THE KING v JACKSON TOFT [2024] SASCA 13

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE FULLER) DCCRM-22-120 Applicant: THE KING Counsel: MR W SCOBIE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Respondent: JACKSON TOFT Counsel: MR E JOLLY - Solicitor: DEVINE MURDOCH Hearing Date/s: 12/02/2024 File No/s: SCCRM-23-046485 A 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. R v TOFT [2024] SASCA 13 Judgment of the Court of Appeal (The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice David) 22 February 2024 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO SUBSTITUTE VERDICT OR SENTENCE CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - MANUFACTURING, PRODUCING OR CULTIVATING - CANNABIS Appeal against sentence. The respondent pleaded guilty to, cultivating a large commercial quantity of controlled plants, possessing prescribed equipment and to diverting electricity. The offence of trafficking in a large commercial quantity of a controlled drug is a ‘serious and organised crime offence’ within the meaning of s 96(9)(b) of the Sentencing Act 2017 (SA) (‘Sentencing Act’). The effect of this designation is that a court may only suspend a sentence of imprisonment imposed for this offence if it is satisfied that exceptional circumstances exist for doing so. On 8 February 2021, police attended at a property in Hillbank and discovered 286 cannabis plants in varying stages of growth, and eight tents set up to grow cannabis hydroponically. Police also located a large amount of prescribed equipment throughout the house. They also found a vacuum-sealed bag -- 1 of 19 -- containing eight bags that contained a total of 3.62 kilograms of dry, 100 per cent female, flowering cannabis plant material. Each separate bag contained approximately one pound of cannabis. Electric power had been diverted from the premises. The property was owned by the respondent’s parents. The judge found that the respondent had acquiesced to a proposal by the co-accused to use the property to cultivate cannabis. In sentencing, the judge found that the respondent’s offending was done to alleviate a financial burden experienced by the respondent’s parents. The judge had regard to a psychological report undertaken by Dr Balfour. She characterised Mr Balfour’s opinion as being that the respondent ‘had serious mental health conditions that were operative at the time of the offending’. She relied on that characterisation in concluding that there was a basis for moderating the emphasis on personal and general deterrence that would otherwise be required in sentencing for the offences. The judge imposed a total head sentence of three years and 11 months with a non-parole period of two years. She suspended the sentence on the basis that there were exceptional circumstances that justified an order suspending the sentence. In this regard, she relied on a combination of factors. These were the respondent’s psychological conditions and their effect on him, the fact that he did not offend as part of a serious criminal organisation to fund a lavish lifestyle for himself, that he was motivated to remain offence-free, his experiences as a child, his present role as a business-owner, that this was relevantly a first offence and that he had been a productive and hard-working member of the community. The sole ground of appeal was that the sentence was manifestly inadequate. Held (by the Court), granting permission to appeal, allowing the appeal and resentencing the respondent: 1. Contrary to the judge’s characterisation, Mr Balfour’s evidence did not express an opinion that the respondent ‘had serious mental health conditions that were operative at the time of the offending and which had a connection or nexus to [the] offending’. There was no evidential basis for the judge to have concluded that the respondent’s historical PTSD or contemporary adjustment disorder provided a basis for reducing the respondent’s moral culpability. 2. The offending was a sophisticated and profit-driven exercise. No exceptional circumstances existed for the judge to engage s 96(6) of the Sentencing Act to order a suspension of sentence. 3. The sentence is manifestly inadequate. This is an appropriate case for a grant of permission to appeal. The appeal is allowed, and the sentence is set aside. It is necessary to resentence the respondent. 4. On the count of trafficking in a large commercial quantity of a controlled drug, the Court imposes a head sentence of four years and six months’ imprisonment, discounted by five per cent for the plea of guilty, resulting in a period of four years, three months and 10 days. In respect of the remaining offences, the Court imposes a sentence of four years’ imprisonment, discounted by 15 per cent on account of the guilty pleas, resulting in a sentence of three years, four months and 25 days. The Court orders a significant period of concurrency, such that the resulting head sentence is four years and nine months. 5. The Court sets a non-parole period of two years. Controlled Substances Act 1984 (SA) ss 32(1), 33(B)(1), 33LA(a); Electricity Act 1996 (SA) s 85(1); Sentencing Act 2017 (SA) ss 26, 40(3)(e), 40(3)(c)(ii), 96(1), 96(3)(c), 96(6), 96(9)(b), referred to. Everett v The Queen (1994) 181 CLR 295; House v The King (1936) 55 CLR 499; R v Hallcroft (2016) 126 SASR 415; R v Jones [2022] SASCA 105; R v Kelly [2023] SASCA 22; R v Lyberopoulos [2017] SASCFC 139; R v Monks [2019] SASCFC 47; R v Yaroslavceff [2022] SASCA 123; R v Yavuz [2018] SASCFC 24; R v Young (2016) 126 SASR 41, considered. -- 2 of 19 -- R v TOFT [2024] SASCA 13 Court of Appeal – Criminal: Lovell, Bleby and David JJA 1 THE COURT: This is an application by the Director of Public Prosecutions for permission to appeal against a sentence imposed for serious drug offending. The sole issue raised by the Notice of Appeal is whether the sentences imposed were manifestly inadequate and, in particular, whether the judge erred in finding that ‘exceptional circumstances’ existed justifying an order suspending the sentence of imprisonment imposed. Background 2 The respondent pleaded guilty to the following offences: Offence Provision Maximum Penalty Applicable Discount Trafficking in a Large Commercial Quantity of a Controlled Drug, section 32(1) of the Controlled Substances Act 1984 (‘CSA’). $1,000,000 or imprisonment for life, or both. Up to 5% if satisfied there is good reason, pursuant to section 40(3)(e) of the Sentencing Act 2017 (SA) (‘Sentencing Act’). Cultivating a Large Commercial Quantity of Controlled Plants for Sale, section 33B(1) of the CSA. $1,000,000 or imprisonment for life, or both. Up to 15%, pursuant to section 40(3)(c)(ii) of the Sentencing Act. Possessing