THOMAS DEAN BOOKER v THE KING [2024] SASCA 21

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE DAVISON) DCCRM-22-1131 Appellant: THOMAS DEAN BOOKER Counsel: MR A CULSHAW - Solicitor: CALDICOTT AND ISAACS LAWYERS Respondent: THE KING Counsel: MR J SLOCOMBE WITH MR J WATSON - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 15/09/2023 File No/s: SCCRM-23-017029 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. BOOKER v THE KING [2024] SASCA 21 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David) 7 March 2024 CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE This is an appeal against sentence. The appellant pleaded guilty to 53 offences relating to drug trafficking and money laundering, committed over a period of about 21 months from February 2020 to November 2021. These included two counts of money laundering, 49 counts of drug trafficking (involving various drugs and quantities), one count of possessing a prescription drug, and one count of importing a commercial quantity of a border-controlled drug (a Commonwealth offence). The offending involved the appellant purchasing, selling and distributing illicit drugs through the ‘darknet’. The total value of the 49 drug trafficking offences amounted to approximately $75,000, with the enterprise yielding a total profit of around $1.5 million over the 21-month period. For the Commonwealth offence, the appellant received an eight-year sentence, reduced to six years on account of his guilty plea, with a non-parole period of three years and two months. The sentencing Judge ordered that the sentence for the remaining State offences to commence at the expiration of the non-parole period for the Commonwealth offence in accordance with s 19(3)(d) of the Crimes Act 1914 (Cth). -- 1 of 35 -- The notional starting point for the State offences was 23 years’ imprisonment, reduced to 17 years and three months' imprisonment on account of the appellant’s guilty pleas. However, the sentencing Judge considered that, in all the circumstances, including the fact that the appellant would be serving his sentence for the Commonwealth offence first, the sentence for the State offences was ‘crushing’. Accordingly, her Honour reduced the head sentence to 15 years’ imprisonment. As the appellant was a serious repeat offender, a non-parole period was fixed at four-fifths of the head sentence, that being 12 years. The combined sentence for the State and Commonwealth offences was therefore 18 years and two months’ imprisonment, with a non-parole period of 15 years and two months. The appellant now complains that the sentence is manifestly excessive (Ground 1). At the appeal hearing, permission was granted for the appellant to add a further ground of appeal, namely that the sentencing Judge erred in applying the principle of totality (Ground 2). There was no challenge to the starting point adopted by the sentencing Judge for each individual offence. Rather, the appellant contends that the overall sentence was disproportionately high considering his personal circumstances and prospects of rehabilitation. Held, per Livesey P and David JA, (Doyle JA agreeing) granting permission to appeal on both grounds but dismissing the appeal: 1. The final sentence imposed was proportionate to the offending and the offender. Given the gravity, sophistication and profitability of the crimes, leniency based on youth and rehabilitation prospects was limited. The safety of the community and the need for deterrence and punishment justified a significant term of imprisonment. There was no misapplication of the totality principle and the sentence was not manifestly excessive. 2. Per Doyle JA, observations as to the principle of totality where the sentence is 'crushing'. Controlled Substances Act 1984 (SA) ss 18(3), 32(1), 32(2), 32(3), 33N, 44(2); Crimes Act 1914 (Cth) s 19(3)(d); Criminal Code Act 1995 (Cth) s 307.1; Criminal Law Consolidation Act 1935 (SA) s 138(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A; Sentencing Act 2017 (SA) s 54, referred to. R v Collopy; R v Cooley [2017] SASCFC 64; R v Donald; R v Pitt; R v Whitaker (2016) 126 SASR 276; R v Young (2016) 126 SASR 41, distinguished. Lane v The Queen [2020] SASCFC 82; R v Creed (1985) 37 SASR 566; R v E, AD (2005) 93 SASR 20; R v Rossi (1988) 142 LSJS 451; Warner v The King [2022] SASCA 142, discussed. Azzopardi v The Queen; Baltatzis v The Queen; Gabriel v The Queen (2011) 35 VR 43; Benfell v The King [2024] SASCA 16; Bubner v The Queen (2022) 99 MVR 94; Bugmy v The Queen (2013) 249 CLR 571; Cuong v The Queen [2021] SASCA 89; DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; Edmonds (A Pseudonym) v The Queen [2022] SASCA 11; Hai Ngoc Nguyen v The Queen; Xuan Binh Tran v The Queen; Thanh Chi Nyugen v The Queen (2022) 140 SASR 554; Hilfy v The Queen [2020] SASCFC 72 ; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; Johnson v The Queen (2004) 78 ALJR 616; Kohler v Police (2013) 63 MVR 507; Morton v The King [2023] VSCA 175; Markarian v The Queen (2005) 228 CLR 357; R v Arnold [2015] SASCFC 23; R v Di Maria (1996) 67 SASR 466; R v McGaffin (2010) 206 A Crim R 188; R v Place (2002) 81 SASR 395; R v Tassone (2011) 209 A Crim R 290; White (A Pseudonym) v The Queen [2022] SASCA 78, considered. -- 2 of 35 -- BOOKER v THE KING [2024] SASCA 21 Court of Appeal – Criminal: Livesey P, Doyle and David JJA 1 LIVESEY P and DAVID JA: The appellant pleaded guilty to 53 offences related to drug trafficking and money laundering, committed over a period of about 21 months from February 2020 to November 2021.1 Specifically, the appellant pleaded guilty to: • two counts of money laundering (Counts 31 and 61); • 49 counts of drug trafficking (in various quantities and of various drugs); • one count of possession of a prescription drug (Count 60); and • one count of importing a commercial quantity of a border-controlled drug (Count 9), which was a Commonwealth offence. 2 The appellant was jointly charged with Mr Ryan Jordan Suri-Tucker, an associate, and Ms Erin May Gold, his domestic partner at the time. 3 The appellant’s offending was committed against a background of many uncharged acts. It involved buying, selling and distributing illicit drugs, namely Lysergic Acid Diethylamide (‘LSD’), Methylenedioxymethamphetamine (‘MDMA’), cannabis, cannabis resin, Dimethyltryptamine (‘DMT’) and cocaine, via the ‘darknet’. The total value of the 49 counts of trafficking in various quantities was about $75,000. The total profit of the enterprise (including the numerous uncharged occasions of drug trafficking) over a 21-month period was about $1.5 million. 4 The following table sets out the offences subject to this appeal, and in respect of each offence: the maximum penalty; the starting point adopted by the sentencing Judge; the reduction on account of the appellant’s guilty plea; the resulting sentence; and the extent to which the sentencing Judge ordered the sentence be served concurrently or cumulatively. 1 The drug trafficking enterprise ran from late 2019, however the charged acts commence from February 2020. -- 3 of 35 -- [2024] SASCA 21 Livesey P and David JA 2 Count Charge and maximum penalty Starting point Discount Sentence Notes Commonwealth offence 9 Importation of a commercial quantity of a border controlled drug, contrary to s 307.1 of the Criminal Code Act 1995 (Cth) (LSD) Maximum penalty: life imprisonment or 7,500 penalty units, or both. 8 years 25% 6 years with a non-parole period of 3 years, 2 months. The sentence for the State offences set out below were ordered to commence at the expiration of the non- parole period for this offence in accordance with s 19(3)(d) of the Crimes Act 1914 (Cth). State Offences 1, 5, 7, 11- 12, 15-18, 21, 24-25, 29-30, 53 Trafficking in a large commercial quantity of a controlled drug, contrary to s 32(1) of the Controlled Substances Act 1984 (SA) (‘CSA’). (LSD) Maximum penalty: life imprisonment or a fine of up to $1,000,000, or both. 7 years 25% 5 years, 3 months. Wholly concurrent with one another. 