[20]; R v Zefi (2017) 129 SASR 161 at [96]-[97].
[35] R v Taylor [2016] SASCFC 54 at [31]-[35].
But in our view there is no close analogy between the exercise of the discretion to give credit for time spent on home detention bail, and the exercise of the discretion to give credit (or give less than full credit) for time spent in custody. In the case of the latter, there is no occasion for weighing the extent of the imposition of custody upon the particular defendant, or the extent of their compliance with the requirements of custody. Time in custody is time in custody. To allow less than full credit for time spent in custody would often give rise to an understandable sense of grievance or injustice on the part of the defendant. The reality, and fundamental nature, of considerations such as these have no doubt contributed to the practice that has developed of giving full credit for time spent in custody.
There are also sound practical and policy reasons for this practice of giving full credit for time spent in custody. Defendants who are confronted with the likelihood or virtual inevitability of a custodial sentence in due course may wish to face up to this reality and commence to serve their time in custody. Defendants ought not to be discouraged from taking this course. To this end, they ought to be able to take this course with some reasonable level of assurance as to the extent of the credit they will receive for doing so. To acknowledge a broadly and regularly exercised discretion to give less than full credit for time served in custody would be to discourage defendants from taking this course.
The respondent submits that even if the discretion to give less than full credit for time spent in custody is only to be exercised sparingly, the legislature must nevertheless have intended that it be given some content. We accept the validity of this submission, but do not accept that this is sufficient to sustain the exercise of that discretion in this case; or that it follows that the legislature must have had this sort of case in mind. As mentioned, the discretion must be exercised judicially and by reference to considerations that have some foundation in sound sentencing principles. Properly analysed, the reasons given by the sentencing judge in this case do not have that character.
We acknowledge that it is difficult to conceive of situations where the discretion will appropriately be exercised. An example might be in a case where the time in custody is referrable to multiple offences, and the sentencing judge is not sentencing the defendant for all of these offences. In that situation, the sentencing judge might consider it appropriate to refrain from giving full credit, particularly if this is the request of the defendant (so as to enable credit to be sought upon sentencing for the other offences).

But the difficulty in conceiving of circumstances in which the discretion will be appropriately exercised is not to say that they do not exist. Nor is it to deny the reality of the discretion. A discretion may be one that is rarely to be exercised, or only sparingly to be exercised, but nevertheless be a real and unfettered discretion. Where, as here, an almost universal practice has developed for reasons that are sound in principle and have significant force, it is entirely to be expected that departure will only rarely be justifiable.
For all of these reasons, we consider that the sentencing judge erred in not giving the appellant full credit for the almost seven months he spent in custody prior to being sentenced. It follows from this that the appeal should be allowed and the appellant resentenced.
We note in passing that the sentencing judge prepared a report for this Court in which he cited several decisions said to support the exercise of his discretion to give less than full credit. While those authorities do acknowledge the existence of the discretion, they do not provide any positive basis for its exercise in the present circumstances. Rather, they tend to reinforce the usual or almost universal practice to which we have referred.
Manifest excess
Given our conclusion that the sentencing judge erred in not giving full credit for the time spent in custody, it is not necessary for us to consider whether the sentence was manifestly excessive. While it is implicit in what follows in our resentencing of the appellant that we would have imposed a lesser sentence, it does not necessarily follow that the sentence imposed below was manifestly excessive.
Resentencing
The parties did not put submissions as to whether any resentencing of the appellant should occur under the Criminal Law (Sentencing) Act 1988 (SA) (which was in force at the time the appellant was sentenced), or in accordance with the provisions of the Sentencing Act 2017 (SA) (which came into effect after the appellant was first sentenced). By reason of the transitional provisions governing the introduction of the Sentencing Act, that Act applied to any “sentencing” of a defendant; however, it is not immediately clear whether that extends to a resentencing of the defendant. However, it does not appear that the applicability or otherwise of the new legislation is a matter of any practical significance in this case. In particular, there is an equivalent provision in relation to credit for time served in custody in s 44 of the new legislation, with the result that our consideration of the exercise of that discretion will apply equally in respect to the new legislation. There is also no material difference, relevant to the circumstances of this case, in relation to the provisions governing an order that a sentence be served on home detention.
We have earlier set out in detail the matters identified by the sentencing judge as relevant both to the circumstances of the appellant’s offending and his personal circumstances. We adopt the sentencing judge’s identification of those matters, as summarised and elaborated upon in these reasons. The offending was serious and represented an organised and ongoing operation with a significant commercial value. As the authorities in relation to similar offending have repeatedly made plain, general and personal deterrence are significant considerations in the present circumstances. There is little in the appellant’s personal circumstances to warrant any particular leniency.
Like the sentencing judge, we consider it appropriate to impose a single sentence under s 18A of the Criminal Law (Sentencing) Act 1988 (SA), or its equivalent in s 26 of the Sentencing Act 2017 (SA). We would start with a notional head sentence of four years six months imprisonment. We would reduce that by almost 10 per cent on account of the appellant’s pleas of guilty to four years one month imprisonment. We would fix a non-parole period of two years.
We would give the appellant full credit for the almost seven months spent in custody. We would give slightly more than three months further credit for the almost 13 months spent on home detention bail. The appellant largely complied with his home detention bail; the “non-attendances and evasion of the authorities” referred to by the sentencing judge occurred prior to his time on home detention bail. That said, the terms of his home detention bail were not particularly onerous, and in particular he was permitted to, and did, work in the family business throughout that period.
Allowing a total of 10 months credit for these matters, we would reduce the sentence to three years three months imprisonment, and the non-parole period to 14 months.
Despite the significant time that has now been served, we are not satisfied there is good reason to suspend the sentence. The offending is too serious, and the work still to be done in terms of both personal and general deterrence too significant, for that to be appropriate. Further, we are also not satisfied that this is an appropriate case in which to order that the sentence be served on home detention.[36] In our view, such an order would not adequately achieve the significant degree of general and personal deterrence required by the present offending and offender; it would result in a punitive experience well below what is ordinarily imposed (and required in this case) to meet the deterrent purposes of punishment for this type of offending.[37]
[36] Under s 33BB of the Criminal Law (Sentencing) Act 1988 (SA) or s 71 of the Sentencing Act 2017 (SA).
[37] R v Dell (2016) 126 SASR 571 at [72]-[75].
Conclusion
We allow the appeal. We set aside the sentence imposed by the sentencing judge. We substitute a sentence of three years three months imprisonment, fix a non-parole period of 14 months, with the sentence to take effect from the date of sentencing below, namely 28 February 2018.