Stocks v The Queen

[2021] SASCA 116

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

STOCKS v THE QUEEN

[2021] SASCA 116

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)

21 October 2021

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - EVIDENCE - GENERALLY

CRIMINAL LAW - EVIDENCE - COMMENT ON FAILURE TO GIVE EVIDENCE - BY JUDGE

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

On 10 June 2021, the appellant was sentenced for the offence of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The sentencing Judge began with a starting point of four years imprisonment, reduced by 40 per cent on account of the appellant's guilty plea to two years, four months, and 24 days imprisonment. A non-parole period of 14 months was fixed. The sentencing Judge declined to suspend the sentence and declined to order that it be served on home detention.

The appellant appealed against this sentence on the following grounds:

1.      The sentencing Judge erred in finding that the 'other substance' located was a cutting agent and used by the appellant to dilute drugs for sale and thereby increase profit.

1.1.      This finding was not available on the evidence.

1.2.      The appellant was not afforded procedural fairness with respect to the finding.

2.      The sentencing Judge erred in failing to take into account that some of the drugs located were for the appellant's personal use.

3.      The sentencing Judge's finding that the appellant was 'uncooperative with police' (made on the basis of the appellant exercising his right to silence upon arrest) was contrary to the evidence.

4.      The sentencing Judge erred in not suspending the term of imprisonment.

5.      The sentencing Judge erred in not imposing a home detention sentence.

Permission to appeal was granted on Grounds 4 and 5. Permission to appeal on Grounds 1 to 3 was referred to the Court of Appeal.

Held, per the Court, refusing permission to appeal on Grounds 1 and 2, granting permission to appeal on Ground 3, but dismissing the appeal.

1.      There was a sufficient basis from which it was open to the sentencing Judge to infer that the powder in which no controlled substances were detected was likely a material for cutting or diluting MDMA to increase the bulk of the substance for sale.

2.      Where the appellant was afforded the opportunity to give evidence on topics directly relevant to the question of whether the appellant was trafficking drugs for profit, there was no requirement for the sentencing Judge to bring counsel's attention to his conclusions as to the appellant's likely use of the powder as a cutting agent.

3.    It was not established that the sentencing Judge implicitly rejected or overlooked that some of the MDMA was for the appellant's personal use; but even if his Honour did, this was not material to the seriousness of the offending or the sentence imposed given the sentencing Judge expressly recognised the appellant's drug addiction was part of his motivation for trafficking drugs.

4.      The sentencing Judge was in error in describing the appellant as 'uncooperative' in exercising his right to silence.

5.      On an independent exercise of the sentencing discretion, no different sentence should be imposed, and the appeal dismissed on that basis.

Controlled Substances Act 1984 (SA) s 32; Sentencing Act 2017 (SA) s 40, referred to.
House v The King (1936) 55 CLR 499; Kentwell v The Queen (2014) 252 CLR 601; Petty v The Queen (1991) 173 CLR 95; R v Young (2016) 126 SASR 41, considered.

STOCKS v THE QUEEN
[2021] SASCA 116

Court of Appeal – Criminal:    Livesey P, Doyle and David JJA

THE COURT:

1. The appellant was charged with three counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA), for which the maximum penalty for a basic offence is $50,000 or imprisonment for ten years, or both. Within four weeks of his first court date, the appellant pleaded guilty to count 1, which involved approximately 15 grams of MDMA in the form of crystals and crystalline powder. Both counts 2 and 3 were withdrawn.

2. The sentencing Judge began with a starting point of four years imprisonment. The sentencing Judge reduced the appellant’s sentence by 40 per cent on account of the appellant’s guilty plea and imposed a head sentence of two years, four months, and 24 days imprisonment.  A non-parole period of 14 months was fixed.  The sentencing Judge declined to suspend the sentence and declined to order that it be served on home detention.

   Appeal Grounds

3. The appellant relies upon the following grounds:

   1.The sentencing Judge erred in finding that the ‘other substance’ located was a cutting agent and used by the appellant to dilute drugs for sale and thereby increase profit.

   1.1This finding was not available on the evidence.

   1.2The appellant was not afforded procedural fairness with respect to the finding.

   2.The sentencing Judge erred in failing to take into account that some of the drugs located were for the appellant’s personal use.