40-41 Trafficking in a large commercial quantity of a controlled drug, contrary to s 32(1) of the CSA. (LSD) Maximum penalty: life imprisonment or a fine of up to $1,000,000, or both. 35% 4 years, 6 months, 19 days. -- 4 of 35 -- [2024] SASCA 21 Livesey P and David JA 3 Count Charge and maximum penalty Starting point Discount Sentence Notes 2-4, 6, 8, 10, 13, 19, 26, 42-52, 54-58 Trafficking in a controlled drug, contrary to s 32(3) of the CSA. (LSD, Cocaine, MDMA, DMT, Cannabis, Cannabis Resin, Psilocin). Maximum penalty: 10 years imprisonment or a fine of up to $50,000, or both. 5 years 25% 3 years, 9 months. Wholly concurrent with one another, cumulative on the above sentences. 14, 20, 22- 23, 27-28, 59 Trafficking in a commercial quantity of a controlled drug, contrary to s 32(2) of the CSA. (LSD) Maximum penalty: 25 years imprisonment or a fine of up to $200,000, or both. 6 years 25% 4 years, 6 months. Wholly concurrent with one another, cumulative on the above sentences. 31, 61 Money laundering, contrary to s 138(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). ($460,300 and $340,145, respectively) Maximum penalty: 20 years imprisonment. 5 years 25% 3 years, 9 months. Wholly concurrent with one another, cumulative on the above sentences. 60 Possession of a prescription drug (testosterone), contrary to s 18(3) of the CSA. Maximum penalty: 2 years imprisonment or a fine of up to $10,000. NA NA NA Convicted without further penalty. Total head sentence after discount 17 years, 3 months -- 5 of 35 -- [2024] SASCA 21 Livesey P and David JA 4 5 The sentencing Judge ordered that the sentence imposed for the State offences commence at the expiration of the non-parole period on the Commonwealth offence. This meant that the sentence for the State offences was effectively cumulative upon three years and two months of the sentence imposed for the Commonwealth offence. 6 The notional starting point for the State offences was 23 years’ imprisonment, reduced to 17 years and three months’ imprisonment on account of the appellant’s guilty pleas. However, the sentencing Judge considered that, in all the circumstances, including the fact that the appellant would be serving his sentence for the Commonwealth offence first, the sentence for the State offences was ‘crushing’. Accordingly, her Honour reduced the head sentence to 15 years’ imprisonment. The sentencing Judge fixed a non-parole period of four-fifths of the head sentence, as the appellant was a serious repeat offender. This resulted in a non-parole period of 12 years. 7 The combined head sentence for the State and Commonwealth offences was therefore 18 years and two months’ imprisonment, with a non-parole period of 15 years and two months. 8 The sentencing Judge annexed a table to her sentencing remarks, outlining the details of the offences (including the drug involved and value of each transaction) and the penalty imposed for each offence (after a reduction on the account of the guilty plea but before applying the principles of concurrency and totality). The annexure is attached to this judgment to provide further clarity. Grounds of appeal 9 The appellant complains that the sentence is manifestly excessive (Ground 1). At the appeal hearing, permission was granted for the appellant to add a further ground of appeal. Namely, that having determined that the total of the accumulated sentences would be ‘crushing,’ the sentencing Judge erred in the application of the totality principle by failing to make a reduction to the total sentence that advanced the purposes of such a reduction (Ground 2). 10 For the reasons that follow, we grant permission to appeal on both grounds but dismiss the appeal. The offending 11 The appellant established an online drug trafficking business which advertised the sale of a variety of illicit substances to online customers on ‘darknet’ websites in 2019. The business operated under the username ‘underlinecost’. The relevant websites were not readily accessible on the open internet but could be accessed using a program called ‘TOR’, which could be downloaded and opened to facilitate access to the darknet. The darknet provides anonymity for its users and makes the tracking of online activities difficult for law enforcement authorities. Marketplaces operating on the darknet allow vendors, such as the -- 6 of 35 -- [2024] SASCA 21 Livesey P and David JA 5 appellant, to advertise their products and enable customers to purchase them via the transfer of cryptocurrency. 12 Over the course of about 21 months, the appellant was involved in thousands of drug transactions, resulting in a profit of over $1.5 million. The full extent of the appellant’s drug trafficking business via the darknet was revealed in three ledger notebooks seized from his property at Rosina Street, Adelaide (‘the Rosina Street premises’), and from Mr Suri-Tucker’s property at Cross Road, Kings Park (‘the Cross Road premises’). Police also located a large sum of cash at the Rosina Street premises and in a locked safety box associated with the appellant. 13 The appellant and Mr Suri-Tucker were arrested by police at the Cross Road premises on 22 November 2021. At that time, they were in the process of packaging numerous controlled substances for the purpose of sale. At around the same time, Ms Gold was arrested and conveyed to the Rosina Street premises, where police located more illicit drugs and cash related to the charged offences. 14 As outlined earlier, the appellant fell to be sentenced for 53 offences. More specifically, the factual circumstances of the charged offending were as follows: Counts 1-8 and 10-30 – the online and ledger sales 15 The appellant operated an account on multiple darknet marketplaces under the username ‘underlinecost’. His online profile used identical public and private cryptocurrency keys across various darknet marketplace websites, including ‘The Whitehouse Market’, ‘ToRRez Market,’ and ‘Dark0de Market’. The public key serves as an address for payment of cryptocurrency from a customer into a cryptocurrency wallet and can be distributed to customers without the risk of anyone being able to access the cryptocurrency held within the wallet. The private key is similar to a password that is used to access the cryptocurrency wallet attached to the public key. 16 The transactions that are the subjects of Counts 1 to 8 and Count 10 were facilitated through ‘The Whitehouse Market’. This website was closed in October 2021. The public key on the appellant’s page was available for viewing and identical to the public key displayed on the other websites, where his profile advertised illicit substances for sale. 17 On ‘The Whitehouse Market’, the appellant had listed approximately 2,140 previous sales of a variety of substances, including LSD, steroids, Valium and cocaine. 18 The charged offences related to a representative number of sales of illicit substances by reference to the previous sales and listings on this website dating back to 12 February 2020. 19 The sales conducted on ‘The Whitehouse Market’ shared an approximate one-year overlap with the sales conducted on ‘ToRRez Market’. The appellant -- 7 of 35 -- [2024] SASCA 21 Livesey P and David JA 6 operated a profile on this marketplace from 1 October 2020. His profile vendor page displayed 1,504 previous sales of a variety of substances, including LSD, steroids, Valium and cocaine. 20 The appellant also operated a profile on ‘Dark0de Market’ from 2 October 2021. The relevant listings on the appellant’s ‘Dark0de Market’ vendor page were for LSD and cocaine. 