Wallace v The King - [2023] SASCA 127

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
WALLACE v THE KING
[2023] SASCA 127
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice David)
20 November 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Application for permission to appeal against sentence.

The appellant, a 64-year-old man, pleaded guilty to two counts of trafficking in a large commercial quantity of a controlled drug, contrary to s 32(1) of the Controlled Substances Act 1984 (SA). He was sentenced to 10 years and nine months’ imprisonment, together with a non-parole period of eight years and four months. He was convicted of similar offending in 2007.
The proposed grounds of appeal included a ground that the sentence was manifestly excessive.
The Court held (granting leave to appeal on the ground of manifest excess, but dismissing the appeal):
1.The grounds of appeal, save the ground of manifest excess, were not reasonably arguable and permission ought be refused.
2.Ordinarily, a weighting error is not, of itself, an independent ground which justifies appellate intervention.
3.A finding that circumstances of an offender were of a type and severity which were routinely, regularly and normally encountered is appropriately determined from the perspective of a sentencing court addressing whether the approach to the non-parole period otherwise mandated by s 54 of the Sentencing Act 2017 (SA) is displaced.

Controlled Substances Act 1984 (SA) s 32; Sentencing Act 2017 (SA) s 54, referred to.
Director of Public Prosecutions (SA) v Jones [2021] SASCA 114; Hai Ngoc Nguyen v The Queen (2022) 140 SASR 554; Knight v The Queen (2021) 138 SASR 156; Lee v Western Australia [2022] WASCA 137; Mason-Stuart v The Queen (1993) 61 SASR 204; Muldrock v The Queen (2011) 244 CLR 120; Nguyen v R [2022] SASCA 23; R v Hronopoulos (2017) 269 A Crim R 551; R v Karnage [2019] SASCFC 82; R v Lutze (2014) 121 SASR 144; R v Monks (2019) 133 SASR 182; R v Perry [2022] SASCA 127; R v Wallace [2023] SADC 56; R v Wallace [2008] QCA 135; The Queen v De Simoni (1981) 147 CLR 383; Warner v The Queen [2022] SASCA 142, considered.

WALLACE v THE KING
[2023] SASCA 127
Court of Appeal – Criminal: Livesey P and David JA
THE COURT (ex tempore):
Introduction

