Rotherham v The King - [2022] SASCA 99

Supreme Court of South Australia
(Court of Appeal: Criminal)
ROTHERHAM v THE KING
[2022] SASCA 99
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
29 September 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING METHYLAMPHETAMINE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
The applicant pleaded guilty to one count of trafficking in a controlled drug, namely 2.22 g of methylamphetamine, contrary to s 32(3) of the Controlled Substances Act 1984 (SA).
The sentencing Judge commenced with a starting point of approximately four years imprisonment. This was reduced by 10 per cent for the applicant’s guilty plea, resulting in a sentence of three years and seven months imprisonment. The sentencing Judge declined to order that the sentence be suspended or served on home detention. A non-parole period of 12 months was fixed.
The applicant submits that the sentencing Judge erred by failing to have regard to the applicant’s rehabilitation in the context of the delay between her offending and sentencing (Ground 1). Further, the applicant submits that the sentencing Judge erred by implicitly applying the tariff in R v Young (‘Young’) for offenders motivated by profit (Ground 2). The applicant also submits that the sentence was manifestly excessive (Ground 3) and the sentencing Judge erred in failing to suspend the sentence (Ground 4) or ordering that it be served on home detention (Ground 5).
Held, per the Court, granting permission to appeal on Grounds 1 to 5 but dismissing the appeal:
1.The sentencing Judge took into account the applicant’s progress and rehabilitation, as reflected in his sentencing remarks read as a whole and, ultimately, the lenient non-parole period imposed.
2.It was appropriate for the sentencing Judge to sentence the applicant on the basis that she was a street level offender ‘motivated to a greater or lesser extent by profit’.
3.In adopting a starting point of four years, the sentencing Judge commenced at the bottom of the range contemplated in Young for offenders motivated by profit. The matters relied upon by the applicant did not require the sentencing Judge to adopt a starting point below this range.
4.There was no process error by the sentencing Judge in declining to suspend the sentence. It was open to the sentencing Judge to conclude that there was not good reason to suspend the sentence and that it was not appropriate to order that the sentence be served on home detention.

Controlled Substances Act 1984 (SA) s 32; Sentencing Act 2017 (SA) ss 4, 11, referred to.
Cocks v The Queen [2022] SASCA 21; Ndreka v The Queen [2021] SASCA 11; Pateras v The Queen (2021) 291 A Crim R 238; Phillipou v The Queen [2020] SASCFC 21; R v Hunter [2017] SASCFC 97; R v Keut [2021] SASCA 39; R v Molina (1984) 2 FCR 508; R v Palmer [2016] SASCFC 34; R v Young (2016) 126 SASR 41; Yardley v Betts (1979) 22 SASR 108, considered.

ROTHERHAM v THE KING
[2022] SASCA 99
Court of Appeal – Criminal: Livesey P, Bleby and David JJA
THE COURT:

The applicant, Ms Narelle Emily Rotherham, pleaded guilty to one count of trafficking in a controlled drug, namely 2.22 g of methylamphetamine, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The maximum penalty for that offence is $50,000 or imprisonment for 10 years, or both.[1]
[1] Controlled Substances Act 1984 (SA) s 32(3)(a)(ii).
The sentencing Judge commenced with a starting point of approximately four years imprisonment. This was reduced by 10 per cent for the applicant’s guilty plea, resulting in a sentence of three years and seven months imprisonment. The sentencing Judge declined to order that the sentence be suspended or served on home detention. A non-parole period of 12 months was fixed.
The applicant submits that the sentencing Judge erred by failing to have regard to the rehabilitation of the applicant in the context of the delay between her offending and sentencing (Ground 1). Further, the applicant submits that the sentencing Judge erred by implicitly applying the tariff in R v Young (‘Young’) for offenders motivated by profit (Ground 2).[2] The applicant also submits that the sentence was manifestly excessive (Ground 3) and the sentencing Judge erred in failing to suspend the sentence (Ground 4) or ordering that it be served on home detention (Ground 5).
[2] (2016) 126 SASR 41.
The question of permission to appeal was referred to this Court for consideration.
Circumstances of the offending
On 27 April 2020, police searched the applicant’s residence, of which she was the sole occupant at the time. In the applicant’s bedroom, police located a plastic resealable bag containing 1.81 g of methylamphetamine and a further quantity of 0.41 g of methylamphetamine on top of a lid under the bed. In a handbag, police located $1,460 cash, predominantly in $50 notes. Elsewhere in the house, police located digital scales, three glass ice pipes (of which two were broken), and $100 cash. A swab taken from the digital scales tested positive for methylamphetamine.
The applicant’s mobile telephone was seized. It contained numerous messages indicating that the applicant was dealing in methylamphetamine, primarily in quantities of 0.1 g (or ‘points’) and up to quantities of approximately 1.75 g (or ‘half balls’). There were text messages relating to the sale of methylamphetamine from more than 20 people. The messages also revealed that shortly before the police searched her premises, the applicant’s stock of methylamphetamine was depleting and she was having difficulty restocking it. The messages also established that she accepted payment by way of electronic funds transfer (‘EFT’) and that she was owed money by customers for previous credit sales of methylamphetamine.
A CCTV system was installed at the applicant’s property, with live feeds to a screen inside the house. The footage was also recorded. A hard drive of the CCTV system was seized by police. It depicted numerous people attending the applicant’s residence throughout the day and night. From 12am on Friday, 24 April 2020 until about 10 am on Monday, 27 April 2020 there were 96 attendances at the applicant’s premises, each for a very short time.
Personal circumstances
As at the time of sentencing, the applicant was aged 39. She was born and raised in Whyalla. She was the eldest of two children. She grew up in a difficult home environment due to the growing tension between her parents.
