THE KING v SUSAN JEAN WILSON [2024] SASCA 20

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE JENSEN) MCCRM-22-000226 Appellant: THE KING Counsel: MR J SLOCOMBE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Respondent: SUSAN JEAN WILSON Counsel: MS S DOBBYN - Solicitor: RJ COLE AND PARTNERS Hearing Date/s: 13/02/2024 File No/s: SCCRM-23-032354 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 WILSON [2024] SASCA 20 Judgment of the Court of Appeal (The Honourable Chief Justice Kourakis, the Honourable Justice Bleby and the Honourable Justice David) 7 March 2024 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - OTHER SUBSTANCES AND OFFENCES INVOLVING MULTIPLE SUBSTANCES OR OFFENCES CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - MANUFACTURING, PRODUCING OR CULTIVATING - CANNABIS Crown appeal against sentence. On 14 August 2023, the respondent pleaded guilty to three charges, namely, cultivating a controlled plant in artificially enhanced conditions, possession of prescribed equipment, and trafficking in a commercial quantity of cannabis contrary to ss 33K(1)(ab), 33LA(a) and 32(2) of the Controlled Substances Act 1984 (SA) respectively. The prosecution and defence consented to the respondent being sentenced in the Magistrates Court pursuant to s 116 of the Criminal Procedure Act 1921 (SA) (‘CPA’). In sentencing, the magistrate considered the respondent’s criminal history, most relevantly convictions in 2012 and 2020 for cultivation offences. -- 1 of 11 -- With respect to the trafficking offence, the magistrate sentenced the respondent to a term of imprisonment of two months and 21 days. This represented a discount of 10 per cent for a guilty plea, from a starting point of three months. In relation to the offences of artificially enhanced cultivation of cannabis and possession of prescribed equipment, the magistrate sentenced the respondent to terms of imprisonment of 15 days each, with both to be served concurrently with the trafficking sentence. The resultant combined head sentence of imprisonment was two months and 21 days. The magistrate suspended the term of imprisonment on the respondent entering into a bond to be of good behaviour for a period of 10 months. The prosecution did not take issue with the magistrate’s decision to suspend the sentence. The sole ground of appeal was that the sentence for the trafficking offence was manifestly inadequate. Held (by the Court), refusing permission to appeal: 1. The sentence for the trafficking offence was manifestly inadequate. 2. When a person is to be sentenced for a major indictable offence in the Magistrates Court pursuant to s 116 of the CPA, it is incumbent on the prosecution to provide the magistrate with the necessary assistance in formulating a sentence for the offence that accords with applicable sentencing principles. 3. In this case, the prosecution’s failure to provide the magistrate with any real assistance of this nature spoke against a grant of permission to appeal. In addition, the fact that the Director did not take issue on appeal with the decision to suspend the sentence rendered the consideration of personal deterrence of lesser importance in this case. 4. Having regard to the way that this matter proceeded in the Magistrates Court, it is not necessary to grant permission to appeal to emphasise the importance of the applicable sentencing standards being applied consistently across the jurisdictions. Controlled Substances Act 1984 (SA) ss 33K(1)(ab), 33LA(a), 32(2); Criminal Procedure Act 1921 (SA) s 116; Magistrates Court Act 1991 (SA) ss 9(4), 9(6), 9(7), referred to. R v Devries [2018] SASCFC 101; R v Faehrmann; R v Moore; R v Price-Austin (2014) 118 SASR 549; R v Kelly [2023] SASCA 22; R v Lyberopoulos [2017] SASCFC 139; R v Taylor; R v Teekens [2022] SASCA 79; R v Tsonis [2018] SASCFC 86; R v Young (2016) 126 SASR 41; Symons v The Queen [1988] SASC 542, considered. -- 2 of 11 -- R v WILSON [2024] SASCA 20 Court of Appeal – Criminal: Kourakis CJ, Bleby and David JJA 1 THE COURT: This is an application by the Director of Public Prosecutions for permission to appeal against sentence. The sole ground of appeal is that the sentence imposed was manifestly inadequate. The Director’s complaint relates to the adoption of a starting point of three months’ imprisonment for a charge of trafficking in a commercial quantity of a controlled drug contrary to s 32(2) of the Controlled Substances Act 1984 (SA) (‘CSA’). 