JAKE LEE NEIL MACKENZIE v THE KING [2026] SASCA 12

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE MATTEO) DCCRM-24-018758, DCCRM-24-028341 Appellant: JAKE LEE NEIL MACKENZIE Counsel: MRS M SHAW KC WITH MR B STURM - Solicitor: CRAIG CALDICOTT Respondent: THE KING Counsel: MS L DUONG WITH MS L DOCKING - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 10/11/2025 File No/s: SCCRM-25-001542 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. MACKENZIE v THE KING [2026] SASCA 12 Judgment of the Court of Appeal (The Honourable Justice S Doyle, the Honourable Justice Bleby and the Honourable Justice Stanley) 26 February 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - DEPRIVED BACKGROUND CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING This is an application for permission to appeal against sentence. Following pleas of guilty to six counts of trafficking in controlled drugs, the sentencing judge adopted a starting point of 19 years’ imprisonment. That sentence was reduced to 14 years for totality and further reduced by 15 per cent on account of guilty pleas. The term of imprisonment ultimately imposed was 11 years, 10 months and 25 days with a non-parole period of nine years, six months and nine days. The applicant was sentenced as a serious repeat offender. The applicant advanced two grounds of appeal, namely, that the sentencing judge failed to explain if, and to what extent, the applicant’s hardship in his upbringing impacted upon his moral culpability (Ground 3); and that the sentence is manifestly excessive having regard to the applicant’s personal circumstances and reduced moral culpability (Ground 1). On appeal, the Court discussed the correct application of the principle identified by the High Court in Bugmy v The Queen (Bugmy). The court accepted that a sentencing judge should give “full weight” to the effects of an offender’s childhood deprivation or disadvantage by taking those effects into -- 1 of 33 -- account as part of the process of instinctive synthesis in arriving at a sentence, but considered what it means to give “full weight” to that consideration in the sentencing process, and the extent to which a sentencing judge is required to make explicit reference in sentencing remarks to the Bugmy principle. Held, per Stanley JA, with whom S Doyle and Bleby JJA agree, (dismissing the appeal): 1. Granting permission to appeal but dismissing Ground 3. a. While the evidence before the sentencing judge no doubt supported a finding that the applicant’s childhood was traumatic, there was no evidence that permitted a finding of any causative link between the applicant’s trafficking in controlled drugs and the evidence of his childhood upbringing; b. nevertheless, although the sentencing judge did not expressly advert to Bugmy, the sentencing remarks, read as a whole, demonstrate that her Honour had regard to the applicant’s background of deprivation and disadvantage in the course of the instinctive synthesis; and c. in that sense, the Court was satisfied that the sentencing judge gave “full weight” to the applicant’s moral culpability by weighing those matters relevant to the applicant’s childhood of deprivation and disadvantage in the manner contemplated by Bugmy. 2. Granting permission to appeal but dismissing Ground 1. a. Having regard to the scale of the trafficking enterprise, the applicant’s role above that of a street-level dealer, the quantity of controlled drugs involved, his status as a serious repeat offender, and the need for general and specific deterrence and protection of the safety of the community, the overall sentence was not manifestly excessive; and b. given the rejection of the submission that his sentence was manifestly excessive because of the Bugmy ground, there is no scope for it to be reduced on that basis; there is no error in the ultimate sentence imposed. Controlled Substances Act 1984 (SA) s 32; Controlled Substances Act Regulations 2014 (SA); Sentencing Act 2017 (SA) ss 26, 52, 53, 54, referred to. Browne v Western Australia [2024] WASCA 162; Hackett v The Queen [2021] SASCA 32; Harris v The Queen [2021] NSWCCA 322; House v The King (1936) 55 CLR 499; Munda v Western Australia (2013) 249 CLR 600; NK v The King [2025] NSWCCA 73; Pails v The King [2025] SASCA 18; R v Engert (1995) 84 A Crim R; R v Millwood [2012] NSWCCA 2; R v Monks (2019) 133 SASR 182; Taysavang v R; Lee v R [2017] NSWCCA 146, applied. Ale v The King [2025] VSCA 92; Bugmy v The Queen (2013) 249 CLR 571; Director of Public Prosecutions (Vic) v Herrmann (2021) 290 A Crim R 110; Dungay v The Queen [2020] NSWCCA 209; Hoskins v The Queen [2021] NSWCCA 169; Kliendienst v The Queen [2020] NSWCCA 98; Leslie v The King [2025] VSCA 13; Lee v Western Australia (2022) 303 A Crim R 340; Lloyd v The Queen [2022] NSWCCA 18; Nasrallah v The Queen (2021) 105 NSWLR 451; Pascoe v The Queen [2020] SASCFC 113; Peterson v Western Australia [2019] WASCA 207; Robertson v The King [2024] NSWCCA 22; R v Farquhar (2023) 310 A Crim R 574; R v Young (2016) 126 SASR 41; YZ v The King [2025] NSWCCA 165, discussed. -- 2 of 33 -- MACKENZIE v THE KING [2026] SASCA 12 Court of Appeal – Criminal: S Doyle, Bleby and Stanley JJA 1 S DOYLE JA: Following pleas of guilty to six counts of trafficking in controlled drugs, the appellant was sentenced to imprisonment for 14 years. His application for permission to appeal against sentence raises two proposed grounds of appeal: Ground 1 (manifest excess) and Ground 3 (failure to have regard to the applicant’s background of hardship and disadvantage). 2 I agree with Stanley JA that the appeal should be dismissed. 3 In relation to Ground 1, I agree with his Honour’s reasons for concluding that, although the notional sentence identified for Count 6 was high, the complaint of manifest excess fails having regard to the structure and length of the overall sentence ultimately imposed. 4 In relation to Ground 3, this involves a complaint by the appellant that the sentencing judge failed to address the principles identified by the High Court in Bugmy v The Queen.1 5 The appellant’s counsel did not make express reference to the Bugmy principles during sentencing submissions. However, the appellant contends that, circumstances of childhood hardship and disadvantage having been identified and relied upon, the sentencing judge erred in failing to address those principles in her sentencing remarks. In the appellant’s submission, it was not sufficient for the judge to have referred to the circumstances of childhood hardship and disadvantage; it was incumbent upon the judge to undertake a transparent analysis of the relevance of those circumstances to the appellant’s moral culpability, and to the sentencing process more generally. The Bugmy principles 6 I agree with Stanley JA’s analysis of the recent South Australian and interstate authorities in relation to the Bugmy principles. I offer the following by way of an overview of what I draw from those authorities. 7 In undertaking the instinctive synthesis required when sentencing an offender, the offender’s personal background is always relevant, at least in a general way. It may inform, for example, the offender’s moral culpability, their need for personal deterrence and their prospects of rehabilitation. Indeed, it may inform the Court’s approach to various of the sentencing objectives in differing, and sometimes competing or conflicting, ways. 1 Bugmy v The Queen (2013) 249 CLR 571 (Bugmy). -- 3 of 33 -- [2026] SASCA 12 S Doyle JA 2 8 Consistently with this, and as the High Court emphasised in Bugmy, where the offender’s background includes circumstances of deprivation, hardship or social disadvantage, these circumstances will be relevant to the Court’s exercise of its sentencing discretion.2 Relevant circumstances may include a background of childhood exposure to the abuse of alcohol and alcohol-fuelled violence, as was the case in Bugmy, but are not confined to such circumstances.3 They may include a childhood of exposure to other forms of hardship, trauma, deprivation or disadvantage, including the abuse of illicit substances, sexual abuse, homelessness, poverty or other circumstances which may have compromised or operated as a destabilising influence upon the development of the offender’s capacity to mature and learn from experience, their psychological functioning, or their personality structure.4 Although Bugmy involved an Aboriginal offender, the Bugmy principles are not confined in their operation to such persons. They are principles of general operation. 9 Circumstances of deprivation or disadvantage may, perhaps most obviously, inform the sentencing court’s assessment of the offender’s moral culpability. An offender’s childhood exposure to extreme violence and alcohol abuse may, for example, explain the offender’s recourse to violence when frustrated such that his or her moral culpability for the inability to control that impulse is reduced.5 10 However, such circumstances may also inform the assessment of other aspects of the sentencing exercise.6 Any diminished moral culpability may moderate the weight to be attached to the need for deterrence and denunciation.7 On the other hand, an offender’s inability to control his or her violent response to frustration may at the same time increase the importance of protecting the community from the offender.8 It may also increase the need for personal deterrence, and give cause for concern about the offender’s prospects for rehabilitation. 11 Understood in this way, there may be a complex and nuanced interplay between the different ways in which circumstances of deprivation or disadvantage may be relevant. Those circumstances may, and indeed often will, point in different directions in the same case.9 There is an obvious analogy in this respect 2 Bugmy at [43]-[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). 3 Peterson v Western Australia [2019] WASCA 207 (Peterson) at [55] (Buss P and Mazza JA, Quinlan CJ agreeing). 4 Leslie v The King [2025] VSCA 13 (Leslie) at [76]-[82] (Emerton P and J Forrest AJA); DPP v Herrmann [2021] VSCA 160 (Herrmann) at [46] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA). 5 Bugmy at [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). 6 YZ v R [2025] NSWCCA 165 (YZ) at [65]-[67] (Weinstein J, Wright and Sweeney JJ agreeing); NK v R [2025] NSWCCA 73 at [102], [112] (Yehia J, Ball JA and Fagan J agreeing). 7 YZ at [70] (Weinstein J, Wright and Sweeney JJ agreeing). 8 Bugmy at [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). 9 Browne v Western Australia [2024] WASCA 162 (Browne) at [44] (Buss P); Peterson at [54]-[55] (Buss P and Mazza JA, Quinlan CJ agreeing). -- 4 of 33 -- [2026] SASCA 12 S Doyle JA 3 with the various, and often conflicting, ways in which an offender’s mental impairment may bear on the sentencing exercise.10 12 Although the High Court in Bugmy referred to circumstances of ‘profound’ deprivation,11 subsequent authorities have confirmed that there is no threshold requirement that the circumstances of deprivation or disadvantage be profound, or satisfy any other level of severity, before they are relevant.12 13 Subsequent authorities have also confirmed that there is no requirement that there be any clear or direct causal connection between the circumstances of deprivation or disadvantage, and the offending for which the offender is being sentenced.13 14 It may be accepted that the relevance of circumstances of deprivation or disadvantage may be most obvious, and carry the most weight, where there is a clear and direct connection with the offending – for example, in a case where an offender with a background of exposure to alcohol fuelled violence succumbs to an impulse to act in a similar way; as opposed to a case where an offender with such a background engages in carefully planned and premeditated dishonesty offending. That is all the more so where the connection between the background and offending is the subject of expert evidence. 