Wakefield v The King - [2023] SASCA 95

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
WAKEFIELD v THE KING
[2023] SASCA 95
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice David)
14 September 2023

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence for drug and firearms offending, undertaken to assist a criminal organisation with its illicit drug trading.
The appellant was sentenced to imprisonment for six years, eight months and 20 days and a non‑parole period of three years and seven months was fixed following his pleas to five offences of possessing firearms, a sound moderator, and ammunition without a licence, and trafficking in a controlled drug.
The appellant was housing a vehicle with two firearms – one a prescribed firearm – a silencer and an amount of ammunition in suburban Adelaide. He was knowingly holding these items along with quantities of methylamphetamine. The appellant knew that others had access to the vehicle housing the firearms and ammunition while he stored it. He did not know when or what things were taken to or from the vehicle.
The appellant sought permission to appeal on the ground that his sentence is manifestly excessive.
The Court held (granting permission to appeal but dismissing the appeal):
1.The appellant’s offending involved illicit drugs and firearms whilst assisting a criminal organisation with its illicit drug trading, well knowing the potential risk that the firearms he was housing might be used in that trade.

2.Whatever might be said about the appellant’s favourable personal circumstances, and relative lowly position within the hierarchy of that criminal organisation, the threat posed to the safety of the community underscored the need for the imposition of a sentence that recognised and gave effect to the sentencing considerations of denunciation, punishment, and general deterrence.

3.The appellant’s sentence cannot be said to be unreasonable or unjust.

Controlled Substances Act 1984 (SA) s 32; Firearms Act 2015 (SA) ss 9, 39; Sentencing Act 2017 (SA) ss 3, 4, 9 and 10, referred to.
Barbaro v The Queen (2014) 253 CLR 58; Cuong v The Queen [2021] SASCA 89; Dinsdale v The Queen (2000) 202 CLR 321; Elias v The Queen (2013) 248 CLR 483; Hackett v The Queen [2021] SASCA 32; House v The King (1936) 55 CLR 499; Liddicoat v The Queen [2021] SASCA 18; Markarian v The Queen (2005) 228 CLR 357; Mile v The King [2023] SASCA 33; R v Baker [2015] SASCFC 110; R v Dell (2016) 126 SASR 571; R v Filipponi (2016) 126 SASR 464; R v Kong (2013) 115 SASR 425; R v Pham (2015) 256 CLR 550; R v Violi [2015] SASCFC 2; R v Yavuz (2018) 130 SASR 231; Sims v The King [2023] SASCA 21; Warner v The King [2022] SASCA 142, considered.

WAKEFIELD v THE KING
[2023] SASCA 95
Court of Appeal – Criminal: Livesey P, Lovell and David JJA
THE COURT:
Introduction

By a Notice of Appeal dated 21 June 2023, the appellant seeks leave to appeal on the ground that his sentence is manifestly excessive.
The appellant was sentenced to imprisonment for six years, eight months and 20 days and a non-parole period of three years and seven months was fixed following his pleas to five offences:
1.possessing a firearm without a licence (being a modified self-loading pistol) for which the maximum penalty was a fine of $35,000 or imprisonment for seven years;[1]
2.possessing a firearm without a licence (being a sawn-off shotgun separated into two parts) for which the maximum penalty was a fine of $50,000 or imprisonment for 10 years;[2]
3.possessing a sound moderator without the approval of the Registrar of Firearms, for which the maximum penalty was a fine of $10,000 or imprisonment for two years;[3]
4.possessing ammunition while not being the holder of a firearms licence or permit granted by the Registrar of Firearms, for which the maximum penalty was a fine of $10,000 or imprisonment for two years;[4]
5.trafficking in a controlled drug, being methamphetamine, for which the maximum penalty was a fine of $50,000 or imprisonment for 10 years, or both.[5]
[1]     Firearms Act 2015 (SA), s 9(4)(b).
[2]     Firearms Act 2015 (SA), s 9(5)(b).
[3]     Firearms Act 2015 (SA), s 39(2).
[4]     Firearms Act 2015 (SA), s 31(12).
[5]     Controlled Substances Act 1984 (SA), s 32(3).
The sentencing judge ordered forfeiture in respect of the items the subject of the first four offences.
The appellant requires an extension of time, which was not opposed. The appellant concentrated his submissions on the notional, individual sentences, arguing that they resulted in a manifestly excessive sentence. In addition, the appellant contended that home detention should have been ordered.
For the reasons that follow, the application for permission to appeal should be allowed but the appeal dismissed.