Prescribed Equipment, section 33LA(a) of the CSA. $10,000 or imprisonment for 2 years, or both. Up to 15%, pursuant to section 40(3)(c)(ii) of the Sentencing Act. Diverting Electricity, section 85(1) of the Electricity Act 1996. $20,000 or imprisonment for 2 years. Up to 15%, pursuant to section 40(3)(c)(ii) of the Sentencing Act. 3 In respect of the trafficking offence, the judge indicated a starting point of three years and four months. She discounted that by five per cent for the guilty plea, resulting in a head sentence of three years and two months. In respect of the balance of the offences, acting under s 26 of the Sentencing Act, the judge indicated a starting point of three years and six months’ imprisonment. She discounted that by 15 per cent for the guilty pleas, resulting in a head sentence of two years, 11 months and 21 days. She applied a considerable degree of concurrency to these periods, resulting in a head sentence of three years and 11 months. She set a -- 3 of 19 -- [2024] SASCA 13 The Court 2 non-parole period of two years. She suspended the sentence of imprisonment on the respondent entering into a bond to be of good behaviour for three years. 4 The offence of trafficking in a large commercial quantity of a controlled drug contrary to s 32(1) of the CSA is a ‘serious and organised crime offence’ within the meaning of s 96(9)(b) of the Sentencing Act. Section 96(1) of that Act provides that subject to that section, if a court has imposed the sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on the condition that the defendant enter into a bond. However, s 96(3)(c) provides that a sentence of imprisonment may not be suspended under that section if the defendant is being sentenced as an adult for a serious and organised crime offence. 5 Section 96(6) then provides that despite sub-s (3)(c), the court may, if satisfied that exceptional circumstances exist for doing so, suspend a sentence of imprisonment imposed on a defendant for a serious and organised crime offence. The determinative question arising on this appeal is whether the sentencing judge erred in concluding that exceptional circumstances existed in this case. 6 On 8 February 2021, police attended at an address in Hillbank after receiving information that the address was being used to grow cannabis hydroponically. They heard a distinct humming coming from the address and became suspicious that it was being used for the cultivation of cannabis. The front of the premises had roller shutters covering the windows and the side windows. The glass sliding doors were covered from the inside. 7 Police executed a general search warrant and gained entry. The entire house was being used to cultivate cannabis. 8 The house contained eight separate cannabis grow tents, two of which contained immature cannabis plants of various sizes. The other six tents appeared to contain stumps of cannabis plants. These appeared to have been harvested recently. Police found of a total of 286 cannabis plants in various stages of growth. These are the subject of the charge of cultivating a large commercial quantity of controlled plants for sale, contrary to s 33B(1) of the CSA. The plants were healthy. Given their stages of growth, the potential yield could not be determined. 9 Police also located a large amount of prescribed equipment throughout the house, including inside the grow tents. These included numerous globes, light fittings, carbon filters and transformers. These were the subject of the charge of possessing prescribed equipment, contrary to s 33LA(a) of the CSA. There was also a whiteboard with detailed daily instructions about the care and cultivation of the cannabis. 10 Police located on the kitchen bench a vacuum-sealed bag containing eight bags that contained a total of 3.62 kilograms of dry, 100 per cent female, flowering cannabis plant material. The separate bags contained, respectively, 450g, 455g, -- 4 of 19 -- [2024] SASCA 13 The Court 3 454g, 449g, 455g, 453g, 554g, and 454g of cannabis plant material. This cannabis was the subject of the charge of trafficking in a large commercial quantity of a controlled drug, contrary to s 32(1) of the CSA. The separate parcels of cannabis each weighed roughly one pound. If the cannabis had been sold in pound amounts, it would have been sold for approximately $20,800 to $25,600. 11 An electrical technical standards and safety officer attended at the premises and confirmed that the power had been bypassed from the premises. This was the subject of the charge of diverting electricity, contrary to s 85(1) of the Electricity Act 1996 (SA). 12 The judge noted that CCTV footage from a neighbouring property revealed that the co-accused, Mr Sutton, attended the Hillbank address regularly from 23 January 2021 until 8 February 2021. He sometimes spent hours at the address. On 2 February, the respondent hired a refrigeration truck and drove to Mr Sutton’s house at Paralowie, then to the Hillbank premises and then back to Mr Sutton’s house where it stayed overnight before being returned. The CCTV footage shows two men loading bags from the Hillbank house into the rear of the truck. The judge was not prepared to draw the inference that cannabis had been harvested and bagged before the address was searched on 8 February. She held that there was insufficient evidence to find that the bags contained cannabis, as opposed to dead leaf or stem. 13 Police also searched Mr Sutton’s house, which contained numerous items related to the commercial cultivation of cannabis, including a commercial bud- stripping device which had cannabis material located in it, as well as indicia of sale. The respondent’s DNA was found on black disposable gloves in the area where the various items were sought. The judge did not refer to these matters in sentencing the respondent. The respondent’s circumstances 14 At the time of sentencing, the respondent was 32 years old. He has no drug-related offender history. In 2010, he was convicted, fined and received a driver’s licence disqualification for three months for misusing a motor vehicle – race or speed trial. In 2015, he was convicted and fined for recording false or misleading information in a work record (2) and in 2019, he was convicted and fined for recording false or misleading information in work record, drive fatigue related heavy vehicle while fatigued (2) and a critical risk breach - failure to comply with bfm hours (7). 15 The judge received a report of a forensic psychological assessment conducted by Mr Richard Balfour. The judge drew on this report in respect of summarising the respondent’s personal history, circumstances and psychological conditions. 