R v WAKEFIELD - [2018] SASCFC 85

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WAKEFIELD
[2018] SASCFC 85
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Parker)
21 August 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY
This is an appeal against sentence, and an application for permission to appeal against sentence.
The appellant pleaded guilty to five offences against the Controlled Substances Act 1984 (SA). A Judge of the District Court imposed a head sentence of six years, seven months, three weeks and four days and a non-parole period of four years and seven months.
The appellant advanced seven grounds of appeal in respect of this sentence (but subsequently abandoned grounds 4 and 6):
1. The Judge erred by reducing the sentence for count 1 for totality before applying the guilty plea discount.
2. The Judge erred by making the sentence for count 1 cumulative upon that for count 4.
3. The Judge erred by considering himself bound by s 10C of the Criminal Law (Sentencing) Act 1988 (SA) with respect to count 1.
5. The sentence of two months’ imprisonment for the offence of possessing a prescription drug is manifestly excessive.
7. The overall sentence of six years, seven months, three weeks and four days with a non parole period of four years and seven months is manifestly excessive.
The respondent did not oppose the grant of permission to appeal on grounds 1, 2 and 3. However, a Judge of the Supreme Court refused permission to appeal on grounds 5 and 7.
Held, per Parker J (Kourakis CJ and Vanstone J agreeing) dismissing the appeal:
1. For the offence of possessing a prescription drug, the starting point of imprisonment for two months reduced by 10% to imprisonment for one month, three weeks and four days was well within the range of sentences reasonably open to the Judge (at [63]-[64]).
2. Although the Judge erred in applying a sentencing discount of 20% under s 10C of the Criminal Law (Sentencing) Act 1988 (SA) (as opposed to under the common law), this discount of 20% was not outside the range reasonably available to the Judge at common law (at [69]-[70]).
3. The effective sentence imposed by the Judge was within the range reasonably available to his Honour (at [93]).
Controlled Substances Act 1984 (SA) ss 18, 32, 33K, 33LA; Criminal Law (Sentencing) Act 1988 (SA) (repealed) s 10C; Sentencing Act 2017 (SA); Criminal Procedure Act 1921 (SA) s 158; Criminal Law (Sentencing) (Guilty Pleas) Amendment Act 2012 (SA) cl 1 sch 1, referred to.
R v Martin [2009] SASC 26; Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610; R v Young (2016) 126 SASR 41, applied.
R v Major (1998) 70 SASR 488; R v Place (2002) 81 SASR 395; R v Ravet [2011] SASCFC 67; Attorney General v Tichy (1982) 30 SASR 84; R v Williams [2013] SASCFC 26; Kentwell v The Queen (2014) 252 CLR 601; R v Ceruto [2014] SASCFC 5; R v Simpson (2004) 89 SASR 515; R v Slater (1984) 36 SASR 524; R v Copeland (No 2) (2010) 108 SASR 398; R v Bagnato (2011) 112 SASR 39; Nguyen v The Queen (2016) 256 CLR 656; R v Wooldridge (2015) 123 SASR 422; R v Rossi (1988) 142 LSJS 451; R v Scott [2017] SASCFC 96; R v Nguyen [2015] SASCFC 40; Johnson v The Queen (2004) 78 ALJR 616; Bugmy v The Queen (1990) 169 CLR 525; R v Dubois (2004) 88 SASR 304; R v Rooke [1998] SASC 6738, considered.

R v WAKEFIELD
[2018] SASCFC 85
Court of Criminal Appeal: Kourakis CJ, Vanstone and Parker JJ

KOURAKIS CJ: I agree with the orders proposed by Parker J and with the reasons he has written.
VANSTONE J: I agree with the orders proposed by Parker J and with the reasons he has written.
PARKER J: This is an appeal and an application for permission to appeal against the sentence imposed for certain offences against the Controlled Substances Act 1984 (SA) (‘CSA’).
Background
On 11 June 2013 the appellant pleaded guilty to one count of trafficking in a controlled drug (namely 78.9g of methamphetamine) at his home at Elizabeth Vale on 16 October 2012 contrary to s 32(3) of the CSA (‘count 1’).
On 5 July 2013 the appellant pleaded guilty to one count of cultivating more than the prescribed number of cannabis plants (namely 15 plants) and one count of possession of prescribed equipment (namely 29 light globes, 20 light shades, 20 electrical transformers and three carbon filters) at his home at Elizabeth Vale on 16 October 2012 contrary to ss 33K(1)(b) and 33LA of the CSA respectively.
On 30 March 2015, a further charge was laid against the appellant under s 32(1) of the CSA. It was alleged that he possessed a prescription drug (namely nine phials of steroids) at his home at Gawler South on 17 September 2014 (‘possession charge’).
Subsequently, a further charge was laid against him under s 32(3) of the CSA. It was alleged that he had trafficked in a controlled drug (namely 52.1g of methamphetamine) at Adelaide and Port Augusta on 15 and 16 October 2012 (‘count 4’). Thereafter the appellant, who had been granted bail, fled to the Northern Territory. He was arrested in the Northern Territory on drug charges in February 2016 and was remanded in custody. All charges were withdrawn save for one count of possession of a trafficable quantity of a dangerous drug. This charge related to possession of steroids.
On 2 September 2016 the Supreme Court of the Northern Territory accepted that the steroids were for the appellant’s personal use. He was sentenced to imprisonment for six months backdated to 17 February 2016. The appellant was immediately released from custody but then arrested outside the Northern Territory Supreme Court and extradited to South Australia.