When the applicant was 12 years old, she was sexually abused by her grandfather. It was an isolated incident. The applicant did not disclose the alleged offending to her parents until a few months later. At the age of 14, the applicant was again sexually abused by her grandfather. She reported this to her mother and her parents in turn reported the matter to police. Her grandfather was charged with sexual assault, but pleaded not guilty. The applicant gave evidence against him and found this experience traumatic. Her grandfather was ultimately acquitted of the charge. After the court proceedings, whilst still a teenager, the applicant moved out of her family home to live with a friend due to conflict with her mother.
The applicant’s parents divorced when she was aged 15. She moved in with her father, until he became romantically involved with her best friend, who was 23 years old. The applicant subsequently spent the remainder of her teenage years living at her father’s home and with her boyfriend.
The applicant attended high school in Whyalla and completed year 9 before leaving school on her own accord when she entered her first relationship. After leaving school, the applicant completed a trades assistant course when she was in her early 20s and a Certificate III in Aged Care in 2012.
The applicant has been involved in several dysfunctional relationships. Her first boyfriend, whom she dated between the ages of 14 and 18, was physically abusive towards her. While together, he pressured her into undergoing two pregnancy terminations, which were extremely traumatic for her.
At the age of 20, the applicant commenced a new relationship. She fell pregnant within a few months of that relationship and her first son was born. After that relationship ended, she became her son’s primary caregiver.
In 2006, the applicant met her husband and together they relocated to Victoria. They had two children together and were married in September 2012. That marriage only lasted about five months before they separated. The applicant reported that their separation was precipitated by years of alcohol abuse by her. The applicant attended Alcoholics Anonymous for a time.
The applicant’s ex-husband successfully filed for permanent custody of all three of her children after their separation, including her son from her previous relationship. The applicant was only granted access rights. This caused her alcohol use to increase.
In 2014, the applicant moved to Ararat, Victoria for a fresh start. She became involved in a new relationship which lasted about eight months. Her new partner was an alcoholic and mentally and physically abusive towards her. There were restraining orders imposed due to mutual domestic violence. The relationship eventually ended when the applicant physically assaulted him during a drunken altercation. As a result, the applicant was convicted of the offence of recklessly causing injury in 2015.
Also, in 2014, the applicant was the victim of a serious criminal trespass and an assault by a neighbour. She was moved into emergency housing as a result. Her neighbour was sentenced to a period of imprisonment for those offences.
In late 2015, the applicant moved to Wedderburn, Victoria where she commenced a new relationship. Both she and her new partner were habitual users of drugs and alcohol. The applicant described this as a toxic, co-dependent relationship. Her partner was frequently violent towards her and was responsible for knocking out her front tooth and for scarring on her chin and eyebrow.
In 2016, the applicant returned to Whyalla. In late 2016, she was awarded full custody of her eldest son, however her two younger children remained with her ex-husband in Victoria. As a result of not being granted custody of her two younger children, the applicant became extremely depressed and took an overdose of antipsychotic tablets in an attempted suicide. She was taken to hospital for treatment. There she was diagnosed with Borderline Personality Disorder by a psychiatrist. After her discharge, she engaged in a protracted bender using methylamphetamine and alcohol as an emotional coping strategy. The applicant also developed a severe gambling problem.
In late 2019, the applicant entered a relationship with a man named Jeremy. He does not use drugs or alcohol and has not been in trouble with the law. They separated for six months but reconciled in mid 2020. It was during their six month separation that the applicant committed the present offence. That relationship reportedly ended in late September 2021.
The applicant has held employment throughout most of her adult life, working largely as a commercial cleaner. Her last formal employment was at an adult shop in Whyalla between 2017 and 2018, before that business closed. The applicant has since maintained a business of her own selling adult wares. She has struggled to find another job. As at the time of sentence, the applicant was continuing to run her small business selling adult wares. She was also in receipt of unemployment benefits.
In relation to her alcohol addiction, the applicant began drinking alcohol as a teenager. She was ‘a chronic daily user of alcohol’ up until about mid 2020.
As to her drug use, the applicant was a recreational user of speed and ecstasy pills during her early 20s. She started using methylamphetamine in August 2013 after the breakdown of her marriage. She began using it more frequently and intravenously. Her methylamphetamine use peaked in December 2018, after a close friend was found dead in a motel room due to a heart attack that was suspected to have been triggered by a methylamphetamine overdose.
The applicant stated that she owed about $10,000 in drug debts. At the time of the current offending, the applicant reported that she was using up to 1 g of methylamphetamine per day.
The applicant reported that she stopped using methylamphetamine after her arrest for the current offence. She had consulted an addiction specialist at Drug and Alcohol Services South Australia (‘DASSA’) and was prescribed medication for her methylamphetamine addiction. On 1 November 2021, in a Home Detention Order Suitability Report (‘HDO Report’), the applicant expressed how she had recently been struggling with her abstinence from drug use.
The applicant also struggled with an addiction to poker machines from about 2018. This resulted in significant financial stress as she reportedly spent up to $1,000 per day on poker machines. She said that she would prioritise gambling before food and other essential items. The applicant ceased gambling after she was arrested for the current offence.
It was against this background that the applicant said she resorted to trafficking methylamphetamine. She said she did so to support her methylamphetamine and gambling dependencies, to repay her drug debts, and to pay for her food and daily living expenses.
Dr Loraine Lim prepared a psychological report dated 26 August 2021. In that report, Dr Lim opined that the applicant would meet the diagnostic criteria for the following psychological conditions at the time of her offending:
·Stimulant – Amphetamine – Use Disorder (severe);
·Alcohol Use Disorder (severe);
·Pathological Gambling; and
·Borderline Personality Disorder.