21 In addition to facilitating transactions via the aforementioned marketplaces, the appellant advertised that he was willing to conduct ‘direct deals’ on other darknet forums. A direct deal is a method of sale whereby the appellant sold illicit drugs directly to customers via ‘Wickr’ or ‘Signal’ (which allow for end-to-end encrypted messaging), as opposed to customers placing an order on any of the respective darknet websites. The purchase was then completed via the transfer of cryptocurrency to the appellant’s wallet. 22 The advantage of a direct deal was that it provided a more efficient method of selling drugs while still allowing for anonymity. It also allowed vendors to avoid having to pay any fees or commission to a marketplace website, thereby resulting in greater profit margins. 23 Police seized three ledger notebooks from the Rosina Street premises and Cross Road premises. They contained numerous entries detailing the relevant customers’ darknet usernames, the type and amount of drugs sold to each customer, and the express post tracking label. Dates were recorded at the top of each page, along with a reference to multiple darknet platforms from which the appellant was selling illicit substances under the username ‘underlinecost’. The ledgers revealed that the appellant was selling illicit drugs both through darknet marketplace websites and through direct deals. 24 Counts 11 to 30 are representative of the multitude of sales contained in the ledgers and of an ongoing course of conduct involving the sale of various illicit substances between 19 May 2021 and 19 November 2021. 25 The appellant was placed under police surveillance. He was observed by police placing express post parcels in post boxes consistent with the method of delivery advertised by his user profile on the darknet. The appellant was also observed attending the Cross Road premises on multiple occasions. It was alleged that the appellant and Mr Suri-Tucker worked together at the Cross Road and Rosina Street premises to package drugs for delivery via express post. Count 9 – The importation offence 26 Count 9 relates to the importation of a commercial quantity of a border-controlled drug, namely 8,000 ‘California Sunshine’ LSD tabs, which arrived in Australia via DHL Delivery Service from Luxembourg. Australian Border Force Officers identified a package containing the drugs on 26 March 2021. The package was directed to a post office box located in Marden, registered in the -- 8 of 35 -- [2024] SASCA 21 Livesey P and David JA 7 name of ‘Daniel Sullivan’. CCTV footage showed the appellant attending at the post office to collect the package. A Samsung mobile phone later seized from the appellant had a label attached to the back with details consistent with those used for this package by Australia Post and DHL. Counts 40 and 41 – The covert purchases 27 An undercover operation was authorised in relation to the appellant’s illegal activities. Under this covert operation, between 26 July 2021 and 22 November 021, police made eight separate purchases of LSD from the appellant by way of either a ‘direct deals’ or via ‘ToRReZ Market’. All the illegal substances were posted to an undercover officer. The details of these transactions were recorded in the ledgers later seized from the Rosina Street and Cross Road premises. Seven transactions are the subject of one charged offence (Count 40).2 The order that was placed on 22 November 2021 (Count 41) was never sent as it coincided with the date of the appellant’s arrest. Counts 42-53 – The Cross Road offences 28 On 22 November 2021, police attended at the Cross Road premises and arrested the appellant and Mr Suri-Tucker. Police conducted a search of the premises and seized illicit drugs. 29 In the bedroom, police located a substantial amount of illicit drugs and packaging consistent with that used in the covert purchases (the subject of Count 40). Police also found a laptop which was owned by Mr Suri-Tucker. The laptop was switched on and had a darknet web browser open (TOR), which was logged into the appellant’s account on ‘ToRReZ Market’. In front of the laptop, police found a ledger consistent with the two ledgers later located at the Rosina Street premises. 30 Also located in the bedroom were supplies of drugs ready to be packaged. Some of the drugs were pre-sealed in silver foil bags with plastic sleeves. These sleeves had stickers on them with various weights that enabled efficient packaging for the filling of orders. The supplies of these drugs included: 1.794kg of dried cannabis (Count 43); 243 tabs of LSD (Count 53); and 25.31g of cocaine (Count 52). 31 The were also sealed parcels addressed to locations in New South Wales, Queensland, Western Australia and Roxby Downs. These parcels held individual amounts of LSD or cocaine (Counts 44 to 51). 32 In the dining room of the Cross Road premises, police also located 694.6g of cannabis (Count 42). 2 Pursuant to s33N of the CSA. -- 9 of 35 -- [2024] SASCA 21 Livesey P and David JA 8 Counts 54-60 – The Rosina Street offences 33 On 22 November 2021, police also conducted a search of the Rosina Street premises, which was the home address of the appellant and Ms Gold. In a cupboard in the hallway, police located a safe. Within the safe, police found cash in the amount of $340,145 (Count 61), a card with several printed words alleged to be a ‘crypto seed’ or a password capable of reconstituting a digital wallet containing cryptocurrency and a yellow envelope marked ‘Safe 987 Key No. 11446’ containing a key. Two pre-sealed bags containing 7.05g of cocaine (Count 58) were found in front of the safe. Next to the safe was a strip of five tabs of LSD (Count 59). Additionally, a cash counting machine was found in the hallway cupboard. 34 In a second bedroom that had been converted into a study, police found a sealed bag containing 1.61g of MDMA (Count 56), three containers and two press-sealed bags containing 26.2g of dried cannabis (Count 54) and 25.9g of loose cannabis on the desk (also the subject of Count 54). There was also a glass jar containing 33.9g of cannabis resin (Count 55). Five post office box keys with various names attached to them, including ‘Daniel Sullivan’, were discovered, along with a label printer, a box of label rolls, a pocket book containing numerous identification cards, a heat sealer machine and, located under the desk, a plastic pre-sealed bag containing 181g of Psilocin (Count 57). 35 Also located in the study was a side table with four drawers. Within those drawers police found a bag with 15 tablets of MDMA (Count 56), 72 tabs of LSD in a press-sealed bag (Count 59), $150 cash, multiple heat seal bags, a press-sealed bag containing 1.20g of Ketamine (uncharged), a further 10 tabs of LSD (also the subject of Count 59), labels, a multipack of press-sealed bags, and a notebook containing details of numerous sales of illicit substances with express post tracking details consistent with the ledger found at the Cross Road premises. Additionally, a tub with a further 4.94g of MDMA (also the subject of Count 56) and four plastic containers containing a total of 187.3g of cannabis (also the subject of Count 54) were found. 36 Other items located in the study included a packet of gelatine capsules, a set of scales with a container, two grinders, several notebooks, several post bags in the name of the appellant and several USB sticks and storage devices. 37 In the master bedroom, police located five vials of testosterone and two press-sealed bags containing testosterone (Count 60), numerous press-sealed bags containing a total of 20.96g of MDMA (also the subject of Count 56) and two press-sealed bags of ketamine (uncharged). 