Count 4 and the possession charge were listed for trial on 22 August 2017. However, on the first day of trial the appellant pleaded guilty to count 4. On 12 September 2017, the appellant pleaded guilty to the possession charge. As the appellant had pleaded guilty to all five offences the matter was listed for sentence. A District Court Judge imposed a head sentence of six years, seven months, three weeks and four days and a non-parole period of four years and seven months commencing on 7 September 2016. That sentence forms the subject of this appeal.
The offences
The offending comprised in count 1 and count 4 came to the attention of the police as a result of the interception of telephone calls made by Nathan Pedler. Pedler was in contact with the appellant from August to October 2012. While coded language was used in their telephone conversations, it could readily be inferred that the appellant was regularly selling drugs to Pedler. The latter would contact the appellant to make purchases. The prosecution alleged that after buying drugs from the appellant, Pedler would transport them to a Kenneth Grillett, in Whyalla. Grillett then sold the drugs from the home he shared with an Alicia Gill. Each of Pedler, Grillett and Gill pleaded guilty to trafficking in a controlled substance and were sentenced on 3 December 2015.
The final telephone call between Pedler and the appellant intercepted by the police occurred on 15 October 2012 when they arranged to meet at the appellant’s home. After Pedler and two other men attended at the appellant’s home they were followed by police as they drove north. The police arranged for their vehicle to be intercepted near Port Augusta in the early hours of 16 October 2012. Two plastic tubs containing 52.1g of methamphetamine were located by the police in the car. The average purity was about 43% and thus there was 22.5g of pure methamphetamine. The drugs had been sold by the appellant to Pedler the previous evening. That conduct is the subject of count 4.
Police then attended the appellant’s home on the morning of 16 October 2012. He attempted to flee but was apprehended by the police in the backyard. The police found three plastic tubs containing 78.9g of methamphetamine. That substance was the amount left over after the sale to Pedler the previous evening. That conduct is the subject of count 1.
The police also found a number of indicia of drug dealing at the appellant’s home and in his car. That material comprised $985 in cash, two sets of digital scales with methamphetamine residue, unused plastic tubs and press seal bags, two “tick” lists and three mobile telephones. One of those telephones contained text messages sent between 8 October and 16 October 2012 which disclosed further drug dealing activity with persons other than Pedler.
On 17 September 2014 police searched the house that the appellant then shared with his partner. They found nine phials of anabolic steroids, including testosterone and nandrolone. That conduct is the subject of the possession charge. At the time of this offending the appellant was on bail.
Personal circumstances
At the time he was sentenced in November 2017 the appellant was aged 40 years. He maintains a good relationship with both of his parents despite their disappointment with his offending. He has three daughters by two mothers. He has been greatly distressed by the loss of contact with his two elder daughters following an earlier term of imprisonment. He completed year ten at high school and then undertook an apprenticeship with his father as a painter and decorator. He has worked in this trade off and on.
The appellant was very successful as a boxer and represented Australia at the 2004 Olympics. He also held several State boxing titles. He ceased competitive boxing when he reached the mandatory retirement age of 34 years. He has completed a level one coaching course and worked as a physical fitness coach.
A psychological report dated 13 September 2013 prepared by Dr Carol Cayley was provided to the Court. Dr Cayley reported that the appellant’s overall intelligence was within the borderline range. There was a significant difference between his verbal and non-verbal abilities. His verbal abilities fell at the upper limit of the extremely low range and his non-verbal abilities were within the low average range. The results suggested that the appellant has a language disorder which has previously gone undiagnosed.
Dr Cayley noted that individuals with a language disorder may find the expression of negative emotional states to be problematic as they feel distressed but are unable to articulate their feelings. This may lead them to self-medicate with alcohol or drugs so as to reduce their distress or they may “act out” their negative feelings in inappropriate ways. Dr Cayley also reported that the testing showed that the appellant suffered from a mild level of stress. He did not show clinically significant symptoms of depression or anxiety.
The appellant informed Dr Cayley that he began using cannabis and amphetamines following his release from custody in 2009. While he had not used drugs whilst in prison he found difficulty in coping when he was released and used drugs to relieve his distress. He was very distressed by the lack of contact with his two elder daughters. All contact had ceased soon after he was imprisoned in 2006. The appellant also informed Dr Cayley that he was using amphetamines heavily at the time of his 2012 arrest and sold some to other persons to support his habit. The cannabis was grown mainly for his personal use but he planned to sell the surplus. He considered that his arrest was a good thing as it was the catalyst for him to abstain from drug use. He expected that if he had not been arrested his drug use would have increased over time. The appellant stated to Dr Cayley that he had been free from drugs since his arrest ten months before she saw him in September 2013. However, his subsequent convictions in this State and the Northern Territory show that he continued to use steroids.
As a juvenile and young adult the appellant recorded a number of convictions for offences of dishonesty and traffic offences. When aged in his late teens and early twenties he was also convicted of offences of common assault, firearms offences and break and enter. In 2006 he was imprisoned for four years and six months with a non‑parole period of two years and eight months for offences of aggravated serious criminal trespass and assault occasioning actual bodily harm. The appellant was also imprisoned in 2008 for eight months for common assault.
In September 2013 the appellant was fined $350 upon conviction for possession of a prescription drug and failure to comply with police directions. As previously noted, he was also imprisoned in the Northern Territory for six months for one count of possession of a dangerous drug and one count of possession of a trafficable quantity of a dangerous drug (i.e. anabolic steroids) although the Court accepted that the steroids were for his own use.
Sentencing remarks
After referring to the facts of the offending and the appellant’s personal circumstances, the Judge noted that the appellant had apparently been a significant supplier of methamphetamine. The total amount of 131g that he possessed prior to the sale to Pedler had a street value of between $65,000 and $130,000. The Judge stated that the appellant was quite high in the supply chain and there was a significant element of commerciality in his offending. While he was only to be sentenced for two trafficking offences, the Judge noted that this was not isolated offending as indicated by the police telephone interception evidence.