2 On 14 August 2023, the respondent pleaded guilty to three charges: 1. Cultivate a controlled plant – artificially enhanced cultivation contrary to s 33K(1)(ab) of the CSA. It was alleged that the respondent cultivated four cannabis plants at her home. The set up was unsophisticated, other than for the circumstances of artificial enhancement. The maximum penalty for this offence was $2,000 or two years’ imprisonment or both. 2. Possess prescribed equipment contrary to s 33LA(a) of the CSA. This charge concerned equipment that the police seized when they attended at the respondent’s house and located growing equipment. The maximum penalty for this offence was $10,000 or two years’ imprisonment or both. 3. Traffic in a commercial quantity of a controlled drug contrary to s 32(2) of the CSA. The maximum penalty for this offence was a $200,000 fine or imprisonment for 25 years or both. This charge concerned a total of 9.561 kilograms of cannabis located in the respondent’s house. When analysed, the cannabis was moist and mouldy. The forensic science evidence was that the dry weight of the cannabis would be approximately 2.389 kilograms. Ultimately, the prosecution proceeded on the basis that at least 400 grams of the dried cannabis plant material was for personal use. It followed that the subject of this charge was 1.9 kilograms of dried cannabis plant material. The evidence was that if sold by the pound, the cannabis was worth approximately $8,000 to $12,000 or, if sold by the ounce, about $16,000 to $18,000. 3 In 2020, the respondent was convicted of cultivating artificially enhanced cannabis and possessing prescribed equipment. She was convicted of similar offending in 2012. 4 The respondent participated in an interview with police. She said that she had met a man named Tony at the Emu Hotel a few months previously and was talking about cannabis. Tony said he could set her up so she did not have to buy it anymore. He attended at her house, brought in the equipment and set up the room. He also brought in four cannabis plants that were each about one foot tall and planted them for her. She did not pay him anything for this and did not owe or give anything in -- 3 of 11 -- [2024] SASCA 20 The Court 2 return. She said that she did not have any of Tony’s details. After Tony set up the room for cultivation, he disappeared. She did not know where he was. 5 Nonetheless, the respondent pleaded guilty on the basis that 1.9 kilograms of the cannabis were for sale. 6 The respondent had given a strikingly similar explanation for her offending in 2012. However, the prosecution did not contest the factual basis given, other than that the plea proceeded on the basis that 1.9 kilograms was for sale. 7 In sentencing submissions, counsel for the respondent said as follows: And my other understanding was that the cannabis extra, in other words more than what her own use needs were, was to be sent back to the person who gave her the hydroponic equipment. Namely supply. What he did with it after that is up to him. Probably to be on sold or for his own use, but my understanding was that the plea was accepted on the purpose of basically supply although no one quite knows what was going to happen to that balance. It doesn’t matter whatever it is, she is caught by the section and the definition. 8 This was an unusual basis for a plea to an offence under s 32(2). It would appear that the respondent accepted that she was guilty of the offence of trafficking on the basis set out in paragraph (b) of the definition of ‘traffic’ in s 4 of the CSA. She accepted that she was in possession of cannabis knowing that when she returned it to Tony, he would sell it.1 9 The matter proceeded in the Magistrates Court, pursuant to s 116 of the Criminal Procedure Act 1921 (SA) (‘CPA’). This section provides: 116—Forum for sentence (1) If— (a) a defendant pleads guilty to a charge of a major indictable offence (other than treason, murder, or an attempt or conspiracy to commit, or assault with intent to commit, either of those offences); and (b) the prosecution and the defendant consent to the defendant being sentenced by the Magistrates Court, the Magistrates Court is to determine and impose sentence itself unless the Court is of the opinion that the interests of justice require committal to a superior court. (2) Subject to this section, the Magistrates Court may sentence a person for a minor or major indictable offence in the same way as for a summary offence. (3) In determining and imposing sentence in relation to an indictable offence, the Magistrates Court is to observe procedural rules specifically applicable to indictable offences. 1 Symons v The Queen [1988] SASC 542. -- 4 of 11 -- [2024] SASCA 20 The Court 3 (4) The rules may provide that specified provisions of this Act or any other Act or law apply with necessary adaptations and modifications to sentencing by the Magistrates Court of a person charged with an indictable offence. (5) Where the Magistrates Court is to commit a defendant to a superior court for sentence, the following principles govern the choice of forum: (a) the defendant should be committed for sentence in the Supreme Court if— (i) the offence is treason, murder, or an attempt or conspiracy to commit, or assault with intent to commit, either of those offences; or (ii) the gravity of the offences justifies, in the opinion of the Magistrates Court, committal to the Supreme Court; (b) in any other case, the defendant should be committed to the District Court for sentence. 