Circumstances of the offending
The appellant was arrested as part of an operation known as “Operation Ironside”. Police searched the home that the appellant was renting at Newton on 12 January 2020 and found the items the subject of the offences.
The appellant accepted the following factual basis alleged by the prosecution. On 30 October 2018, the Australian Federal Police commenced a covert investigation involving the collection of communications using an encrypted communications application known as AN0M. The application was disguised as a calculator and any Smartphone with the AN0M application appeared to be a standard mobile phone.
Users of the AN0M application could exchange text messages, photographs, short videos and voice clips. Users were required to assign user-names to correspond to a user ID linked to a specific mobile phone. Whilst the user could change the user-name, the user could not change the user ID which was linked to a particular device. Some had more than one device.
The covert investigation exploited AN0M by inserting devices into criminal networks and working with international law enforcement agencies, monitoring and collecting evidence and intelligence on criminal syndicates. This was facilitated by the fact that the AN0M application was used by those involved in criminal activity for open discussion, organisation and carrying out criminal activity.
On 7 June 2021, the AN0M application was shut down by the Federal Bureau of Investigation and the Australian Federal Police following the resolution of their investigations.
The appellant was the user of an AN0M device with two user IDs. The appellant had been involved in uncharged criminal activity involving illicit drugs for seven or eight months before his arrest.
The visit and then search which was conducted at the appellant’s home on 12 January 2020 followed surveillance linking the appellant to an industrial scale laboratory set up for the manufacture of illegal drugs in remote New South Wales. Police made an initial visit and then monitored the appellant’s communications using the AN0M platform. These communications revealed that the appellant was concerned that his home would be searched, and he enquired whether the utility stored at his premises could be relocated or its contents concealed. When that proved impossible, a fabricated version of events was prepared. When police later returned to the appellant’s home to conduct a search, they discovered a blue esky which had been concealed in the utility and which contained the modified self-loading pistol and sawn-off shotgun. They also found the moderator and a large amount of ammunition in the tray of the utility as well as 250 grams of methylamphetamine (which was not the subject of a charge). Yet more ammunition was found in the roof space of the appellant’s home.
After the utility was towed to a police compound and more thoroughly searched, two hidden compartments in the wall between the cabin and the rear tray were discovered to hold further firearms and ammunition for which the appellant was not sentenced. He was unaware of their presence.
The methamphetamine disposed of by the appellant between the initial visit and the later search on 12 January 2020 is the subject of the trafficking charge. Using the AN0M platform, the appellant sought and was granted permission to dispose of that quantity of drug. Traces of the drug were later found in the appellant’s kitchen, particularly near the kitchen sink. The search also disclosed items commonly associated with drug dealing including digital scales and a significant quantity of a cutting agent, dimethyl sulfone.
The appellant accepted before the sentencing judge that his offending was undertaken on behalf of a criminal organisation which had an interest in firearms and drug trafficking. The appellant’s role extended beyond storage to adulterating drugs to increase their yield. The appellant was also involved in couriering drugs.
For unrelated conduct, the appellant had received money from the criminal organisation for various tasks. The sentencing judge was satisfied beyond reasonable doubt that the offending to which the appellant pleaded guilty was undertaken in the expectation of further financial reward.
Whilst the appellant was described as being at the bottom of the relevant criminal hierarchy, he actively sought work from a senior member of the organisation, expressing gratitude for the opportunities provided as well as regret when his arrest curtailed his ability to continue his criminal activities.
Following arrest, the appellant’s AN0M device was “wiped” and, for a time, some legal fees were paid on behalf of the appellant.
The circumstances of the offender
The appellant was 32 years at the time of offending. He was 35 years at the time of sentence, and without any prior convictions. He grew up in rural South Australia in a loving family and his family and partner of around five years continue to provide support.
After finishing year 12, the appellant undertook training in hospitality and worked at the casino for around 10 years. The appellant was highly regarded and demonstrated a good work ethic which secured promotions. After leaving the casino, the appellant worked at a city bar but that employment was not stable.
As the appellant lost motivation and began to struggle financially, he accepted an offer to assist those involved in criminal activity.
The sentencing judge noted that the charges to which the appellant pleaded guilty were not isolated and, though the appellant was not to be sentenced for those other matters, the other criminal conduct involving drugs was relevant to the leniency he could extend.
The sentencing judge regarded the appellant as a young man with potential who would likely find work on release. He noted that the appellant had worked whilst in prison.
The sentencing judge accepted the appellant’s expressions of remorse and a desire to put his past behind him.
Nonetheless, there may have been an incident involving the use of drugs whilst the appellant was on bail although ten drug tests returned negative results.