Dr Lim stated that she believed that the applicant was ‘an individual with a complex psychosocial-emotional history that is associated with her childhood trauma, familial dysfunction, instability, and her involvement in several domestically violent relationships in the past’.[3] She said the applicant’s ‘early life experiences were the genesis for the development of a borderline personality structure during her adulthood’.[4]
[3] Psychological Report of Dr Lim dated 26 August 2021 at 10.
[4] Psychological Report of Dr Lim dated 26 August 2021 at 10.
Dr Lim opined that the applicant was also suffering from a mild to moderate degree of Post-Traumatic Stress Disorder (‘PTSD’), however, at the time of the report, she did not believe that the severity of her symptoms was sufficient to meet the clinical threshold for a diagnosis to be confirmed. She said that the applicant’s symptoms were likely to be perpetuated by her ongoing memories of her childhood sexual abuse by her grandfather and the domestic violence she has experienced as an adult.
The applicant has an antecedent history dating back to 2001, which is comprised of summary and minor indictable offences committed both in South Australia and Victoria. They include offences of driving whilst disqualified and other driving offences, assaults, criminal damage, failing to comply with a restraining order, and minor drug offending.
The applicant received good behaviour bonds in 2005 and 2006 and a community corrections order in 2014. The applicant breached her good behaviour bond from 2005 and the community corrections order. Her compliance with prior supervision orders was described as ‘average’.[5] The applicant received suspended sentence bonds in 2001 and 2019.
[5] Home Detention Order Suitability Report dated 24 November 2021 at 5.
Submissions were heard before the sentencing Judge on 30 August 2021. At that point the applicant had been on bail for over one year, without any allegation of further offending. Counsel for the applicant made the submission that she had abstained from drug use since her arrest. The sentencing Judge expressed his reservations, absent objective evidence, about the applicant’s professed abstinence from drugs. As a result, his Honour varied the applicant’s bail and ordered a HDO Report which was to include, among other things, results of drug testing. The sentencing Judge indicated that his intention in ordering the HDO Report was not to prejudge his decision regarding a term of immediate imprisonment, but rather to enable him to consider all the options available to the Court when sentencing the applicant.
A HDO Report dated 24 November 2021 concluded that both the applicant and her residence were suitable for home detention. The report also stated that all the applicant’s recent drug tests had returned negative results and that she was in the process of obtaining Modafinil, a medication that assists those recovering from methylamphetamine addiction. At a further sentencing hearing on 26 November 2021, defence counsel confirmed that the applicant had in fact obtained and started using Modafinil on 8 or 9 November. The HDO Report described the applicant’s compliance with supervision whilst on bail as ‘average’.[6]
[6] Home Detention Order Suitability Report dated 24 November 2021 at 5.
Sentencing remarks
The sentencing Judge summarised the applicant’s offending and personal circumstances. Prior to sentencing, the Court had been provided with a letter of apology from the applicant and a letter of support from her mother.
The sentencing Judge described the applicant’s offending as that of a busy street-level dealer in methylamphetamine both to support her habit and general living expenses. His Honour accepted that the applicant was addicted to methylamphetamine at the time.
In turning to sentence, his Honour began with a starting point of approximately four years imprisonment. This was discounted by 10 per cent on account of the applicant’s guilty plea to three years and seven months imprisonment.
The sentencing Judge considered the applicant’s offending ‘too serious, against a backdrop of prior offending’ for there to be good reason to suspend her sentence. His Honour noted that the applicant’s premises were suitable for home detention, however, he considered that home detention would not represent an adequate punishment or sufficient general deterrent given the nature of the offending and the applicant’s previous convictions.
In fixing the non-parole period, the sentencing Judge noted the issues identified in Dr Lim’s psychological report. He considered that the applicant’s circumstances ‘call for an unusually merciful non-parole period in this instance’ so that the applicant would have an extended period of support on parole. A non‑parole period of 12 months was fixed. The non-parole period is about 28 per cent of the head sentence.
Ground 1 – Failure to have regard to the applicant’s rehabilitation
The applicant contends that the sentencing Judge erred by failing to have regard to her rehabilitation in the context of the delay between her offending and sentencing. The applicant submits that the sentencing Judge did not take into account her demonstrated rehabilitation during that period and Dr Lim’s opinion that the applicant’s prospects of further rehabilitation would be significantly undermined by a custodial sentence as she would be unable to receive the specialised, one on one intervention required to address her complex psychological issues.

There was a delay of more than 18 months between the applicant’s arrest on 27 April 2020 and the imposition of sentence on 14 December 2021. The applicant submits that during this period, she complied with the conditions of her bail agreement, did not commit any further offences, ceased gambling and drug use, engaged in counselling with DASSA, and was prescribed Modafinil. As such, the applicant submits that her arrest for the subject offending was a ‘turning point’ in her life, particularly with respect to her drug and gambling addictions.
The applicant also relied on the HDO Report which indicated that the applicant returned negative results for her recent drug tests. The HDO Report noted that the applicant had admitted to unsuccessfully trying to source drugs on one occasion during a very stressful period when her relationship broke down. In considering this element of the report, the sentencing Judge stated (during the sentencing hearing) that it was ‘to her credit’ that the applicant made this disclosure and that it was ‘a relatively positive sign’.
The applicant also relied on the HDO report to the extent that it indicated that the applicant had engaged well with the Department for Correctional Services (‘DCS’) for several months. Whilst the applicant had not reported since 1 November and had missed two reports with DCS between 1 and 24 November 2021, defence counsel explained during sentencing submissions that her reasons for doing so were largely due to a breakdown in communication between the applicant and her Corrections officer. The sentencing Judge appeared to accept that explanation.