10 The magistrate sentenced the respondent as follows: In relation to the cultivation of cannabis which is the third matter you pleaded guilty to, I would have imposed a period of imprisonment of 3 months, but I reduce that by 10% on account of your plea of guilty, which makes 2 months and 21 days imprisonment. In relation to the first charge, which is the cultivating in enhanced conditions I would have sentenced you to 3 weeks imprisonment. I reduce that by 30% making 15 days imprisonment. That is to be served at the same time as the 2 months and 21 days. The legal word is concurrently. Similarly, in relation to the count involving the prescribed equipment I would have sentenced you to 3 weeks imprisonment, but I reduce that by 30% making 15 days also, to be served concurrently. 11 The final sentence therefore was a period of two months and 21 days’ imprisonment. The magistrate suspended the term of imprisonment on the respondent entering into a bond to be of good behaviour for a period of 10 months. The bond was in the sum of $200. 12 It is to be noted that in the above sentencing remarks, the magistrate erroneously referred to the offence of trafficking as ‘cultivation’. The personal circumstances of the respondent 13 The respondent was 64 years old at the time of sentencing. She had previous convictions as indicated above. She had left school in her early teenage years and had work predominantly in the food, hospitality and cleaning industries. She had lived in stable and secure housing for much of her life, having lived at her house in O’Sullivan Beach for over three decades. She had been a user of cannabis since she was 17 and submitted that this was for health-related reasons. She spent time assisting her older brother and looking after her two-and-a-half-year-old granddaughter for three days each week. -- 5 of 11 -- [2024] SASCA 20 The Court 4 The appeal 14 The Director did not complain that the sentence should not have been suspended. The sole complaint on the appeal was that the starting point for the trafficking offence of three months’ imprisonment was manifestly inadequate, in that it was not within the range of available sentences. The Director emphasised the quantity of the cannabis plant material the subject of the trafficking offence, being 1.9 kilograms. He also submitted that there was nothing exceptional in the personal circumstances of the respondent that warranted such a low starting point. In this regard, he emphasised the respondent’s prior drug-related offending and submitted that while those matters were ultimately dealt with by the imposition of fines, the present offending highlighted the need for the judge to give consideration to a sentence that reflected the criteria of general and specific deterrence. 15 The Director referred to various authorities as providing comparison sentences. The respondent disputed the comparability of these cases. In this regard the Director referred to R v Taylor; R v Teekens;2 R v Devries;3 R v Tsonis;4 R v Faehrmann; R v Moore; R v Price-Austin.5 16 None of these cases is directly comparable, but each shows the application of various relevant principles to the specific factual scenarios and matters brought to account. In each case, the sentences imposed were considerably higher than in the present case. The Director emphasised the well-rehearsed statement of Kourakis CJ in R v Young:6 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. There will be relatively greater scope for rehabilitation in the case of a first offender dealer whose offending arises out of an all-consuming addiction but who has voluntarily embarked on a course of withdrawing from use of the drug. A sentence of less than four years imprisonment may be appropriate for offenders of that kind. However, that level of leniency cannot continue to be extended in the face of persistent offending either whilst on bail, or after sentence on earlier offending. There is much less reason for leniency in the face of persistent and recidivist trafficking even for the heavily addicted street dealer. As the prospects of rehabilitation diminish and the need for personal deterrence increases, the addicted street dealer can expect sentences in the same order as those imposed on the profit driven offenders. 2 [2022] SASCA 79. 3 [2018] SASCFC 101. 4 [2018] SASCFC 86. 5 (2014) 118 SASR 549. 6 (2016) 126 SASR 41 at [65]-[67]. -- 6 of 11 -- [2024] SASCA 20 The Court 5 17 The Director also relied on the following statement by Hinton J in R v Lyberopoulos:7 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. The commercial value of the quantity of the drug trafficked determined by the number of street level deals into which it may be divided, and the market price of such deals, is also relevant. That value reflects the profit incentive motivating the enterprise and the illicit trade more generally whilst the number of street level deals reflects the danger to the community posed by the enterprise in which the offender participates. The preparedness of the individual to involve him or herself in an enterprise of a particular scale is also relevant to the assessment of the individual’s culpability and the deterrent and retributive purposes of any sentence imposed. Thus, 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. It should be borne in mind that drug trafficking enterprises cannot succeed without the involvement of a number of people undertaking particular roles. Where a court sentences a subordinate role player in an enterprise, whatever the immediate benefit that that person sought to obtain, the deterrent purposes of the sentence must aim to deter other would-be subordinates from involving themselves in such enterprises. 