In relation to the offence concerning unauthorised possession of a prescription drug the Judge accepted the submission that the anabolic steroids were for personal use. However, his Honour noted the appellant had been dealt with leniently for such offending previously and felt unable to extend further leniency. The offending was also aggravated by the fact that it had occurred while the appellant was on bail.
His Honour convicted the appellant without penalty on the charges of cultivation of cannabis plants and possession of prescribed equipment.
The Judge imposed the following custodial sentences:
·Count 4 – The starting point was imprisonment for seven years reduced by 10% in recognition of the appellant’s guilty plea to six years three months and two weeks. This was further reduced by seven months on account of time spent in custody (six months, two days) and for time spent on home detention (four months) to imprisonment for five years, eight months and two weeks.
·Count 1 – The starting point was imprisonment for one year reduced for totality. The sentence was further reduced by 20% in recognition of the appellant’s guilty plea to nine months and two weeks. This sentence was made cumulative upon that imposed for count 4.
·Possession charge – The starting point was imprisonment for two months reduced by 10% in recognition of the appellant’s guilty plea to one month, three weeks and four days. This was made cumulative upon the sentences imposed for counts 1 and 4.
The Judge imposed a non-parole period of four years and seven months. The custodial sentences were backdated to 7 September 2016 being the date that the appellant was last taken into custody.
Grounds of appeal
The appellant initially sought permission to appeal on seven grounds. However, he has abandoned Grounds 4 and 6. Those grounds respectively alleged that the Judge erred by failing to give effect to the parity principle with respect to the sentence imposed on his co-offender, Nathan Pedler, and that he had been sentenced on an incorrect factual basis with respect to counts 1 and 4.
The grounds now advanced by the appellant are to the following effect:
1The Judge erred by reducing the sentence for count 1 for totality before applying the guilty plea discount.
2The Judge erred by making the sentence for count 1 cumulative upon that for count 4.
3The Judge erred by considering himself bound by s 10C of the Criminal Law (Sentencing) Act 1988 (SA) (‘CLSA’) with respect to count 1.
5The sentence of two months’ imprisonment for the offence of possessing a prescription drug is manifestly excessive.
7The overall sentence of six years, seven months, three weeks and four days with a non‑parole period of four years and seven months is manifestly excessive.
The respondent did not oppose the grant of permission to appeal on Grounds 1, 2 and 3. The respondent also concedes that the Judge erred in relation to Ground 3 as the offence referred to in count 1 occurred on 16 October 2012 and thereby predated the commencement of s 10C of the CLSA on 11 March 2013. A Judge of this Court refused permission to appeal on Grounds 5 and 7. Thus, it is necessary to consider whether permission should be granted in respect of the latter two grounds.
The appellant’s submissions
The appellant’s submissions with respect to Grounds 1 and 2
The appellant notes that the discount of 10% applied to Count 4 reduced that sentence from the notional starting point of seven years imprisonment to six years, three months and two weeks (i.e. a reduction of eight months and two weeks). However, the discount of 20% applied to count 4 reduced that sentence from the notional starting point of 12 months imprisonment (already reduced for totality) to nine months and two weeks (i.e. a reduction of only two months and two weeks).
The appellant submits that the totality principle is intended to be a final check applied to ensure that the sentence is proportionate to the overall offending and also to ensure that the sentence is not crushing. The totality principle should be applied as the final step when imposing sentence.[1] Thus, the appellant submits that the Judge erred by applying the totality principle at an earlier point in the sentencing process. The appellant further submits that the approach applied by the Judge with respect to the totality principle caused him prejudice by impermissibly reducing the discount to which he was entitled on account of his early guilty plea to count 1. Starting with a sentence of 12 months reduced for totality before applying the discount for the early guilty plea meant that the discount for the early guilty plea became a negligible portion of the overall sentence.
[1] R v Major (1998) 70 SASR 488 at 490, Doyle CJ and at 497, Olsson J; R v Place (2002) 81 SASR 395 at [87], Doyle CJ, Prior, Lander and Martin JJ; R v Ravet [2011] SASCFC 67 at [31], Sulan J, Duggan and David JJ agreeing.
Based on the fact that the combined starting point for counts 1 and 4 was eight years imprisonment reduced to seven years and one month before time spent in custody was taken into account, the appellant observes that the total discount granted for counts 1 and 4 was about 11.5%. That observation is mathematically correct.
The appellant also contends that the offending involved in count 1 was more serious than that associated with count 4. This was because count 1 involved a larger quantity of drugs and also represented the course of conduct in respect of which the appellant stood to be sentenced, i.e. he held a large quantity of drugs at his house which were for sale. The offending involved in count 4 was simply a specific instance of the overall offending involved during this course of conduct. If the sentences had been reversed so that the starting point of seven years was imposed for the offending comprised in count 1, and a starting point of one year fixed for the offending involved in count 4, with the same discounts being applied, the effective sentence would have been six years and six months rather than seven years and one month.

The appellant also contends that the Judge failed to consider whether to make the sentences for counts 1 and 4 concurrent or partially concurrent. The appellant notes that this was presumably the result of his Honour reducing the starting point of the sentence for count 1 in recognition of the totality principle. Nevertheless, the appellant submits that it was necessary for the Judge to make the sentences concurrent or partially concurrent for the reasons explained by Wells J (Cox J agreeing) in Attorney General v Tichy.[2] This was the case because the two offences essentially arose out of the one course of conduct. The appellant had a total of 131g of methamphetamine for sale. The day before his arrest he had sold 52.1g to Pedler. Furthermore, the appellant submits that the uncharged acts that form the background to the offending were identical for each count, save for the fact that count 4 also formed a part of the background to count 1.