38 In the kitchen, a press-sealed bag containing 0.17g of cocaine (uncharged), two sums of cash in the amounts of $3,000 and $1,300 respectively, mobile phones, and a driver’s licence in a false name with the appellant’s photograph were found. -- 10 of 35 -- [2024] SASCA 21 Livesey P and David JA 9 39 The total aggregate weights of the substances found by police at the Rosina Street premises are as follows: • 239.4g of cannabis (Count 54); • 33.9g of cannabis resin (Count 55); • 31.2g of MDMA (Count 56); • 181g of psilocin (Count 57); • 7.05g of cocaine (Count 58); and • 87 tabs of LSD (Count 59). Counts 31 and 61 – The money laundering offences 40 As mentioned earlier, a sum of $340,145 in cash was found in a safe at the Rosina Street premises (Count 61). 41 On 23 November 2021, police attended at the office of the Australian Executor Trustee. There, they accessed a safety deposit box using a key found in the hallway cupboard at the Rosina Street Premises. Inside the safety deposit box, within sealed bags, was cash totalling $460,300. 42 The total amount of cash seized was $800,445 (Counts 31 and 61). Additionally, cryptocurrency was seized from the darknet marketplaces and various cryptocurrency wallets, amounting to $717,953.65 (uncharged). 43 From this recapitulation of the factual circumstances of the offending, it is evident that the appellant’s drug trafficking business was extensive, well-organised, involved numerous types of illicit substances, and was financially lucrative. At the time of his arrest, the appellant had over $800,000 in cash in his possession and access to over $700,000 in cryptocurrency. The appellant’s personal circumstances 44 The appellant was 25 years old at the start of his offending and 28 years old at the time of sentencing. He was born and raised in Adelaide and had a stable upbringing. The appellant’s parents, now divorced, remain supportive of him. He performed well in school and, upon completing year 12, enrolled in a Certificate III in Policing at TAFE SA. Around late 2013 or early 2014, he was accepted into the South Australian Police (‘SAPOL’) and commenced training at the Police Academy. The appellant worked as a police officer from 2014 until January 2019. During that period, he also completed an Advanced Diploma in Policing. 45 In late December 2018, the appellant’s wife of several months committed suicide. He first met his wife in late 2013 and, until his marriage to her in October 2018, engaged in a polyamorous relationship with her and Ms Gold. The -- 11 of 35 -- [2024] SASCA 21 Livesey P and David JA 10 appellant’s wife went missing in late December 2018, and her body was not located until early January 2019. Her death was the subject of a coronial inquiry, during which the appellant disclosed to investigators that he had used cocaine and LSD recreationally. As a result of these disclosures, his employment with SAPOL was suspended pending a separate internal investigation into his drug use. 46 Due to the stress of his wife’s death and the internal investigation, the appellant resigned from SAPOL in late 2019. 47 After leaving SAPOL, the appellant obtained employment in the hospitality industry. As he was no longer the subject of obligations as a police officer and due to the emotional stress of his wife’s death, the appellant started abusing drugs and alcohol. 48 Initially, the appellant purchased LSD in small amounts for himself from the darknet as it was cheaper than buying drugs from street dealers. Around mid-2019, he began purchasing drugs in bulk and on-selling them to friends and acquaintances for a small profit. By late 2019, the appellant had established an online account on the darknet under the name ‘underlinecost’, which he used to facilitate transactions both for himself and on behalf of others. 49 During March 2020, as a result of the COVID-19 pandemic, the appellant’s employment within the hospitality industry was terminated. Additionally, the demand for illicit drugs via the darknet increased. It was in this context that the appellant’s drug business became his primary source of income. Around this time, the appellant was contacted by a supplier purportedly based in Amsterdam offering to send him a sample of LSD to inspect for free. The appellant accepted his offer and was subsequently sent 5,000 tabs of LSD via DHL express post, all of which he was able to sell on the darknet marketplace within a short period of time. Consequently, the appellant entered into an agreement with the supplier in Amsterdam whereby he would pay a 50 per cent deposit when an order was placed and would pay the remaining 50 per cent upon receipt of the order. From this point on, the appellant focused solely on operating his darknet marketplace account. He primarily sold LSD but also cocaine, MDMA and, to a lesser extent, psychedelic drugs (Psilocybin and DMT) and cannabis. 50 After his wife’s death in December 2018, the appellant resumed an intimate relationship with Ms Gold. In late 2020, the appellant and Ms Gold purchased the Rosina Street premises together. To be approved for a home loan, the appellant needed to provide the bank with proof of income. Accordingly, he obtained work as a concierge at Colliers International from around October or November 2020 until March 2021. 51 From March 2021, when the home loan was approved, the appellant resigned from his employment, and resumed his full-time business of selling drugs on the darknet. He continued to do so until his arrest in November 2021. -- 12 of 35 -- [2024] SASCA 21 Livesey P and David JA 11 52 At the time of his arrest, the appellant was regularly consuming illicit drugs. Prior to resigning from SAPOL, he had only used drugs recreationally (mainly LSD, cocaine and cannabis). However, after the death of his wife, resignation from the police force, and entry into the hospitality industry, the appellant started using MDMA several times a week and smoking cannabis daily (about one ounce per month) as a means of coping with his emotional distress. From early 2020 until his arrest in November 2021, he was also consuming alcohol at least five days a week (on average between five to 20 standard drinks). The appellant began using cocaine from about September 2020. By early 2021, he was consuming between one and three grams of cocaine each day, although he ceased using cocaine for a period of several days around August or September 2021 when he travelled to Tasmania with Ms Gold. Additionally, the appellant was taking non-prescribed testosterone, which is the basis for the charge of unlawful possession of a prescription drug (Count 60). 53 Dr Lorrain Lim, in a psychological report dated 23 February 2023, opined that the appellant satisfied the diagnostic criteria for various substance abuse disorders, including alcohol, cannabis, psychostimulants (cocaine and MDMA) and hallucinogens (LSD). She considered that the appellant’s disorders were precipitated by a range of psycho-emotional and social stressors, including grief arising from his wife’s death, his resignation from the police force, and his abrupt loss of a professional and social support network. Dr Lim said that the development of these disorders was exacerbated and normalised by his exposure to a drinking and drug culture while working in hospitality. Dr Lim considered that the appellant’s offending conduct could be explained by his substantial substance abuse. Dr Lim was of the view that since his arrest, he has ‘developed good insight into his offending behaviours,’ and there are a number of factors which reduce the appellant’s risk of reoffending, including his supportive family network and employment opportunities upon his release from prison. 54 Ultimately, Dr Lim came to the conclusion that: … [the appellant] will remain at ‘Low’ risk of drug and general reoffending if he remains abstinent from illicit drug use and his psychological functioning remains stable. I believe that [he] has positive prospects of rehabilitation and a good prognosis for the future. 55 The appellant has no prior convictions. 