The applicant also emphasised that Dr Lim, in her psychological report, expressed the view that she was ‘at low risk of re-offending on account of the improved stability in her lifestyle and her abstinence from drug use and gambling’.[7]
[7] Psychological Report of Dr Lim dated 26 August 2021 at 11.
In contending that the sentencing Judge had erred, the applicant relied on the fact that he made no mention of the applicant’s rehabilitation in his sentencing remarks. Significantly, the word ‘rehabilitation’ does not appear once. The applicant contends that it was incumbent upon the sentencing Judge to take into account the applicant’s rehabilitation, particularly in the context of this case, whereby the sentencing Judge had adjourned the sentencing hearing with a view to giving the applicant a chance to demonstrate her positive prospects of rehabilitation.
In R v Molina (‘Molina’), the Federal Court said:[8]
The proposed deferral of sentencing, to find out whether rehabilitation had any prospect of success in the present case, did not formally commit the judge or anyone else to any particular future course. Certainly if it had produced negative results, the judge’s course would have been clear. If, however, the results proved to be encouraging, there would be an understanding on the part of the respondent that the rehabilitation program would be proceeded with. Indeed any other course on the part of the sentencing judge would have been difficult to understand.
[8] (1984) 2 FCR 508 at 512–3 per Woodward, Neaves and Beaumont JJ.
The applicant submits that the Court’s statement in Molina applies to the present case as the applicant was given the opportunity to demonstrate rehabilitation in the form of abstention from drug use, and having positively done so, the approach of the sentencing Judge was ‘difficult to understand’. The applicant’s ultimate submission is that the sentencing Judge erroneously failed to have regard to the applicant’s rehabilitation, resulting in a process error.
It is well-established that successful rehabilitation of offenders is a means of protecting the community and thus, one of the aims of sentencing.[9] An express purpose of the Sentencing Act 2017 (SA) is to promote the rehabilitation of a defendant.[10]
[9] Yardley v Betts (1979) 22 SASR 108 at 112 per King CJ (with whom Mitchell J and Legoe J agreed).
[10] Sentencing Act 2017 (SA) s 4(1)(e). See also s 11(1)(h).
In the present case, we are satisfied that the sentencing Judge took into account the evidence regarding the applicant’s rehabilitation. Whilst the sentencing Judge did not expressly use the word ‘rehabilitation’ in his remarks, he referred to the various materials and reports which discussed the applicant’s rehabilitation. In that regard, the sentencing Judge made specific reference to the submissions of counsel, the psychological report of Dr Lim, and the HDO Report. His Honour noted that the applicant told Dr Lim and DCS that she had abstained from using methylamphetamine and gambling while on bail. The sentencing Judge also expressly referred to the negative drug tests returned by the applicant between 30 August and 24 November 2021 and the observation that she had engaged well with DCS between 30 August and 1 November 2021.
It is to be accepted that the sentencing Judge did not make any express reference in his remarks to the fact that the applicant had not committed any further offences while on bail, that she had engaged with DASSA in mid October 2021 following an unsuccessful attempt to source methylamphetamine, and that she was in receipt of a prescription for Modafinil. However, those matters were addressed in the report of Dr Lim and the HDO Report, to which he had specific regard.
That the sentencing Judge had regard to the applicant’s rehabilitation is borne out by the ‘unusually merciful’ non-parole period that was imposed. It represents approximately 28 per cent of the head sentence. Ordinarily, a non-parole period will be fixed at a proportion of between one half and three quarters of the head sentence.[11] The much lower than usual non-parole period imposed in this matter reflects the applicant’s rehabilitation and the perceived need for her to spend greater time in the community on parole to continue her rehabilitative efforts. There appears to be no other basis on the facts of this matter for such a lenient non‑parole period.
[11] R v Palmer [2016] SASCFC 34 at [4] per Kourakis CJ.
The applicant also relied on the authority of R v Hunter (‘Hunter’)[12] and submits that the observations of the Court of Criminal Appeal (‘CCA’) are apposite to the facts of the present case. In Hunter, the CCA considered the relevance of the respondent’s actual rehabilitation in the three year period between the offending and sentence, in the context of an appeal against sentence by the Director of Public Prosecutions (‘DPP’). When considering the DPP’s argument that the sentencing Judge had erred in suspending the respondent’s sentence, the Court noted that:[13]
The only question before the Judge was whether there was “good reason” to suspend the prison sentence he had imposed. In performing this task the Judge was obliged to have regard to all relevant circumstances that were before him, in particular, those bearing on the seriousness of the offending and the need for general and personal deterrence and those bearing on the offender’s personal circumstances including but not limited to his prior criminal record, his prospects for rehabilitation and any legitimate issues of hardship.
In this case, the respondent’s personal circumstances across a range of topics, as earlier described, tended very favourably towards suspension. The Judge described them, in this context, as “unusual and compelling”. One feature calls for further elaboration. The Judge was satisfied that, during the three years following his arrest, the respondent had substantially rehabilitated himself. The fact of substantial rehabilitation is powerful in two respects. First, actual rehabilitation is a much more reliable guide to the future for a sentencing judge than is a finding that there are good prospects for rehabilitation and for obvious reasons. Second, where there has been substantial rehabilitation it can be a very serious and counterproductive act to put that actual rehabilitation at risk by imposing a lengthy prison sentence. In these circumstances, a suspended prison term can have significant work to do. If the respondent were to complete the two year bond period incident free he will have demonstrated five years of good behaviour. However, if he were to breach the bond, the sentence remains available to be served.