   3.The sentencing Judge’s finding that the appellant was ‘uncooperative with police’ (made on the basis of the appellant exercising his right to silence upon arrest) was contrary to the evidence.

   4.The sentencing Judge erred in not suspending the term of imprisonment.

   5.The sentencing Judge erred in not imposing a home detention sentence.

4. Permission to appeal was granted on Grounds 4 and 5. Permission to appeal in relation to the remaining grounds was referred to the Court of Appeal.

   Circumstances of the Offending

5. On 21 April 2020, police officers searched the appellant’s home and in his bedroom located methylenedioxymethamphetamine (MDMA), also known as ecstasy, together with other suspected drugs.  Fourteen plastic resealable bags containing a crystal or crystalline powder substance were located.  The contents of those bags were later analysed.  The results were set out in a Certificate of Analysis which provided as follows:[1]

   [1] Certificate of Analysis dated 1 September 2020 (footnotes omitted).

PPMS number	Exhibit number	Exhibit description	Total weight	Results
20-A33653-7	2002493/2.01	Powder	-	No controlled substances detected
	2002493/2.02	Crystals and crystalline powder	3.46g	3,4-Methylenedioxymethylamphetamine (MDMA, 1.96g)
	2002493/2.03	Crystals and crystalline powder	3.43g	3,4-Methylenedioxymethylamphetamine (MDMA, 1.90g)
	2002493/2.04	Crystals and crystalline powder	0.97g	3,4-Methylenedioxymethylamphetamine (MDMA)
	2002493/2.05	Crystals and crystalline powder	0.91g	3,4-Methylenedioxymethylamphetamine (MDMA)
	2002493/2.06	Crystals and crystalline powder	0.93g	3,4-Methylenedioxymethylamphetamine (MDMA)
	2002493/2.07	Crystals and crystalline powder	0.99g	3,4-Methylenedioxymethylamphetamine (MDMA)
	2002493/2.08	Crystals and crystalline powder	0.99g	3,4-Methylenedioxymethylamphetamine (MDMA)
	2002493/2.09	Crystals and crystalline powder	0.94g	3,4-Methylenedioxymethylamphetamine (MDMA)
	2002493/2.10	Crystals and crystalline powder	0.93g	3,4-Methylenedioxymethylamphetamine (MDMA)
	2002493/2.11	Crystals and crystalline powder	0.95g	3,4-Methylenedioxymethylamphetamine (MDMA)
	2002493/2.12	Crystals and crystalline powder	0.53g	3,4-Methylenedioxymethylamphetamine (MDMA)
20/A33653-8	2002493/3.01	Crystalline powder	0.21g	3,4-Methylenedioxymethylamphetamine (MDMA)
20/A33653-9	2002493/4.01	Powder	1.29g	Tetrahydrocannabinol (THC); Tetrahydrocannabinolic acid (THCA)
20/A33653-26	2002493/7.01	‘CONTROL’ swab	-	No controlled substances detected
	2002493/7.02	‘W’ swab	-	3,4-Methylenedioxymethylamphetamine (MDMA); Tetrahydrocannabinol (THC)

1. In summary, there were eight plastic bags of powder weighing just under 1 gram containing MDMA, one bag of powder weighing about half a gram containing MDMA, one bag of powder weighing 0.2 grams containing MDMA, and two bags of powder each weighing 3.46 grams containing 1.96 and 1.9 grams of MDMA, respectively.  There was also a bag of powder in which no controlled drugs were detected.

2. The police also located $3,870 in cash, a post-it note with a list of seven names and monetary amounts or a ‘tick list’, and two sets of small electronic scales in the appellant’s bedroom.  The police seized the appellant’s mobile telephone.  After the appellant provided his pin code and police gained access to the telephone, it was discovered that it contained no incriminating material.

3. The appellant was sentenced on the basis that his offending was not an isolated occasion of trafficking but occurred against a background of previous sales of illicit drugs.  The appellant was sentenced on the basis he was a ‘busy street-level drug dealer’ who was trafficking in drugs to support his own drug habit as well as for profit.

   Personal Circumstances

4. The appellant was aged 25 at the time of the offending and was 26 when sentenced.  He has no prior convictions.  He was born and raised in Adelaide with a younger brother.  When he was aged 20, the appellant’s parents separated.  At the time of his arrest, the appellant was living with his mother.

