Zanetti v The Queen

[2021] SASCA 153

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

ZANETTI v THE QUEEN

[2021] SASCA 153

Judgment of the Court of Appeal  (ex tempore)

(The Honourable President Livesey and the Honourable Justice David)

21 December 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - MENTAL DISORDER

The applicant was sentenced to a head sentence of five years and 10 months for seven counts of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (the CSA), and one count in trafficking in a commercial quantity of a controlled drug, contrary to s 32(2) of the CSA. As the applicant was sentenced as a “serious repeat offender”, the sentencing Judge fixed a non-parole period of four years and eight months, representing four-fifths of the head sentence pursuant to s 54(1) of the Sentencing Act 2017 (SA) (the Act).

The applicant seeks permission to appeal against the sentence on the sole ground that the sentencing Judge erred in not finding that his personal circumstances were so exceptional as to enliven s 54(2) of the Act. The applicant contended expert psychological evidence given at trial established that his personal circumstances, primarily his diminished capacity as a result of his compromised mental health, and the “exceptional nature” of his successful attempts at rehabilitation, demonstrated that his personal circumstances were so exceptional as to outweigh the paramount consideration of protecting the safety of the community, and that it was in all the circumstances not appropriate to sentence the applicant as a serious repeat offender pursuant to s 54 of the Act.

Held (per the Court), refusing permission to appeal:

1.It is not reasonably arguable that the sentencing Judge erred in finding that the exceptional circumstances test in s 54(2) of the Act was not satisfied.

2.The application for permission to appeal is refused.

Sentencing Act 2017 (SA) s 54; Controlled Substances Act 1984 (SA) s 32, referred to.

ZANETTI v THE QUEEN
[2021] SASCA 153

THE COURT: 

1. This is an application for permission to appeal on the sole ground that there should have been a finding that the applicant's personal circumstances were so exceptional as to outweigh the paramount consideration of protecting the safety of the community and personal and general deterrence, and that it was in all of the circumstances inappropriate that the applicant be sentenced as a serious repeat offender pursuant to s 54 of the Sentencing Act 2017 (SA) (the Act).

2. The applicant pleaded guilty to seven counts of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (the CSA), and one count in trafficking in a commercial quantity of a controlled drug, contrary to s 32(2) of the CSA.

3. The offending concerned six separate occasions of drug dealing over a three-and-a-half-month period between 17 December 2018 and 2 April 2019 during what was described as “Operation Globe”.  The applicant was described as “both a retailer and a wholesaler of drugs”, principally methamphetamine, but also gamma-hydroxybutyrate (GHB) and gamma-butyrolactone (GBL).

4. The offences to which the applicant pleaded guilty were treated as representative of other offending which was taken into account. Indeed, there was evidence of offending since December 2016.

5. In addition, during three searches conducted between 26 December 2018 and 2 April 2019, cash totalling in excess of $12,000 and drug paraphernalia were also seized.

6. The applicant was remanded in custody in April 2019, he pleaded guilty to the various charges mentioned in October 2020, he gave evidence in support of his application pursuant to s 54(2) of the Act in August 2021, and he was sentenced in October 2021.

7. The applicant appears to have been sentenced as a “middle order dealer”, as I have mentioned, selling drugs on both a wholesale and retail basis.

8. There was and is no issue about the factual basis for sentence, nor about the reductions made for the guilty pleas of between 20% for those charges on the joint information, and 15% for the further charges on the sole information concerning the applicant.

9. There was no issue that the applicant was to be sentenced as a “serious repeat offender”, nor is there now any issue about the head sentence which, after allowance was made for the various sentence reductions following pleas of guilty, time spent in custody and time spent on home detention bail, was five years and 10 months. The only issue, as mentioned, is whether the applicant ought not to have been sentenced as a “serious repeat offender” under s 54 of the Act and subjected to the mandatory minimum non-parole period of four-fifths of the head sentence.

10. Today, Mr Anders, counsel for the applicant, has emphasised what he describes as the “significant compromise to his mental health” caused by three seriously traumatic events.  The first of these was a robbery at gunpoint when the applicant was a teenager, the second was a serious motor accident resulting in 50 sutures to the applicant's face, and the third was a “king hit” incident which resulted in the hospitalisation of the applicant.

11. The applicant has been diagnosed by Mr Balfour, his treating psychologist, as having post-traumatic stress disorder, and there have been a number of difficulties over the years, including a number of serious and concerning suicide attempts, which are documented in various hospital records, including after the applicant's arrest for the subject offending.

12. Counsel for the applicant described the applicant’s “diminished capacity” as having led to his addiction, and he described his client as having been “heavily addicted", which was the spur to his drug dealing, though he accepted that there was an element of profit-making associated with the dealing.

13. A further issue which is emphasised in support of the application is the applicant's commendable response to treatment by Mr Balfour. He was described by Mr Balfour as a “model client”, who, following hundreds of hours of therapy, was proactive and engaged in regimes and treatment programs which were not confined to those recommended by Mr Balfour, but which were also sought out by the applicant.

14. Nonetheless, there were relapses into drug use in August and December 2019, including whilst the applicant was on home detention bail from July 2019.

15. Having said that, the sentencing Judge observed that, according to the PsychMed report, the applicant's drug tests were negative during the period from January to June 2021.

16. It must be acknowledged that the applicant, a 42-year-old man when sentenced, has very supportive parents and family.  He commenced dealing in and using drugs as a maladaptive coping mechanism for his mental health and mental functioning difficulties.  His drug use escalated during 2017 following his loss of employment following a drink-driving incident. His drug-dealing escalated then as well. Whilst there were certainly very positive signs by the time of sentence, the applicant had not quite reached the two‑year period which Mr Balfour described as “the rule of thumb” concerning recovery from drug addiction.

17. Given the scale, the length of time and the overall seriousness of the applicant's offending, his personal circumstances, though favourable and indeed commendable, were, in our view, not so exceptional as to outweigh the considerations specified in s 54(2) of the Act.

18. In the circumstances, we are not satisfied that it is reasonably arguable that the sentencing Judge erred in failing to find that the exceptional circumstances test in s 54(2) of the Act was satisfied.

19. Accordingly, the application for permission to appeal is refused.