(citation omitted)
[12] [2017] SASCFC 97.
[13] R v Hunter [2017] SASCFC 97 at [60]–[61] per Nicholson J (with whom Peek and Stanley JJ agreed).
However, the circumstances in Hunter can be distinguished from those in this case. In Hunter, the respondent had demonstrated sustained, significant lifestyle changes over nearly three years since the date of his offending. This is a significantly longer period of time than in the present case.
There were also several matters which gave rise to a cautious approach when assessing the applicant’s rehabilitation.
First, the applicant reported to Dr Lim that, as at the time of her assessment in August 2021, she was in a stable relationship. That relationship commenced in late 2019 but included a six month period of separation before they reconciled in mid 2020. The present offending occurred during that period. As at the time of sentence, the applicant was no longer in that relationship.
Second, the applicant’s performance whilst on supervised bail between 30 August and 24 November 2021 was described as ‘average’.[14] Up until 1 November the applicant had reported as required, however, after that time, until 24 November there was no contact with DCS by the applicant, despite multiple attempts to contact her. While defence counsel proffered explanations for this lack of communication, which appeared to have been accepted by the sentencing Judge, the applicant had in fact only demonstrated two months compliance with supervision prior to there being a lack of contact for several weeks.
[14] Home Detention Order Suitability Report dated 24 November 2021 at 5.
Further, in Hunter, the respondent had ‘no prior convictions of any consequence and none relating to drugs’.[15] However, in this case, the applicant has a relatively long (albeit less serious) history of prior offending. Notably, the applicant had previously been given the benefit of two suspended sentences, two good behaviour bonds, and a community corrections order, some of which she breached. The applicant’s antecedent history demonstrates an entrenched difficulty in compliance with the law and court orders that was not present in Hunter.
[15] R v Hunter [2017] SASCFC 97 at [14] per Nicholson J (with whom Peek and Stanley JJ agreed).
Notwithstanding that the sentencing Judge adjourned submissions to give the applicant an opportunity to show her progress and that there were positive signs during that time as to her rehabilitation, it was open to the sentencing Judge to treat her rehabilitation with some caution. It is clear on a reading of the remarks as a whole that the sentencing Judge did take into account the applicant’s progress and rehabilitation. As much was reflected in his sentencing remarks and ultimately, the lenient non-parole period imposed.
For those reasons, we dismiss this ground of appeal.
Ground 2 – Application of Young
The applicant alleges that the sentencing Judge erred by implicitly applying the sentencing tariff in Young relating to offenders motivated by profit, rather than sentencing the applicant as a street level dealer selling drugs in small quantities to support her addiction. The applicant contends this error led the sentencing Judge to adopt a starting point which was too high.
In Young, Kourakis CJ drew a distinction between street dealers who are motivated by addiction and those who are motivated by their comfortable or hedonistic lifestyle. His Honour said:[16]
The offending of a street dealer whose addiction has left him or her largely impoverished and who trades in very small amounts only to feed his or her addiction is at the lower end of the scale of objective seriousness. Other street dealers may not use at all or may be only occasional or social users who engage in street trading primarily to fund a comfortable, usually hedonistic, lifestyle. Other street-level dealers, motivated by profit alone, may sell drugs directly to the end user but not use drugs at all.
[16] R v Young (2016) 126 SASR 41 at [65] (with whom Vanstone and Stanley JJ agreed).
The Chief Justice held that sentences in the range of four to seven years ‘continue to be appropriate for offenders who are motivated to a greater or lesser extent by profit’.[17]
[17] R v Young (2016) 126 SASR 41 at [66] (with whom Vanstone and Stanley JJ agreed).
As to offenders who are motivated by their addiction, the Chief Justice said:[18]
There will be relatively greater scope for rehabilitation in the case of a first offender dealer whose offending arises out of an all-consuming addiction but who has voluntarily embarked on a course of withdrawing from use of the drug. A sentence of less than four years imprisonment may be appropriate for offenders of that kind. However, that level of leniency cannot continue to be extended in the face of persistent offending either whilst on bail, or after sentence on earlier offending. There is much less reason for leniency in the face of persistent and recidivist trafficking even for the heavily addicted street dealer. As the prospects of rehabilitation diminish and the need for personal deterrence increases, the addicted street dealer can expect sentences in the same order as those imposed on the profit driven offenders.
(emphasis added)
[18] R v Young (2016) 126 SASR 41 at [67] (with whom Vanstone and Stanley JJ agreed).
The applicant also relied on Pateras v The Queen (‘Pateras’).[19] In that case, the Court explained that Kourakis CJ in Young ‘was contrasting an addicted street dealer selling drugs to support the addiction with those selling drugs to fund a “comfortable, usually hedonistic lifestyle”’.[20] The applicant contends that Pateras is authority for the proposition that only the latter category of offenders will fall within the category of those ‘motivated to a greater or lesser extent by profit’.
[19] (2021) 291 A Crim R 238.
[20] Pateras v The Queen (2021) 291 A Crim R 238 at [23] per Lovell, Livesey and Bleby JJA.
However, in R v Keut, the Court, in discussing the issue of profit, said:[21]
[T]he fact that the proceeds of sale of low-level street dealings are predominately used to satisfy a defendant’s addiction does not mean that the offender is not motivated by profit. What profit there is may be deployed in a vicious cycle of addiction, but it is still profit. It may fairly be said that such a dealer is motivated, to use the Chief Justice’s language, ‘to a lesser extent’ by profit. That will ordinarily have an ameliorating impact on the sentence to be imposed within the range.
[21] [2021] SASCA 39 at [22] per Kelly P, Doyle and Bleby JJA.