5. The appellant experienced a difficult childhood due to the strained relationship between his parents and the effect of his father’s alcoholism on his family life.  His younger brother was diagnosed with leukemia when the appellant was aged 14.  His brother spent the following years undergoing medical treatments.  The appellant’s brother is now in remission.

6. The appellant’s disruptive home life adversely affected his schooling.  He was regarded as a difficult student and was asked to leave school during year 11.  He eventually completed year 12 at another school.  The appellant then completed the first year of a Bachelor of Environmental Science at the University of South Australia before deferring his studies in preference for full‑time employment. 

7. At the time of his arrest, the appellant was employed as a landscaper.  The appellant’s employers were aware of the offending and were prepared to provide him ongoing employment on the condition that he submit to drug testing.  The appellant was informed that any future breaches of his conditions of employment may affect his ongoing employment.

8. At the time of the offending, the appellant was regularly consuming cannabis. He would also use ecstasy habitually on the weekends.  The appellant submitted to the sentencing Judge that he would purchase ecstasy in bulk to obtain the drug at a cheaper price and then on-sell to close friends.  He denied that he was trafficking for profit.  The sentencing Judge rejected that submission in the absence of oral evidence and sentenced the appellant on the basis that he was motivated by profit as well as to support his own drug habit.

9. The appellant submitted (and the sentencing Judge accepted) that since his arrest in April 2020, he had abstained from illicit drug use.  The appellant underwent 18 drugs tests between 30 July 2020 and 14 May 2021 and returned a negative result on each occasion.  The appellant engaged with a psychologist, Ms Su Upton, from June through August 2020 before commencing treatment with another psychologist, Mr Shane Curley, in early 2021.  The appellant’s treatment with Mr Curley focused on his underlying anxiety symptoms.  Mr Curley considered that the appellant had engaged well in therapy and expressed the opinion that the appellant ‘is a low risk of a return to disordered substance use, or substance related offending’.

10. The appellant also relied upon a report from a forensic psychologist, Dr Loraine Lim, dated 4 May 2021.  Dr Lim expressed the opinion that the appellant met the diagnostic criteria for the following psychological conditions at the time of his arrest in April 2021: Stimulant – MDMA – Use Disorder (severe); Alcohol Use Disorder (severe); Cannabis Use Disorder (severe); Benzodiazepine Use Disorder (mild to moderate); and Substance Induced Mood and Anxiety Disorder.

11. Dr Lim considered that ‘[w]ith regards to the current offending, there is a clear and direct nexus between [the appellant’s] mental health difficulties, his poor psychological resilience/coping skills, and his abuse of MDMA as an emotional coping strategy’.  Dr Lim was of the opinion that the appellant’s prospects for rehabilitation were ‘fairly positive’ if he was willing to engage in substance use rehabilitation programs (which he was yet to do) in addition to ongoing psychological intervention.

12. The sentencing Judge was also provided with a letter of support from the appellant’s general practitioner, and character references from a close friend and a co-worker, all of which attested to the appellant’s good standing amongst his community, remorse for his offending, and efforts to turn his life around.

    Sentencing remarks

13. The sentencing Judge summarised the circumstances of the offending and, as discussed earlier, sentenced the appellant on the basis that he was a ‘busy street‑level dealer’ who was trafficking for profit and to support his own drug habit.

14. The sentencing Judge noted that the appellant had undertaken psychological counselling and accepted that the appellant had ceased using illicit drugs.  The sentencing Judge referred to the letter of Mr Curley, and the forensic psychological report of Dr Lim, and their respective opinions and conclusions.  The sentencing Judge said that the appellant’s efforts to rehabilitate were to his credit.

15. In turning to the sentence to be imposed, the sentencing Judge referred to the offending as ‘serious’ and had regard to the harmful nature, disturbing prevalence, and high demand MDMA.  The sentencing Judge noted that the trafficking of drugs ‘causes massive harm’ and that general and personal deterrence must play ‘a very significant role in any sentence’.  The sentencing Judge noted that the appellant had embarked upon a course of rehabilitation so there was ‘a reduction to some degree in the need for personal deterrence’.