16 The respondent had a traumatic upbringing. He was one of identical triplets. His two siblings died during childbirth. His father suffered from health problems, was an alcoholic, aggressive and sometimes violent. He was a physically -- 5 of 19 -- [2024] SASCA 13 The Court 4 intimidating man. His mother was severely alcoholic and aggressive but not violent towards the respondent. The respondent’s parents were physically violent towards each other and had many arguments that incorporated threats of suicide by the father. These arguments greatly frightened the respondent as a child. 17 The family endured periods of poverty because of the money spent by the respondent’s parents on alcohol. The respondent struggled as a child because of the poor parenting he received. He was extensively psychologically abused by his father. His father referred to him a ‘waste of time’ and said that he caused his parents nothing but grief and cost them money. His father frequently physically abused him. This included assaults by slapping, whipping and pushing and throwing him about. He suffered bruising and tinnitus from being forcefully slapped about the head. The beatings only stopped when the respondent was 16 years old and physically large enough to defend himself. 18 The respondent exhibited poor behaviour at school which saw him suspended but not expelled. He was good at sport, but injury ended any prospect of pursuing a professional career in rugby or football. After finishing year 10, he commenced a four-year diesel mechanic apprenticeship at TAFE SA. He finished that apprenticeship in three and a half years. He was well organised and punctual and excelled in this apprenticeship. He left home at the age of 21 as his relationship with his parents had deteriorated and he could no longer tolerate his father’s behaviour. He moved out with his then girlfriend. At that time he was in stable employment. 19 The respondent has been in nearly continuous employment since the age of 16. He has a good employment history and has been made a senior supervisor in the workplace. He has worked for various transport companies as a diesel mechanic. He was made a workshop manager in one of the companies. 20 The respondent has a good circle of friends and acquaintances. He enjoys good health, other than exhibiting symptoms of long COVID that have left him with no sense of taste or smell. That condition has also exacerbated his asthma. He has been in a stable relationship for 12 years. His wife did not know about the offending but has promised to stay by his side in any event. His wife ran a small domestic cleaning business that employed two contract cleaners. This business has now expanded such that the respondent and his wife now own a business that provides domestic, commercial and industrial cleaning in Adelaide. This includes a mechanical division which the respondent operates, offering maintenance and repairs to businesses and transport companies in Adelaide and interstate. 21 The respondent and his wife have two daughters and a son, all of whom are under the age of 10. The sentencing judge accepted that the respondent is an active and good father. 22 The respondent’s wife suffers from a condition called Chiari malformation. This is caused by problems in the structure of the brain and skull and is apparently -- 6 of 19 -- [2024] SASCA 13 The Court 5 attributable to a spinal block that she received when giving birth to one of their daughters. She has had surgery to assist with this, but her symptoms reoccur on occasion. On one recent occasion she collapsed and was taken by ambulance to hospital for scans. 23 The respondent’s wife wrote a letter to the Court praising the respondent’s skills and approach as a father and partner, and the fact of his support of her through difficult times. These included postnatal depression, anxiety and her medical condition. She said that the respondent’s work as an interstate truck driver took him away from the family, but he made that sacrifice to provide for them. She said that his offending weighs on him and that he has made changes to his life in an effort to give more to the community. In this regard they both donate their time in charitable donations through a Christmas charity, one to assist families in need and to the Women’s and Children’s Hospital. 24 The respondent wrote a letter of apology to the Court. The judge accepted that the sentiments in the letter were genuine and that he promised to himself and to his family that he would never allow himself to offend in this way again. He has been honest with his employers. They were prepared to employ him nonetheless. The respondent acknowledged that it was his choice to offend and that it was the wrong choice, whatever his motivation. The respondent also received extremely supportive letters of reference from previous employers. The circumstances of the respondent with respect to the offending 25 The judge accepted that the setting for the offending, as she described it, was the COVID-19 pandemic and the effect that this had on the respondent’s wider family’s financial situation. 26 Shortly before the pandemic commenced, the respondent’s parents decided to sell their house in Hillbank and move to Stansbury. They bought a house in Stansbury in March 2019. This was subject to a mortgage which was secured on their equity in the house in Hillbank by reference to then existing house prices. This was in addition to the already existing mortgage on the Hillbank house. The respondent helped his father to make repayments by getting him a job driving trucks. The respondent’s mother was working at a school as a cook and a cleaner. The Hillbank property was dilapidated and, notwithstanding that the respondent’s parents had lived there for many years, was not in a fit state to be rented out. 27 When the pandemic commenced, the respondent’s father lost his employment. House prices contracted and open inspections ceased. His parents were in a state of financial crisis. The respondent felt under pressure to assist them. He suggested that he and his family could move into the Hillbank property and pay rent, but the place was not fit for habitation. His parents said that their advice from the bank was to the effect that selling the Hillbank property would not cover both mortgages. The respondent’s mother also became unable to work due to her health. -- 7 of 19 -- [2024] SASCA 13 The Court 6 28 The respondent’s family also became affected financially by the pandemic. The respondent’s wife became unemployed. The respondent stayed in employment across a series of transport firms. While the judge did not record it, the respondent’s counsel submitted that his legitimate earnings at the time were between $90,000 and $110,000. 