56 Since his arrest, the appellant has been remanded in custody. He has worked in the kitchens at Mount Gambier Prison and has participated in rehabilitation programs, including the Positive Psychology Inside Out Program, which he completed in August 2022, and the Smart Recovery Program, which he completed in January 2023. He has also completed a 12-week Relapse Prevention Program with Life Without Barriers. Having completed these programs, the appellant told Dr Lim that he no longer experiences the desire to use drugs and he does not believe he will reoffend. He said he accepted full responsibility for his offending -- 13 of 35 -- [2024] SASCA 21 Livesey P and David JA 12 and that he would like to engage in psychological support to address his unresolved grief over his wife’s suicide. Sentencing remarks 57 The sentencing Judge characterised the appellant’s offending as very serious and noted that it occurred against a background of uncharged acts. Her Honour observed that the appellant was responsible for setting up and ‘operating a significant online drug distribution business’. Later, in emphasising the seriousness of the appellant’s offending, her Honour said: As I have said your offending is very serious, you played a pivotal role in relation to this offending having set up the profile in 2019, accessed the marketplaces and set up the wallets to enable the cryptocurrency to be received and retained. … It is perhaps by looking at the amount of money that you amassed over a short period of time, when you had no other visible means of support, other than your job as a concierge for a short time, that properly reflects the scale of your offending. In addition to this, the ledgers that were located by the police demonstrate that your business was run in a systematic and controlled manner with significant expertise. 58 The sentencing Judge also had regard to the appellant’s favourable personal circumstances, including his rehabilitative efforts since arrest, his supportive family, and his lack of prior convictions. Her Honour also referred to the appellant’s cooperation with the authorities, the letters of support tendered on his behalf and his letter of apology, which she accepted was a genuine acknowledgment of the serious nature of the offending. Her Honour referred to the psychological report of Dr Lim, noting her opinion that the appellant met the criteria for a substance abuse disorder, and that he posed a low risk of reoffending if he remained abstinent from drugs and maintained stable psychological functioning. 59 Before turning to sentence, her Honour emphasised the seriousness of the offending considered as a whole, stating: The nature of this offending and utilising the dark net to traffic a wide range of drugs over a lengthy period of time is very serious. The offences were committed at a time where many areas of Australia were experiencing lockdowns as a result of the pandemic. The fact that people could purchase drugs with relative anonymity, both young and old, no doubt encouraged those who would not otherwise have engaged in the dangerous and seedier side of drug dealing You both, in effect normalised it, as is it was a part of any other online shopping. Most of the drugs that you were dealing are dangerous and addictive. The damage that you did and the misery that you have caused cannot be underestimated. 60 The sentencing Judge then proceeded to impose the sentence set out above. It was common ground between the parties that the appellant fell to be sentenced as a serious repeat offender for the purposes of s 54 the Sentencing Act 2017 (SA) -- 14 of 35 -- [2024] SASCA 21 Livesey P and David JA 13 (‘the Sentencing Act’). Accordingly, the non-parole period was required to be at least four-fifths of the head sentence. There was no submission made to the sentencing Judge, or on appeal that the sentence should be other than proportional to the offending. The appeal Ground 1 – manifest excess 61 The principles governing an appeal against sentence on the ground of manifest excess are well-established. The determinative question is whether, after considering all the circumstances relevant to sentence, and notwithstanding that no specific error of reasoning may be apparent, the sentence imposed was unreasonable or plainly unjust.3 In answering that question, it is necessary for this Court to consider all matters relevant to the determination of sentence, including the maximum penalty for the offending, the objective circumstances of the offending in comparison to the seriousness of crimes of that type, and the personal circumstances of the offender. Ultimately, however, manifest excess is a conclusion and may not permit of lengthy exposition.4 62 It is not sufficient for an appellate court to merely conclude that it would have come to a different decision from that reached by the sentencing Judge, or that the sentence imposed is markedly different from sentences imposed in other cases.5 Rather, for an appellate court to intervene, it must be established that the sentencing Judge came to a decision that is unreasonable or plainly unjust.6 63 The appellant complains that the combination of the Commonwealth and State sentences leading to a head sentence of 18 years and two months and a non-parole period of 15 years and two months was ultimately disproportionate to the circumstances of the offending and this offender. 64 The appellant contends that there were aspects of the offending which called for some leniency. 65 First, while acknowledging the seriousness of the offending considered as a whole, the appellant submits that the actual financial reward from the drug 3 House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ; Markarian v The Queen (2005) 228 CLR 357 at [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ; Hilfy v The Queen [2020] SASCFC 72 at [36]-[38] per Nicholson J (with whom Peek and Stanley JJ agreed); Bubner v The Queen (2022) 99 MVR 94 at [31] per Livesey P, Doyle and David JJA. 4 Hili v The Queen (2010) 242 CLR 520 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. 5 Hili v The Queen (2010) 242 CLR 520 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; Bugmy v The Queen (2013) 249 CLR 571 at [24] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ. 6 House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ; Markarian v The Queen (2005) 228 CLR 357 at [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ; Hilfy v The Queen [2020] SASCFC 72 at [36]-[38] per Nicholson J (with whom Peek and Stanley JJ agreed); Bubner v The Queen (2022) 99 MVR 94 at [31] per Livesey P, Doyle and David JJA. See also Cuong v The Queen [2021] SASCA 89 per Livesey P at [43]. -- 15 of 35 -- [2024] SASCA 21 Livesey P and David JA 14 trafficking offences, to which he pleaded guilty, is not as substantial as one might expect. The more serious trafficking offences involved the drug LSD. The appellant submits that the quantities and value of LSD, the subject of these offences, are anomalously low compared to other drugs. For instance, the most valuable transaction among the 17 counts of trafficking in a large commercial quantity of LSD was worth $2,150, with nine of the counts valued at less than $1,000. Further, the total value of drugs involved in all 49 trafficking offences was approximately $75,000, with about one-third of that sum attributed to two counts of trafficking in cannabis (Counts 42 and 43). Bearing those matters in mind, the appellant submits that it is important not to be seduced by the sheer number of counts of ‘large commercial’ offending, as the actual commerciality involved in each offence was less significant than many offences of trafficking simpliciter. 66 However, this contention overlooks the breadth of the charged offending when considered in its complete context. The offending occurred over about a 21- month period and involved six different drugs. The appellant utilised the internet and technology to enhance the efficiency of his business and to evade detection. He amassed a substantial profit over that period, as evidenced by the cash seized from the Rosina Street premises and the safety box, totalling over $800,000 (the subject of the money laundering charges). 