15 However, there is authority to the effect that the circumstances of deprivation or disadvantage may nevertheless be relevant, at least in a general way, even where the evidence does not reveal a clear or direct connection. Their relevance is not confined to cases where the offending may be described as ‘impulsive’, or as involving a learned response to situations arising from social disadvantage. Similarly, evidence of planning or premeditation is not a barrier to the relevance of circumstances of deprivation or disadvantage, including through a reduction in moral culpability.14 Rather, the authorities recognise that ‘common sense and common humanity dictate that such a person [with a background of deprivation or disadvantage] will have fewer emotional resources to guide his (or her) behavioural decisions’.15 10 Bugmy at [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ), referring to R v Engert (1995) 84 A Crim R 67 at 68 (Gleeson CJ); Hermann at [78]-[88] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA); Leslie at [82] (Emerton P and J Forrest AJA); see also R v Monks (2019) 133 SASR 182 at [32]-[59] (Doyle J, Peek and Parker JJ agreeing). 11 Bugmy at [43]-[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). 12 YZ at [63] (Weinstein J, Wright and Sweeney JJ agreeing); R v Perry [2022] SASCA 127 (Perry) at [138], [142] (Livesey P and David JA); Hoskins v R [2021] NSWCCA 169 (Hoskins) at [57] (Brereton JA, Basten JA agreeing); Nasrallah v R [2021] NSWCCA 207 (Nasrallah) at [110]-[111] (Hamill J). 13 YZ at [64] (Weinstein J, Wright and Sweeney JJ agreeing); Lloyd v R [2022] NSWCCA 18 (Lloyd) at [27] (McCallum JA, Hamill and Cavanagh JJ agreeing); Hoskins at [57] (Brereton JA, Basten JA agreeing); Nasrallah at [88] (Hamill J); Dungay v R [2020] NSWCCA 209 at [136]-[153] (N Adams J). 14 YZ at [64] (Weinstein J, Wright and Sweeney JJ agreeing); Robertson v R [2024] NSWCCA 22 (Robertson) at [111]-[114] (Ierace J, Harrison CJ at CL and Wilson J agreeing). 15 R v Millwood [2012] NSWCCA 2 at [69] (Simpson J, Bathurst CJ and Adamson J agreeing); applied in Lloyd at [28] (McCallum JA, Hamill and Cavanagh JJ agreeing); YZ at [64] (Weinstein J, Wright and Sweeney JJ agreeing). -- 5 of 33 -- [2026] SASCA 12 S Doyle JA 4 16 Consistently with the above, Victorian authorities have tended to approach the issue in terms of a contrast between the ‘more general’ relevance of a background of deprivation or disadvantage (which may be relevant to moral culpability without any clear or direct connection to the offending), and the ‘more specific’ relevance where that connection can be identified.16 17 Relatedly, whilst ‘full weight’ must always be afforded to the circumstances of deprivation or disadvantage, and it should not be assumed that their relevance has diminished with the passage of time,17 the weight to be afforded to those circumstances will of course depend upon the particular offender and offending, and the nature and severity of the circumstances of deprivation or disadvantage.18 An offender’s background of deprivation or disadvantage may not always have a material bearing upon his or her moral culpability, let alone an overall mitigatory effect given the varying ways in which it may bear upon the sentencing court’s exercise of its sentencing discretion.19 18 Finally, a significant issue in the present case is the extent to which a sentencing judge is required to make explicit reference in his or her sentencing remarks to the Bugmy principles outlined above. 19 The general obligation to have regard to all relevant considerations necessarily requires that the sentencing court have regard to those aspects of the offender’s background which are relevant to the sentencing discretion. In some cases, where the circumstances of that background are not submitted to have any particular or significant relevance to the sentence to be imposed, and there is nothing in the evidence or objective nature of those circumstances to suggest otherwise, it may be that passing reference to those circumstances will suffice.20 In other cases (for example, where those circumstances are specifically relied upon in accordance with the principles summarised above, or the evidence or objective nature of those circumstances suggest some more particular or significant relevance), more may be required.21 Even then, it will not ordinarily be necessary to refer to the Bugmy principles in terms, let alone by name. However, the sentencing remarks must be sufficient to demonstrate that the sentencing court has considered and analysed, in a meaningful and transparent manner, the relevance of 16 Herrmann at [36]-[37] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA); Leslie at [81] (Emerton P and J Forrest AJA) (contrasting this relevance in a ‘more general’ way); Ale v The King [2025] VSCA 92 (Ale) at [68] (Niall CJ and Kenny JA). 17 Bugmy at [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (even where there has been a long history of offending); YZ at [64] (Weinstein J, Wright and Sweeney JJ agreeing); Robertson at [114] (Ierace J, Harrison CJ at CL and Wilson JJ) (even where there has been an intervening period of a pro-social life). 18 Browne at [41]-[43] (Buss P), [119] (Mazza JA), [165]-[167] (Vaughan JA); Perry at [140] (Livesey P and David JA); Peterson at [140] (Quinlan CJ). 19 Hoskins at [55] (Brereton JA, Basten JA agreeing). 20 Ale at [73], [84]-[86] (Niall CJ and Kenny JA). 21 Kliendienst v R [2020] NSWCCA 98 at [67]-[68] (N Adams J, Simpson AJA and Rothman JJ agreeing) (where the evidence revealed ‘a classic Bugmy case’ in which the ‘sins of the father’ resulted in the appellant turning to violence when frustrated). -- 6 of 33 -- [2026] SASCA 12 S Doyle JA 5 the offender’s circumstances of deprivation or disadvantage to the sentencing discretion.22 20 What is necessary in a particular case is ultimately a matter of fact and degree, having regard to the circumstances of the individual case, and is difficult to describe in any more detail in the abstract. Indeed, as illustrated by the differing views of the majority and minority of this Court in Pails v The King,23 there may be room for reasonable minds to differ as to what is necessary in an individual case. Application to the present case 21 For the reasons given by Stanley JA, I am satisfied that the sentencing judge in the present matter adequately identified the relevant circumstances from the appellant’s background. 22 The judge made explicit reference to various aspects of the appellant’s background circumstances. After referring to his parents’ separation, and the need for the appellant to assume some responsibility for protecting his sisters from the violence of his mother’s subsequent partner, the judge accepted that these experiences in his formative years had set him on a negative path. The judge also referred to the appellant having experienced poverty, homelessness and instability borne of unreliable parenting. The judge held that, when combined with his potentially related mental health struggles, these circumstances had led to the appellant falling in with the wrong crowd and developing an addiction to illicit drugs at an early age. 23 When later addressing various of the sentencing objectives, the judge did not make any explicit reference to the relevance of these background circumstances to those individual objectives. She did not say, for example, that they moderated his moral culpability, or otherwise affected what was necessary to achieve an adequate level of personal deterrence or rehabilitation. However, when explaining why a significant reduction for totality was appropriate, her Honour placed clear reliance upon these circumstances, explaining that without a reduction the sentence ‘would not reflect the totality of your personal circumstances including your guilty pleas, your traumatic childhood experiences, your combined struggles with depression and addiction and that the impetus for your becoming involved in the offending was as a means of clearing a debt incurred through drug addiction’. 24 Further, as Buss P emphasised in Browne, matters personal to an offender, including circumstances of deprivation and disadvantage, will often remain subsidiary considerations when sentencing for offending involving dealing or trafficking in dangerous drugs of addiction.24 The need to ensure adequate general 22 Lloyd at [48] (McCallum JA, Hamill and Cavanagh JJ agreeing). 23 Pails v The King [2025] SASCA 18 at [4] (S Doyle and David JJA), [35]-[41] (Bleby JA). 24 Browne at [52]-[56] (Buss P); see also at [169]-[176] (Vaughan JA). -- 7 of 33 -- [2026] SASCA 12 S Doyle JA 6 deterrence and to protect the community will generally remain of primary importance, despite the offender’s background of deprivation and disadvantage. 25 Whilst the judge might have provided further, or a more specific, explanation of the way in which the appellant’s background interacted with the individual sentencing objectives, I do not think that was required in the present case. Although relied upon at the sentencing hearing as relevant in a general way, these circumstances were not said, in the evidence or submissions, to have any direct connection to the circumstances of the offending, or to have any particular or significant relevance to the sentencing exercise. Their relevance was not supported by any expert evidence. In those circumstances, it was sufficient for the sentencing judge to address the appellant’s background in the way she did. Conclusion 26 For the reasons given by Stanley JA, as supplemented above, I would grant permission to appeal on both grounds, but dismiss the appeal. BLEBY JA: I would grant permission to appeal but dismiss the appeal. I agree with the reasons given by Stanley JA and the additional reasons of S Doyle JA. -- 8 of 33 -- [2026] SASCA 12 Stanley JA 7 STANLEY JA: Introduction 27 This is an application for permission to appeal against sentence. 28 The applicant pleaded guilty to six counts of trafficking in controlled drugs. He seeks permission to appeal against a sentence of 19 years, reduced to 14 years for totality. 29 The appeal is brought on two grounds,25 namely, a process error in the failure of the sentencing judge to explain if, and to what extent, the applicant’s hardship in his upbringing impacted upon his moral culpability (Ground 3); and an outcome error on the basis the sentence is manifestly excessive having regard to the applicant’s personal circumstances and reduced moral culpability (Ground 1). 