[2] (1982) 30 SASR 84 at 92-93.
The appellant acknowledges that the task of the Judge was complicated by the fact that different guilty plea discounts applied to counts 1 and 4. Thus, it was necessary to impose individual sentences. The appellant submits that in these circumstances the appropriate course was to fix a sentence for count 1 that reflected the overall criminality of the appellant’s course of conduct and then make the sentence for count 4 wholly concurrent.
The appellant’s submissions with respect to Ground 3
As I have noted, the respondent conceded that the Judge erred by determining the discount for the guilty plea relating to count 1 by reference to the scheme contained in s 10C of the CLSA. The appellant was arrested on 16 October 2012 but s 10C did not come into effect until 11 March 2013. The information laid in the Magistrates Court would have been dated soon after his arrest. Thus, s 10C did not apply. The appellant therefore submits that the discount for the guilty plea should have been determined in accordance with common law principles. He submits that prior to the enactment of s 10C it was common for a discount of 25% to be applied in cases where a guilty plea had been entered at the first arraignment.
The appellant’s submissions with respect to Ground 5
The appellant submits that the remark by Judge that “the offender has been dealt with leniently for this offending previously and I feel unable to extend further leniency today” was essentially a comment that the appellant needed to be personally deterred with respect to offences relating to steroids. The appellant submits that the approach adopted by the Judge overlooked the effect of the sentence imposed in respect of counts 1 and 4 and also the effect of the sentence imposed by the Supreme Court of the Northern Territory. The latter offence was committed after the offending involved in counts 1 and 4. The sentence of six months imposed in the Northern Territory was a heavy penalty and must, in the appellant’s submission, meet the requirements of general and personal deterrence for that particular offence. Furthermore, the sentences imposed in respect of counts 1 and 4 were lengthy and would no doubt deter the appellant from further offending, no matter what type of offending that may be.[3]
[3] R v Williams [2013] SASCFC 26 at [71]-[73].
The appellant further notes that the maximum penalty for the offence of possessing a prescription drug is imprisonment for two years. However, that offence covers sale or supply as well as possession. The offence also covers offending involving much larger quantities of prescription drugs than the nine phials possessed by the appellant. For these reasons the appellant submits that his offending was towards the lower end of the scale and the sentence for the possession charge was manifestly excessive.
The appellant’s submissions with respect to Ground 7
The appellant submits that the effective starting point of eight years’ imprisonment for counts 1 and 4 is manifestly excessive when the following considerations are taken into account. The appellant made four submissions in support of this ground. First, the maximum penalty for trafficking in a controlled substance is a fine of $50,000 or imprisonment for ten years or both. Secondly, the offending was essentially the possession of 131g of methamphetamine with an intention to sell it. That offending occurred against a background of similar offending. Thirdly, the appellant has a borderline intellectual disability which is linked to his drug use. Finally, the appellant has a solid work history. I understand the appellant’s submission to be that, when viewed as a whole, these factors show that the first sentence imposed was manifestly excessive.
The respondent’s submissions
The respondent submits that because of its concession that Ground 3 is made out the appellant must be re-sentenced in respect of count 1 unless either the Court determines to remit the matter to the District Court for re-sentencing or “in the separate and independent exercise of its discretion it concludes that no different sentence should be passed”.[4] The respondent further submits that regardless of whether re-sentencing were to occur under the CLSA or the Sentencing Act 2017 (SA), count 1 is not capable of attracting a sentence any lower than that imposed by the Judge. For that reason, combined with the restriction on re‑sentencing imposed by s 158(8) of the Criminal Procedure Act 1921 (SA) (‘CPA’) which states that the Full Court must not increase the severity of a sentence on an appeal except to extend the non-parole period, the Court should dismiss the appeal notwithstanding the error.
[4] Kentwell v The Queen (2014) 252 CLR 601 at [35], French CJ, Hayne, Bell and Keane JJ.
The respondent concedes that the statement by the Judge that the appellant was “entitled to a discount of up to 20%” in recognition of his guilty plea on count 1 combined with his Honour’s failure to discuss the matter any further suggests that he was proceeding on the basis that s 10C(2)(c) of the CLSA applied. Such an approach was consistent with the submission made by the prosecution, and not challenged by the appellant, during sentencing submissions.
Clause 1 of Schedule 1 to the Criminal Law (Sentencing) (Guilty Pleas) Amendment Act 2012 (SA) provides that s 10C applies to proceedings relating to an offence instituted after the commencement of the amendment regardless of when the offence occurred. The charge that came before the District Court as count 1 of the information dated 11 June 2013 had earlier been charged as count 1 on a Magistrates Court information dated 19 November 2012. For the purposes of the transitional provision, and consistently with the reasoning of this Court in R v Ceruto, the proceedings in respect of count 1 had been instituted prior to 11 March 2013.[5] Accordingly, s 10C of the CLSA did not apply. Thus, the discount applicable to a guilty plea must be determined in accordance with the common law.
[5] [2014] SASCFC 5 at [19]-[26], Stanley J, Kourakis CJ and Vanstone J agreeing.
The respondent notes that at common law the extent of any discount for a guilty plea was in the discretion of the Court.[6] The strength of the prosecution case and the inevitability of the guilty plea were relevant to the assessment.[7]
[6] R v Simpson (2004) 89 SASR 515 at [73], Gray J, Nyland and Perry JJ agreeing.
[7] R v Martin [2009] SASC 26 at [26], Kelly J, Anderson and White JJ agreeing; R v Slater (1984) 36 SASR 524 at 535, King CJ and at 534, Zelling J.