16. As to the question of suspension, the sentencing Judge said: ‘In the totality of the circumstances, notwithstanding the matters put, the court concludes that your ongoing trafficking for profit in the sense outlined, means that there is not good reason to wholly suspend the sentence.’

17. The sentencing Judge also declined to order that the appellant’s sentence be served on home detention. The sentencing Judge said:

    The court turns to the issue of whether it is appropriate that the sentence be served on home detention. The court has regard to the home detention provisions and the two-step process explained by the Supreme Court in a number of decisions: the first step is satisfied in that the court accepts that your premises are suitable for home detention and that you are a suitable person in the sense of being monitored and managed in home detention.

    The difficult issue is the second aspect, that is whether it would be appropriate in all the circumstances that you serve your sentence on home detention.  The issue is whether a sentence on home detention would provide adequate punishment and general deterrence. In the final analysis, unfortunately the court concludes that it does not, accordingly the sentence will not be served on home detention.

18. Finally, the sentencing Judge had regard to the ‘positive steps’ taken by the appellant and fixed a ‘shorter than usual’ non-parole period of 14 months.  The head sentence of two years, four months, and 24 days imprisonment with a non‑parole period of 14 months was ordered to commence from the date of sentence, 10 June 2021.

    The appeal

19. We have earlier set out the five grounds of appeal relied upon by the appellant. The first three grounds complain of a ‘process error’.  If a specific error or process error is established, the appellate court’s power to intervene and resentence is enlivened, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed.[2]  The fourth and fifth appeal grounds contend that there is an outcome error and are subject to the principles espoused in House v The King.[3]  The appellate court may only intervene if it is established that the immediate custodial sentence imposed was unreasonable or plainly unjust in that it falls outside the permissible range of sentences for the offender and the offence.[4]

    [2] Kentwell v The Queen (2014) 252 CLR 601 at [35] per French CJ, Hayne, Bell and Keane JJ.

    [3] (1936) 55 CLR 499.

    [4] Kentwell v The Queen (2014) 252 CLR 601 at [35] per French CJ, Hayne, Bell and Keane JJ.

    Ground 1

20. The appellant’s first ground of appeal relates to the sentencing Judge’s finding that:

    … Other powder which contained no controlled substance was located, likely to have been materials which you would have cut the drugs you were trafficking with, in other words dilute them to increase profit. …

21. The appellant contends that this finding was not available on the evidence and that the appellant was not afforded procedural fairness with respect to the finding.  It is contended that the erroneous finding impermissibly ‘amplified’ the seriousness of the offending. 

22. There was unchallenged material before the sentencing Judge which established that one of the plastic resealable bags contained an unknown powder in which no controlled substances were detected.  That powder was found by police in the same location as the plastic resealable bags containing MDMA, which form the subject of the charge.  Both the crystals and crystalline powders containing MDMA and the powder in which no controlled substances were detected were packaged in the same type of plastic resealable bag. 

23. At least two of the plastic resealable bags contained a crystal and crystalline powder consisting of MDMA and another unknown substance, leading to the conclusion that the MDMA had at some stage been mixed with another substance.

24. There was evidence from a police officer, Detective Brevet Sergeant Thomas Geurin, as to the common packaging, marketing and pricing of MDMA for distribution and sale in South Australia.  He said:

    It is common for illicit drugs to be ‘cut’ with other components.  The term ‘cutting’ or ‘cut’ refers to adding bulk to the illicit drug to create more profit by adding to the original substance, in effect watering it down or diluting it.  Some cutting agents are benign, however this is not always the case and others have negative or unwanted side effects. …  

25. As to crystalline MDMA, Detective Brevet Sergeant Guerin said:

    A ‘raw’ form of MDMA can be purchased and has become increasingly popular.  It can be found in powdered form, with small crystals, or large crystals which can be referred to as ‘rocks’. These can range in colour from off white to a yellowish colour to brown. …

26. The appellant notes that there was no evidence as to the precise nature of the powder in which no drugs were detected, nor was there any evidence that it was a substance capable of being used to cut MDMA, or whether crystals or crystalline powder, as is involved in the present case, are capable of being cut or mixed with another powder or agent.  There was also no evidence that the powder located with the MDMA had been used to cut any of the MDMA which was the subject of the charge.