30 The applicant submits that the sentencing judge erred in sentencing by failing to apply, or bring to account the principle identified by the High Court in Bugmy v The Queen26 (Bugmy); notwithstanding the failure of the applicant’s senior counsel to submit to the sentencing judge that she should do so. 31 The applicant submits that as a result of the sentencing judge’s failure to consider his moral culpability, the sentencing judge also failed to consider whether his moral culpability was reduced, and if so, what the impact of that reduced moral blameworthiness on the various purposes of sentencing should have been. 32 The respondent submits that in the context of the sentencing process and the limited extent of the material put before the sentencing judge as to the applicant’s background, there was no error in a failure to address, within her Honour’s remarks, the application of the Bugmy principle. On the contrary, the respondent submits that there was no evidence of the existence of a causative link which, despite the absence of submissions from senior counsel, would require the sentencing judge to have addressed the topic. This was particularly so when the nature of the offending for which the applicant was being sentenced is considered, namely, for offences involving the trafficking of controlled drugs. The respondent submits that the sentencing remarks demonstrate the manner in which the sentencing judge considered disadvantage and deprivation within the applicant’s background, and that “full weight” was given to this in the sentencing process. The circumstances of the offending 33 The applicant was sentenced for drug trafficking laid on two informations. The first information, dated 20 November 2023, alleged two counts of trafficking in a controlled drug, namely, methamphetamine; one count of trafficking in a large commercial quantity of a controlled drug, namely, cannabis; and two counts of 25 Ground 2 was abandoned. 26 (2013) 249 CLR 571. -- 9 of 33 -- [2026] SASCA 12 Stanley JA 8 trafficking in a large commercial quantity of a controlled drug, namely, methamphetamine. The second information, dated 22 April 2024, alleged one count of trafficking in a commercial quantity of a controlled drug, namely, methamphetamine. 34 The evidence was the result of searches of three properties associated with the applicant, messages sent between the applicant and other persons located on his mobile phone, conversations obtained from an intercept of the applicant’s mobile phone, and surveillance and images of the applicant’s conduct captured on CCTV. The charged conduct occurred in the context of the applicant’s involvement in the sale of controlled drugs in conjunction with several individuals who were charged with criminal conduct. 35 The offending occurred between October 2022 and April 2023. 36 On 8 October 2022 police searched two premises associated with the applicant. The first was an apartment at Mawson Lakes, the second was a commercial premises at Salisbury Downs. 37 The apartment at Mawson Lakes was not furnished to be occupied when it was searched. 38.9 g of methamphetamine was located in a tub in the bedroom (count 5). While not the lessee, the applicant had paid money to the lessee to pay the rent. The property held items consistent with involvement in packaging of drugs. A mixed DNA profile was located on a glove and extremely strong support existed for the hypothesis that the applicant was a contributor. 38 The second premises, being a commercial property at Salisbury Downs, appeared to be undergoing renovations. Within the property police located bags containing 192 g and 279 g, totalling 471 g of methamphetamine (count 6), and 2.53 kg of cannabis in the fridge which had been split into six bags each weighing between 414 g and 430 g (count 7). Over 6 kg of a substance suspected to be a cutting agent was located. The applicant was observed, along with others, on CCTV, attending the property on 30 occasions at all hours and at times carrying bags in and out of the premises. 39 Between 23 and 24 March 2023 the applicant engaged in a message exchange with an individual using the account name “def” via a social media application named Threema. In the conversation the applicant and the other individual discussed the optimal “chop ratio” to quantify the methamphetamine. In the conversation it was agreed the applicant would increase the weight of the packages to 3,108 g or 111 oz, for distribution, including by the applicant. In subsequent messages the applicant advised that he increased the weight only to “3 kg”,27 as he was concerned that the methamphetamine would appear “sandy” and thus be less valuable (count 9). 27 While the applicant said, “3 kg”, in the context of the messages, it is likely that he intended to mean 3 g. -- 10 of 33 -- [2026] SASCA 12 Stanley JA 9 40 On 18 April 2023 the applicant was involved in messages with another individual, “Mr Y”, using the account name “Kratos” via Threema. CCTV footage from the applicant’s residence at Paralowie shows Kratos attend and leave, on the prosecution case, having collected money. That evening a meeting was arranged for Kratos to attend the applicant’s residence again, but this time to collect half a kilogram of methamphetamine. 41 On 19 April 2023, CCTV footage from the applicant’s residence at Paralowie shows Kratos returning and taking an insulated bag from a hidden compartment in a vehicle, which on the prosecution case contained drugs, into the residence. Kratos later leaves without the bag (count 2). 42 On 20 April 2023 the applicant’s residence at Paralowie was searched by police. He was present at the address. Police found, in several locations, 210 g, 593 g, 969 g and 996 g of methamphetamine. The total weight was 2.759 kg comprising 1.545 kg of methamphetamine (count 13). 43 The offending was not isolated. Evidence obtained from the intercept of the applicant’s mobile phone and from an analysis of a download of his phone established that the applicant was himself involved in the sale and the distribution of methamphetamine, that he had been involved in cutting and preparing substantial amounts of methamphetamine, and he had arranged for drugs to be delivered to others. 44 The applicant was sentenced on the basis that his involvement in a large scale syndicate was above the level of a street dealer, and below the commercial apex. The applicant’s role was to receive large quantities of methamphetamine and to cut and divide it into distributable quantities as directed. He also had involvement in the provision of premises for the storage of drugs. 45 The factual basis of his offending was not in dispute. The applicant received a financial benefit for his involvement. The sentencing judge accepted that the applicant was trafficking to offset his debt of $100,000 and accepted that the applicant’s motivation was one of financial gain. By way of example, on one uncharged occasion the applicant received a half ounce of methamphetamine for his role in cutting a quantity of methamphetamine. In text message correspondence the applicant commented on an opportunity to receive a significant amount of drugs stating, “I’ll risk years to make millions any day bro”, and “I live for this WTF else am a gonna do work proper” [sic]. The sentence 46 The applicant was sentenced to a term of imprisonment of 11 years, 10 months and 25 days with a non-parole period of nine years, six months and nine days, following pleas of guilty to two counts of trafficking in a controlled drug, one count of trafficking in a commercial quantity of a controlled drug, and three counts of trafficking in a large commercial quantity of a controlled drug. A brief -- 11 of 33 -- [2026] SASCA 12 Stanley JA 10 outline of the offending, the penalties and the sentences are set out in the following table: COUNT DATE CHARGE MAXIMUM PENALTY SENTENCE CONCURRENCY AFTER CONCURRENCY FINAL SENTENCE Count 5 (DCCRM- 24- 018758) 8 Oct 2022 Trafficking in a Controlled Drug- 38.9g methylamphetamine at Mawson Lakes contrary to s32(3) of the Controlled Substances Act 1984 (SA) (the CSA). 10 years, or a fine of $50,000, or both 5 years Concurrent with Count 6, except for 6 months 8 years’ imprisonment 19 years. Reduced for totality to 14 years Reduced for 15% discount to 11y, 10m, 25d NPP: 9y, 6m, 9d Count 6 ( DCCRM- 24-018758) 8 Oct 2022 Trafficking in a Controlled Drug - 471g methylamphetamine at Salisbury Downs contrary to s 32(3) of the CSA. 10 years, or a fine of $50,000, or both 7 years, 6 months Concurrent with Counts 5 & 7, except for 6 months Count 7 (DCCRM- 24- 018758) 8 Oct 2022 Trafficking in a Large Commercial Quantity of a Controlled Drug- 2.533kg cannabis at Salisbury Downs contrary to s 32(1) of the CSA. Life imprisonment, or a fine of $1,000,000, or both 3 years Wholly concurrent with Count 6 Count 9 (DCCRM- 24-018758) 23-24 March 2023 Trafficking in a Large Commercial Quantity of a Controlled Drug- 3kg methylamphetamine contrary to s 32(1) of the CSA. Life imprisonment, or a fine of $1,000,000, or both 9 years, 6 months Concurrent with Counts 2 & 13, except 1y, 6m 11 years’ imprisonment Count 2 (DCCRM- 23-028341) 19 April 2023 Trafficking in a Large Commercial Quantity of a Controlled Drug - 2.759kg methylamphetamine contrary to s 32(2) of the CSA. 25 years, or a fine of $200,000, or both 8 years Concurrent with Counts 9 & 13, except 1y, 6m Concurrent with Counts 9 & 13, except 1y, 6m Count 13 (DCCRM- 24- 018758) 20 April 2023 Trafficking in a Commercial Quantity of a Controlled Drug – half kg methylamphetamine contrary to s 32(1) of the CSA. Life imprisonment, or a fine of $1,000,000, or both 9 years, 6 months Concurrent with Count 2 & 9, except 1y, 6m Concurrent with Count 2 & 9, except 1y, 6m 47 As I have said, the offences for which the applicant was sentenced were charged on two separate informations in the Magistrates Court. As the applicant pleaded guilty to all offences after the committal appearance, he was therefore entitled to a discount of up to 15 per cent. 48 The applicant was a serious repeat offender by virtue of having committed at least three “serious offences”28 on separate occasions.29 The applicant did not seek to persuade the Court that his personal circumstances were so exceptional as to outweigh the paramount consideration of protection of the safety of the community, and personal and general deterrence. Accordingly, the judge imposed a non-parole period of four-fifths of the head sentence.30 The judge utilised s 26 28 As defined in s 52 of the Sentencing Act 2017 (SA). 29 Sentencing Act 2017 (SA) s 53(1). 30 Sentencing Act 2017 (SA) s 54(1). -- 12 of 33 -- [2026] SASCA 12 Stanley JA 11 of the Sentencing Act 2017 (SA) (Sentencing Act) and imposed a head sentence of 14 years’ imprisonment. 49 Pursuant to s 26(2a) of the Sentencing Act the judge identified notional sentences for the individual sentences, which are set out in the table above. After arriving at a starting point of 19 years’ imprisonment, the judge reduced that to 14 years for totality. After applying a reduction of 15 per cent for the applicant’s guilty pleas, the head sentence was reduced to 11 years, 11 months and 25 days’ imprisonment, with a non-parole period of nine years, six months and nine days. The sentence was backdated to commence on 20 April 2023 when the applicant was taken into custody. Personal circumstances of the applicant 50 At the time of sentencing the applicant was 30 years of age. He has three younger sisters. His parents separated when he was seven years of age. Their separation occurred as a result of very significant domestic violence perpetrated by his father upon his mother. His father was diagnosed with bipolar disorder and was prone to extreme mood swings and unpredictable behaviour. 