18 The Director conceded that the respondent’s personal circumstances warranted consideration of a starting point for imprisonment lower than the range indicted in R v Young,8 that is, of less than four years’ duration. However, he submitted that a starting point of three months was nonetheless well below what was appropriate given the respondent’s antecedents, personal circumstances, the extent of her involvement in the offending and the potential profit she stood to gain. He also emphasised the importance of general and personal deterrence for offending of this kind. He submitted it was apparent that the magistrate had not applied the correct sentencing standards and that the magistrate’s remarks suggested that he had, indeed, proceeded on a wrong basis. 19 The first of these remarks was the initial description in the remarks on penalty with respect to this charge, which commenced: The third charge is trafficking in cannabis. 20 The Director submitted that this wording indicated that it may have been that the Magistrate was proceeding on the basis that the charge was one of trafficking in a controlled drug simpliciter, on a factual basis consistent with the respondent having possessed the cannabis mostly for supply to the male ‘Tony’. Then, as 7 [2017] SASCFC 139 at [33]-[34]. 8 (2016) 126 SASR 41. -- 7 of 11 -- [2024] SASCA 20 The Court 6 already noted, when it came to the imposition of sentences, the Magistrate described this charge as one of ‘cultivation’. 21 These submissions did not extend to asserting process error. Rather, as we understood it, these phrasings were highlighted as indicative of what might have stood behind the abnormally low starting point deployed. 22 The respondent emphasised a number of matters in her favour that warranted a lower than usual starting point for the trafficking offence. Having canvassed these matters above, we are satisfied that they are sufficient to justify a starting point lower than the range indicated in R v Young.9 However, on any view, a starting point of three months’ imprisonment for a charge of trafficking in a commercial quantity of a controlled drug contrary to s 32(2) of the CSA was, even on the accepted factual basis, manifestly inadequate. The more difficult question is whether this is an appropriate case to grant permission to appeal. Permission to appeal 23 The principles applicable to an application by the Director for permission to appeal against sentence are well understood. In R v Kelly, Lovell JA observed:10 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’. 24 As identified above, the prosecution and defence consented to the respondent being sentenced in the Magistrates Court, pursuant to s 116 of the CPA. The fact that this course was agreed upon did not change the maximum penalty for an offence contrary to s 32(2) of the CSA. Neither did it change any of the applicable principles that inform the imposition of a sentence for this offence. The magistrate asked about the maximum penalty. When advised that it was $200,000 or imprisonment for 25 years or both, he observed that this was ‘subject to the jurisdictional limits of this Court’. This was a reference to s 9(4) of the Magistrates Court Act 1991 (SA) (‘Magistrates Court Act’), which provides: (4) The Court does not have the power to impose— (a) a sentence of imprisonment that exceeds— (i) if the penalty is for 1 offence—5 years; and (ii) if the penalty is for more than 1 offence—10 years; or (b) a fine that exceeds— 9 (2016) 126 SASR 41. 10 R v Kelly [2023] SASCA 22 at [45]. -- 8 of 11 -- [2024] SASCA 20 The Court 7 (i) in the case of an offence under the Work Health and Safety Act 2012 being heard by an industrial magistrate—$300 000; or (ii) in any other case—$150 000. 25 Pursuant to s 9(6) of the Magistrates Court Act, these limits apply whether the offence is a summary or an indictable offence. Sub-section 9(7) then provides: (7) If the Court is of the opinion in any particular case that a sentence should be imposed that exceeds the limits prescribed by subsection (4), the Court may remand the defendant to appear for sentence before a superior court. 26 It was correct of the magistrate to indicate that the power to impose the maximum sentence was subject to the jurisdiction of the Court. If the Court was of the view that the trafficking offence warranted a penalty of imprisonment of more than five years, it would have been necessary to remand the respondent to appear before the District Court, notwithstanding the position taken by the prosecution and defence. 