27. Thus, the appellant submits that the sentencing Judge’s finding that the powder which contained no controlled substance was likely to have been used to cut the drugs was speculative and not supported by the evidence.

1. We do not accept that submission.

2. It was open to the sentencing Judge to make that finding on the basis that the powder in which no drug was detected was found in the same location as the MDMA; it was packaged in the same type of plastic resealable bag as the MDMA; and the crystals/crystalline powder containing MDMA in at least two of the plastic resealable bags had been mixed or diluted with another substance.  As set out above, there was also expert evidence that it is common for MDMA to be cut or diluted with other substances to increase the bulk of the substance.  We are satisfied that this was a sufficient basis from which it was open to the sentencing Judge to infer that the powder in which no controlled substances were detected was likely a material for cutting or diluting MDMA to increase the bulk of substance for sale.

3. In any event, the appellant was sentenced on the basis that he was a busy street-level dealer.  The sentencing Judge in making that finding did not refer to the appellant having a powder which was likely used as a cutting agent to increase profit.  Rather, the sentencing Judge said:

   These drugs, their disposition, the tick list and the substantial amount of cash, establishes that you were a busy street-level dealer in these drugs for profit, although the court accepts on the basis of the reports tendered about you and the submissions of your counsel, that one of your primary motivations was to support your drug habit; it is clear however that you were trafficking to profit as well, given that police found a substantial quantity of cash.

4. Bearing in mind the sentencing Judge’s conclusion that the appellant fell to be sentenced as a busy street-level dealer, the finding that the appellant had a powder which was likely used as a cutting agent to increase profit did not add to the seriousness of the appellant’s offending.  There was other material upon which the sentencing Judge determined that the appellant’s offending was motivated in part by profit and the appellant was not motivated to sell drugs purely to support his own addiction.  The finding that the powder was likely used as a cutting agent was simply consistent with the appellant’s concession, by his guilty plea, that he was trafficking in drugs and the sentencing Judge’s conclusion that the appellant fell to be sentenced as a busy street-level dealer.  It did not materially increase or ‘amplify’ the seriousness of the offending.

5. The appellant also complains that the sentencing Judge did not foreshadow the finding that the powder was likely used as a cutting agent with counsel.  The appellant submits that he was therefore precluded from making submissions on the topic and was not afforded the opportunity to give evidence.  The appellant contends that he was thereby deprived of procedural fairness.

6. It is important to note that the appellant was put on notice that the sentencing Judge did not accept his submissions that any past drug trafficking was limited to the seven persons and sales recorded on the post-it note or ‘tick list’ and that some of the cash was money he had received on birthdays.  The sentencing Judge intimated to counsel, that in the absence of oral evidence from the appellant, and on the basis of the filed declarations, he proposed to sentence the appellant as a busy street-level dealer motivated in part by profit.  The sentencing Judge intimated to the parties that he considered that most of the cash was from the proceeds of past drug sales.  The sentencing Judge also put the appellant on notice that he did not consider that the lack of incriminatory material on the appellant’s mobile telephone undermined the findings as to profit because the appellant could have simply deleted any messages from his telephone.  The appellant did not give evidence to negate these intimations. 

7. In that context, where the appellant was afforded the opportunity to give evidence on topics directly relevant to the question of whether the appellant was trafficking drugs for profit, there was no requirement for the sentencing Judge to bring counsel’s attention to his conclusions as to the appellant’s likely use of the powder as a cutting agent.  This conclusion did not materially inform the sentencing Judge’s conclusion that the appellant fell to be sentenced as a busy street-level dealer motivated by profit.  Nor did the finding as to the likely use of the powder as a cutter materially add to or amplify the seriousness of the offending.

8. We would refuse permission to appeal on Ground 1.

   Ground 2

9. The appellant contends that the sentencing Judge erred in failing to take into account that some of the drugs were for the appellant’s personal use.  The sentencing Judge said:

   … Eight small plastic bags contained just under 1 g of MDMA, one bag contained half a gram, one bag contained .2 g and two bags contained about 3.5 g each.  These are commonly traded quantities of MDMA and the court finds they were packaged this way for the purposes of your trafficking. …

10. By reason of this part of the remarks, the appellant submits that the sentencing Judge implicitly rejected the appellant’s uncontested submission that some of the drugs were for his personal use and the drugs were not all for sale.  There was no dispute that the appellant was a regular social user of MDMA, that he was using 2 to 3 grams of MDMA over weekends, and that he weighed out the drugs that were for his personal use so he knew the quantity he was consuming.