The respondent submits that a discount of approximately 20% was appropriate recognition for the guilty plea to count 1. The appellant was apprehended in the backyard of his own home attempting to flee police. The sheer quantity of the drugs seized provided a strong case against the appellant. That strong case was made overwhelming by the other indicia of drug trading found at his house, the text messages on his telephone and the telephone calls intercepted between him and Pedler. Nevertheless, the appellant did not plead guilty until after the matter was committed to the District Court. The respondent submits that in those circumstances a discount of 20% was appropriate.
The respondent’s submissions with respect to Grounds 1, 2 and 3
The respondent submits that in order to assess the merits of Grounds 1 and 2 it is necessary to examine the overall approach taken by the Judge to sentencing for count 1 and the relationship of that sentence to that imposed for count 4. The starting point of imprisonment for seven years adopted in respect of count 4 may be contrasted with the starting point of one year for count 1. The Judge observed that he had arrived at a starting point of one year after making a reduction for the totality principle.
The respondent also submits that the disparity between the sentences imposed for count 1 and count 4 cannot be explained by the objective seriousness of each offence. In that respect the respondent suggests that the trafficking of 78.1g of methamphetamine involved in count 1 was arguably more serious than count 4 which involved 52.1g. The disparity can only be explained by reference to the close relationship between the two offences and the cumulative structure adopted by the Judge.
Counts 1 and 4 constituted distinct criminal offences with no overlap in their elements. Nevertheless, the two offences were closely connected, were proximate and similar in nature. They each formed a part of a broader course of conduct involving trafficking by the appellant that occurred between August 2012 and October 2012. The close connection between the two offences is illustrated by the fact that if the appellant’s home had been searched immediately prior to the attendance of Pedler on 15 October 2012 it is likely that he would have been found to be in possession of a total of 131g of methamphetamine and prosecuted for one offence of trafficking in that total quantity.
Counsel for the respondent also submitted that it was necessary for the Judge to impose sentences for the two separate offences that properly reflected the criminality of his conduct. It was open to the Judge to undertake that task in a variety of ways. Whether sentences are made concurrent or consecutive depends upon what is “just and convenient” in a given case.[8] It is necessary to “use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been found guilty”.[9]
[8] Attorney General v Tichy (1982) 30 SASR 84 at 93, Wells J, Cox J agreeing.
[9] Ibid.
While there was no strict overlap in the elements of the two offences, the respondent submits that their similarity and proximity coupled with the fact that they were part of a broader course of drug trafficking would have permitted the imposition of partially concurrent individual sentences.[10] The respondent further submits that the choice between the use of concurrence or accumulation is not dictated solely by the proximity and similarity of the offences in question.[11] The tools of concurrency and accumulation provide a mechanism by which the sentencing court may ensure that the overall sentence accurately reflects the overall criminality.[12]
[10] R v Copeland(No 2) (2010) 108 SASR 398 at [102], Kourakis J (as he then was); R v Bagnato (2011) 112 SASR 39 at [95], Peek J.
[11] Nguyen v The Queen (2016) 256 CLR 656 at [63], Gageler, Nettle and Gordon JJ at [37], Bell and Keane JJ.
[12] Ibid at [62]-[64], Gageler, Nettle and Gordon JJ; Mill v The Queen (1988) 166 CLR 59 at 63, Wilson, Deane, Dawson, Toohey and Gaudron JJ; R v Wooldridge (2015) 123 SASR 422 at [74], Gray ACJ, Peek and Nicholson JJ.
The respondent suggests that the statement by the Judge that he had fixed a markedly lower starting point for count 1 in recognition of the totality principle may be apt to mislead. Nevertheless, it is reasonably clear that the lower starting point for count 1, when considered in conjunction with the cumulative structure of the sentencing package and the interrelatedness of the two offences, was intended to ensure that the combined effect of the sentences imposed for counts 1 and 4 remained proportionate to the overall criminality involved.
The respondent further submits that, when understood in this way, the Judge did not err in applying the discount for the guilty plea after the adoption of the lower starting point for count 1. If the discount for the guilty plea were applied prior to identifying the extent to which the criminality involved in count 1 was not sufficiently comprised within the criminality involved in count 4 the likelihood was that the practical effect of the discount would be subsumed and lost.
For these reasons the respondent submits that the Judge did not err in discounting the sentence for count 1 after adopting a lower starting point for that count to reflect the overlapping criminality between counts 1 and 4.
The respondent acknowledges that if the Court does not accept its characterisation of the reference by the Judge to the totality principle and instead considers that the reduction was intended to “mitigate what strict justice would otherwise indicate”[13] through a “last look at the total”[14] then the Judge erred by applying the discount subsequent to the reduction for totality.[15] The respondent further suggests if the reference by the Judge to totality is to be understood in this way his Honour also erred by applying the totality principle prior to his Honour’s consideration of the sentence for possessing prescription drugs.
[13] R v Place (2002) 81 SASR 395 at [86], Doyle CJ, Prior, Lander and Martin JJ, Gray J agreeing, citing with approval R v Rossi (1988) 142 LSJS 451 at 453, King CJ.
[14] Mill v The Queen (1988) 166 CLR 59 at 63, Wilson, Deane, Dawson, Toohey and Gaudron JJ; R v Scott [2017] SASCFC 96 at [51], Lovell J, Stanley and Parker JJ agreeing.
[15] R v Place (2002) 81 SASR 395 at [90] and [98], Doyle CJ, Prior, Lander and Martin JJ, Gray J agreeing; R v Nguyen [2015] SASCFC 40 at [24], Nicholson J, Sulan and Lovell JJ agreeing.