27 That was not in prospect in this case. However, the magistrate was nonetheless charged with sentencing the respondent for an offence contrary to s 32(2) of the CSA. The fact that he was limited jurisdictionally to imposing a sentence of no greater than five years did not alter the applicability of the principles relevant to sentencing for that offence, starting with the observations in R v Young, quoted above. 11 28 While the circumstances may have recommended the imposition of a sentence for the offence against s 32(2) somewhere below the range indicated in R v Young, a starting point of three months was well below the appropriate range of sentences available in this case. That fact speaks in favour of a grant of permission. However, there are several other considerations that should be brought to bear on the question. 29 First, it is not clear that the magistrate was assisted with an exposition of the applicable sentencing principles. The transcript of the plea of guilty and sentencing submissions that followed immediately thereafter show that the prosecutor submitted that an immediate custodial penalty was warranted. She referred to R v Young as follows:12 The offending is serious as indicated by the maximum penalty prescribed by Parliament and with the reference to the standards in R v Young, the defendant can be properly characterised as sitting higher than a street level dealer in the drug trafficking hierarchy. 30 The prosecutor went on the refer to the respondent’s previous convictions, the obvious need in this case for personal and general deterrence and the paramount consideration of protection of the community. She noted that the magistrate was 11 R v Young (2016) 126 SASR 41 at [65]-[67]. 12 (2016) 126 SASR 41. -- 9 of 11 -- [2024] SASCA 20 The Court 8 not prevented from suspending the sentence or ordering that it be served on home detention. 31 It does not appear, with respect, that the magistrate was given any real assistance in formulating a sentence for the trafficking offence that accorded with principle. While the prosecution submissions referred to R v Young, they did not explain the range indicated in that case or the nuances attending upon the application, or non-application, of that range. The prosecution also did not draw to the magistrate’s attention any of the other authorities it referred to on this appeal, referenced above. 32 Otherwise, the magistrate was assisted by receiving advice of the maximum penalties and the available discounts for the guilty pleas. The defence made its plea in mitigation, with considerable and understandable emphasis on the respondent’s personal circumstances. The magistrate proceeded directly to sentencing at the end of submissions. 33 The Magistrates Court is an extremely busy court of summary jurisdiction. It does not have the time or the resources necessary to maintain a comprehensive and nuanced command of the principles relevant to sentencing for major indictable offences that come before it on occasion. When such an offence does come before it for sentencing pursuant to s 116, an important and useful facility, it is incumbent on the prosecution to provide the magistrate with the tools necessary for this much less usual exercise of jurisdiction. A failure to provide that assistance speaks against twice vexing the respondent on a Director’s subsequent application for permission to appeal. 34 There are further considerations that operate against a grant of permission in this case. The Director did not take issue with the decision to suspend the sentence. It followed that the respondent would only serve the sentence of imprisonment imposed if she breached the bond. In these circumstances, the consideration of personal deterrence to be served by imposing a lengthier period of imprisonment is of lesser importance. 35 Accepting that the same standards of sentencing must be observed in the Magistrates Court acting under s 116 as in the District Court in the exercise of its usual jurisdiction, it cannot be said, with respect, that a decision of a magistrate will be viewed as an authoritative lessening of those standards. That is especially so if this Court makes clear, as it now does, that the sentencing standards articulated over time must apply in the same way, whichever court exercises the sentencing jurisdiction. Having regard to the way that this matter proceeded in the Magistrates Court, it is not necessary to grant permission to appeal to emphasise the importance of those standards being applied consistently across the jurisdictions. -- 10 of 11 -- [2024] SASCA 20 The Court 9 Conclusion 36 There can be no doubt that the starting point for the trafficking offence was well below the appropriate range for an offence of this seriousness. It was manifestly inadequate. It follows that the final sentence was also manifestly inadequate. However, for the reasons given above, we refuse permission to appeal. -- 11 of 11 --