More recently in Cocks v The Queen (‘Cocks’), this Court provided further explanation of the Chief Justice’s remarks in Young:[22]
While the Chief Justice in Young did not define what he meant by profit, in context, his comment that “sentences in the range of four to seven years continue to be appropriate for offenders who are motivated to a greater or lesser extent by profit” generally refers to those cases where there is an element of commerciality over and above a profit to defray costs.
[22] [2022] SASCA 21 at [59] per Kourakis CJ, Lovell and Doyle JJA.
The applicant submits that she fell into the category of an offender motivated by an all consuming addiction, rather than an offender motivated by funding a lavish lifestyle or motivated to a greater or lesser extent by profit.
When sentencing the applicant, his Honour stated:
As discussed with your counsel, the court finds that you were a busy street-level dealer in methylamphetamine both to support your habit and your general expenses of living. The court does accept that you were addicted to methylamphetamine at the time.
(emphasis added)
Later, when considering the possibility of home detention, his Honour further stated:
[I]n light of your previous convictions and the fact that you were a busy, ongoing street-level trafficker for profit as well as to support your own drug use, serving a sentence on home detention would not represent adequate punishment nor general deterrence. Accordingly, the sentence will not be served on home detention.
(emphasis added)
The applicant submits that it might be accepted that there is a continuum, rather than a clear dichotomy, of the types of offenders who engage in drug trafficking and the types of trafficking offences that occur. However, if there is a continuum, the applicant was at the lower end of it. Alternatively, the applicant submits that if there is a clear dichotomy, the applicant was in the less serious category of a person selling to fund an all-consuming addiction. Either way, the applicant submits the tariff identified in Young for a person motivated to a greater or lesser extent by profit should not have been applied to her.
On the other hand, the respondent submits that the sentencing Judge implicitly considered the sentencing range identified in Young as being appropriate for street level offenders motivated to a greater or lesser extent by profit applied in the present case. This can be gleaned from his Honour’s references in the remarks to the applicant being ‘a busy street-level dealer in methylamphetamine both to support your habit and your general expenses of living’. The respondent submits that the evidence in this case supported the sentencing Judge’s finding.
We are satisfied that it was appropriate for his Honour to sentence the applicant on the basis that she was a street level offender ‘motivated to a greater or lesser extent by profit’. Accordingly, there was no error by the sentencing Judge in adopting a starting point of four years, which is at the bottom of the appropriate range identified by the Chief Justice in Young.[23]
[23] R v Young (2016) 126 SASR 41 at [66] (with whom Vanstone and Stanley JJ agreed).
Upon a review of the evidence, the following matters supported the sentencing Judge’s characterisation of the applicant as a ‘busy street-level dealer’:
1.Text messages on the applicant’s phone which indicated that;
·       the applicant sold to a relatively large number of customers. In the days preceding her arrest, she received messages from more than 20 people enquiring as to the availability of methylamphetamine (or making reference to debts owed to her for past sales);
·       the applicant not only sold in point amounts, but also in larger amounts and up to half balls;
·       the applicant had sold methylamphetamine on credit in the past and had money owing to her; and
·       the applicant was prepared to accept payment not only in cash but by EFT.
2.Text messages which revealed that the applicant’s supply of methylamphetamine was depleted, which explains the small quantity found in her possession; and
3.The CCTV footage taken from the applicant’s premises showed many persons attending the premises over a period of approximately three days preceding her arrest. It depicted persons attending at all times of the day and night and remaining for very short periods of time.
Whilst the applicant only fell to be sentenced for one count of trafficking in a controlled drug involving 2.22 g of methylamphetamine, that offence was not isolated. It occurred against a background of sustained street level dealing over at least one month. It was open to the sentencing Judge to find that the applicant was indeed a busy street level dealer of methylamphetamine and to characterise her offending in those terms.
In relation to the question of whether the applicant was ‘motivated to a greater or lesser extent by profit’, the evidence showed that the applicant received a benefit from trafficking methylamphetamine over and above sufficient profit to defray the cost of obtaining drugs to support her own addiction. Whilst it could not be said that the applicant lived an indulgent or lavish lifestyle, nor did the evidence support a finding that she was largely impoverished due to an all consuming drug addiction and her motivation was to simply defray the costs of drug addiction. The applicant’s circumstances lay somewhere in between.

The applicant told Dr Lim that she began trafficking in drugs ‘to “support” her methylamphetamine and gambling dependencies and to pay for her food and essential items’.[24] She told Dr Lim that she gambled heavily ‘spending up to $1000 per day on the pokies alone’.[25] During the period of this offending, the applicant was consuming up to 1 g of methylamphetamine per day. Whilst no longer employed, she was conducting a business selling adult wares which provided her with an income which was supplemented by unemployment benefits. Given the applicant’s limited income, she needed to generate considerable profit from her drug trafficking to fund her addiction, living expenses, gambling addiction, and to repay debts.
[24] Psychological Report of Dr Lim dated 26 August 2021 at 9.
[25] Psychological Report of Dr Lim dated 26 August 2021 at 9.
Whilst it may be accepted that the profit the applicant derived from drug trafficking was in part directed towards defraying the cost of her drug addiction and repaying drug debts, her motivation was also to generate a profit to repay gambling debts, to fund her use of poker machines, and for ordinary living expenses. The applicant’s motives for drug trafficking certainly excite sympathy, but they do not place her within the category of an offender whose drug trafficking arises out of an all consuming drug addiction which has left him or her largely impoverished.