The sentencing judge received many favourable personal references and a pre-sentence report which he carefully considered.
The approach of the sentencing judge: the relevant sentencing considerations
The sentencing judge emphasised the serious nature of the offences to which the appellant had pleaded guilty. He observed that methamphetamine is a drug that causes significant harm to those who use it as well as to the broader community. As might be expected, the sentencing judge also referred to the significant concern within the community about the presence of illicit firearms. The sentencing judge was satisfied that the firearms and other items found in the appellant’s unit were to be used in criminal activity. The appellant knew of the presence of these before the police visit and search on 12 January 2020.
The sentencing judge regarded general deterrence as having particular importance although personal deterrence was of some relevance. His Honour found that the paramount consideration in sentencing was the protection of the community and that it was necessary to emphasise that:
It must be brought home that conduct which knowingly supports ongoing, organised criminal activity will be treated seriously. Methamphetamine and firearms give rise to a real risk of members of our community being harmed. The court must do what can be done to protect the community from offences involving drugs and firearms.
As will be seen, it was appropriate for the sentencing judge to give emphasis to considerations such as these.
The sentence imposed
Although the sentencing judge proceeded to impose one sentence pursuant to s 26 of the Sentencing Act 2017 (SA), he first indicated notional sentences.
For the two counts involving firearms with different maximum penalties, the sentencing judge notionally imposed a sentence of three years and nine months for the self-loading pistol and four years for the sawn-off shotgun. For the offence involving the sound moderator, the sentencing judge notionally imposed a sentence of nine months and, for the ammunition, another sentence of nine months. For these four offences, the sentencing judge identified a single notional sentence of five years and three months.
For the methamphetamine offending, the sentencing judge identified a notional sentence of five years and nine months.
In fixing a sentence which was proportionate in all of the circumstances, the sentencing judge adopted a single starting point of seven years, three months. That was reduced by 5 per cent for the pleas of guilty to six years, 10 months and 20 days. That was further reduced by two months for five days spent in custody and seven months spent on home detention.
For the five offences, the sentencing judge fixed a single head sentence of six years, eight months and 20 days.
Having regard to the appellant’s pleas, the absence of any criminal history as well as the capacity to be a positive member of the community, including in employment, the sentencing judge fixed a non-parole period of three years and seven months. This was explicitly fixed after reduction for the five days spent in custody and five months spent in home detention.
The sentencing judge rejected the submission that it was appropriate to order home detention because the seriousness of the appellant’s offending and the importance of general deterrence and need for appropriate punishment rendered that option inappropriate.
The sentencing judge ordered that the head sentence and non-parole period commence on 10 November 2022, when bail was revoked and the appellant was taken into custody.
Home detention
As a separate submission related to the complaint about manifest excess, the appellant contended that the sentencing judge erred in not ordering that the sentence be served on home detention.
The appellant commenced with the proposition that he was a “suitable person” for home detention and so satisfied the first stage of the two-stage test addressed in Filiponi,[6] Dell,[7] and Liddicoat.[8] As for the second stage, whether under the broader sentencing discretion it was appropriate to order home detention, the appellant pointed to the period served on home detention between January and August 2020 and that he then remained on bail until 10 November 2022 without any compliance issues.
[6]     R v Filipponi (2016) 126 SASR 464, [23] (Kourakis CJ, with whom Vanstone and Nicholson JJ agreed).
[7]     R v Dell (2016) 126 SASR 571, [51] (Doyle J, with whom Kelly and Parker JJ agreed).
[8]     Liddicoat v The Queen [2021] SASCA 18, [35]-[36] (Bleby JA, with whom Kelly P and Lovell JA agreed).
The appellant submitted that an order for home detention would enhance his rehabilitation prospects because he could continue in gainful employment. The appellant relied on the following passage from Sims v The King:[9]
The primary purpose for sentencing is to protect the safety of the community. That will not always be achieved by punishment and denunciation alone. The successful rehabilitation of the offender is an important means by which the safety of the community can be protected.[10] Whilst deterrence is relevant to offending of this kind, whether general or personal, these should not be at the expense of the appellant’s rehabilitation and proved capacity to make a positive contribution to the community.
[9] Sims v The King [2023] SASCA 21, [48] (Livesey P and Bleby JA).
[10] See the Sentencing Act 2017 (SA), ss 3, 4, 9 and 10.
The Director submitted that it was entirely appropriate for the sentencing judge to conclude that the seriousness of the offending, the importance of general deterrence and the need for appropriate punishment meant that home detention was inappropriate. The Director submitted that, in fact, to have come to any other conclusion would have undermined achievement of the objectives of condign punishment and general deterrence.