67 Moreover, the charges were not isolated incidents but occurred against a background of numerous uncharged acts of drug trafficking, as indicated by the three ledgers, darknet sites and the uncharged cryptocurrency. In fact, his profit amounted to approximately $1.5 million. 68 The appellant submits that ‘[o]ne must be cautious not to effectively, even subconsciously, impose a sentence for uncharged drug trafficking by a sidewind through the sentence imposed for money laundering’. While this caution may be accepted, the sentencing Judge was also obliged to consider the individual counts of drugs trafficking and the two counts of money laundering cumulatively, as part of one unlawful business conducted over 21 months. Thus, the relatively small quantity of drugs involved in each individual count did little to diminish the seriousness of the offending. Moreover, although the appellant could not be sentenced for the uncharged acts of drug trafficking or money laundering, they reduced the scope for leniency in sentence. 69 Secondly, the appellant also relies on his favourable personal circumstances to support his contention that the overall sentence was manifestly excessive. He emphasised that he made admissions to police, entered his guilty pleas early, cooperated with authorities in respect of the confiscation proceedings and, through his letter of apology, demonstrated insight into his offending. Additionally, he had a supportive family network and employment opportunities. In particular, the appellant submits that the length of the sentence of imprisonment did not properly reflect his relative youth, lack of prior convictions and low risk of reoffending. -- 16 of 35 -- [2024] SASCA 21 Livesey P and David JA 15 70 The courts have recognised that youth is usually a mitigating factor in sentencing. This is because young offenders may be more prone to ill-considered conduct because they do not fully appreciate the nature, seriousness and consequences of the criminality involved in their actions. Furthermore, there is often potential for young offenders to be redeemed and rehabilitated.7 However, as the level of seriousness of the offending increases, there will be a corresponding reduction in the mitigating effects of the offender’s youth.8 71 It is to be accepted that the appellant’s personal circumstances were favourable. He was aged 25 at the time of the offending and had no criminal history. Importantly, he had shown insight into his offending and undertaken various steps to address his drug addictions and other psychological issues operating at the time of the offending. However, the weight to be afforded to those matters as mitigatory factors was significantly reduced by the gravity of the offending. As outlined earlier, the offending was protracted and committed for a substantial profit. The distribution and proliferation of illegal drugs in our community cause great harm and damage. For that reason, in the case of serious drug trafficking offences, general deterrence weighs heavily in the construction of sentence, even for first-time offenders.9 72 In support of his complaint of manifest excess, the appellant also relies on a comparison with sentences imposed in R v Collopy; R v Cooley10 (‘Collopy’) and R v Donald; R v Pitt; R v Whitaker11 (‘R v Donald’). There is often limited utility in such an approach, bearing in mind that there is no single correct sentence, and sentencing judges should be afforded ‘as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected’.12 However, while sentences imposed in other cases do not determine whether the sentence under review is erroneous, they can provide guidance to the appellate court and, in some circumstances, stand as a yardstick against which to examine a proposed sentence.13 73 In Collopy, the defendants pleaded guilty to 30 counts of drug trafficking offences involving the sale of drugs via the darknet. The defendant Collopy also pleaded guilty to four counts of failing to comply with his bail agreement. The 7 R v McGaffin (2010) 206 A Crim R 188 at [69] per White J (with whom Doyle CJ agreed); Kohler v Police (2013) 63 MVR 507 at [23] per White J; Morton v The King [2023] VSCA 175 at [44]-[48] per Walker JA. 8 Azzopardi v The Queen; Baltatzis v The Queen; Gabriel v The Queen (2011) 35 VR 43 at [44] per Redlich JA (with whom Coghlan and Macaulay agreed); Benfell v The King [2024] SASCA 16 at [41]- [44] per Livesey P, Doyle and David JJA. 9 R v Di Maria (1996) 67 SASR 466 at 477 per Doyle CJ (with whom Prior and Nyland JJ agreed); R v Tassone (2011) 209 A Crim R 290 at [32] per Gray, Sulan and Anderson JJ; R v Arnold [2015] SASCFC 23 at [65] per Stanley J (with whom Kelly J agreed); Hai Ngoc Nguyen v The Queen; Xuan Binh Tran v The Queen; Thanh Chi Nyugen v The Queen (2022) 140 SASR 554 at [114] per Livesey P and Stanley AJA. 10 [2017] SASCFC 64. 11 (2016) 126 SASR 276 (‘R v Donald’). 12 Johnson v The Queen (2004) 78 ALJR 616 at [26] per Gummow, Callinan and Heydon JJ. 13 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, 70-71 [303]-[304] per Simpson J. -- 17 of 35 -- [2024] SASCA 21 Livesey P and David JA 16 defendants sourced illicit drugs from overseas via marketplaces on the darknet. They then on-sold the drugs via their own stalls on the darknet for bitcoin, using false identities. The drug trafficking offending occurred over a period of six weeks, and their profit was about $108,000. For Cooley, the sentencing Judge adopted a starting point of imprisonment for 18 years reduced to 14 years and six months on account of his guilty pleas and cooperation with police. For Collopy, the sentencing Judge also adopted a starting point of imprisonment for 18 years reduced to 16 years and two months on account of his guilty pleas, which was further reduced to 15 years and eight months for time spent in custody.14 74 The Court held that a starting point of 18 years’ imprisonment was manifestly excessive, and the appeal was allowed. On re-sentencing, Lovell J (with whom Peek and Blue JJ agreed) held that the two defendants should be classified as ‘mid-level dealers, trading in a wide range of drugs with profit as the main focus of their business’.15 Justice Lovell proceeded on the basis that the trafficking occurred over a six-week period, involved small amounts of various drugs and that the defendants effectively operated a ‘shopfront’ for drugs on the darknet. His Honour also noted that the offending was sophisticated and difficult to detect, and the motive for the offending was largely profit-driven. It was part of the business model that only relatively small amounts of drugs be sourced and on-sold in order to evade detection. Utilising s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (‘CLSA’),the Court adopted a starting point of 14 years’ imprisonment for both defendants. After reductions on account of his guilty pleas, cooperation with police and time served in custody, a head sentence of 11 years and four months’ imprisonment was imposed for Cooley, with a non-parole period of six years and four months. For Collopy, after reductions on account of his guilty pleas and cooperation with police, a head sentence of 12 years and two months’ imprisonment was imposed,16 with a non-parole period fixed at seven years and 10 months. 75 While it is to be accepted that there are obvious similarities between the circumstances of the offending in Collopy and the offending in the present case, the former is objectively much less serious. The offending in Collopy was committed over a much shorter period of time, involved a smaller number of charged offences and resulted in far less profit to the defendants. Notwithstanding the appellant’s more favourable personal circumstances, the objective seriousness of the appellant’s offending called for a more significant penalty than that imposed in Collopy. 