The respondent notes that the question raised by Ground 2 is whether the cumulative structure adopted by the Judge with respect to counts 1 and 4 was open as a matter of law. The respondent submits that, having regard to the markedly lower starting point adopted for count 1, there was no error of law. The approach adopted by the Judge was consistent with the statements by the High Court in Mill v The Queen and Johnson v The Queen that it is open to a sentencing court to achieve an appropriate result by use of full or partial concurrency or by reduction of an individual sentence “either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect that a number of sentences are being imposed”.[16] While the “preferable” approach is to fix an appropriate sentence for each offence before considering questions of concurrency and accumulation, the alternative approach is not prohibited.[17] While the approach adopted by the Judge in this case was not the preferred approach, it was legally valid.
[16] (2004) 78 ALJR 616 at [19] and [26], Gummow, Callinan and Heydon JJ citing Mill v The Queen (1988) 166 CLR 59 at 63, Wilson, Deane, Dawson, Toohey and Gaudron JJ.
[17] Johnson v The Queen (2004) 78 ALJR 616 at [26], Gummow, Callinan and Heydon JJ; Mill v The Queen (1988) 166 CLR 59 at 63, Wilson, Dearne, Dawson, Toohey and Gaudron JJ; Pearce v The Queen (1998) 194 CLR 610 at [45], McHugh, Hayne and Callinan JJ.
The respondent’s submissions with respect to Ground 5
The respondent submits that the sentence imposed for possessing nine phials of anabolic steroids was well within the appropriate range. The maximum penalty for this offence is imprisonment for two years or a fine of $10,000.[18]
[18] CSA, s 18(3).
In support of this submission the respondent notes that the appellant’s offending was aggravated by the fact it was committed while he was on bail for other drug offences.
The respondent’s second contention concerning the prescription drug offence is that the reference by the Judge to the appellant having previously committed the same offence and being dealt with leniently must relate to the conviction in 2013 when he was fined $350. The respondent acknowledges that the six months’ imprisonment that the appellant served in the Northern Territory for prescription drug offences may have had some specific deterrent effect. The respondent suggests that it may be for this reason that the Judge imposed a sentence of substantially less than six months on this occasion. Because the subject offence was committed while the appellant was on bail and two further prescription drug offences were committed in the Northern Territory after he had absconded from home detention bail, the Judge could not have had great confidence in the appellant’s rehabilitation prospects. In those circumstances the need for personal deterrence was a significant consideration.
The third observation made by the respondent with respect to Ground 5 is that the prescription drug offence was a separate incursion into criminal conduct that was distinct in both time and place from the drug trafficking encompassed in counts 1 and 4. In those circumstances the prescription drug offence warranted a distinct penalty even though counts 1 and 4 attracted a substantial custodial sentence.
The respondent’s submissions with respect to Ground 7
The respondent submits that the overall head sentence of six years, seven months three weeks and four days with a non-parole period of four years and six months is well within the range available to the sentencing Judge and is arguably a merciful sentence. That submission relies upon the decision of this Court in R v Young which confirmed that sentences in the range of four to seven years continue to be appropriate for street level drug dealers who are motivated to a greater or lesser extent by profit.[19] The Court also noted in Young that sentences approaching the maximum of ten years for base level trafficking offences continue to be appropriate for middle order dealers.[20] The respondent submits that the appellant was not a street level dealer and his counsel had accepted in sentencing submissions that his penalty had to reflect the fact that he was to be seen “at the top of the chain”. In these circumstances the respondent submits that a starting point approaching imprisonment for 10 years would not have been inappropriate. However, the starting point adopted by the Judge was some two years less. The respondent also submits that the appellant had a significant criminal history, having been sentenced to multiple custodial sentences, both suspended and immediate, and had been given the benefit of a release on a bond on multiple occasions. In these circumstances considerations of punishment, deterrence and protection of the community were all relevant to the sentencing process.
[19] (2016) 126 SASR 41 at [66], Kourakis CJ, Vanstone and Stanley JJ agreeing.
[20] Ibid at [68].
The respondent also submits that the non‑parole period was unremarkable in that it represented approximately two-thirds of the head sentence. Matters of general and personal deterrence, punishment and community protection were relevant to the setting of the non‑parole period.[21] In view of the seriousness of the offending and the appellant’s poor record, the non‑parole period was appropriate.
Consideration
[21] Bugmy v The Queen (1990) 169 CLR 525 at 531-532, Mason CJ and McHugh J; R v Dubois (2004) 88 SASR 304 at [26]-[27], Sulan J, Perry and Bleby JJ agreeing.
The effect of the Sentencing Act 2017
The parties made comprehensive submissions concerning the operation of the transitional provision contained in the Sentencing Act 2017 (SA). That issue is only relevant if the Court concludes that the Judge erred and the appellant should be re-sentenced. As I consider that the appeal should not succeed, it is unnecessary to consider those submissions.
Ground 5

I will first consider the application for permission to appeal on Ground 5. The appellant contends that the sentence imposed for the possession charge was manifestly excessive.
The maximum penalty of imprisonment for two years covers the full range of offending involving prescription drugs. The possession by the appellant of nine phials of steroids for his personal use is clearly less serious than some of the criminal conduct potentially covered by s 18(3) of the CSA. Nevertheless, I consider that the starting point of imprisonment for two months reduced by 10% to imprisonment for one month, three weeks and four days was well within the range of sentences reasonably open to the Judge.
Three considerations lead me to that conclusion. First, the appellant had a prior conviction for possession of anabolic steroids. On 13 September 2013 he was fined $350 for an offence that occurred on 16 October 2012. The subject offence occurred on 17 September 2014. Secondly, the subject offence was committed while the appellant was on bail for other drug offences. Thirdly, I accept the correctness of the respondent’s submission that the Judge had reason not to be optimistic about the appellant’s prospects for rehabilitation in light of the conviction for essentially the same conduct in the Northern Territory that occurred after the conduct involved in this offence. I would refuse permission to appeal on Ground 5.