In the circumstances of this case it cannot be said that the failure to order home detention represented any error in the exercise of sentencing discretion. The seriousness of the offending, involving the possession of both drugs and guns by way of assistance to members of a criminal organisation, was an important factor against an order for home detention. This outweighed the need to promote the appellant’s rehabilitation.
Indeed, when the need for general deterrence is combined with the length of the sentence, and the other sentencing considerations which were relevant in the circumstances of this case, it is difficult to see how an order for home detention could be justified. The challenge to the refusal to order home detention must be rejected.
Determination of the application for permission to appeal
The principles relating to the determination of manifest excess are well known. In Hackett v The Queen this Court said:[11]
The administration of the criminal law involves individualised justice. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned with doing justice in that case.[12] The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence.[13] Absent a specific error it is only if the sentence is found to be “unreasonable or plainly unjust” that a challenge of manifest excess will succeed.[14] A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long or too short is a sentence which has not been imposed according to rules of reason and justice.[15] It is not sufficient for this court to conclude that it would have come to a different decision to the one reached by the sentencing judge. The judgment is a discretionary one and what is required is that the sentencing judge must take into account all relevant (and only relevant) considerations in forming the conclusions reached. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[16] To observe that a sentence is “very heavy” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing judge’s discretion.[17]
[11] Hackett v The Queen [2021] SASCA 32, [8] (The Court).
[12] Elias v The Queen (2013) 248 CLR 483.
[13] Markarian v The Queen (2005) 228 CLR 357, [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[14] House v The King (1936) 55 CLR 499.
[15] Barbaro v The Queen (2014) 253 CLR 58, [61] (Gageler J).
[16] Markarian v The Queen (2005) 228 CLR 357, [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[17] R v Pham (2015) 256 CLR 550, [56] (Bell and Gageler JJ).

The appellant must do more than show that this Court may have sentenced differently:[18]
As is well recognised, it is not enough that this Court may have imposed a different sentence or weighted the relevant sentencing considerations differently; the appellant must demonstrate that the sentence was not reasonably open and was unjust having regard to the circumstances of the offending and the offender.
[18] Sims v The King [2023] SASCA 21, [35] (Livesey P and Bleby JA).
In that regard, it is inappropriate for this Court to engage in mere “tinkering” with a sentence, or the elements of a sentence.[19]
[19] In Dinsdale v The Queen (2000) 202 CLR 321, [62] Kirby J referred to the “strong resistance that exists against appellate “tinkering” with sentences”. In Dan v R (2014) 43 VR 29, [98] (Tate JA, with whom Weinberg JA agreed) it was observed that requests for “tinkering” or “restructuring” sentences “have been firmly discouraged by this Court”. In R v Campbell; R v Smith [2019] NSWCCA 1, [164] (Hulme J, with whom Rothman J and Beazley P agreed) the Court warned: “if intervention by the appellate court could be described as “tinkering”, then it would be inconsistent with the court having concluded that a sentence imposed at first instance is manifestly inadequate”. See also Western Australia v Munda (2012) 43 WAR 137, [212] (Buss JA); Harding v State of Western Australia [2015] WASCA 27, [51] (Martin CJ, with whom Mazza JA agreed).
When assessing the complaint of manifest excess, the Court will review of a range of factors:[20]
Determining whether a sentence is manifestly excessive requires consideration of a number of factors including: the maximum penalty for the offence, the range of sentencing customarily observed for the type of offending, the seriousness of the offending and the personal circumstances of the offender.[21] In the case of drug trafficking offences, the relevant considerations include:[22]
… the quantity, purity and varieties of the drug or drugs involved; the defendant’s position in the drug trafficking hierarchy; the defendant’s role in the trafficking (eg principal/sole trade, courier, handler, assistance, etc); the level of reward the defendant may be expected to have received as a result of the trafficking; whether the trafficking was undertaken solely for profit or solely to support a drug addiction or a combination; whether the offending was an isolated transaction or part of a course of conduct and in the latter case the period over which the defendant undertook the trafficking. The relevance of those features follow from a legislature’s prescription of relevant factors in s 44 of the [Controlled Substances Act 1984 (SA)].
[20] Cuong v The Queen [2021] SASCA 89, [44] (Livesey P).
[21] R v Baker [2015] SASCFC 110, [36] (Nicholson, Parker and Lovell JJ), citing R v Scarpantoni [2013] SASCFC 120.