51 After their separation, his mother commenced a relationship with another man. That relationship was also characterised by domestic violence and instability. 52 The applicant, despite his young age, tried to shelter his sisters from the effects of that violence. 53 The applicant experienced poverty, homelessness and instability borne out of unreliable parenting. At the age of 13 he started using drugs. This led to contact with police. As a youth, he was convicted of an offence of violence. He finished school in Year 10 and entered the workforce by working in subcontracting roles. He played amateur football. At the age of about 19 he was abusing alcohol and attending nightclubs. It was at about this time he descended into a life of crime. 54 In May 2014 he was placed on a suspended sentence bond for two counts of driving while disqualified. In November 2014 he was placed on a further suspended sentence bond for an offence of assault. A condition of the bond was to abstain from drugs and alcohol. At that time, alcohol addiction had been a problem for him for some years. While the applicant then abstained from alcohol consumption for some time he became addicted to drugs. In April 2015 he was charged with mid-level trafficking. He was found guilty, and on 1 March 2016 was sentenced to one year, nine months and 28 days’ imprisonment with a non- parole period of seven months. 55 In August 2017 the applicant was sentenced for the offences of aggravated threatening harm and breaching an intervention order. These offences pre-dated the trafficking offending to which he was sentenced in March 2016. The -- 13 of 33 -- [2026] SASCA 12 Stanley JA 12 accumulated sentence was two years, 11 months and 12 days’ imprisonment with a non-parole period of 13 months. 56 In about 2019 the applicant met his partner, Ms Christy Weggery. They have two daughters, who at the time of sentencing were aged four and two. Ms Weggery in her evidence said she remains committed to the applicant and visits him regularly at the Port Augusta prison. Ms Weggery described to the court his attempts to escape the tyranny of drug addiction. 57 As a result of the applicant’s continuing dependency on drugs, he incurred a substantial debt. That debt led him to become involved with a criminal syndicate engaged in the distribution and sale of illicit drugs. 58 The applicant was described by his mother and partner as a kind, caring and compassionate person who is always willing to help his family. His family members spoke of his remorse for his offending, and that he is troubled by his separation from his children, which is a powerful motivator for him to abandon a life of crime and undertake effective rehabilitation. Her Honour in sentencing acknowledged that the applicant remained free of drugs while in custody, that he was receiving monthly injections designed to alleviate his addiction, and that he was participating in a drug program. The sentencing judge accepted that the applicant is genuinely motivated towards abstinence and rehabilitation. The sentencing remarks 59 In her sentencing remarks the judge considered the applicant’s background and personal circumstances. The judge identified as a factor relevant to the exercise of the sentencing discretion was the breakdown of the applicant’s parents’ marriage when he was seven years old. That breakdown was due to very significant domestic violence perpetrated by his father against his mother, and a subsequent violent relationship his mother entered into with another man. The judge observed that the applicant tried to protect his sisters. The judge remarked that she formed the impression that those events in the applicant’s formative years set him on a negative path. The judge noted that at the age of 13 the applicant started using drugs. Ground 3: Bugmy v The Queen 60 While an offender’s moral culpability may be reduced because there is a causal link between their background and their offending, there is authority that such a causal link is not required for a court to make a finding of reduced moral culpability.31 However, as can be seen in the following passage from the reasons of the majority in Bugmy, a reduction in moral culpability does not automatically translate to a reduced sentence.32 31 Dungay v The Queen [2020] NSWCCA 209 at [153]; Lloyd v The Queen [2022] NSWCCA 18 at [27]. 32 Harris v The Queen [2021] NSWCCA 322 at [89]. -- 14 of 33 -- [2026] SASCA 12 Stanley JA 13 61 In Bugmy, French CJ, Hayne, Gummow, Kiefel, Bell and Keane JJ in their joint reasons observed:33 Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender. [citation omitted]. 62 However, a sentencing judge must have regard to countervailing factors, so far as they are relevant.34 Even if a reduction in moral culpability is offset by the weight given to one or more of the other purposes of sentencing, if an offender has a deprived background, that background must be given “full weight” in every sentencing decision.35 63 The correct application of the Bugmy principle involves the following considerations: (i) A sentencing judge must make an assessment of whether an offender’s background reduces their moral blameworthiness, bearing in mind that the High Court in Bugmy said:36 … a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. This assessment is made by reference to matters subjective to an offender. An offender’s moral blameworthiness cannot be assessed by reference to factors unrelated to an offender, such as the purposes of sentencing. (ii) If moral culpability is reduced, the sentencing judge is then required to consider the impact of that reduction on the various purposes of sentencing. For instance, a reduced moral culpability may mean that the extent to which the conduct is denounced is less than in a case where the offender has a normal or advantaged background. On the other 33 [2013] HCA 37 at [44], (2013) 249 CLR 571 at 595. 34 Munda v Western Australia (2013) 249 CLR 600; NK v The King [2025] NSWCCA 73 at [112]. 35 Bugmy v The Queen [2013] HCA 37 at [44], (2013) 249 CLR 571 at 595; NK v The King [2025] NSWCCA 73 at [113]. 36 Bugmy v The Queen [2013] HCA 37 at [43], (2013) 249 CLR 571 at 594-595. -- 15 of 33 -- [2026] SASCA 12 Stanley JA 14 hand, a reduction in moral culpability may be offset by the weight afforded to general and personal deterrence and/or the protection of the safety of the community. (iii) The effects of an offender’s profound childhood deprivation does not diminish with the passage of time or repeated offending. (iv) Even where the reduction in moral culpability is offset, wholly or in part, by virtue of the weight to be afforded to one or more purposes of sentencing, an offender’s background of disadvantage is to be given “full weight” in every sentencing decision.37 (v) The undiminished effects of an offender’s profound childhood deprivation may impair the offender’s capacity to mature and learn from experience, as well as to reform.38 (vi) Those conflicting purposes of punishment, in a sentencing context, must be weighed in the balance. 64 The Court should always consider how the diminution in moral culpability bears upon the weight to be attached to the various sentencing factors, which are general and specific deterrence, protection of the safety of the community, retribution, and the promotion of rehabilitation.39 65 Before this Court the applicant submits that while a causal link is not required in order for an offender’s deprived childhood to be given “full weight”, if such a link exists then inevitably there will be a reduction in an offender’s moral culpability.40 66 Notwithstanding the failure of the applicant’s senior counsel to expressly refer the sentencing judge to the Bugmy principle, the applicant submits that the material before the sentencing judge established a causal link between his deprived childhood and his offending conduct. 67 In support of this proposition the applicant cited the remarks of the sentencing judge as follows:41 I gain the impression from the material before me that those formative years of your childhood set the path forward for you in a negative way. Your mother links the responsibilities which you took on from a very young age to depression and mental health struggles, which in turn led you to falling in with the wrong crowd and developing an addiction to illicit drugs. 37 Bugmy v The Queen [2013] HCA 37 at [44], (2013) 249 CLR 571 at 595; NK v The King [2025] NSWCCA 73 at [110]-[113]. 38 R v Perry [2022] SASCA 127 at [141]. 39 NK v The King [2025] NSWCCA 73 at [102]. 40 Dungay v The Queen [2020] NSWCCA 209 at [153]; Kliendienst v The Queen [2020] NSWCCA 98. 41 Sentencing Remarks p 6, AB 136. -- 16 of 33 -- [2026] SASCA 12 Stanley JA 15 68 Before this Court the applicant submits there was ample evidence to support this impression gained by the sentencing judge. The evidence constituted a character reference from Ms Weggery,42 explaining that he suffered quite a bit of trauma throughout his childhood, which had led him to a drug addiction. The applicant experienced, amongst other things, homelessness, poverty and abuse. Ms Weggery said that he suffered with depression and anxiety from a young age. 69 In addition, a character reference from his grandmother, Sandra Adolphi,43 stated that he “felt like he had to be a strong man for his family, and he was just a boy”, that he “has had to go through some terrible situations that kids don’t need to see or experience” and that his mental health was the catalyst for his offending. 70 The applicant submits that while the Bugmy principle was not invoked in sentencing submissions there was material which, on the applicant’s case, established a causative link between the applicant’s deprived background and his offending, which made it necessary for the sentencing judge to explain whether, and how, the applicants background had been taken into account when assessing his moral culpability for the offending. 71 The applicant submits that the sentencing judge, while having carefully articulated the relevant findings bearing upon the sentence imposed, failed to refer to the applicant’s violent and deprived background. The applicant submits that the absence of any reference to the principle in Bugmy, or to the mitigating effect of his upbringing on his moral culpability whatsoever, leaves the applicant, and this Court, uncertain as to whether the judge found any causal link between his upbringing and his offending at all. 72 The applicant submits that it was necessary for the sentencing judge to engage with how the applicant’s reduced moral culpability impacted the weight to be given to the various competing purposes of sentencing. He submits it was the absence of engagement with that issue that led to the appeals being allowed in Lloyd v The Queen44 and Kliendienst v The Queen.45 73 In Lloyd v The Queen46 the sentencing judge adverted to the applicant’s “profound childhood deprivation”, the need to give that consideration “full weight”, and cited the enunciation of the principle in Bugmy set out above.47 The appeal in Lloyd was allowed on the basis that the sentencing judge did not give any meaningful consideration to that issue, nor any express consideration of whether that deprived background mitigated the applicant’s moral culpability. The New South Wales Court of Criminal Appeal found that there was no analysis of the 42 AB 99. 