MICHAEL BRIAN GIBBINS v THE KING [2025] SASCA 58

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE TELFER) DCCRM-22-015793 Appellant: MICHAEL BRIAN GIBBINS Counsel: MR A RICE - Solicitor: GIBSON & ASSOCIATES FAMILY LAWYERS Respondent: THE KING Counsel: MS N ZUCKERMAN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 11/03/2025 File No/s: SCCRM-24-032125 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. GIBBINS v THE KING [2025] SASCA 58 Judgment of the Court of Appeal (The Honourable Chief Justice Kourakis, the Honourable Justice David and the Honourable Justice Stanley) 30 May 2025 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES This is an appeal against sentence. The appellant was sentenced to five years and twenty-nine days, with a non-parole period of three years, eleven months and nine days, for the offence of trafficking in a commercial quantity of methylamphetamine contrary to s 32(2) of the Controlled Substances Act 1984 (SA) (the ‘trafficking offence’). In separate proceedings, the appellant was charged with driving under disqualification contrary to s 91(5) of the Motor Vehicles Act 1959 (SA) and driving dangerously to escape police pursuit contrary to s 19AC(1)(a) of the Criminal Law Consolidation Act 1935 (SA) (the ‘dangerous driving offences’). The appellant’s offending was detected during a broader investigation into a drug trafficking syndicate operating through an encrypted communication network commonly known as ‘AN0M’. On 17 May 2021, messages between persons involved in the syndicate revealed a plan to supply one kilogram of methylamphetamine. The physical handover of those drugs was arranged to take place in the car park of the Bunnings hardware store in Mile End. On 18 May 2021, the appellant was -- 1 of 12 -- equipped with a mobile phone, which contained the AN0M application, to communicate with the other persons involved in the exchange. Australian Federal Police were monitoring several AN0M communications and provided intelligence to SA Police of the ‘drop’. Surveillance officers observed the appellant meeting up with a man and receiving a cardboard box. After being followed by Police, the appellant stopped in a car park. As the appellant got out of the car and ran from police, he dropped a brown paper bag which contained 993 grams of a crystalline substance, of which 680 grams was pure methylamphetamine. When the appellant was apprehended, he told police officers that he attempted to evade them because he was disqualified from driving. During a subsequent police interview, the appellant stated that he was addicted to methylamphetamine and had a substantial drug debt. He explained that his participation in the supply of methylamphetamine was undertaken with the expectation that it would result in a reduction of the debt he owed. The Judge accepted that the appellants offending was restricted to the single occasion charged and that the trafficking offence was committed to reduce his drug debt by $5,000.00. The Judge noted that couriers, by acting as the agents of more senior members of high-level drug syndicates, play an important role in maintaining the effectiveness of drug distribution systems and emphasised the social harm arising from the sale of illicit drugs. By reason of his previous criminal history, the appellant fell to be sentenced as a serious repeat offender. As such, the Judge was required to impose a non-parole period of at least four-fifths of the head sentence, fixing a non-parole period of three years, eleven months and nine days. The appeal is brought on two grounds. First, that the sentence is manifestly excessive and second, that the Judge erred by failing to apply proportionality or the totality principle. The second ground is particularised as follows: 2.1 The offending in respect of the dangerous driving offences arose from the same enterprise and facts as the sentence subject to this appeal; 2.2. The applicant served the entirety of the previous sentence prior to being sentenced; and 2.3. The Judge failed to reduce the head sentence imposed to ensure that the applicant’s sentence was proportionate to his degree of criminality for the enterprise. Held, per the Court, granting permission to appeal against sentence and allowing the appeal on the second ground of appeal: 1. The sentence of the District Court Judge is set aside. The determination of the term of imprisonment required the Judge to give effect to the sentencing objectives of personal deterrence and punishment for the trafficking offence, requiring an evaluation of the effect of the term of imprisonment served by the appellant for the dangerous driving offences. The Judge did not advert to that consideration. 2. The question for the Judge was what term of imprisonment is necessary to deter the appellant from further offending, without extinguishing any prospect that he might himself reform and rehabilitate. Different judges might reasonably take different views on that question, but it was a question which nonetheless needed to be addressed. In sentencing, the Judge did not address the question and, as a result, failed to take into account a relevant sentencing circumstance. 