29 In the course of 2021, the respondent provided financial assistance to his parents which included covering the payments on both mortgages. This included drawing down on his superannuation and his wife selling personal assets such as jewellery. 30 The respondent was acquainted with the co-accused, Mr Sutton. In September 2020, Mr Sutton, being aware of the respondent’s financial situation, proposed that he use the Hillbank property to cultivate marijuana. The respondent saw this as a way to alleviate the financial pressure he was experiencing. The judge accepted the respondent’s evidence on oath that he had no idea of the potential yield or profit from the proposed enterprise as he had never been involved with anything like this before. Nevertheless, as the respondent accepted on appeal, he understood that the potential financial reward would be considerable. 31 Mr Sutton was an electrician and the respondent paid him to divert the electricity of the premises. He relied on Mr Sutton for the wherewithal and knowledge to set up the crop and to harvest it. Mr Sutton had a history of offending involving cannabis and was on bail for serious offending involving cannabis at the time of the present offending. 32 The sentencing judge accepted that it was Mr Sutton who had the knowledge, expertise and experience in the commercial cultivation and trafficking of cannabis and ‘was pivotal in the inception of this venture and its implementation’. Having said that, when sentencing Mr Sutton, the judge appeared to accept that Mr Sutton was not the principal of the operation but ‘clearly had an important, if not pivotal, role’. It is not necessary to address that inconsistency here, other than to emphasise the importance of sentencing co-offenders on factual bases that are not mutually inconsistent. The judge’s approach to sentencing 33 The judge accepted that the respondent’s motivation for engaging in the enterprise was that it presented a way out of the predicament in which he found himself, once Mr Sutton had suggested the idea to him. She made this finding in contradistinction to her finding that the respondent was ‘not intending to involve yourself in ongoing criminal enterprise’. 34 It is difficult to understand what the judge meant by this. By his actions in providing the premises and assistance in cultivation and harvesting of cannabis as well as his possession of the cut and dried flowering head in one-pound packs, the respondent was manifestly intending to involve himself in an ongoing criminal enterprise. The two propositions are not mutually exclusive. It may be that the -- 8 of 19 -- [2024] SASCA 13 The Court 7 judge meant that the respondent had no further involvement in, for example, the distribution and sale of the drugs. That finding was certainly open. However, to say merely that the respondent did not intend to involve himself in an ongoing criminal enterprise diminishes the objective elements of the offending. 35 The judge then said: I accept your evidence that this offending was not profit driven, in the sense that you were intending to fund a lavash [sic - lavish] lifestyle, but was a means by which you thought you could alleviate the financial burden experienced by your parents, a burden which you had chosen to assume, and that you and your family were also in financial difficulty. 36 The primary factual findings apparent in this paragraph was certainly open to the judge. However, the statement of conclusion at the outset of the paragraph risked conflating two concepts. It was open to find that the respondent was not seeking to fund a lavish lifestyle. That does not mean that the offending was not profit-driven. To confine the concept of being profit-driven by reference to the concept of having a lavish lifestyle diminishes the notion and importance of profit in this context. In R v Young, Kourakis CJ said:1 The offending of a street dealer whose addiction has left him or her largely impoverished and who trades in very small amounts only to feed his or her addiction is at the lower end of the scale of objective seriousness. Other street dealers may not use at all or may be only occasional or social users who engage in street trading primarily to fund a comfortable, usually hedonistic, lifestyle. Other street-level dealers, motivated by profit alone, may sell drugs directly to the end user but not use drugs at all. Sentences in the range of four to seven years continue to be appropriate for offenders who are motivated to a greater or lesser extent by profit. 37 By suggesting, in the manner that she did, that the respondent’s offending ‘was not profit driven’, the sentencing judge deployed language that suggested a warrant for sentencing below the range indicted in R v Young and which otherwise diminished its seriousness. This is notwithstanding that the offending included trafficking in a large commercial quantity of cannabis. 38 The respondent did not offend in order to fund an addiction. There is no suggestion that he was a drug user at all. Adopting the nomenclature used in R v Young, the offending was purely profit driven. The fact that it was not done to fund a lavish lifestyle simply opens a gateway for an explanation as to why the respondent was engaged in profit-driven offending. That is certainly relevant to sentencing. However, the sentencing judge’s apparent equation of being profit-driven with funding a lavish lifestyle risked diminishing the seriousness of the offending. 39 The judge accepted that the respondent’s father was putting considerable pressure on him and that it was appropriate to view that pressure against the 1 R v Young (2016) 126 SASR 41 at [65]-[66]. -- 9 of 19 -- [2024] SASCA 13 The Court 8 background of his childhood relationship with his father. She accepted that these circumstances would not have arisen but for the COVID-19 pandemic. 40 The judge correctly noted that the respondent’s motivation for the offending was not a mitigating factor. She noted that it provided an important context for the offending and was relevant to the assessment of his prospects for rehabilitation and deterrent effect of any sentence that she imposed. 