43 AB 103-104. 44 [2022] NSWCCA 18. 45 [2020] NSWCCA 98. 46 [2022] NSWCCA 18. 47 Bugmy v The Queen [2013] HCA 37 at [44], (2013) 249 CLR 571 at 595. -- 17 of 33 -- [2026] SASCA 12 Stanley JA 16 tension between the competing purposes of sentencing by the sentencing judge in that case. 74 The applicant submits that in Kliendienst v The Queen48 the New South Wales Court of Criminal Appeal went further. In Kliendienst, while there was evidence of the applicant’s deprived upbringing and expert evidence concerning his anger management difficulties, no submission was made to the sentencing judge to the effect that the applicant’s moral culpability could be substantially reduced as a consequence. Notwithstanding that absence, the Court upheld the ground of appeal asserting that the sentencing judge failed to make a proper assessment of the applicant’s moral culpability in light of his difficult and violent upbringing. The Court referred to the failure to mention the Bugmy principle and the question of the applicant’s moral culpability in the sentencing remarks. The Court considered that Kliendienst was a classic Bugmy case where the sins of the father resulted in the applicant turning to violence when frustrated. The Court found that that the applicant’s inability to control that impulse reduced his moral culpability, and although it was not squarely put to the judge that the Bugmy principle was enlivened, it was nonetheless applicable where there was uncontested evidence, that the factual basis for raising it was present.49 75 The applicant in this case however sought to propound an argument that the evidence established a causal nexus between the circumstances of disadvantage in his upbringing and his reduced moral culpability. The evidence before the Court came from three sources. First, the oral submissions made by senior counsel,50 the sentencing remarks of Judge McIntyre,51 as she then was, in relation to earlier offending, and character references. That evidence largely consisted of an account of a childhood surrounded by domestic violence from which the applicant sought to protect his sisters. The sentencing judge observed that she gained the impression that those formative years of the applicant’s childhood set the path forward for him in a negative way. Her Honour noted that his grandmother attributed his depression and mental health struggles, from which he later suffered, to the responsibilities which he assumed from a very young age and which she considered led to him falling in with the wrong crowd and developing an addiction to illicit drugs. 76 The sentencing judge observed that she was not privy to the details of the difficulties which the applicant endured during his childhood, but noted that his partner, Ms Weggery, described him as having suffered trauma from past experiences. A friend of Ms Weggery referred to the applicant’s poverty, homelessness and instability, borne of unreliable parenting. 77 As I have said, the sentencing judge considered the sentencing remarks of Judge McIntyre in respect of earlier offending. Judge McIntyre noted the history 48 [2020] NSWCCA 98. 49 Kliendienst v The Queen [2020] NSWCCA 98 at [67]-[68]. 50 T 9.8-19. 51 Sentencing Remarks of Judge McIntyre, as she then was, 31 March 2016, p 2 at [4]-[6], AB 95. -- 18 of 33 -- [2026] SASCA 12 Stanley JA 17 of the applicant’s mother’s relationships with violent men. Her Honour considered that this had an adverse effect upon the applicant. She observed that the applicant had mental health issues, specifically a diagnosis of depression and anxiety, and that he was on a mental health care plan and prescribed antidepressant medication. 78 The sentencing judge also had a letter from the applicant’s grandmother who spoke of his personal struggles with mental health, drug addiction and associating with the wrong people. Plainly, while the applicant’s grandmother considered that the applicant had gone through “some terrible situations that kids don’t need to see or experience”, which the sentencing judge was entitled to accept as an accurate, if somewhat vague, account of his childhood trauma, her opinion that the applicant’s mental health was the catalyst for his offending is not an opinion upon which the Court could act in the absence of expert evidence. 79 Importantly, none of this evidence consisted of psychiatric or psychological reports which might have lent some support to what otherwise amounted to no more than mere surmise on the part of family and friends and, for that matter, inferences judges may have arrived at for the purposes of sentencing. The evidence before the sentencing judge in this case no doubt supported a finding that the applicant’s upbringing was traumatic, however, there was no reliable evidence before the sentencing judge that permitted a finding of any causative link between the circumstances of his upbringing and a reduction in his moral culpability. 80 Before the sentencing judge, senior counsel for the applicant referred to the applicant’s difficult childhood and the effects of drug use on his mental state. Senior counsel submitted that this constituted a coping mechanism; which while it was not a true mitigating factor, it put into context the circumstances of how the applicant became involved in drug trafficking. No specific submission was made that these matters should be given any particular weight in mitigation in the exercise of the sentencing discretion. As I have said, there was no submission that the circumstances which were put to the sentencing judge enlivened the application of the principle in Bugmy. 81 The absence of expert evidence distinguishes this case from other authorities such as Kliendienst52 where there was expert evidence linking the deprived upbringing to subsequent anger management difficulties. 82 I acknowledge that in Dungay v The Queen53 N Adams J, with whom Bell and Davies JJ agreed, held that a causal link may not be required for the application of the Bugmy principle. Sentencing involves considerations of individualised justice. So much is explained in Bugmy.54 83 In Bugmy the High Court said that the experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a 52 [2020] NSWCCA 98 at [62]. 53 [2020] NSWCCA 209 at [153]. 54 [2013] HCA 37 at [36] and [41], (2013) 249 CLR 571 at 592 and 594. -- 19 of 33 -- [2026] SASCA 12 Stanley JA 18 person throughout life. A background of that kind may compromise the persons capacity to mature and to learn from experience. An offender’s childhood exposure of this kind may explain the offender’s recourse to violence when frustrated, such that the offender’s moral culpability may be reduced.55 These are considerations that may, but do not necessarily, arise. 84 The reasons of the High Court in Bugmy emphasise that a court in sentencing is concerned with the circumstances of the offence and the individual offender. Hence this court is concerned with whether the evidence before the sentencing judge establishes that what may occur has occurred so that the court’s obligation to weigh the applicant’s moral culpability is enlivened. 85 If an individual offender has had a deprived or violent upbringing, full weight must be given to that fact. The principle is not discretionary. However, what constitutes full weight must be assessed by reference to whether there is evidence that the disadvantage has adversely affected the offender’s moral culpability. But even if there is no evidence that childhood deprivation or disadvantage has caused a loss of moral culpability it is still open to the sentencing judge to find that the offender’s moral culpability has been affected by those circumstances. 86 As Beech-Jones J explained in Hoskins v The Queen,56 complaints about an alleged failure by a sentencing judge to apply the principle in Bugmy must be considered in the context of the necessity for an applicant for leave to appeal against sentence to establish a House v The King57 error. Accordingly, it is not enough simply to submit that insufficient weight was given to an applicant’s social disadvantage, unless the outcome of that weighing process demonstrates or supports the contention that the sentence was manifestly excessive. A reduction in moral culpability does not automatically translate to a reduced sentence.58 87 On the contrary, as Brereton JA, with whom Basten JA and Beech-Jones J, as he then was, agreed said in Hoskins:59 Although the High Court used the term “profound childhood deprivation” when referring to its enduring effects, what was said to require consideration was “an offender’s deprived background”. There is no magic in the word “profound”, and it is not necessary to characterise an offender’s childhood as one of “profound deprivation” before the principle is engaged. The principle is that social disadvantage may reduce an offender’s moral culpability, especially where the offending is in the nature of impulsive or learned responses to situations, arising from the circumstances of social disadvantage. Thus the Bugmy principles may not operate to reduce moral culpability in a case where careful planning and premeditation is involved, such as cultivation and drug supply matters. However, engagement of the principles does not depend on the establishment of a causative 55 [2013] HCA 37 at [43]-[44], (2013) 249 CLR 571 at 594-595. 56 [2021] NSWCCA 169 at [79]. 57 (1936) 55 CLR 499 at 504-505. 58 Harris v The Queen [2021] NSWCCA 322 at [89]. 59 [2021] NSWCCA 169 at [57]. -- 20 of 33 -- [2026] SASCA 12 Stanley JA 19 link between the circumstances of deprivation and the offending. As N Adams J explained in Dungay: Having regard to these principles, it seems to me that although the effects of childhood deprivation are to be given full weight in every sentencing decision, that does not mean that moral culpability must be reduced in every case. Full weight can be given to such a childhood in other ways as part of the process of instinctive synthesis. Although a causal link may not be required, it also seems to be that if such a link exists then inevitably there will be a reduction in an offender’s moral culpability: Kliendienst v R. On the other hand, the absence of such a link does not mean that the Court does not give full weight to a childhood of profound deprivation if that is established on the evidence. [citation omitted]. 