3. The Court imposes a sentence of four years, four months and eleven days, reducing the notional sentence of five years and three months to allow for the appellant’s pleas of guilty and the time served in custody on remand after the completion of the sentence imposed in the Magistrates Court. The Court fixes a non-parole period of three years, five months and twenty-eight days. 4. Judges of the District Court individually and institutionally have extensive experience in sentencing for offences of trafficking methylamphetamine. In their broader criminal -- 2 of 12 -- jurisdiction, Judges of the District Court are informed of the relationship between methylamphetamine abuse and other offending, including violent assaults. It is important that, in reviewing the sentences of Judges of the District Court, the Court does not unduly restrict their discretion to fashion a proper sentencing response as to what can only be described as the scourge of widespread use of methylamphetamine in South Australia. Controlled Substances Act 1984 (SA) s 32(2); Criminal Law Consolidation Act 1935 (SA) s 19AC(1)(a); Motor Vehicles Act 1959 (SA) s 91(5), referred to. R v Young (2016) 126 SASR 41; Mill v The Queen (1988) 166 CLR 59; Baxter (a pseudonym) v The King [2024] SASCA 64, considered. -- 3 of 12 -- -- 4 of 12 -- GIBBINS v THE KING [2025] SASCA 58 Court of Appeal - Criminal: Kourakis CJ, David and Stanley JJA 1 THE COURT: The applicant, Mr Gibbins, seeks leave to appeals against a sentence of five years and twenty-nine days, with a non-parole period of three years, eleven months and nine days, imposed in the District Court for the offence of trafficking in a commercial quantity of methylamphetamine contrary to s 32(2) of the Controlled Substances Act 1984 (SA) (‘CS Act’) (‘trafficking offence’). The maximum term of imprisonment for the offence charged is 25 years. 2 In separate proceedings, Mr Gibbins was charged with driving under disqualification contrary to s 91(5) of the Motor Vehicles Act 1959 (SA) (‘MV Act’) and driving dangerously to escape police pursuit contrary to s 19AC(1)(a) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) (the ‘dangerous driving offences’). Those offences were committed whilst Mr Gibbins was transporting the methylamphetamine, when he realised the police were about to stop his vehicle. On 5 April 2023, Mr Gibbins pleaded guilty to the dangerous driving offences and was sentenced to 18 months imprisonment, with a non-parole period of twelve months. 3 The appeal is brought on two grounds. First, that the sentence is manifestly excessive and second, that the Judge erred by failing to apply proportionality or the totality principle. The second ground is particularised as follows: 2.1 The applicant was previously sentenced to a term of imprisonment for 1-year and 6-months for Drive Dangerously to avoid Police Pursuit and Driving Disqualified (the previous sentence). This offending arose from the same enterprise and facts as the sentence subject to this appeal; 2.2. The applicant served the entirety of the previous sentence prior to being sentenced; and 2.3. The Judge failed to reduce the head sentence imposed to ensure that the applicant’s sentence was proportionate to his degree of criminality for the enterprise. 4 We grant permission to appeal against sentence on the second ground and would allow the appeal. The determination of the term of imprisonment required the Judge to give effect to the sentencing objectives of personal deterrence and punishment for the trafficking offence, requiring an evaluation of the effect of the term of imprisonment served by Mr Gibbins for the dangerous driving offences. The Judge did not advert to that consideration. We set aside the Judge’s sentence. In exercising the sentencing discretion afresh, we impose a sentence of four years four months and eleven days after reducing a notional sentence of five years and three months to allow for Mr Gibbins’ pleas of guilty and time he has served in custody on remand after the completion of the sentence imposed in the Magistrates Court. We fix a non-parole period of three years, five months and twenty-eight days. -- 5 of 12 -- [2025] SASCA 58 The Court 2 The Offending 5 Mr Gibbins’ offending was detected during a broader investigation into a drug trafficking syndicate operating through an encrypted communication network commonly known as ‘AN0M’. 6 On 17 May 2021, messages between persons involved in the syndicate revealed that they were planning to supply one kilogram of methylamphetamine, with a cost to the syndicate of $85,000.00. The physical handover of those drugs was arranged to take place in the car park of the Bunnings hardware store in Mile End. 7 The messages showed that the drugs were to be taken to Bunnings in a black Volkswagen SUV and that Mr Gibbins would be driving a gold VE wagon. It was Mr Gibbins’ task after taking possession of the methylamphetamine to deliver it to another person. 8 On 18 May 2021, Mr Gibbins was equipped with an ‘AN0M device’, being a mobile phone which contained the AN0M application, several hours prior to the exchange. Mr Gibbins was given the device to enable him to communicate with the other persons involved in the exchange. 