Ground 3
I turn to Ground 3. The respondent concedes that there was a process error due to the reliance by the Judge upon s 10C of the CLSA to determine the discount for the guilty plea on count 1. That error was prompted by the specific statement made in the prosecution’s written submissions that s 10C applied, which was not challenged by the defence.
The appellant contends that under the common law principles that applied before the enactment of s 10C he would have received a discount of at least 25% on count 1. The appellant had pleaded guilty to count 1 at his arraignment on 11 June 2013. If s 10C had applied, the appropriate discount would have been up to 20%.
In R v Rooke the Court dismissed an appeal against a discount of about 14% granted in response to an early guilty plea. [22] Doyle CJ stated, with Williams and Bleby JJ agreeing, that the appropriate discount is not susceptible to precision and cannot be mathematically calculated. The discount depends on numerous factors but discounts in a range of 15% to 25% were common especially if there are indications of genuine regret and remorse and of an intention to change.
[22] [1998] SASC 6738.
In R v Martin the appellant had pleaded guilty at the earliest opportunity and a discount of 10% was applied.[23] In dismissing the appeal Kelly J held, with Anderson and White JJ agreeing, that discounts for early pleas commonly ranged from 5% to 30% and that a sentencing judge has a wide discretion that may be influenced by a range of circumstances.[24] Important considerations include the strength of the prosecution case and the inevitability of the plea.[25]
[23] [2009] SASC 26.
[24] Ibid at [26].
[25] Ibid.
For the reasons stated at [44], the prosecution case on count 1 was very strong. Thus, the judgment of this Court in Martin provided a proper basis for the Judge to allow a lesser discount than might otherwise have applied. The authorities to which I have referred indicate that the Judge might properly have fixed the discount at less than 20% or more than 20%. It is clear that the discount of 20% was not outside the range reasonably available to the Judge at common law.
While the respondent has conceded a process error in relation to the fixing of the discount, there is no outcome error that requires the intervention of this Court. I would dismiss the appeal on Ground 3.
Grounds 1, 2 and 7
I will consider Grounds 1, 2 and 7 together. Before doing so I will refer to the judgments of the High Court in Mill v The Queen[26] and Johnson v The Queen.[27]
[26] (1988) 166 CLR 59.
[27] (2004) 78 ALJR 616.
In Mill the High Court, comprising Wilson, Deane, Dawson, Toohey and Gaudron JJ, stated in relation to the application of the totality principle that:[28]
… an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.
[28] Mill v The Queen (1988) 166 CLR 59 at 63.
The appellant in Johnson had pleaded guilty to one count of attempting to obtain possession of a commercial quantity of ecstasy and one count of attempting to obtain possession of a trafficable quantity of cocaine. These were both federal offences. The drugs were contained in one parcel that the appellant had attempted to collect.
The Judge imposed a sentence of ten years imprisonment for the first count and five years for the second count. The sentences were to be served cumulatively. The Judge indicated that the sentence imposed in relation to the second count was lower because it was reduced on account of the totality principle. The Judge did not state the starting point, nor did his Honour quantify the actual reduction. The appellant was given a further reduction of three years and six months for his “fast track plea” of guilty. The total effective sentence was 11 years and six months imprisonment.
The appeal was upheld by the High Court because the Western Australian Court of Criminal Appeal had made an important error of fact. However, the importance of the case for present purposes lies in several principles expressed by members of the High Court.
Gleeson CJ[29] expressed approval for the statement of principle made by Wells J in Attorney-General v Tichy where his Honour had observed, amongst other matters, “[w]hat must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty”.[30]
[29] Johnson v The Queen (2004) 78 ALJR 616 at 618.
[30] (1982) 30 SASR 84 at 93, Wells J, King CJ and Cox J agreeing.
Gleeson CJ stated that a sentencing judge may, in a suitable case, reduce individual sentences rather than make them wholly or partly concurrent as “[u]ltimately, justice requires consideration of whether, and to what extent, the appellant was ‘truly engaged upon one multifaceted course of criminal conduct’, and whether the sentences imposed properly reflected the outcome of that consideration”.[31]
[31] (2004) 78 ALJR 616 at 618.
In a joint judgment, Gummow, Callinan and Heydon JJ stated:[32]
The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. Pearce does not decree that the sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected. The trial judge here did not offend any of the principles stated in Mill or Pearce. His only error may have been to fail to state starting and ending dates, but this was neither to apply a uniquely Western Australian principle, nor otherwise to make an appealable error. What his Honour intended was obvious enough and did not fail in substance to give effect to the Act.
[32] Ibid at 624.
While the conduct involved in counts 1 and 4 involved separate and discrete offences, I agree with the respondent’s submission that these offences were comprised in the same course of criminal conduct, i.e. trafficking in methamphetamine. If the police had attended at the appellant’s home immediately before, rather than soon after, the sale to Pedler it seems inevitable that there would have been one charge of trafficking in a controlled substance involving 131g of methamphetamine. For that reason, but for the fact that different discounts applied to counts 1 and 4, it would have been appropriate for the Judge to apply s 18A of the CLSA and impose one sentence for both counts.
I consider it quite clear that the Judge’s objective in adopting a much lower starting point for the sentence on count 1 was to ensure that the combined sentences for counts 1 and 4 reflected the overall criminality involved. In that respect the Judge was clearly giving effect to the totality principle. His Honour’s approach also reflects that adopted by the sentencing Judge in Johnson and accepted by the High Court as being valid, although Mill indicates that it is not the preferred method.