88 The Bugmy principle may not operate to reduce moral culpability in a case where careful planning and premeditation is involved, such as cultivation and drug trafficking matters.60 89 While the applicant submitted that Hoskins is no longer good law, I do not accept that submission. The applicant relies on the reasons of the New South Wales Court of Criminal Appeal in Robertson v The King61 and YZ v The King.62 However, these cases are merely authority for the proposition that premeditation and planning are not necessarily barriers to a finding of reduced moral culpability. The contrary may be true. Evidence of premeditation and planning may mean there is no scope for a reduction in sentence for a diminution of an offender’s moral culpability. That does not result in a rejection of the Bugmy principle where an offender had a childhood marked by deprivation or disadvantage. In the absence of evidence of a causative link a sentencing judge is still required to give full weight to the principle. The existence of deprivation or disadvantage in an offender’s childhood then calls for an assessment as to whether that deprivation or disadvantage affects an offender’s moral blameworthiness.63 90 What constitutes “full weight” was considered by the Court of Appeal of Western Australia in Lee v Western Australia.64 The Court held that the reference in Bugmy to giving “full weight” to childhood deprivation and disadvantage in every sentencing decision refers to “full weight” being given to the effects of that disadvantage or deprivation, and not to “full weight” being given to those effects as a mitigating factor. The Court of Appeal said that the distinction is important, and that it is necessary to exercise particular care when referring to “weight” in this context. The notion of “full weight” as explained in Bugmy concerns the effects of an offender’s childhood disadvantage or deprivation being taken into 60 Dungay v The Queen [2020] NSWCCA 209 at [143]-[146], N Adams J with whom Bell P, as he then was, and Davies J agreeing; Taysavang v R; Lee v R [2017] NSWCCA 146 at [42]. 61 [2024] NSWCCA 22 at [111]-[117]. 62 [2025] NSWCCA 165 at [64]. 63 NK v R [2025] NSWCCA 73 at [110]. 64 [2022] WASCA 137 at [61]-[65], (2022) 303 A Crim R 340 at 352-353. -- 21 of 33 -- [2026] SASCA 12 Stanley JA 20 account, notwithstanding the passage of time, and not taking those effects into account solely for the purpose of mitigation. 91 A sentencing judge will give full weight to the effects of an offender’s childhood deprivation or disadvantage by taking those effects into account as part of the process of instinctive synthesis in arriving at a sentence. As the High Court recognised in Bugmy, the effects of an offender’s childhood deprivation or disadvantage may point in differing directions in relation to relevant sentencing considerations. For example, on the one hand, those effects may be mitigating, at least to some extent, in that the effects may diminish the offender’s moral culpability for the offending. However, on the other hand, those effects may not be mitigating, at least to some extent, in that they may increase the importance of protecting the safety of the community from the offender’s criminal behaviour.65 92 In Nasrallah v The Queen66 Bell P, as he then was, explained:67 … Plainly enough, the nature and degree of an offender’s background of deprivation will vary with the circumstances of each case and is a matter that must be established by evidence. On the other hand, as Bugmy also makes clear, an environmental factor that may lead to a substantial reduction in moral culpability for a violent offence may correspondingly increase the importance of protecting the community from the offender so that, in the sentencing calculus, the existence of particular profound childhood deprivation may not lead to an overall reduction in sentence. This does not mean that “full weight” has not been given to Bugmy considerations. [citations omitted]. 93 In Peterson v Western Australia,68 Quinlan CJ observed that though an offender’s background must be given “full weight”, it may not carry the same weight in every case because of the need for each sentencing exercise to have regard to the particular circumstances and relevant factors of each individual case before the Court:69 For this reason, in my view, there is no contradiction in saying that, while in every case, an offender's deprived background must be given ‘full weight’ (in the sense that the effects of that background have not diminished), it will not necessarily have the ‘same weight’ from one sentencing exercise to another (in the sense that the effects of the deprived background will have the same effect on the overall sentence). In this regard, the weight that is to be given to each of the various, and potentially conflicting, sentencing considerations will always be relative to the weight to be given to the other sentencing considerations. Thus, for example, the ‘full weight’ of an offender's deprived background, as a mitigatory factor, might be ‘outweighed’ by the need for community protection in one case, but not in another. 65 Lee v Western Australia [2022] WASCA 137 at [61]-[64], (2022) 303 A Crim R 340 at 352. 66 (2021) 105 NSWLR 451. 67 (2021) 105 NSWLR 451 at [8]-[9]. 68 [2019] WASCA 207. 69 Peterson v Western Australia [2019] WASCA 207 at [11]. -- 22 of 33 -- [2026] SASCA 12 Stanley JA 21 94 These propositions were adopted with approval by the majority of this Court in R v Perry.70 95 The application of the Bugmy principle was considered by the Victorian Court of Appeal in Leslie v The King.71 This was an appeal from a sentence imposed in circumstances where the sentencing judge did not accept that the applicant’s moral culpability was not reduced by reason of his disadvantaged background. In doing so the judge had regard to the applicant’s personal circumstances. The Court of Appeal held that while the judge’s application of Bugmy was somewhat unclear, there was no doubt that the judge was well aware of the nature of the applicant’s background and its impact on his adult life. The applicant’s personal history was canvassed in the many reports in evidence, it was discussed in the course of sentencing submissions, and it was referred to in the judge’s sentencing remarks. The Court of Appeal, in explaining its reasons for refusing leave to appeal, invoked its earlier decision in Director of Public Prosecutions (Vic)v Herrmann.72 96 Herrmann was an Aboriginal man. His early childhood was blighted by drug and alcohol fuelled violence and neglect. He was 20 years old when he raped and murdered a 21-year-old woman in a savage, sustained, and random attack. On a plea of guilty, he was sentenced to 36 years’ imprisonment with a non-parole period of 30 years. The trial judge concluded that his moral culpability for the offending was reduced by reason of two distinct but closely related factors: the profound childhood deprivation, including trauma that he had suffered; and his severe personality disorder, which impaired his mental functioning. The Court found that each of those factors reduced his moral culpability to some degree. The Crown appealed the sentence on the ground that it was manifestly inadequate. In dismissing the appeal the Court discussed the interrelationship between the separate frames of reference that were engaged, namely, childhood deprivation and impaired mental functioning. The Court considered Bugmy and identified two different ways of expressing the role that childhood deprivation had to play in the assessment of moral culpability: what it described as a more general expression, and what it described as a more specific expression. 97 The Court said that the more general expression of the role of childhood deprivation recognises that the fact that an offender was raised in a community surrounded by alcohol abuse and violence may in itself reduce the sentence, as the offender’s moral culpability is likely to be lower than the moral culpability of an offender whose formative years were not marred in that way.73 The significance of this general expression is that the relevance of childhood deprivation to sentencing does not depend on proof of a nexus between the offending and the relevant background circumstances. 70 [2022] SASCA 127 at [139]-[140]. 71 [2025] VSCA 13. 72 (2021) 290 A Crim R 110. 73 Bugmy v The Queen [2013] HCA 37 at [40], (2013) 249 CLR 571 at 594. -- 23 of 33 -- [2026] SASCA 12 Stanley JA 22 98 The more specific expression is that an offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated, such that recourse to violence when frustrated may substantially reduce his or her moral culpability for the inability to control that impulse. However, the inability to control that violent response to frustration may increase the importance of protecting the safety of the community.74 99 The Court in Herrmann held that the judge’s sentencing remark that she took Bugmy considerations into account “generally” meant that the judge considered the effects of the applicant’s deprived childhood when making a judgment about the extent of his blameworthiness. The sentencing judge in Herrmann did not specify the extent to which childhood deprivation reduced the applicant’s blameworthiness over and above the reduction attributable to his cognitive deficits and mental health factors, but she did not need to. Her Honour was required to take into account the evidence of the applicant’s deprived background and mental impairments to arrive at a single assessment of moral culpability, which the Court held she did. 100 In this context however, the sentencing judge in Herrmann also made it clear that the applicant’s criminal history and his guarded prospects of rehabilitation, as well as his pattern of reoffending, raised other sentencing considerations emphasised by the High Court in Bugmy. 101 Given the pattern of the applicant’s offending over a number of years, the seriousness of the offending, and the applicant’s guarded prospects of rehabilitation, the judge in Herrmann clearly considered, as it was well open to her to do, that the protection of the community was an important sentencing consideration and that community protection required a period of incarceration beyond the time already served. 102 In a subsequent decision in Ale v The King75 the Victorian Court of Appeal refused leave to appeal from a sentence of 18 years’ imprisonment with a non- parole period of 13 years and nine months for offences of trafficking, conspiracy to commit arson, conspiracy to recklessly cause injury and possession of an unregistered handgun. 103 The applicant in that case sought to appeal against his sentence on the ground that the sentencing judge erred in proceeding to sentence him on the basis that his traumatic and disadvantaged upbringing was of no mitigatory weight at all. 104 Bugmy was not referred to during sentencing submissions, or in the materials before the sentencing judge. On the application for permission to appeal however, senior counsel for the applicant maintained that there was material before the sentencing judge concerning the applicant’s deprived and traumatic childhood. He maintained that submissions had been made on Mr Ale’s behalf addressing the 74 Bugmy v The Queen [2013] HCA 37 at [44], (2013) 249 CLR 571 at 595. 75 [2025] VSCA 92. -- 24 of 33 -- [2026] SASCA 12 Stanley JA 23 violence and brutality which his father had inflicted on him and his family over an extended period of time, and the fact that this had an enormous psychological effect on him. Counsel for Mr Ale submitted that the sentencing judge erred in failing to appreciate that the materials put before the Court were not just for the purposes of placing his offending in context, but also because of its mitigatory relevance. The Court of Appeal considered that inherent in these submissions was the contention that at a sentencing hearing the judge was apprised of the relevance of Bugmy considerations, and his failure to understand their mitigatory dimension constituted sentencing error. 105 At sentencing, the respondent in Ale contended that the nature of the offending and circumstances of the applicant was such that it would not have been open to the judge to reduce the applicant’s moral culpability because of his deprived background, even if submissions addressed to Bugmy had been made. The respondent submitted that the judge’s sentencing remarks, properly considered, demonstrated that he did take into account the applicant’s upbringing and gave it appropriate weight in the sentencing exercise. 