11. The sentencing Judge expressly sentenced the appellant on the basis that he was motivated in part to support his drug habit and in part by profit.  The sentencing Judge also referred in some detail to the efforts by the appellant to rehabilitate from his drug addiction since his arrest.  In those circumstances, it is unlikely that the sentencing Judge rejected or overlooked that some of the drugs in the appellant’s possession were for his own use. Further, the sentencing Judge said that the drugs ‘were packaged this way for the purposes of your trafficking’, which is equally consistent with the sentencing Judge meaning that those of the drugs intended for sale were packaged in a manner consistent with sale.

12. Even if the sentencing Judge had implicitly rejected or overlooked that some of the MDMA was for the appellant’s personal use, which we do not accept, that would mean that the controlled drug the subject of the charge, the crystal/crystalline powder containing MDMA, was about 12 grams rather than 15 grams.  That would have no material difference to the seriousness of the offending or the sentence imposed given the sentencing Judge expressly recognised the appellant’s drug addiction as part of his motivation for trafficking drugs.

13. We would refuse permission to appeal on Ground 2.

    Ground 3

14. The appellant contends that the sentencing Judge’s finding that he was ‘uncooperative’ with police because he exercised his right to silence upon arrest was contrary to the evidence.

15. The sentencing Judge said in his remarks: ‘You were interviewed by police on 3 May 2020.  You were uncooperative with them, in that you exercised your legal right to remain silent.’ 

16. It needs to be immediately recognised that the sentencing Judge was not saying that the appellant was generally uncooperative with police.  Rather, the sentencing Judge confined his statement to the appellant’s decision to exercise his legal right to remain silent.  Upon review of the material, it was clear that the appellant was not in fact generally uncooperative with police.  The appellant voluntarily gave the police his mobile telephone’s pin code and entered an early guilty plea to count 1. 

17. The question on appeal is whether it was an error for the sentencing Judge to describe or characterise the appellant’s exercise of his legal right to silence as the appellant having been ‘uncooperative’ with police and whether that adverse characterisation unduly and unfavourably influenced the sentence in other ways. 

18. As a matter of principle, a person exercising his or her right to silence is not behaving in an uncooperative manner with police.  As Mason CJ, Deane, Toohey and McHugh JJ said in Petty v The Queen:[5]

    A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played.  That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country.  An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information.  To draw such an adverse inference would be to erode the right of silence or to render it valueless. …

    [5] (1991) 173 CLR 95 at 99.

19. Those comments were made in the context of a person raising a defence at trial after remaining silent during committal proceedings.  The principle applies equally upon sentence after a person pleads guilty to an offence having declined to answer questions upon arrest.  In imposing sentence, no adverse inference can be drawn from a person’s decision to exercise his or her right to decline to answer questions upon arrest.

20. It may well be that the sentencing Judge did not intend to convey any more than that the appellant declined to be interviewed, and in that sense did not cooperate with the police’s request to interview him.  However, that is not how the sentencing Judge expressed himself; the sentencing Judge described the appellant as uncooperative.

21. It is incorrect and inappropriate to describe a person exercising his or her fundamental right to remain silent as being ‘uncooperative’. The use of the term ‘uncooperative’ connotes a level of resistance or unhelpfulness by an accused person which is fundamentally inconsistent with a person exercising a legal right.

22. We consider that the sentencing Judge was in error in describing the appellant as ‘uncooperative’ in exercising his right to silence. 

23. The more difficult question is whether the statement by the sentencing Judge that the appellant had been ‘uncooperative’ in exercising his right to silence had a materially adverse impact on the sentence.  An accused person’s level of cooperation with the authorities is a matter which is potentially relevant to an assessment of an accused person’s contrition and remorse and their prospects of rehabilitation.  It is in turn relevant in considering the notional starting point of a head sentence, the fixing of a non-parole period, whether there is good reason to suspend the sentence, and whether it is appropriate to impose a home detention order.