41 The judge then had regard to relevant authorities, including R v Yavuz2 and R v Young.3 She noted the statement by the Court in R v Yavuz4 to the effect that the measure of gravity embodied in the scale of penalties is not the street value of the expected yield but the number of plants. Her Honour noted that the number of plants in this case was 286. She also had regard to the nature of the cultivation and motivation of the offender and that the aim of the tiered offences and related penalties remains the same of trafficking offences, that is to strike strongly at commerciality. She also had regard to the following passage in R v Lyberopoulos:5 The benefit that an offender stands to gain from his or her involvement in a drug trafficking enterprise is ordinarily relevant to the assessment of the offender’s culpability and the weight to be afforded to the deterrent, rehabilitative and retributive purposes of any sentence imposed. … an offender’s culpability is not measured simply by what he or she stood to gain, or simply by a consideration of the role he or she played in the enterprise. These things are most important, but so too is the offender’s knowledge of the nature of the enterprise in which they willingly involve themselves and the threat that the enterprise in which they participate poses to the community. 42 The judge noted that there was no suggestion that the respondent was part of a broader organised criminal operation or was actually engaged in trafficking in the sense of distribution and sale. 43 The judge accepted Mr Balfour’s diagnosis of post-traumatic stress disorder as a consequence of the respondent’s dysfunctional and traumatic childhood. She noted that Mr Balfour considered the respondent to be unique, in that he had managed to raise a family successfully and establish a career notwithstanding this background. She accepted Mr Balfour’s evidence that the respondent’s mental health deteriorated in response to the multiple economic and social stressors caused by the pandemic. She accepted that the respondent had developed an adjustment disorder on top of his PTSD, characterised by depression and anxiety. Mr Balfour’s report contained the following passage, which the judge quoted: He became desperate to economically rescue his family. He is typical of the many law abiding individuals in the community whose mental health and social circumstances severely deteriorated due to the pandemic, their future was uncertain and appeared bleak at best. The pandemic's adverse effects on his life was very typical of many individuals in the community. Mr Toft has had no prior contact with the illicit drug trade or negative peers 2 [2018] SASCFC 24. 3 (2016) 126 SASR 41. 4 [2018] SASCFC 24 at [77]. 5 [2017] SASCFC 139 at [33] (Hinton J). -- 10 of 19 -- [2024] SASCA 13 The Court 9 who are part of the drug using and offending subculture. He was in a psychologically and economically vulnerable position, he succumbed out of desperation to the adverse influence of a negative peer who led him astray. The final outcome was his current offending behaviour. 44 The judge then referred again to the respondent’s PTSD and said that she accepted ‘Mr Balfour’s unchallenged opinion’ that the respondent ‘had serious mental health conditions that were operative at the time of the offending and which had a connection or nexus to your offending’. 45 Nowhere in Mr Balfour’s report does he express such an opinion. Nor, upon reading his report, can it be inferred that he reached such a conclusion. It is puzzling how the sentencing judge could arrive at this conclusion when it does not appear in the report. The respondent’s counsel did not make such a submission during the sentencing hearing. While Mr Balfour did refer to the respondent’s psychological conditions, he did not refer to them as ‘serious mental health conditions’. 46 Mr Balfour’s evidence was that the respondent had managed to escape his traumatic past, successfully raise a family and establish a career. Following the passage quoted above, Mr Balfour said: At the time of the current offences, despite having an adjustment disorder, Mr Toft would still have been able to appreciate the nature and quality of his actions and their wrongfulness. I would consider him to be an example of the one of the many socio-economic human casualties of the pandemic. 47 It is one thing to say, as Mr Balfour did, that the respondent developed an adjustment disorder in response to the stressors caused by the pandemic. It is quite another thing to say that the respondent had serious mental health conditions that were operative at the time of the offending. There was no evidence that the respondent’s PTSD was ‘operative’ at the time of the offending. The adjustment disorder was present and ‘operative’, insofar as such a general statement can be meaningful. For the reasons discussed further below, there was no evidential basis on which it could be concluded that this provided a basis for reducing the respondent’s moral culpability. 48 However, the sentencing judge then used these observations, which mischaracterised Mr Balfour’s opinion, as a basis for engaging the principles applicable to the relevance of a psychological or psychiatric condition on sentencing. She said: The authorities on the relevance of a psychological or psychiatric condition to sentence are well-known. The Victorian Court of Appeal in Verdins (2007) 16 VR 269 summarise the principles as follows. A psychological or psychiatric condition may reduce the moral culpability of the offending conduct as distinct from the offender's legal responsibility. Where that is so the condition affects the punishment that is just in all the circumstances, and denunciation is less likely to be a relevant sentencing objective. The condition may have a bearing on the kind of -- 11 of 19 -- [2024] SASCA 13 The Court 10 sentence that is imposed and the conditions in which it should be served. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or the date of sentence or both. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the date of the offending or sentence or both. The existence of the condition at the date of sentencing, or its foreseeable recurrence, may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health. And finally, where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment. 49 The judge then accepted that there was a demonstrable nexus between the respondent’s psychological conditions and offending as set out above. On the topic of diminished moral culpability, she concluded: As I have mentioned there is a demonstrable nexus between your psychological conditions and the offending. In those circumstances I consider it appropriate to moderate the emphasis on personal and general deterrence that would otherwise be required in sentencing for these very serious offences. 50 Later in her remarks, she reiterated: There was a connection between your psychological conditions and the offending which, in my view, reduces your moral culpability and enables general and specific deterrence to be sensibly moderated. 