106 The Court of Appeal in Ale cited the reasons in Leslie and Herrmann. The Court held that even where an offender’s deprived circumstances are relevant, they may not have the effect of ameliorating sentence. Citing Bugmy the Court also observed that an offender’s deprived background will not have the same mitigatory relevance for all purposes of punishment, and considered the difficulty of giving weight to punishments for different purposes. The Court held that the authorities demonstrate that circumstances of deprivation and disadvantage may affect the weight attributable to various factors, and that, taken together, those factors may have a mitigating, neutral or aggravating effect on sentence. The Court said that the extent to which social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered, and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending. 107 The sentencing judge in Ale found that the applicant’s early exposure to family violence had a lasting impact on him, upon how he constructed relationships, and how he viewed the world. Notwithstanding this, the judge found that this could do no more than provide a context for the offending and did not impact upon the applicant’s moral culpability which he assessed as high. In making these findings the judge did not refer to Bugmy. The Court of Appeal held this was understandable since neither party referred to the case. It was also understandable that the judge thought defence counsel not to be relying on the applicant’s traumatic background as a mitigating factor, or as an excuse for the offending. Nonetheless, the Court held that a failure to conform to the Bugmy principle may still amount to sentencing error and may not preclude a grant of leave to appeal. That said, the failure to rely on Bugmy in a specific and express way at the sentencing hearing was relevant to whether leave was to be granted. As -- 25 of 33 -- [2026] SASCA 12 Stanley JA 24 the Court said, were it otherwise, the important distinction between the sentence and an appeal would be lost or undermined. 108 The sentencing judge in Ale found that the applicant’s personality changed around the time he was using illicit drugs and joined a bikie gang. He established his own business in the years prior to his membership of the gang. While the Court held that these activities did not preclude the application of Bugmy, the judge’s finding that his association with the gang was the background to the offending, was clearly open. The Court of Appeal held that this finding was tantamount to a determination that there was no room for the Bugmy principle to operate in a specific sense, and that it was not reasonably arguable that the sentencing judge erred in this respect. However, the Court of Appeal held there was room for the Bugmy principle to apply in the general sense. There was sufficient evidence before the sentencing judge that the applicant’s childhood led him to develop post- traumatic stress disorder and dissociative personality disorder. The judge accepted that the applicant’s early exposure to family violence had a lasting impact on him. Such findings did not necessarily mean that the applicant’s moral culpability for the offending ought to be reduced. The judge noted the degree of organisation in the offending, the central role the applicant played, and that he had been able to participate in normal activities of life with a degree of ability and composure. For those reasons, the sentencing judge’s statement to the effect that his early childhood experience did not impact upon his moral culpability was held by the Court of Appeal to be open. That finding reflected an appreciation by the sentencing judge of the potential for a deeply troubled upbringing to reduce culpability, but a finding that in this case it did not. The Court of Appeal held that finding was informed by an assessment of the applicant’s ability and capacity, the nature of the offending and the type of offences. 109 The Court of Appeal held that it was far from clear that an application of Bugmy could reasonably have any substantial effect on the applicant’s sentence, bearing in mind that, as the sentencing judge found in Ale, the nature and gravity of the offending made specific deterrence and the protection of the community primary sentencing considerations. These factors became “more weighty” as a result of the same enculturation to violence that bore on the applicant’s moral culpability. That was especially so in circumstances where the applicant had shown his capacity to engage in an array of serious offending of a kind extremely harmful to the community. 110 In conclusion, the Court of Appeal held that, given that the argument that Mr Ale’s deeply troubled upbringing reduced his moral culpability was not argued below by reference to Bugmy, it amounted to a new point on appeal. The Court of Appeal found that nonetheless the judge expressly had regard to the applicant’s moral culpability for his offending, including in the context of his upbringing, such that the findings his Honour ultimately made were open to him. Accordingly, the Court of Appeal found there was no error of principle and the applicant was not permitted to recast his plea. -- 26 of 33 -- [2026] SASCA 12 Stanley JA 25 Consideration of the Bugmy ground 111 The parallels between this case and Ale are striking. At the sentencing hearing in this matter senior counsel for the applicant submitted that the applicant had a difficult childhood. Submissions were made about the circumstances of violence in which the applicant grew up; his attempts to protect his sisters from exposure to that violence; his symptoms of depression; and the effects of drug use, which he had commenced using at a young age, and which adversely affected his mental state. 112 The applicant’s counsel referred to the circumstances of the applicant’s offending and the need to find money to satisfy the significant debt he had incurred to fund his drug addiction. In this context the sentencing remarks demonstrate that, in the course of the exercise of the sentencing discretion, the judge had regard to all factual matters put before her relating to the applicant’s personal circumstances. The judge referred, albeit obliquely, probably because of the paucity of specific information of the precise nature of his childhood trauma, to his past experiences of deprivation and disadvantage. Nonetheless, the sentencing remarks demonstrate the factual matters that the judge considered in the exercise of the sentencing discretion. In that sense, I am satisfied that the judge gave “full weight” to the applicant’s moral culpability in the manner described above. 113 Having regard to the diverse and conflicting sentencing principles, it is apparent from the sentencing judge’s remarks concerning the reduction in the applicant’s nominal sentence for totality, that the exercise of the sentencing discretion was informed by consideration of these factors. The judge clearly weighed those matters relevant to the applicant’s childhood of deprivation and disadvantage. 114 In my view, the evidence before the sentencing judge did not establish the existence of a causative link between the applicant’s trafficking in a controlled drug and the evidence of his childhood upbringing in households marred by domestic violence. What distinguishes this case from other cases referred to in the authorities is expert evidence which would tend to establish the existence of such a causal link. 115 There is no current expert evidence to support the proposition that the applicant’s exposure to domestic violence as a child resulted in the applicant turning to drug trafficking in adulthood. The only medical report in evidence was from 2016, six years before the offending for which the applicant was sentenced. 116 It is relevant that the offending for which the applicant fell to be sentenced is trafficking in controlled drugs. This is to be contrasted with the applicant’s childhood, where the deprivation and disadvantage arose from circumstances of domestic violence inflicted on his mother. 117 This case can be distinguished from Kliendienst. This is not what N Adams J described as a “classic Bugmy case” where the “sins of the father” have resulted in -- 27 of 33 -- [2026] SASCA 12 Stanley JA 26 the applicant turning to violence when frustrated. It was not necessary for the judge expressly to refer to the reduction in the applicant’s moral culpability. Rather, this is a case like Pails v The King76 where the failure to expressly advert to the Bugmy principle and its impact upon the applicant’s moral culpability did not involve a process error where the Court could be satisfied from a reading of the sentencing remarks as a whole that the sentencing judge had regard to the applicant’s background of deprivation and disadvantage in the manner contemplated by Bugmy.77 118 It is sufficiently clear that the sentencing judge in the exercise of her discretion weighed the reduction in the applicant’s moral culpability, in circumstances where her Honour had to give proper weight to factors of general and personal deterrence in the context of trafficking in a controlled drug. I will refer to this further in relation to the appeal on ground 1. 119 I am satisfied that the sentencing judge considered the features of deprivation and disadvantage that informed the Bugmy principle and blighted the applicant’s childhood in the instinctive synthesis by which her Honour exercised the sentencing discretion. 120 It is not incumbent on a sentencing judge to mention every submission by a party or to explain each and every consideration relevant to the sentencing discretion.78 121 There is no merit in the submission that failure to address the Bugmy principle resulted in sentencing error. 122 I would grant permission to appeal on ground 3 but dismiss ground 3. Ground 1: Manifest excess 123 As I have said, the applicant fell to be sentenced for two counts of trafficking in a controlled drug, one count of trafficking in a commercial quantity of a controlled drug, and three counts of trafficking in a large commercial quantity of a controlled drug. I refer to the earlier discussion in these reasons concerning the sentence imposed.79 124 The applicant complains of an outcome error. He submits that the sentence imposed of 19 years’ imprisonment reduced for totality to 14 years is manifestly excessive. Specifically, complaint is made in relation both to the notional sentence indicated for count 6 and the head sentence ultimately imposed. 125 The applicant submits that the starting point for count 6 was manifestly excessive, and that this error, being an important constituent part of the overall 76 [2025] SASCA 18. 77 Pails v The King [2025] SASCA 18 at [4]. 78 Pails v The King [2025] SASCA 18 at [40]. 79 Paragraph 46 of these reasons. -- 28 of 33 -- [2026] SASCA 12 Stanley JA 27 sentence, rendered the ultimate sentence manifestly excessive. Count 6 related to the applicant’s possession of 471 g of a substance, including 263 g of methamphetamine. The quantity of the methamphetamine was only 29 g below the definition of a commercial quantity designated for methamphetamine in a mixed entity.80 126 The maximum penalty for the offence charged in count 6, of trafficking in a controlled drug, is imprisonment for 10 years or a fine of $50,000, or both.81 The judge imposed a sentence of seven years and six months imprisonment for that count. 