24. In this matter, after referring to the appellant having been uncooperative with police in exercising his right to silence, the sentencing Judge went on to say:

    … However, to your credit, you pled guilty within four weeks of the offence charge date which entitles you to the 40% maximum discount then available for an early plea of guilty – you will receive that full discount.

25. The use of the term ‘however’ draws a distinction between that which precedes it, that is the reference to the appellant being uncooperative, and that which follows it, namely the appellant still receiving the full discount.  It supports the appellant’s contention that the sentencing Judge viewed the appellant’s exercise of his right to silence negatively and that it adversely affected the sentence imposed.

26. The appellant was given the full discount of 40 per cent for his guilty plea and there is no express reference made in the sentencing Judge’s remarks to the appellant being penalised for exercising his right to silence upon arrest.  There is also nothing which expressly says that it did not so influence the sentencing Judge.  It was erroneous for the sentencing Judge to characterise the appellant’s exercise of his right to remain silent as ‘uncooperative’ and it is not possible to say that it did not materially and adversely affect the sentence.

27. As a specific error has been established, the Court’s power to intervene is enlivened.  The Court must resentence the appellant unless, in the separate and independent exercise of its discretion, it would have imposed the same or a more severe sentence.[6]

    [6] Kentwell v The Queen (2014) 252 CLR 601 at [43] per French CJ, Hayne, Bell and Keane JJ.

28. On review of all the materials and submissions, we would not impose a different head sentence or non-parole period.  Nor do we consider that the sentence should be suspended or served on home detention.  Accordingly, the appeal should be dismissed.  We have reached that conclusion for the following reasons.

29. As to the head sentence, the notional starting point of four years reduced by 40 per cent on account of the appellant’s guilty plea to two years, four months, and 24 days imprisonment reflected several serious aspects of the offending.

30. Those features included the not insignificant amount of MDMA and that at least some of the drug was of a high level of purity. MDMA is an obviously harmful drug, the trade of which continues to have an adverse impact on our society.  The appellant was located with almost $4,000 cash and a ‘tick list’ indicating that this was not an isolated occasion of trafficking in drugs.  Thus, there was less scope for leniency in sentence.  Further, the appellant was motivated at least in part by profit.  He was not a man overcome by an all-consuming drug addiction who was trafficking in drugs purely to fund his own addiction.  The offending was objectively not at the lowest end of the scale of seriousness.  A notional starting point of four years is consistent with the lower end of the range of four to seven years considered appropriate in R v Young for offenders who are motivated to a greater or lesser extent by profit.[7]

    [7] (2016) 126 SASR 41.

31. As for the non-parole period, the appellant had several personal circumstances in his favour.  He was still a relatively young man, aged 26, with no prior convictions.  He was fully employed.  Since his arrest he had undertaken psychological counselling and abstained from illicit drug use.  As Dr Lim noted, the appellant’s prospects of rehabilitation were ‘fairly positive’ if he was willing to engage in a course of substance use rehabilitation programs (which he was yet to do) in addition to his ongoing psychological intervention.  A non-parole period of 14 months, which is less than 50 per cent of the head sentence, reflects those favourable personal circumstances.

32. As to the question of suspension, having regard to all the relevant sentencing considerations, we are not satisfied there is good reason to suspend the sentence.  The serious aspects of the offending, namely the nature, quantity and purity of the drugs, the fact the offending was motivated by profit and was not isolated, and the need to impose a sentence that adequately reflects the need for general deterrence means that good reason to suspend the sentence has not been established.  We have reached that conclusion notwithstanding those matters personal to the appellant which are very much in his favour and the fact he has now served several months in custody.

33. We also consider that it is not appropriate to order that the sentence be served on home detention.  As outlined above, the offending has several serious aspects to it and we do not consider that a sentence served on home detention would adequately meet the demands of general deterrence or provide condign punishment for the offending.

34. Accordingly, we are satisfied on a separate and independent exercise of the sentencing discretion that no different sentence should be imposed.

    Grounds 4 and 5

35. It follows from our conclusion in respect of Ground 3, that the sentencing Judge did not err in not imposing a suspended sentence and in declining to impose a home detention order.

    Conclusion

36. For the reasons set out, we would refuse permission to appeal on Grounds 1 and 2. We would grant permission to appeal on Ground 3 but dismiss the appeal.