76 In relation to sentencing standards for numerous commercial drug offences committed against a background of other uncharged acts, the appellant also relies on the authority of R v Donald. In that matter, the defendants conducted a drug 14 This sentence was in relation to the drug offences only and was not inclusive of the sentence imposed for the four counts of failing to comply with his bail agreement. 15 R v Collopy; R v Cooley [2017] SASCFC 64 at [76] per Lovell J (with whom Peek and Blue JJ agreed). 16 This sentence was in relation to the drug offences only and was not inclusive of the sentence imposed for the four counts of failing to comply with his bail agreement. -- 18 of 35 -- [2024] SASCA 21 Livesey P and David JA 17 trafficking network which involved purchasing large quantities of cannabis and methylamphetamine and on-selling these drugs in smaller amounts to regular buyers in regional South Australia. The offending occurred during the course of an ongoing and successful enterprise operating for at least six months. 77 Whitaker pleaded guilty to 19 counts of trafficking in a controlled drug (cannabis and methylamphetamine) and six counts of trafficking in a commercial quantity of a controlled drug (cannabis). He was sentenced to 15 years’ imprisonment with a non-parole period of nine years. 78 Donald was sentenced for a total of 23 counts of offending, including 16 counts of trafficking in methylamphetamine, four counts of trafficking in a commercial quantity of a cannabis, one count of trafficking in a commercial quantity of a controlled precursor, one count of possessing methylamphetamine for supply, and one count of driving dangerously to escape police pursuit. He was sentenced to 15 years’ imprisonment with a non-parole period of nine years. 79 Pitt was sentenced for 10 counts of trafficking in methylamphetamine and cannabis. He was sentenced to 11 years and nine months’ imprisonment with a non-parole period of six years. 80 Whitaker, Donald and Pitt were all relatively young men and all had drug addictions that partly explained their offending. Whitaker had no prior convictions, while Donald and Pitt had limited criminal antecedents. 81 The defendants appealed their respective sentences on the basis that they were manifestly excessive or, alternatively, that errors occurred in the sentencing process. The appeal was allowed for all three defendants on the basis that the sentencing process miscarried. Justice Lovell considered the appropriate approach to sentencing for numerous offences. His Honour said:17 It is necessary to identify the applicable sentencing principles and standards for offences of this kind before applying them to the facts and circumstances of this case. Clearly, given the number of charges, accumulating sentences would introduce an “air of unreality” to the sentencing process. The Court must make an assessment of the seriousness of the offending along with matters of mitigation. Then the Court should consider the questions of concurrency or partial concurrency so as to impose a sentence which is fair and appropriate. Questions of concurrency or partial concurrency involve the Court considering the relationship between the offences and penalties so as to structure a sentence which is proportionate in all of the circumstances. 82 The defendants were re-sentenced. In relation to Whitaker, using s 18A of the CLSA, after reductions on account of his guilty pleas, a sentence of 14 years’ imprisonment was imposed with a non-parole period of seven years and eight months. There was no reduction on account of totality. In relation to Donald, 17 R v Donald (2016) 126 SASR 276 at [80]-[81] per Lovell J (with whom Nicholson and Parker JJ agreed). -- 19 of 35 -- [2024] SASCA 21 Livesey P and David JA 18 after reductions on account of his guilty pleas, a sentence of 14 years’ imprisonment was imposed with a non-parole period of seven years and eight months. There was no reduction on account of totality. In relation to Pitt, after reductions on account of his guilty pleas and time served in custody, a sentence of 11 years’ imprisonment was imposed with a non-parole period of five years and six months. There was no reduction on account of totality. 83 The objective seriousness of the offending in R v Donald, while commercially driven and occurring over a substantial period of time, was not of the same gravity as in the present case. Each defendant pleaded guilty to considerably fewer charges than the appellant, and their profit was considerably less. Moreover, the appellant’s offending involved the distribution of numerous types of drugs over a longer period of time for greater profit. 84 Returning to directly consider the question of manifest excess, the appellant’s offending, looked at as a whole, was a serious example of drug trafficking offending. The appellant was responsible for setting up and operating a significant online drug distribution business, which operated from at least 2019 until November 2021. His offending was persistent and involved the sale of various ‘very harmful’ drugs.18 The offending could not be characterised as base-level trafficking of the kind for which the Court identified indicative sentences in R v Young.19 The appellant had established a drug trafficking business with a ‘flat structure,’ where he imported, packaged and sold directly to both mid-level dealers and end users. Ultimately, the appellant’s offending was sophisticated and highly profitable, as revealed by the $800,000 cash in his possession, and the fact he had access to a further $700,000 worth of cryptocurrency. Nor was the offending isolated, reducing the scope for leniency in sentence. 85 The appellant did not challenge the starting point adopted by the sentencing Judge for each individual offence. The appellant properly acknowledged that the sentencing Judge had ordered many of the sentences be served concurrently to reflect the overlapping nature of the offences, and to ameliorate the overall sentence for the State offences. Such an approach has been recognised as an appropriate sentencing tool to ensure proportionality20 and to avoid the imposition of an ‘artificially high accumulated sentence’.21 86 However, the appellant contends that the overall sentence was disproportionately high given the appellant’s favourable personal circumstances, including his youth, lack of prior convictions and good prospects of rehabilitation. In this regard, the appellant submits that the sentencing Judge, after adopting 18 Section 44(2) of the Controlled Substances Act 1984 (SA) requires that a sentencing Court categorise all controlled drugs (with the exception of cannabis, cannabis resin and cannabis oil) as equally very harmful. 19 (2016) 126 SASR 41. 20 See, for example, Edmonds (A Pseudonym) v The Queen [2022] SASCA 11. 21 R Donald; R v Pitt; R v Whitaker (2016) 126 SASR 276 at [48] per Lovell J (with whom Nicholson and Parker JJ agreed). -- 20 of 35 -- [2024] SASCA 21 Livesey P and David JA 19 various starting points for the individual offences and considering whether the sentences should be served cumulatively or concurrently, did not properly apply the principle of totality. Specifically, the appellant submits that the reduction of the head sentence on the basis that it was ‘crushing’ was inadequate because it failed to ‘advance the purposes of making such a reduction’. The appellant complains this is either a process error by reason of the sentencing Judge not properly applying the principle of totality or a particular of the ground of manifest excess. Ground 2 – application of the principle of totality 87 The principle of totality is well-established. It was explained in R v Creed22 (‘Creed’). This case involved a Crown appeal against a sentence imposed for four separate offences. While the individual sentence imposed for each offence was relatively lenient, their accumulation resulted in a sentence of imprisonment for 21 years. In dismissing the appeal, King CJ emphasised the importance of assessing the overall fairness and reasonableness of the total sentence. The Chief Justice (with whom Cox and Olsson JJ agreed) stated:23 … at the end of the day the sentencing judge has to stand back and look at the overall picture and decide whether the total of what would otherwise be the appropriate sentence is a fair and reasonable total sentence to impose. 