Applying the approach of the Court in Young, as recently considered in Cocks, the applicant’s offending was most aptly characterised as being of a street level dealer who is motivated primarily by her drug addiction but also by profit, to the extent that she was also trafficking drugs to fund her ordinary general living expenses as well as her addiction to poker machines and to repay her gambling debts. The sentencing Judge made no error in his characterisation of the offending or in proceeding on the basis that the applicant fell to be sentenced in accordance with Young and the range of four to seven years identified by the Chief Justice. The sentencing Judge adopted a starting point at the lowest end of that range which was consistent with a recognition that the applicant was largely motivated to offend by her drug addiction and her other personal circumstances which excited sympathy and called for some leniency.
We dismiss this ground of appeal.
Grounds 3 – Manifest excess
The principles governing a complaint of manifest excess are well settled. As Doyle JA said in Ndreka v The Queen:[26]
The principles governing the Court’s consideration of a submission of manifest excess are well-known. They were summarised by the High Court in Dinsdale v The Queen and Hili v The Queen. They require satisfaction by the appellate court that the impugned sentence is unreasonably high, or plainly unjust, in the sense required by House v The King. It is not enough that the sentence is higher than what the appellate court, or some other sentencing judge, might have imposed. The appellate court will only interfere if the sentence is outside the range of sentences that might reasonably have been imposed. Whether this is so requires consideration of the range of matters relevant to the sentencing task, including the maximum penalty for the relevant offending, where the circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. But ultimately there is a limit to the amount of analysis that may be brought to bear. Often the existence or otherwise of manifest excess will be a conclusion that does not admit of lengthy exposition.
(citations omitted)
[26] [2021] SASCA 11 at [28] (with whom Kelly P and Bleby JA agreed).
The applicant contends that the starting point of four years is outside the permissible range of sentences available for this offending. The applicant reiterated the submissions that she was incorrectly characterised as a street level dealer motivated by profit. Rather, the applicant submitted that her offending arose from her own drug addiction, was not motivated by profit above and beyond funding that addiction, and left her largely impoverished. For the reasons already outlined, we consider the sentencing Judge correctly characterised her offending and was not in error in applying the tariff identified in Young by the Chief Justice.
In any event, in submitting that the sentence is manifestly excessive, the applicant emphasised that even on the sentencing Judge’s characterisation of the offending, she was a low-level street dealer with no prior convictions for drug trafficking who was selling methylamphetamine primarily to defray the cost of her drug addiction; she was not living a lavish or hedonistic lifestyle.
The applicant also relied on the minor nature of her prior convictions (none of which were for major indictable offences or drug trafficking) and her demonstrated rehabilitation and good prospects of further rehabilitation. In particular, the applicant noted that Dr Lim considered the applicant at a low risk of reoffending on account of her improved lifestyle and her abstinence from drug use and gambling. Dr Lim opined that an immediate term of imprisonment would compromise the applicant’s mental health as she would not be able to access the one on one treatment required to address her psychological issues and custody would render her more susceptible to drug use and recidivism upon her release. The applicant also submitted that her personal circumstances warranted a merciful approach.
The applicant contends that taking all those matters into account, the sentence was manifestly excessive.
We do not agree with that contention.
In adopting a starting point of four years, the sentencing Judge commenced at the bottom of the range contemplated in Young for offenders motivated by profit. We do not consider that the matters relied upon by the applicant required the sentencing Judge to adopt a starting point below this range.
Whilst the applicant was a street level dealer selling drugs primarily to support her own drug addiction, the offending was still serious. The quantity of the drug was small, however, that appeared to be because her supply was depleted by other sales shortly before her arrest. To that end, the offence occurred against a background of uncharged similar trafficking. We have already outlined the sustained and frequent nature of the uncharged conduct as revealed by the text messages and CCTV footage. Further, the applicant was found in possession of about $1,600 cash. This was not an insignificant amount of cash for the applicant to have in her possession, given she had entrenched drug and gambling addictions, drug debts, and she appeared to have only been in receipt of limited legitimate income. Notwithstanding that the applicant fell only to be sentenced for the charged offence, there was less scope for leniency given it was not an isolated occurrence and occurred against this background of uncharged conduct.
There is no question that the applicant’s lack of prior drug offending was a relevant consideration. However, the applicant had engaged in other prior offending, albeit of a less serious nature. She had also previously received the benefit of two suspended sentences, two good behaviour bonds, and a community corrections order. She had breached three of those orders. Principles of personal deterrence needed to be reflected in the sentence imposed.
As to the applicant’s rehabilitation, for the reasons outlined earlier, this was a matter to which the sentencing Judge had regard. While the applicant had shown positive signs of rehabilitation, she had not demonstrated an abstinence from drug use over an extended period. Despite being on bail since her arrest in late April 2020, she was only on a supervised bail agreement and the subject of drug testing from August to November 2021. Further, she remained unemployed. Her performance whilst on supervised bail was also described as ‘average’.[27] Consequently, as noted earlier, at the time of sentence there was a basis for the sentencing Judge to have exercised some caution in assessing the extent of the applicant’s rehabilitation.
[27] Home Detention Order Suitability Report dated 24 November 2021 at 5.
It is true that the applicant had a difficult personal history which invoked much sympathy. She had been the subject of childhood sexual abuse and, as an adult, was the victim of repeated domestic violence. The sentencing Judge had regard to those matters. He also referred to Dr Lim’s report and her opinion that the applicant had managed her psychological distress through drug use. To that extent, there was a causal connection between the applicant’s psychological conditions, drug use, and the current offending. If subject to an immediate term of imprisonment, she would also be deprived of psychological treatment which may make her more susceptible to future relapses. However, the applicant’s personal circumstances were but one matter for the sentencing Judge to take into account. They needed to be balanced with the countervailing considerations of general and personal deterrence, which still had a significant role to play in sentence.