127 The respondent submits that there is no error in the ultimate sentence imposed as the notional starting point for count 6 does not indicate error. 128 The principles applicable to whether a sentence is manifestly excessive have been well settled by the Court. In Hackett v The Queen82 the Court of Appeal said:83 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. The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence. 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. 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. 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. 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. [citations omitted]. 129 In considering whether there was an outcome error made by the sentencing judge, the applicant must persuade this Court that the factors the sentencing judge took into account in fixing sentence and reaching the starting point of 19 years reduced by five years for totality was so unreasonable or plainly unjust that this Court must interfere on a ground of manifest excess. 130 The applicant submits that there are a number of factors which rendered the term of imprisonment imposed in this case manifestly excessive. Those factors are: 80 Controlled Substances Act Regulations 2014 (SA). 81 Controlled Substances Act 1984 (SA) s 32(3)(ii). 82 [2021] SASCA 32. 83 Hackett v The Queen [2021] SASCA 32 at [8]. -- 29 of 33 -- [2026] SASCA 12 Stanley JA 28 (i) the substance concerned was only 56 per cent methamphetamine. Methamphetamine in South Australia is manufactured in purities of up to 80 per cent; (ii) while it is accepted that the applicant’s role was important to the success of the overarching enterprise, his role was such that he was unlikely to be the primary beneficiary of the profit to be made from the sale of methamphetamine; (iii) the applicant’s personal circumstances invited considerable sympathy, including his age, employment history, the support of his partner and family, and the hardship associated with a lengthy custodial sentence while his daughters are growing up; (iv) the applicant’s difficult upbringing, which was causally related to his offending, reflected a reduced moral culpability, which warranted a reduction in the sentence; (v) the applicant pleaded guilty at an early stage in the proceedings; (vi) the applicant’s demonstrated remorse; and (vii) the applicant has good prospects of rehabilitation and had at the time of sentencing already undertaken suitable programs. 131 Having regard to these factors, the applicant submits the sentence for count 6 approached the maximum penalty for the offence of trafficking in a controlled drug and was manifestly excessive. He submits the penalty imposed failed to discriminate properly between the maximum penalty associated with the offence and Parliament’s delineation of the level of commerciality in the offence. He submits that the sentence imposed for count 6 formed an influential part in the construction of the final sentence. The sentences for counts 5 and 7 were framed around the sentence for count 6. Accordingly, the excessive sentence attaching to count 6 results, on the applicant’s case, in the overall sentence being manifestly excessive. 132 I do not accept these submissions. 133 It is important to remember that the applicant fell to be sentenced for serious offending in relation to the trafficking of controlled drugs. In R v Young84 Kourakis CJ held that sentences in relation to street level dealing will often attract sentences in the range of four to seven years for offenders motivated to a greater or lesser degree by profit. Sentences approaching the 10 year maximum penalty 84 [2016] SASCFC 102, (2016) 126 SASR 41. -- 30 of 33 -- [2026] SASCA 12 Stanley JA 29 for base trafficking offence should be reserved for middle order dealers and persistent or recidivist street dealers.85 134 In Pascoe v The Queen,86 which involved sentencing an offender who had a primary responsibility of cutting and repackaging illicit drugs, the Court held:87 In R v Young this Court affirmed a sentencing range of imprisonment of four to seven years was appropriate for trafficking by street dealers in controlled drugs motivated in part by profit. It was further observed in Young that sentences approaching the 10 year maximum for basic trafficking offences were more appropriate for middle order dealers, a proposition affirmed in R v McIntosh, and R v Camarinha. As noted above, the commercial trafficking counts involved cutting or adulterating 35 ounces or 980g of cocaine, intending to package it for sale and distribution by courier, and drying, cutting and pressing 21 ounces or 588g of methylamphetamine for sale. The sentencing Judge properly characterised Mr Pascoe’s role as ‘more hands on’ and as involving the lucrative ‘sale of significant quantities of illicit drugs … motivated and driven by profit’. Taken in isolation, each commercial trafficking count therefore potentially merited a sentence of imprisonment of seven years or more, that is a head sentence having a higher starting point than that applicable to street level dealers. Seen in this way, far from evincing unjustified disparity, the sentence ultimately imposed on Mr Pascoe was a lenient one when compared to that imposed on Joshua Pascoe, whether contrasted at starting point, head sentence or non-parole period levels. [citations omitted]. 135 In R v Farquhar88 the Court held that a motivation to offend in order to pay off drug debts is still a financial motive.89 136 Considering the complaint that the applicant’s ultimate sentence was manifestly excessive the relevant period to be considered is not the term of 19 years, which was significantly reduced for totality, but the indicated sentence of 14 years before any discount for the plea of guilty. 137 The offending involved drugs with an estimated combined street value of over $1.3 million. It involved participation in a large commercial drug operation where the applicant was responsible for dealing consistently in large quantities of drugs. While his involvement was not at the apex of the syndicate, the role he performed demonstrated that those higher in the organisation reposed a degree of trust in him. While he was not paid cash, from the ultimate profits of sale of the drugs, he did receive a significant financial benefit, offsetting his large drug debt. His criminal conduct was not isolated. 138 The applicant’s role was primarily one of cutting drugs for on-sale. His role was not insignificant to the success of the syndicate’s operation. However, he also 85 R v Young [2016] SASCFC 102 at [68], (2016) 126 SASR 41 at 63. 86 [2020] SASCFC 113. 87 Pascoe v The Queen [2020] SASCFC 113 at [42]-[43]. 88 [2023] SASCA 98, (2023) 310 A Crim R 574. 89 R v Farquhar [2023] SASCA 98 at [46], (2023) 310 A Crim R 574 at 585. -- 31 of 33 -- [2026] SASCA 12 Stanley JA 30 engaged in other aspects of criminal conduct, including storage of drugs at his property,90 effecting payment and receiving delivery of drugs to his house,91 retaining packaged quantities after dilution for on-sale,92 and providing money for rent to the lessee of the apartment.93 139 It can be accepted that the notional sentence of seven years and six months is relevant to count 6. However, the comparison is diluted by the subsequent orders made for concurrency which combined penalties imposed in relation to other offending committed at the same time. In any event, the notional sentence does not indicate error. It is within the range for trafficking offences of this kind. This was not street level dealing. The sentence is above the standard contemplated in Young for street level dealing, being the upper range of seven years. The quantity of methamphetamine involved is not far below the level of a commercial quantity, and the applicant’s role in trafficking that quantity of methamphetamine was not insignificant. He knowingly played a role within a larger commercial enterprise. He profited from this role in paying off his debt. Arguments about purity do not affect the sentence imposed, at least at this level. In fixing sentence there was a need for both general and specific deterrence. This is a significant factor in the Court’s function to reduce the scourge of drug trafficking in the community. 140 The applicant did not come before the Court as a first offender. He had previous convictions for trafficking and violence. He was a serious repeat offender because of his previous trafficking conviction. The offending occurred over an extended period and following a police search. Each of the occasions of offending was a separate incursion into criminal conduct. While factors such as the applicant’s remorse and his prospects for rehabilitation are matters going to his credit, they were diminished in the process of instinctive synthesis by the fact that this was not the applicant’s first incursion into crime. He had prior opportunity to turn away from crime and chose not to do so. He could have refinanced his home to pay his drug debt, but instead elected to offend. His pleas were entered at an early stage but in the face of a strong prosecution case. Her Honour nonetheless afforded him 15% for his guilty pleas. 141 Further, the applicant’s submission that the sentence imposed is manifestly excessive depends to an extent on the submission that his sentence should be reduced for his reduced moral culpability. In R v Perry94 the applicant pointed to the various aspects of his childhood deprivation, that in his submission ameliorated his moral culpability. He submitted that the sentencing judge had not sufficiently brought these matters to account. He did not suggest process error. Rather, the effect of his submission was that these matters of deprivation contributed significantly towards an assessment of reduced moral culpability on his part, thereby contributing to the conclusion that the sentence was manifestly excessive. 90 Count 13. 91 Count 2. 92 Count 9. 93 Count 5. 94 [2022] SASCA 127 at [141]. -- 32 of 33 -- [2026] SASCA 12 Stanley JA 31 Given the rejection of the submission that his sentence should be reduced for his moral culpability on the Bugmy point, there is no scope for it to be reduced as manifestly excessive on that basis. 142 Neither the notional penalty for count 6 of seven years and six months imprisonment or the head sentence of 14 years are manifestly excessive. It follows that the ultimate sentence of 11 years, 10 months and 25 days is not manifestly excessive. 143 Ultimately the applicant fell to be sentenced for playing a role, above the level of basic trafficking, in a serious and organised crime by virtue of his plea to trafficking in a large commercial quantity of a controlled drug. He was sentenced on the basis that he was entitled to a reduction in sentence for his pleas. However, the sentence imposed, namely 14 years, does not indicate a conclusion that the sentence was manifestly excessive. There is no error in the ultimate sentence imposed, following the reduction for the plea. 144 I would grant permission to appeal on ground 1 but dismiss ground 1. Conclusion 145 I would grant permission to appeal but dismiss the appeal. -- 33 of 33 --