9 Australian Federal Police were monitoring several AN0M communications and provided intelligence to SA Police of the ‘drop’. Surveillance officers observed Mr Gibbins, in a gold VE wagon, meeting up with a man driving a black Volkswagen. They saw Mr Gibbins receive a cardboard box which he placed in his front seat. 10 Police and PolAir followed Mr Gibbins out of the Bunnings car park and attempted to pull his car over when he entered the Arkaba Shopping Centre car park. Mr Gibbins sped off but later stopped in the car park of the RSL Nursing Home at Myrtle Bank. Mr Gibbins got out of the car and ran from police. In the course of doing so, he dropped a brown paper bag which contained 993 grams of a crystalline substance, of which 680 grams was pure methylamphetamine. 11 When Mr Gibbins was apprehended, he told police officers that he attempted to evade them because he was disqualified from driving. During a subsequent police interview, Mr Gibbins stated that he was addicted to methylamphetamine and had a substantial drug debt. He explained that his participation in the supply of methylamphetamine was undertaken with the expectation that it would result in a reduction of the debt he owed. Mr Gibbins further stated that he was unaware of the specific contents of the bag and declined to identify the individuals for whom he was acting. Personal Circumstances 12 The Judge had regard to Mr Gibbins’ personal circumstances noting that: • He was 36 years of age at the time of sentence; -- 6 of 12 -- [2025] SASCA 58 The Court 3 • At the age of 12, and in the context of separation of his parents, Mr Gibbins assaulted his father in the course of a dispute. He was detained at the Magill Training Centre. There he was the subject of abuse and neglect, including sexual abuse and violence at the hands of another detainee; • Soon thereafter Mr Gibbins fell into anti-social activities and criminal offending. He was again detained again at the Magill Training Centre. His schooling was interrupted; • Mr Gibbins’ adult offending largely comprised driving offences; • Mr Gibbins has no prior convictions for drug trafficking; • Mr Gibbins has had steady employment as a gyprock worker; • Mr Gibbins first consumed alcohol at the age of 13 and used methylamphetamine from the age of about 19. He is a problem gambler; • Mr Gibbins’ abuse of methylamphetamine and his gambling escalated after he separated from his partner; • Mr Gibbins did not work after the separation and purchased drugs on credit; • Whilst in custody, he completed a program for problem gamblers with Relationships Australia. He has attended 12 sessions of a drug rehabilitation program. 13 The Judge also had regard to the psychological report provided by a Forensic Psychologist, Ms Heinrich, who proffered the opinion that Mr Gibbins’ early life had deprived him of the opportunity to learn appropriate and healthy coping skills. 14 In addition to driving offences, Mr Gibbins has been convicted of two significantly more serious offences. 15 In 2015, Mr Gibbins was convicted in the Magistrates Court of the offence of serious criminal residential trespass which he committed in 2014. Mr Gibbins was sentenced to imprisonment for one year and five months, with a non-parole period of eight months to commence on 28 May 2015. 16 Mr Gibbins was convicted in the District Court of an offence of aggravated attempt to commit theft which he committed on 11 May 2015. On 21 June 2016 he was sentenced to four years and ten months imprisonment. 17 The total resulting head sentence was six years and three months commencing on 28 May 2015. The trafficking offence and the dangerous driving offences breached the parole on which he had been released from prison. -- 7 of 12 -- [2025] SASCA 58 The Court 4 The Sentence 18 The Judge accepted that Mr Gibbins’ offending was restricted to the single occasion charged and that the trafficking offence was committed to reduce his drug debt by $5,000.00. 19 The Judge noted that couriers, by acting as the agents of more senior members of high-level drug syndicates, play an important role in maintaining the effectiveness of drug distribution systems and emphasised the social harm arising from the sale of illicit drugs: Courts in this State have repeatedly emphasised the social harm that is done by the sale of illicit drugs. Mr Gibbins, as a methylamphetamine user, you understand that damage very well. People who choose to participate in the trade of illicit drugs cause harm to the public, both the people who use the drugs and innocent members of the public who are victims of crime and antisocial behaviour which is associated with drug use. For those reasons, parliament has set the maximum penalty at a level that underlines the seriousness of the conduct. I accept that your conduct was isolated. You agreed to provide a courier service on one occasion in return for forgiveness of $5,000 of debt. You were not an ongoing participant in the syndicate. However, it is important to note that people who act as couriers on behalf of more senior members of high-level drug syndicates are an important link to maintaining the effective systems of distribution. Employing others to perform the high-risk tasks such as couriering enables more senior members of drug syndicates to remain at arm’s-length and avoid detection. It is important that the penalty that I impose is fixed at a level that will deter others who will, in the future, be tempted to participate in this kind of dealing. Your conduct concerned almost a kilogram of methylamphetamine worth, at a minimum, $85,000. Although you did not stand to profit, you were expecting a financial advantage of forgiveness of $,5000 of debt. I accept that the situation of debt that you found yourself fin created considerable pressure on you to obtain funds. 