[22] R v Yavuz (2018) 130 SASR 231, [67] (Kourakis CJ, Blue and Hinton JJ), citing R v Young (2016) 126 SASR 41, [210]-[213] (Blue J). In R v Young (2016) 126 SASR 41, [68], Kourakis CJ made further observations about the relevance and interrelation of these matters (cited with approval in R v Camarinha [2018] SASCFC 118, [44]). See also, Knight v The Queen [2021] SASCFC 12, [14] (Livesey J, with whom Kelly and Bleby JJ agreed).
When addressing the complaint of manifest excess in connection with illicit drugs or firearms offending, particular emphasis must be given to community safety and general deterrence.[23] When the Court is confronted with a case involving the combination of illicit drugs and firearms offending, a strongly deterrent sentence will often be required.[24]
The choice to both engage in the drug trade and to do so with firearms is a deliberate one. Drug trading and manufacture can be engaged in without firearms, and firearms may be possessed by someone who is not a drug trafficker. The illegal possession of firearms by drug traffickers must be strongly deterred.
[23] R v Kong (2013) 115 SASR 425, [90] (drugs); Mile v The King [2023] SASCA 33, [55]-[58] (firearms).
[24] R v Violi [2015] SASCFC 2, [34] (Kourakis CJ, with whom Bampton and Parker JJ agreed).
In the case of the appellant, his role went well beyond storing drugs for a period of some months. He had acted as a drug courier and he was involved in adulterating drugs to increase their commercial yield.
In the case of his firearms offending, the appellant’s contention that his conduct in possessing the firearms, sound moderator and ammunition fell at the “lower end of the scale of firearms offending” must be firmly rejected. The appellant was housing a vehicle with two firearms – one a prescribed firearm – a silencer and an amount of ammunition in suburban Adelaide. He was knowingly holding these items along with quantities of methylamphetamine. The appellant knew that others had access to the vehicle housing the firearms and ammunition while he stored it. He did not know when or what things were taken to or from the vehicle. On any objective assessment of the appellant’s offending, it evidenced a very serious disregard for the safety of the community.
In this case these considerations must be overlaid by recognition that the appellant was assisting a criminal organisation with its illicit drug trading, well knowing the potential risk that firearms might be used in that trade.
The activities of an organisation such as this would rightly be seen by many in the community as posing a serious threat to its safety and welfare. Whatever might be said about the appellant’s favourable personal circumstances, and relative lowly position within the hierarchy of that criminal organisation, it underscored the need for the sentencing court in this case to recognise the threat posed to the safety of the community by the imposition of a sentence that recognised and gave effect to the sentencing considerations of denunciation, punishment, and general deterrence.
When the circumstances of the offending and the offender are considered, it is difficult to see why the sentence should be regarded as manifestly excessive. It should be seen as well within the appropriate range, moderated by the fact that the sentencing judge was mindful of the appellant’s genuine remorse, conduct on bail and capacity for rehabilitation.
The sentencing judge may well have thought that the appellant’s pleas permitted the conclusion that the appellant had recognised, belatedly but to his credit, that he had been exploited by senior members of the criminal organisation he had been assisting. It is only with the assistance of those lower in the hierarchy, such as the appellant, that the senior members of a criminal organisation can shield themselves from having to carry out the myriad tasks essential to undertaking organised illicit drug trading.
Indeed, and despite the submissions to the contrary, it is difficult to identify any error in relation to the notional, individual sentences. Each was well within the applicable range. Nonetheless, as the Director submitted on this appeal, little weight can be given to these notional, individual sentences where the sentencing judge did not, save in a broad way, expose the extent to which he had made each concurrent or cumulative. The submission made by the appellant which relied on an arithmetic tally of the individual sentences, a step which was not explicitly undertaken by the sentencing judge, is not of great assistance to the analysis which must be undertaken in this case.[25] Whilst an erroneous notional sentence might suggest error, it is the ultimate sentence and non-parole period to which primary attention must be directed.
[25] Cuong v The Queen [2021] SASCA 89, [6]-[12] (Lovell and Bleby JJA), [60]-[64] (Livesey P); Nguyen v The Queen (2022) 140 SASR 554, [131] (Livesey P and Stanley AJA), [196]-[198] (Doyle JA); Warner v The King [2022] SASCA 142, [109] (Livesey P).
When the sentence is viewed as a whole, it is clear that the sentencing judge arrived at a sentence which was intended to encourage the appellant to play a positive and worthwhile role in the community upon his release.
In all of these circumstances, the appellant’s sentence cannot be said to be unreasonable or unjust.
Conclusion
The complaint of manifest excess should be rejected. The appeal should be dismissed.