The applicant also submits that the approach taken by the sentencing Judge was inconsistent with that taken by this Court in Cocks and Pateras. In each of those cases, the Court resentenced the applicants and adopted a starting point of less than four years. However, we agree with the respondent’s submission that each of those authorities can be distinguished from the present case on two bases. First, the Court resentenced on a factual basis that each applicant was not trafficking over and above defraying the costs of their own drug habit. Second, in Cocks and Pateras, the Court was exercising a fresh discretion, having held that the sentencing process had miscarried at first instance. In those circumstances, the starting points adopted by this Court in those matters is of limited assistance. It is insufficient for an applicant to establish that the discretion could have been exercised differently. Rather, it must be demonstrated that the exercise of the discretion was unreasonable or plainly unjust.
In summary, we are satisfied that all the matters raised by the applicant in support of her contention that the sentence was manifestly excessive were taken into account by the sentencing Judge. None of those matters considered individually or collectively required a starting point less than that adopted by the sentencing Judge and below the range identified by the Chief Justice in Young for offenders who are motivated by profit.
We dismiss this ground of appeal.
Grounds 4 and 5 – Failure to suspend the sentence or order the sentence be served on home detention
The applicant complains that the sentencing Judge erred in not suspending the term of imprisonment or ordering that it be served on home detention.
In relation to the question of suspension, the sentencing Judge in his remarks considered the applicant’s offending ‘too serious, against a backdrop of prior offending, for there to be good reason to suspend that sentence’.
The applicant submits that the sentencing Judge characterised the offending as more serious than it was and relies on the matters raised in Grounds 2 and 3. Thus, the applicant asserts there was a process error. For the reasons set out earlier, we are satisfied that his Honour did not misapply the principles in Young and mischaracterise the applicant’s offending. The applicant also asserts, that in effect, the sentencing Judge unnecessarily fettered his discretion by classifying the applicant’s offending as ‘too serious’ to justify a suspended sentence. We do not agree. Rather, the sentencing Judge, in considering the seriousness of the applicant’s offending in light of her antecedent history, determined there was not good reason to suspend the sentence. In doing so, there was no process error by the sentencing Judge.
We also consider that it was open to the sentencing Judge to conclude that there was not good reason to suspend the sentence. As already outlined, the offence was committed in part for profit. It was not isolated but occurred against a background of other similar uncharged offending that was frequent and sustained over at least one month. The applicant had had the benefit of community-based orders and suspended sentences and had not only breached those orders, but had reoffended with the present matter. The sentencing Judge had regard to the applicant’s personal circumstances and rehabilitation and reflected those matters in a short and lenient non-parole period. There was no error demonstrated in the sentencing Judge’s approach or decision to decline to suspend the sentence. The matters relied upon by the applicant did not require a favourable exercise of the discretion to suspend the sentence.
The applicant also complains that the sentencing Judge erred in not ordering that the sentence be served on home detention. In his remarks, the sentencing Judge determined that the applicant and the premises were suitable for supervision. However, his Honour determined that:
[I]n light of your previous convictions and the fact that you were a busy, ongoing street-level trafficker for profit as well as to support your own drug use, serving a sentence on home detention would not represent adequate punishment nor general deterrence. Accordingly, the sentence will not be served on home detention.
Again, the applicant submits that the sentencing Judge characterised the offending as more serious than it was and relies on those matters raised in Grounds 2 and 3. For the reasons set out above, we are satisfied that his Honour did not misapply the principles in Young, nor did he mischaracterise the applicant’s offending. Even accepting the sentencing Judge’s characterisation of the offending, the applicant submits that it was at the lower end of objective seriousness and the punitive and deterrent aims of sentencing were met by a home detention order.
The applicant relies on the case of Phillipou v The Queen (‘Phillipou’) as analogous.[28] In that matter, the appellant was sentenced at first instance to imprisonment for four years and five months. An appeal against sentence was allowed and he was resentenced to imprisonment for two years and 10 months with a non-parole period of two years, three months, and one week to be served on home detention. That sentence was imposed taking into consideration the 19 months the appellant had already served in custody. The offending involved one count of trafficking just over 3 g of methylamphetamine. We do not consider that this authority assists the applicant. As the respondent correctly submits, Phillipou was an unusual case. Following the hearing of the appeal, the appellant’s partner and mother of his 14 month old son was diagnosed with terminal cancer. The appellant sought to rely on fresh evidence establishing the need for him to personally care for his partner and child due to her illness. The appeal was allowed on the basis of the fresh evidence. For that reason, Phillipou has limited application to the present case.
[28] [2020] SASCFC 21 per Kourakis CJ (with whom Stanley and Doyle JJ agreed).
We are satisfied it was open to the sentencing Judge to conclude that it was not appropriate to order that the sentence be served on home detention in the circumstances of this case and that a home detention order would not meet the objectives of punishment and general deterrence. That is for largely the same reasons as already outlined in our conclusion that it was open for the sentencing Judge to decline to suspend the sentence. Briefly, the offending was serious in that it was committed in part for profit and was not isolated. The applicant’s rehabilitation and abstinence from drugs was promising but not of long duration and the applicant had previously breached community-based orders. Thus, principles of personal deterrence still had a role to play in sentencing the applicant. Further, general deterrence remained an important consideration in this case given the great harm caused to society by the trafficking of methylamphetamine.
It was open to the sentencing Judge to decline to order that the applicant serve her sentence on home detention.
We dismiss Grounds 4 and 5.
Conclusion
We grant permission to appeal on Grounds 1 to 5 but dismiss the appeal.