The appellant’s submission that the more serious conduct was covered by count 4 has some merit. However, if the sentences were reversed, so that the starting point was seven years on count 1 and one year on count 4, the combined discount would have been 18.75%. That approach would not have been appropriate as it would have resulted in the appellant being given an excessive discount.
The same problem would arise if the Court were to accede to the appellant’s submission that the appropriate course was to fix a sentence for count 1 that reflected the overall criminality of his conduct and make the sentence for count 4 wholly concurrent with count 1. The result would be that the appellant would receive a discount of 20%. That is clearly not appropriate.
Because the two offences were part of the same course of conduct and very closely connected in time and place, any difference in the relative seriousness of the conduct underlying the two individual counts was of little moment. The important matter was to ensure that the overall sentence correctly reflected the criminality of the appellant’s conduct. Thus, the Judge might have fixed the same starting point for both counts with recognition given to the totality principle by appropriate use of accumulation and concurrency in accordance with the observations of the High Court in Mill and Johnson.
Due to the concession by the Director that there was a process error in relation to the application of s 10C, the question is whether this Court considers “in the separate and independent exercise of its discretion … that no different sentence should be passed”.[33] Thus, it is necessary to identify a sentence that this Court considers appropriate.
[33] Kentwell v The Queen (2014) 252 CLR 601 at [35] French CJ, Hayne, Bell and Keane JJ.
In R v Young a specially constituted Court of five justices considered sentencing standards for drug trafficking offences. Kourakis CJ, with Vanstone and Stanley JJ agreeing, held that sentences approaching the maximum of ten years for the base level trafficking offence continue to be appropriate for middle order dealers.[34] The reference to the “base level trafficking offence” clearly meant the offence under s 32(3) of the CSA with which the appellant was charged.
[34] R v Young (2016) 126 SASR 41 at [68].
The appellant was plainly a middle order dealer in the sense contemplated by Kourakis CJ in Young. Prior to the sale to Pedler he had been in possession of a total of 131 g of methamphetamine with a street value between $65,000 and $130,000. The police telephone intercept material and the text messages exchanged with Pedler and others that were received as background information indicate that the two offences with which the appellant was charged were not isolated. Such a conclusion is reinforced by the presence in the appellant’s home and car of multiple indicia of drug trafficking. For these reasons, I agree with the observation by the Judge that the appellant was quite high in the supply chain. I also agree with the Judge that there was a significant element of commerciality in his offending, even though at that time he was addicted to methamphetamine. For those reasons I do not consider that the opinion of Dr Cayley that the appellant’s language disorder may have contributed to his use of drugs should mitigate his sentence.
An appropriate sentence must be consistent with the observation by Kourakis CJ in Young that sentences approaching ten years are the benchmark for mid-level traffickers. As I have already observed, there was little difference in the criminality involved in the respective offences. Both offences involved trafficking of a substantial quantity of methamphetamine and were clearly comprised in the same course of criminal conduct. Accordingly, if this Court was to re-sentence the appellant it would be appropriate to fix the same starting point for both counts while giving recognition to the totality principle through the mechanisms of accumulation and concurrency.
On that basis, if this Court were to re-sentence the appellant, I consider that it would be appropriate to fix a starting point of seven years imprisonment in respect of both count 4 and count 1. So as to give effect to the totality principle, one of the sentences should commence two years after the other with the two sentences thereafter being served concurrently. That degree of partial concurrency would result in a notional head sentence of nine years prior to an adjustment to give effect to the two different guilty plea discounts.
A question arises as to how should the differing discounts of 20% applicable to count 1 and 10% applicable to count 4 be given effect upon re‑sentencing. The appellant will receive a greater average discount if the sentence imposed in respect of count 1 commences first while that for count 4 commences two years later.
The appellant has shown little by way of contrition for the two trafficking offences. Although he entered a guilty plea to count 1 at a point that attracted a discount of up to 20%, the Crown case was overwhelming. He had been caught “red-handed” with a substantial quantity of methamphetamine at his home together with other indicia of drug trafficking against a background where police telephone interceptions were suggestive of ongoing commercial trafficking. The appellant’s plea to count 4 was not made until the first day of trial. That was more than four years after the appellant’s guilty plea to count 1 and some two years after Pedler and his associates had pleaded guilty to trafficking offences related to their dealings with the appellant. In the meantime the appellant had fled the jurisdiction after being released on bail. I conclude that the appellant was unwilling to accept responsibility for his leading role in the trafficking offences until the last moment. I therefore consider that the sentence imposed in respect of count 4 should commence first while that for count 1 should commence two years later.
If the Court were to adopt this approach the sentence on count 4 would be reduced by 10% to six years, three months and 18 days. After that period had been served there would still be two years to be served on count 1. That period would be reduced by 20% to one year, seven months and six days. Thus, the total sentence in respect of counts 1 and 4 would be seven years, ten months and 24 days. It is necessary to add to that sentence the cumulative sentence of one month, three weeks and four days imposed in respect of the possession and to deduct seven months in recognition of the period already served on remand in custody and on home detention bail. Thus, if the Court were to re-sentence, I would impose a sentence of seven years, five months and 19 days.
Such a sentence would be almost ten months higher than the total head sentence of six years, seven months, three weeks and four days imposed by the Judge. However, as previously noted, s 158(8) of the CPA provides that the Court must not increase the severity of a sentence on an appeal by a convicted person except to extend the non-parole period. Thus, the sentence imposed by the Judge must stand.
For these reasons I consider that the effective sentence imposed by the Judge was within the range reasonably available to his Honour. There was no outcome error and the sentence was not manifestly excessive. I would dismiss the appeal on Grounds 1 and 2 and refuse permission to appeal on Ground 7.
Conclusion
I would dismiss the appeal on Grounds 1, 2 and 3 and refuse permission to appeal on Grounds 5 and 7.