51 Not only did these statements mischaracterise the opinion of Mr Balfour, but the respondent had not submitted that his psychological condition reduced his moral culpability. In the course of submissions, the judge had asked counsel for the respondent whether he drew a nexus ‘although not necessarily the strongest of connections between his psychological state and the offending … such that that’s a circumstance that feeds into exceptional circumstances?’ Counsel answered, carefully and accurately: It goes to the motivation behind doing it. No-one can ever say that a decision to enter into a criminal enterprise is a smart decision, but here – what your Honour needs to form a view on, is those circumstances that existed in his head at the time of going embarking on this criminal enterprise. 52 The respondent’s adjustment disorder and his complex and difficult relationship with his parents, especially his father, were relevant considerations in explaining his motivation for the offending. His adjustment disorder had a role to play in assessing the respondent’s prospects of rehabilitation and the consideration of personal deterrence. However, there was no evidential basis on which the judge could have treated that adjustment disorder, and certainly not his historical PTSD, -- 12 of 19 -- [2024] SASCA 13 The Court 11 as amounting to or having some equivalence with a mental impairment that reduced his moral culpability. In R v Monks, Doyle J said:6 In determining the relevance of the impairment of an offender’s mental functioning in a particular case it will be necessary to consider matters including (i) the nature and severity of the impairment; (ii) the extent to which the impairment was operating on the offender’s mental functioning at the time of the offending and hence can be said to have influenced or caused the offender to commit the offence and/or to have affected the offender’s capacity to appreciate the wrongfulness and gravity of the offending; (iii) whether the impairment was the product of an underlying mental illness or disability, self-induced intoxication, whether it reflected an addiction, and if so the circumstances of that addiction; and (v) the ability of the offender to reduce or overcome the significance of any underlying condition or addiction, and the steps taken or able to be taken in that regard. 53 The judge did not engage in any analysis of this kind. She simply concluded that there was a ‘connection’ between the respondent’s ‘mental conditions’ and his offending that reduced his moral culpability. The absence of any analysis reflects the lack of evidential foundation. The judge’s conclusion, notwithstanding that lack of foundation and the respondent’s own disinclination to take up the invitation, was quite unwarranted. So too was her conclusion that this provided a reason for moderating the emphasis on general deterrence. 54 The judge considered that the circumstances of the offending were unique and unlikely to be repeated, that the respondent had high prospects of rehabilitation and that he was not predisposed to offending behaviour. She noted that Mr Balfour put the respondent in the low range of risk for reoffending. Each of these findings was open and not controversial. 55 The judge had regard to the respondent’s insights into the seriousness and impacts of his offending, his stable relationship and loving family which had been placed in jeopardy. She noted that while hardship of incarceration to dependents does not rise to the category of exceptional such that it can mitigate sentence, it was still a relevant personal circumstance. 56 The judge indicated that but for the plea of guilty to the charge of trafficking in a large commercial quantity of cannabis, she would have imposed a sentence of three years and four months’ imprisonment. She discounted that by 5 per cent for guilty plea to three years and two months. 57 The judge then proposed to use s 26 of the Sentencing Act to impose one sentence for the remaining offences. In respect of those she would have imposed a sentence of three years and six months imprisonment. She discounted that by 15 per cent to two years, 11 months and 21 days. 58 The judge considered that as the offending amounted to a course of conduct linked temporally and geographically, there should be a significant degree of 6 R v Monks [2019] SASCFC 47 at [35]. -- 13 of 19 -- [2024] SASCA 13 The Court 12 concurrency. She set a head sentence of three years and 11 months. She set a non-parole period of two years. 59 The judge then turned to the question of suspension. She noted, correctly, that this required exceptional circumstances which, when present, so markedly change the nature of the particular case that it was no longer within the mischief which the legislature intended to address with a specified order generally to be made. The judge had regard in particular to the statement of the Court in R v Jones:7 It is thus important to remember that what amounts to exceptional circumstances in any given case is moulded and informed by the mischief the section seeks to remedy. As the Court pointed out in Yavuz, while a circumstance may be uncommon, the use of such labels can be potentially misleading. Some uncommon features may militate against a finding of exceptional circumstances rather than support it. It is not a matter of a sentencing court sifting through the personal circumstances of an offender to find something that perhaps can be described as uncommon to support a finding of exceptional circumstances. That is not to say that the personal circumstances of an offender can never tip the scales in favour of a finding that exceptional circumstances exist, it depends. But the purpose of the section and the general sentencing considerations including general deterrence, personal deterrence and the protection of the community always loom large. A finding of exceptional circumstances must be based on an assessment of all of the usual sentencing criteria. 