20 On the other hand, the Judge made the following assessment of Mr Gibbins’ prospects of rehabilitation: It is clear that your risk of re-offending is very much tied to whether you are able to overcome your gambling and drug addictions. You have demonstrated by your actions that you are committed to doing the work that is necessary to overcome those issues. You have the advantage that you have been able to remain abstinent in the community for periods of time and you have work skills that make it easier for you to find meaningful work. I accept that you were motivated to continue to engage with the services that you have in place that will support you on your release. -- 8 of 12 -- [2025] SASCA 58 The Court 5 Your daughter is now four and she provides significant motivation to you to change your life to be a better parent. I note that you have the support of your mother and your aunt and, as I have said, you have work available to you on your release. Mr Gibbins, despite the seriousness of your offending and your prior criminal history, there are many positive signs pointing to your capacity to overcome your addiction and take a different path to the one that you have been on. 21 However, it should be noted that, over the period Mr Gibbins was granted home detention bail after serving the 18-month term of imposed on the dangerous driving offences, his resolve to overcome his addiction was patchy. Mr Gibbins was taken into custody on 18 May 2021. 22 Mr Gibbins was granted home detention bail on 6 April 2023 after having served the sentence of 18 months imposed in the Magistrates Court. Mr Gibbins tested positive for methylamphetamine on 8 May 2023 and 24 May 2023, but he remained on bail. Between 5 June 2023 and 22 September 2023, Mr Gibbins’ urine samples were negative for the presence of methylamphetamine; however, on 23 September 2023, a saliva sample was taken by a community corrections officer, and it tested positive for methylamphetamine. On 23 November 2023, Mr Gibbins’ bail was revoked, and he was remanded in custody. 23 The Judge was informed that Mr Gibbins had been remanded in custody pending his sentencing on the trafficking matter for 228 days (seven and a half months) as at 28 May 2024. For that reason, the Judge backdated the sentence imposed to 28 May 2024. 24 The Judge referred to this Court’s decision in R v Young1 and noted that the starting point for a street-level drug dealer motivated by profit was generally between five and seven years. However, the Judge did not consider that that range was applicable to Mr Gibbins’ offending. 25 The Judge commenced with a notional term of imprisonment of six years. Her Honour reduced that term by five per cent on account of Mr Gibbins’ guilty plea, resulting in a sentence of five years, eight months and thirteen days. 26 After deducting the period of 228 days served in custody on remand, the Judge sentenced Mr Gibbins to imprisonment for five years and twenty-nine days. 27 By reason of his previous criminal history, Mr Gibbins fell to be sentenced as a serious repeat offender. As such, the Judge was required to impose a non-parole period of at least four-fifths of the head sentence. The Judge therefore fixed a non-parole period of three years, eleven months and nine days. 1 (2016) 126 SASR 41. -- 9 of 12 -- [2025] SASCA 58 The Court 6 Grounds of Appeal Ground 1 – The sentence is manifestly excessive 28 Mr Gibbins’ offending was a critical step in the trafficking of a commercial quantity of methylamphetamine undertaken by a sophisticated organised crime syndicate which, at the time, was trafficking substantial amounts of amphetamine. 29 In the absence of any sworn evidence to the contrary, Mr Gibbins had to be sentenced on the basis that he knew that he was transporting methylamphetamine. The methylamphetamine was in the paper bag which he took with him when he ran from the car. As a frequent user of methylamphetamine, he must have known that he was delivering a substantial and valuable amount of the drug even if he did not know its precise weight. The debt reduction of $5,000.00, which Mr Gibbins acknowledged he would receive for the hour or so of his time taken to make the delivery, is also an indication of the extent of his knowledge of the importance of the delivery to the syndicate. 30 Mr Gibbins must also have understood the organised and sophisticated nature of the drug syndicate he was assisting when he was given a phone carrying the specially encrypted AN0M messaging application. 31 Finally, Mr Gibbins exposed himself to the risk of being prevailed upon in this way by purchasing methylamphetamine either from a trader within the same, or another, drug syndicate on credit. The means used by organised drug syndicates to enforce their debts, or to recover payments in kind, are notorious. 32 On the other hand, Mr Gibbins fell to be sentenced for a single instance of delivering the drug from one part of the syndicate to another, and he had no prior offences of drug trafficking. He had some prospects for rehabilitation but they were very guarded having regard to his use of methylamphetamine after he was released on home detention bail in May 2023. 