This is an application for permission to appeal against a sentence of 10 years and nine months’ imprisonment, together with a non-parole period of eight years and four months.
The appellant pleaded guilty to two counts of trafficking in a large commercial quantity of a controlled drug, contrary to s 32(1) of the Controlled Substances Act 1984 (SA). The maximum penalty for each offence is $1,000,000 or imprisonment for life, or both.
The amended application for permission to appeal raises the following proposed appeal grounds:
1.The Learned Sentencing Judge erred in his application of section 54(2) of the Sentencing Act 2017, the test was not whether the appellant’s personal circumstances, here his experiences and ailments, “individually and in combination are of the type and severity routinely, regularly and normally encountered by this Court”, the assessment relevant to the existence or otherwise of exceptional circumstances is not confined to circumstances that present to sentencing courts.
2.The Learned Sentencing Judge erred in his assessment and application of the appellant’s mental condition as at the time of the admitted offending to the process of sentencing; it had been conceded by virtue of his guilty pleas that the appellant “sufficiently appreciated the nature and quality of your actions and there [sic] wrongfulness irrespective of the ailments you suffered at the time”.
3.The Learned Sentencing Judge erred in his assessment and use of the uncharged acts, including a factual error in relation to the quantum of unexplained moneys deposited in the appellant’s bank account.
4.The Learned Sentencing Judge erred in his assessment and use of the appellant’s prior offending.
5.The Learned Sentencing Judge erred in his characterisation of the admitted offending.
6.The sentence imposed was manifestly excessive.
For the following reasons, we dismiss the application for permission to appeal, save for the ground concerned with manifest excess. As to that, we grant permission but dismiss the appeal.
The circumstances of the offending
The offending concerned the sending of parcels of cannabis from South Australia to Queensland between 10 January and 15 January 2021. In all, around 18.3 kg of dry female flowering cannabis head was trafficked. The appellant sent each parcel to a fictitious woman at a Queensland address.
In the six months before this offending, the appellant admitted to sending 56 other cannabis consignments by the same method. These were treated as uncharged offending. The appellant told police that he had paid approximately $2,500 for each parcel and was anticipating payment. During a search of the appellant’s home, police found $44,400 in cash, vacuum seal bags and a vacuum sealing machine. When police went to the Queensland address, they located two men, quantities of cannabis and firearms.
A forensic accounting analysis of the bank records of the appellant and his deceased wife for the period 1 June 2020 to 15 January 2021 detected $140,350 in unidentified cash deposits.
There was no issue about these essential facts.
The circumstances of the offender
At the time of sentence, the appellant was 64 years. He described an unhappy childhood involving parents who were unhappily married and a father who was an alcoholic and physically abusive. The appellant joined the Australian Army and hoped to complete an apprenticeship but was dishonourably discharged because of alcohol abuse.
The appellant was employed from time to time as a truck driver but injured his back in an industrial accident in 1993 and he still suffers from chronic pain. As a result, he received a workers compensation payout of $160,000.
Between 1995 and 2004, the appellant successfully operated hydroponic stores in South Australia and Queensland which he sold for significant financial gain. The appellant then commenced an ice works business in Queensland, which he sold in 2005 for $1.3 million.
The appellant has previously been convicted for trafficking cannabis. On 12 October 2007, the appellant was convicted of trafficking in dangerous drugs and possessing dangerous drugs. Police detected just under 4 kg of cannabis as well as $55,000 in cash. The appellant admitted to using a courier service to transport cannabis from South Australia to Queensland over a 12-month period. The appellant estimated that he supplied over 236 kg of cannabis and profited to the extent of around $100,000. A head sentence of seven years was imposed, of which the appellant served two years and nine months in prison.[1]
[1] R v Wallace [2008] QCA 135 (Mackenzie AJA, with whom McMurdo P and Jones J agreed).
After serving his sentence for drug trafficking and possession in 2007, the appellant later returned to truck driving and, eventually, he re-settled in South Australia.
The appellant sent the first packages of cannabis to Queensland shortly before his second wife died in early June 2020. After her death, he continued sending cannabis to Queensland.
A psychological report from Mr Balfour demonstrated a history of heavy gambling, a Chronic Pain Syndrome, a Complex Post-Traumatic Stress Disorder and self-medication with drugs and alcohol. Whilst Mr Balfour attributed the appellant’s offending to these conditions, he accepted that the appellant was able to appreciate the nature and quality of his conduct and that it was wrong.
The approach of the sentencing judge
The sentencing judge conducted a hearing at which the appellant gave evidence in support of a declaration that he ought not be sentenced as a serious repeat offender for the purposes of s 54 of the Sentencing Act 2017 (SA).
During the course of that hearing, the appellant gave evidence on the topic of whether his offending was motivated by profit. Ultimately, the judge found that the appellant was motivated to help another as well as to profit.[2]
[2] R v Wallace [2023] SADC 56.
The sentencing judge was provided with several letters of support, including from the appellant’s daughter, mother, nephew and a family friend. The sentencing judge explained his approach as follows:
The paramount consideration in sentencing is the protection of the safety of the community. The purpose of the law in respect of this offending is to protect the community from controlled substances being readily available and abused. It is well known that the trafficking in large commercial quantities of a controlled substance both damages and has a detrimental effect on the community. Your offending involved deception and planning. It was sophisticated and part of a coordinated operation in two States. You played a very significant role. You sourced the cannabis and packaged it at your home. You then arranged and paid for it to be sent to Queensland and physically took the packages to the depot. You expected and received payment for your role and made a profit.
The sentencing judge regarded personal and general deterrence as having a role to play, recognising that the offending in Queensland in 2007 involved a very similar method of operation. The judge gave little weight to the appellant’s expressed contrition and the submission that the appellant was a good person who did bad things.
For each offence, the sentencing judge adopted a starting point of imprisonment for 10 years which, when reduced by 5 per cent for the appellant’s late pleas, resulted in a sentence of nine years and six months.
The sentencing judge determined that these sentences should be served cumulatively but, having regard to principles of totality, the sentencing judge found that a wholly cumulative sentence would be crushing given the appellant’s age and personal circumstances. Accordingly, the sentencing judge imposed a single sentence of 10 years and nine months, which he reduced by four months having regard to time spent on bail between 15 January 2021 and 13 February 2023. That resulted in a final sentence of imprisonment for 10 years and five months.