60 After expressing the view that the connection between the respondent’s psychological conditions and the offending reduced his moral culpability and enabled general and specific deterrence to be sensibly moderated, the judge said: Your offending was the product of your free choice but that free choice must be viewed in the context of your psychological conditions and their effect upon you. You did not offend as part of a serious criminal organisation or syndicate in order to fund a lavish lifestyle for yourself. You are highly motivated to remain offence free because of the effect it would otherwise have on your children and your own experience as a child of having a father who was a dreadful role model. You have your own business and you employ a number of people in that business. You are, for all intents and purposes, a first offender who has hitherto been a productive and hard-working member of the community. I consider that all of these factors in combination do constitute exceptional circumstances justifying the suspension of the sentence I have imposed. … 61 The judge suspended the sentence on condition that the respondent enter into a bond to be of good behaviour in the sum of $50 for a period of three years on conditions, which included supervision by a community corrections officer for 20 months. The appeal 62 The only ground of appeal on the Director’s application is that the sentence was manifestly inadequate. The Director contended that the period of imprisonment was too low but submitted that the complaint of manifest 7 [2022] SASCA 105 at [44]-[45]. -- 14 of 19 -- [2024] SASCA 13 The Court 13 inadequacy, such that this Court should intervene, was based on the decision to suspend. That is to say, while the complaint relied on the combination of factors, the attack was directed at the mischief occasioned by the decision to suspend. 63 The Director did not base the application on a complaint of specific error. His complaint was, essentially, that it was not open to the judge to find the existence of exceptional circumstances as required by s 96(6). 64 The Director emphasised the statement of principle in Jones, set out above,8 in support of the proposition that the finding of exceptional circumstances was not available. In this regard, he contended that the offending was sophisticated, undertaken solely for financial purposes and engaged in over a period of some months. He submitted that this was precisely the type of offending that Parliament had contemplated as requiring an immediate custodial sentence in designating the offence of trafficking in a large commercial quantity of a controlled drug as a ‘serious and organised crime offence’. 65 As to the objective seriousness of the offending, the Director emphasised the following: • the offending was purely for financial purposes; • the respondent involved himself in the enterprise on account of the financial strain he was under and the level of responsibility he assumed for his parents; • the respondent was an equal partner in the enterprise, albeit that he was acting at Mr Sutton’s direction. He was involved in the physical set up of the grow house at Hillbank in September 2020, which commenced some five months before the police search; • the CCTV footage showed that, even if the bags loaded into the truck contained cannabis waste, both Mr Sutton and the respondent were carrying on activity relating to the ongoing criminal enterprise; • the respondent had opportunities to withdraw from the enterprise, given the time taken to establish the setup and continue through to harvest and packaging; • the enterprise was sophisticated, involving multiple hydroponic setups. These were capable of growing many times the proscribed large commercial quantity of controlled plants and yielding many times the proscribed large commercial quantity of harvested cannabis. It involved a substantial capital investment, directed entirely towards profit; • there were hazards associated with the deployment of the necessary commercial equipment, together with the illegal diversion of electricity in a 8 R v Jones [2022] SASCA 105 at [44]-[45]. -- 15 of 19 -- [2024] SASCA 13 The Court 14 residential premises. Moreover, residential premises so used can become the target of other criminals. 66 Having regard to these factors, the Director emphasised the importance of general deterrence. There is a considerable need to deter individuals who commit drug offences purely for profit. In this regard, this was a purely commercial enterprise. The offending was part of a broader cultivation project, given the evidence of recent cultivation of other plants. While the respondent did not have the experience of Mr Sutton, he was an equal participant in the venture. He maintained an active involvement in the trafficking and cultivation. While the plants were immature and their sex could not be determined, nor attrition rate forecast, the enterprise stood to make hundreds of thousands of dollars. 67 The Director did not contest that the respondent’s personal circumstances were such as to invite leniency. He accepted that the respondent had overcome a traumatic childhood and adolescence, was raising a family and contributed to the community. These were matters to bring to account in sentencing. The respondent found himself under financial pressure at the time, occasioned in the main by the pressure put on him by his parents’ ill-starred decision to buy a house in Stansbury just before the pandemic, in circumstances where their Hillbank home was in a poor condition. The respondent’s complex and toxic relationship with his father created a situation where he felt obliged to help. 68 The adjustment disorder that the respondent experienced contributed to his depression and poor decision-making. However, his feelings of financial pressure have to be considered in context – at the relevant time his legitimate earnings were between $90,000 and $110,000. In any event, the financial pressures he felt were not capable of mitigating the offending, as the judge correctly observed. 69 As Mr Balfour observed, the effects of the pandemic on the respondent’s life ‘was very typical of many individuals in the community’. The respondent’s response of turning to a serious criminal enterprise requires strong denunciation. His relationship with his father and adjustment disorder are matters that can be brought to bear in assessing, in particular, his prospects of rehabilitation and the associated consideration of personal deterrence. They do not provide a basis for reducing his moral culpability. To his credit, the respondent did not attempt to defend this aspect of the sentencing judge’s reasoning, just as he had not embraced the suggestion during sentencing submissions. 70 For his part, the respondent submitted, given that the complaint was one of outcome error only, exceptional circumstances existed in any event. He emphasised: • his dysfunctional and submissive relationship with his parents, which created a psychological nexus between that relationship and the offending; -- 16 of 19 -- [2024] SASCA 13 The Court 15 • the fact that the financial hardship he responded to was that of his parents, not his own; • that he is, relevantly, a first-time offender who entered guilty pleas at the first opportunity and then, in relation to the trafficking charge, in the District Court once the basis of the charge was clarified; • the evidence that no sale had occurred; • the lack of evidence suggesting that the respondent had been involved in the selling of cannabis at all; • the considerable evidence of his rehabilitation and that he was at low risk of reoffending. 