33 The Judges of the District Court individually and institutionally have much experience in sentencing for offences of trafficking methylamphetamine. Moreover, in their broader criminal jurisdiction, they are informed of the relationship between methylamphetamine abuse and other offending, including violent assaults. It is important that in reviewing the sentences they impose, this Court does not unduly restrict their discretion to fashion a proper sentencing response, to what only can be described as the scourge of widespread use of methylamphetamine in South Australia. 34 The sentence is a heavy one but it is not manifestly excessive. Ground 2 - Failure to have regard to the dangerous driving sentence 35 We commence by stating two matters of principle. First, it was not the function of the Judge in sentencing Mr Gibbins for the trafficking offence to review the sentence imposed by the Magistrate for the dangerous driving offences. Nor -- 10 of 12 -- [2025] SASCA 58 The Court 7 was it the function of the Judge to impose a sentence for the trafficking offence which simulated the effective sentence, which might have been imposed for that offence if the Judge were sentencing for the trafficking and dangerous driving offences.2 36 Secondly, the connection between the trafficking and dangerous driving offences did not, in itself, warrant any degree of concurrency. There was no overlapping criminality or culpability as between those offences. The only connection between the dangerous driving offence and the trafficking offence was that Mr Gibbins was seeking to evade his apprehension for the latter. There is nothing about the offence of trafficking which naturally entails driving dangerously. Rather, Mr Gibbins’ offending was a continuation of his grossly irresponsible driving habits, evidenced by his past offending. 37 Nonetheless, the circumstance that Mr Gibbins had recently served a significant term of imprisonment for an offence which was temporally and circumstantially connected with the offence of trafficking was a relevant consideration. It was relevant to the determination of the effective period of imprisonment which would adequately serve the objectives of punishment and personal deterrence in sentencing for the trafficking offence. 38 The sentence imposed for the trafficking offence had to be calculated to deter Mr Gibbins from such offending in the future and to encourage him along the path to rehabilitation, on which he has taken some tentative steps, having regard to the circumstance that he had recently served eighteen months of imprisonment for the driving offences. The question for the Judge was what term of imprisonment is necessary to deter Mr Gibbins from further offending, without extinguishing any prospect that he might himself reform and rehabilitate. Different judges might reasonably take different views on that question, but it was a question which nonetheless needed to be addressed. 39 The only references made by the Judge to the dangerous driving offences and the sentence imposed was the Judge’s observation that when police attempted to pull over Mr Gibbins’ car at the Arkaba Shopping Centre he sped off but later stopped in the carpark of the nursing home. The only reference to the imprisonment imposed on his conviction for those offences was the observation made for the purpose of making an allowance for time spent in custody: Between the time that you were arrested for this offence and now, you have spent time in custody. It is agreed between your counsel and the prosecution that I should take into account seven and a half months, or 228 days, of that time. Other time has been taken into account on other matters resolved elsewhere and unexpired parole. 40 Those references do not address the question we have identified arising out of the earlier term of imprisonment. As a result, the Judge has failed to take into 2 A different approach is necessary where an offender falls to be sentenced in different jurisdictions for closely related offences. Cf Mill v The Queen (1988) 166 CLR 59; Baxter (a pseudonym) v The King [2024] SASCA 64. -- 11 of 12 -- [2025] SASCA 58 The Court 8 account a relevant sentencing circumstance. Accordingly, the sentence must be set aside, and it falls to this Court to exercise the sentencing discretion afresh. 41 Putting to one side the effect of the sentence of imprisonment served for the dangerous driving offences for the moment, we commence with a notional term of imprisonment of five years and six months for the trafficking offence. We do so because, in exercising our own discretion, we consider that the six-year notional term for the offence of trafficking need not have been so heavy. We reflect the enhanced deterrent effect of having to serve the sentence imposed for the trafficking offence after already serving 18 months imprisonment for the dangerous driving offences by imposing a lesser sentence of five years and three months. We reduce that notional term of imprisonment to four years eleven months and twenty-six days by reason of Mr Gibbins’ guilty plea. After allowing for the 228 days spent in custody, we impose a sentence of four years four months and eleven days. We fix a non-parole period of three years five months and twenty-eight days. We order that the term of imprisonment commence on 28 May 2024. -- 12 of 12 --