After carefully evaluating the appellant’s personal circumstances, the sentencing judge found that, whether taken individually or in combination, the appellant’s ailments and conditions were of a type and severity which were routinely, regularly and normally encountered. The sentencing judge pointed to the appellant’s capacity to function positively to the extent that he successfully operated valuable businesses and established long-term personal relationships. The sentencing judge did not consider that the appellant’s personal circumstances outweighed the protection of the safety of the community and general and personal deterrence.
The sentencing judge rejected the application that the appellant ought not be sentenced as a serious repeat offender and, accordingly, a non-parole period of four-fifths of the head sentence was imposed.
The determination of the application for permission to appeal sentence
Before this Court, the appellant contended that the sentencing judge erred by impermissibly narrowing his consideration to “circumstances that present to sentencing courts” for the purposes of addressing s 54(2) of the Sentencing Act 2017 (SA).
It is not now otherwise suggested that the sentencing judge erred in failing to find that the appellant’s personal circumstances were so exceptional as to outweigh the protection of the safety of the public and personal and general deterrence.[3] The finding which is attacked is directed to whether the relevant circumstances must be encountered by the sentencing court. In Knight v The Queen it was held:[4]
A defendant must demonstrate that her or his personal circumstances are so exceptional such that the “paramount consideration” of “protecting the safety of the public and personal and general deterrence” is outweighed.[5] The pronoun “so”, which is used to qualify “exceptional” in s 54(2)(a), is also important and effect must be given to it.[6] It operates, I think, to reinforce, as a matter of emphasis, the role of personal circumstances in the evaluation required by the provision. It follows that the proved personal circumstances must permit the conclusion that the paramount consideration of community safety and general and personal deterrence under s 54(2)(a) is outweighed by personal circumstances which are out of the ordinary course, or unusual or uncommon. Though they need not be unique, unprecedented or very rare, they cannot be regularly, routinely or normally encountered.[7]
[3]     R v Karnage [2019] SASCFC 82, [68] (Nicholson J, with whom Kelly and Hinton JJ agreed); Knight v The Queen (2021) 138 SASR 156, [38], [52]-[60] (Livesey J, with whom Kelly and Bleby JJ agreed).
[4]     Knight v The Queen (2021) 138 SASR 156, [62] (Livesey J, with whom Kelly and Bleby JJ agreed).
[5]     R v Karnage [2019] SASCFC 82 at [70] (Nicholson J, with whom Kelly and Hinton JJ agreed). In that case reference was made to “the public” even though the language used in the provision is “community”.
[6]     Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71] (McHugh, Gummow, Kirby and Hayne JJ).
[7]     R v Kelly [2000] QB 198 at 208 (Lord Bingham).
Clearly s 54(2) is directed to whether the appellant’s personal circumstances were so exceptional as to outweigh the protection of the safety of the community and personal and general deterrence. A finding that some of those circumstances were of a type and severity which were routinely, regularly and normally encountered is appropriately determined from the perspective of a sentencing court addressing whether the approach to the non-parole period otherwise mandated by s 54 of the Sentencing Act 2017 (SA) is displaced. This ground is not reasonably arguable.
The appellant next contends that there was error associated with the assessment and application of his mental condition. When one considers the report of Mr Balfour, it is clear that the appellant was psychologically and financially vulnerable at the time of his offending. However, he did not have any intellectual disability nor any other mental illness or disorder of a kind and severity which might warrant consideration of the issues addressed in cases such as Muldrock v The Queen.[8] To the extent that this is an argument about weight, it does not reveal error. Ordinarily, a weighting error is not, of itself, an independent ground which justifies appellate intervention.[9] This ground is not reasonably arguable.
[8] Muldrock v The Queen (2011) 244 CLR 120, [53]-[54]; see also Mason-Stuart v The Queen (1993) 61 SASR 204, 205-206 (King CJ, Millhouse and Olsson JJ agreeing); R v Hronopoulos (2017) 269 A Crim R 551, [24] (Stanley J, with whom Blue and Hinton JJ agreed); R v Monks (2019) 133 SASR 182, [42] (Doyle J, with whom Peek and Parker JJ agreed); Director of Public Prosecutions (SA) v Jones [2021] SASCA 114, [15]-[19]; Nguyen v R [2022] SASCA 23, [19]-[22] (Bleby JA, with whom Livesey P and Lovell JA agreed); R v Perry [2022] SASCA 127, [61]-[76] (Kourakis CJ), [121]-[127] (Livesey P and David JA).
[9] R v Lutze (2014) 121 SASR 144, [47] (Vanstone and Parker JJ); Lee v Western Australia [2022] WASCA 137, [73]-[75].
The appellant then contends that there was error associated with the assessment and use of the uncharged acts, particularly the evidence that there was a large amount of unexplained moneys in his bank account. However, these issues were raised as part of the prosecution case from the outset and it was accepted that they were both relevant and appropriate to address when considering whether the offending was isolated. The sentencing judge explicitly refrained from taking these matters into account in connection with the determination of penalty. There is no issue about The Queen v De Simoni.[10] This ground is not reasonably arguable.
[10] The Queen v De Simoni (1981) 147 CLR 383.
It is next contended that the judge erred in his assessment of the prior offending and the characterisation of the admitted offending. There is nothing in these proposed grounds. The prior offending was admittedly relevant, as was the similarity between it and the admitted offending. Likewise, there was no error made in describing the appellant’s role as “very significant” in connection with a “sophisticated operation” which was co-ordinated across two States. These grounds are not reasonably arguable.
We have carefully reviewed the materials available to the sentencing judge, together with the submissions made on behalf of the appellant. In our view, none of the proposed grounds of appeal to this point are reasonably arguable.
The more difficult question is whether the final sentence was manifestly excessive. The approach of the sentencing judge was, with respect, awkward. It would have been better if some degree of concurrency had been ordered before addressing any reduction required for totality.[11] Nonetheless, we are concerned with the ultimate sentence for that is what is attacked. The sentence which was imposed was high but, in our opinion, within the available range.[12]
[11] Warner v The Queen [2022] SASCA 142.
[12] Cf Hai Ngoc Nguyen v The Queen (2022) 140 SASR 554.
Whilst it is reasonably arguable that the sentence is manifestly excessive, we would grant permission to raise this ground but dismiss the appeal.
Conclusion
We dismiss the application for permission to appeal, save for the ground concerned with manifest excess. We grant permission to appeal that ground.
The appeal is nonetheless dismissed.