71 These circumstances recommended leniency in sentencing. However, they did not remove the offending from the mischief which the legislature intended to address. The respondent undertook the offending, in the form of a sophisticated and entirely profit-driven enterprise, in response to finding himself in pressured financial circumstances, created and exacerbated by his peculiar relationship with his parents. The offending appears to have been conceived within a month prior to September 2020 and continued for a five-month period. The respondent had time to reflect and withdraw. 72 For the reasons expressed above, and contrary to the judge’s view, there was no basis on which to conclude that the respondent should be attributed with diminished moral responsibility by reason of his historical PTSD or contemporary adjustment disorder. That was neither Mr Balfour’s opinion nor the respondent’s submission. There was no foundation for concluding that the principle of general deterrence should be moderated. 73 While there are several circumstances particular to the respondent that warranted a lenient approach to sentencing, there was no basis for concluding that there were exceptional circumstances so as to engage s 96(6). While there was sufficient in the respondent’s personal circumstances to countenance, in the case of the trafficking offence, a head sentence at the lower end of the range of four to seven years indicated in R v Young,9 there was no basis on which to conclude that there existed exceptional circumstances with the meaning of s 96(6). The Director’s complaint of error is established. Permission to appeal 74 The principles applicable on an application to appeal against sentence by the Director are well understood.10 It is incumbent on the prosecution not only to establish error of the kind described in House v The King,11 but that the 9 (2016) 126 SASR 41 at [66]. 10 Everett v The Queen (1994) 181 CLR 295 at 299-300. 11 (1936) 55 CLR 499. -- 17 of 19 -- [2024] SASCA 13 The Court 16 circumstances of the case are so rare and exceptional as to warrant a grant of permission to appeal, notwithstanding the force of the consideration of double jeopardy that speaks against a grant. As Doyle JA said of the qualification ‘rare and exceptional’ in R v Yaroslavceff:12 It directs attention to the nature of the error that is required to justify intervention. In this way, it is intended to distinguish the circumstances in which it might be appropriate to intervene to correct a manifestly inadequate sentence in a Crown appeal from the circumstances in which it might be appropriate to intervene to correct a manifestly excessive sentence in a defence appeal. 75 In R v Kelly, Lovell JA said:13 Whether to grant the prosecution permission to appeal against a sentence involves a balancing exercise. The prosecution will be granted permission to appeal if it is necessary to enable a court to establish and maintain adequate standards of punishment for crime; to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected; or if a sentence is so far below the appropriate range of sentences that the sentence reflects an error of principle or would ‘shock the public conscience’. 76 Parliament has designated the offence of trafficking in a large commercial quantity of a controlled drug, contrary to s 32(1) of the CSA, to be a ‘serious and organised crime offence’.14 In doing so it has removed from the equation of whether to suspend the question whether ‘good reason exists for doing so’ (s 96(1)) and supplanted that with a test of ‘exceptional circumstances’. 77 This was a sophisticated commercial enterprise that disclosed offending involving some 286 plants and 3.62 kilograms of female flowering head material packaged into one pound lots. The operation involved a considerable amount of prescribed equipment and a diversion of electricity. The absence of exceptional circumstances capable of removing offending of this scale from the mischief targeted by Parliament in enacting this sentencing regime warrants the conclusion that not to intervene would shock the public conscience. 78 Moreover, as the Director submitted, absent anything approaching exceptional circumstances, not to intervene would erode the standards of sentencing such as to give rise to a justifiable grievance on the part of others sentenced to periods of imprisonment without suspension for similar or lesser trafficking offences. That ‘is antithetical to the demands of justice’.15 79 We grant permission to appeal. We allow the appeal and set aside the sentence. 12 [2022] SASCA 123 at [71]. 13 R v Kelly [2023] SASCA 22 at [45]. 14 Sentencing Act 2017 (SA) s 96(9)(b). 15 R v Hallcroft (2016) 126 SASR 415 at [53]. -- 18 of 19 -- [2024] SASCA 13 The Court 17 Resentencing 80 On resentencing, for the reasons discussed above, there is good reason to be optimistic about the respondent’s prospects of rehabilitation. Leniency is warranted both in imposition of the head sentence and the non-parole period. Further, we adopt the general structure of fixing head sentences that the sentencing judge adopted. Having regard to all the matters discussed above, we resentence the respondent as follows. 81 In respect of the offence of trafficking in a large commercial quantity of cannabis, we impose a head sentence of four years and six months’ imprisonment. We discount that by five per cent for the plea of guilty, resulting in a period of four years, three months and 10 days. 82 In respect of the remaining offences, we impose a single sentence under s 26 of the Sentencing Act. We impose a sentence of four years’ imprisonment. We discount that by 15 per cent on account of the guilty pleas, resulting in a sentence of three years, four months and 25 days. 83 As the sentencing judge noted, the offending constituted a course of conduct and was linked temporally and geographically. We order a significant period of concurrency, such that the resulting head sentence is four years and nine months. 84 The respondent’s personal circumstances, including his familial history and overcoming of considerable adversity, his lack of a relevant criminal history and his excellent prospects of rehabilitation warrant considerable leniency in setting a non-parole period. Indeed, the unusual circumstances of this case warrant a shorter than usual non-parole period. We set a non-parole period of two years. The sentence is to commence on the day the respondent is taken into custody. 85 For the reasons already explained, exceptional circumstances do not exist such as would warrant suspending the sentence pursuant to s 96(6) of the Sentencing Act. -- 19 of 19 --