88 In R v Rossi24 (‘Rossi’), the defendant had been sentenced for three offences of armed robbery. The sentencing Judge ordered that the three sentences be served cumulatively upon one another, as well as cumulatively upon unexpired parole. The result was a head sentence that totalled almost 30 years. Chief Justice King (with whom Jacobs and Cox JJ agreed) said:25 There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect, see The Queen v Brett (unreported Court of Criminal Appeal judgment delivered 7th December 1987). … In my opinion, therefore, this Court ought to intervene to reduce the total effect of the sentences which the judge has imposed. I would do so by ordering that the sentences imposed on the second and third counts be served concurrently with one another. I would do that only in order to produce the result that the total sentence to be served is reduced to something which I consider to be reasonable. (Emphasis added) 22 (1985) 37 SASR 566. 23 R v Creed (1985) 37 SASR 566 at 568 per King CJ (with whom Cox and Olsson JJ agreed). 24 (1988) 142 LSJS 451. 25 R v Rossi (1988) 142 LSJS 451 at 453 per King CJ (with whom Jacobs and Cox JJ agreed). -- 21 of 35 -- [2024] SASCA 21 Livesey P and David JA 20 89 Creed and Rossi underpin the more modern statements of principle that have emanated from the Court of Criminal Appeal.26 In R v E, AD,27 Doyle CJ set out two aspects of the totality principle. His Honour said:28 In its nature the totality principle involves what might be called a final check or consideration, intended to ensure that in the course of aggregating penalties the court has not arrived at an aggregate that is disproportionate to the seriousness of the offending conduct taken as a whole, so as to impose a sentence which is, in the circumstances, so crushing as to call for intervention on the grounds of mercy. 90 More recently, the two aspects of the totality principle were restated by Livesey J (as his Honour then was) in Lane v The Queen:29 Totality has been recognised as having two aspects. The first entails a final review or check to ensure that the overall punishment is proportionate to the circumstances of the offending and the offender. In seeking to achieve proportionality a sentencing Judge has a number of tools and a broad discretion. In connection with this aspect of totality, these tools include concurrency, lowering one or more of the sentences, and the imposition of a single sentence under s 26 of the Sentencing Act 2017 (SA). The second aspect of totality is the amelioration of a sentence because it is ‘so crushing as to call for the merciful intervention of the Court by way of reducing the total effect’. It is in connection with this second aspect of totality that consideration is given to the need to curb the prospect of despair which could be caused by a long sentence because this would be antithetical to rehabilitation. It must be remembered that these are merely aspects of one principle which is applied in the exercise of a discretion. These aspects are not different principles. It may not be necessary to differentiate between the different aspects of the totality principle. For example, I would be reluctant to say that the second aspect will only operate where the sentence is otherwise proportionate, or that it can only operate in a rare case. In an appropriate case it may be that both aspects will operate, in conjunction with proportionality, as part of the ‘instinctive synthesis’ employed to determine what overall punishment is appropriate. (Citations omitted) 91 Relevantly, in Warner v The King,30 Doyle JA pointed out that the term ‘crushing’ signifies the overarching obligation of proportionality and rehabilitation. His Honour said: 31 As has been pointed out in several decisions of this Court, when invoked in the context of a case such as the present, reference to the need to avoid a sentence that would be crushing is merely a description of an aspect of the overarching obligation of the sentencing court to impose a sentence that is proportionate. It is no more than a description of the need to 26 See also R v Place (2002) 81 SASR 395 at [84]-[89] per Doyle CJ, Prior, Lander and Martin JJ (with whom Gray J agreed). 27 (2005) 93 SASR 20. 28 R v E, AD (2005) 93 SASR 20 at [38] per Doyle CJ. 29 [2020] SASCFC 82 at [5]-[7] per Livesey J (with whom Kelly J agreed). 30 [2022] SASCA 142. 31 Warner v The King [2022] SASCA 142 at [161] per Doyle JA. See also White (A Pseudonym) v The Queen [2022] SASCA 78 at [54] per Lovell, Bleby and David JJA. -- 22 of 35 -- [2024] SASCA 21 Livesey P and David JA 21 ensure that a sentence is proportionate in the sense that, having regard to the rehabilitative objective of a sentence, it leaves the defendant with the hope and incentive of achieving rehabilitation during his lifetime. (Citations omitted) 92 In the present case, the sentencing Judge, having reduced the sentence on account of the appellant’s guilty pleas and considered matters of concurrency or partial concurrency, arrived at a head sentence of 17 years and three months for the State offences. Her Honour then evaluated the proportionality of the sentence in light of ‘all the features’, including the fact that the appellant would be serving a sentence for the Commonwealth offence first, and determined that the sentence was ‘crushing’. Consequently, her Honour applied the principle of totality and reduced the sentence to 15 years’ imprisonment. This resulted in an effective head sentence of 18 years and two months’ imprisonment32 with a non-parole period of 15 years and two months.33 93 The appellant contends that the meagre reduction of the head sentence by two years and three months did little to ameliorate the initial sentence, which was deemed ‘crushing’. Specifically, the sentencing Judge ultimately imposed a sentence that the appellant contends ‘is just as antithetical to rehabilitation as the crushing notional sentence’. In considering the appellant’s complaint, it is important to recognise that sentencing judges are to be afforded flexibility in terms of the techniques or mechanisms they might utilise to ensure proportionality.34 While it is true that the appellant’s favourable personal circumstances, as outlined earlier, needed to be reflected in the sentence, her Honour ordered that many of the sentences within a particular group of offending be served concurrently. Her Honour then further reduced the head sentence of 17 years and two months to 15 years, constituting a reduction of about 12 per cent. When combined with the reductions already made by the application of concurrency and partial concurrency, this represented a material reduction in the sentence for totality. 94 Ultimately, we do not consider that the final sentence imposed was disproportionate to the offending or the offender. For the reasons explained earlier, the appellant’s youth and prospects of rehabilitation carried limited mitigating weight against the persistent and grave nature of the offending. The protection of the safety of the community and the principles of general deterrence and punishment called for a significant sentence of imprisonment. 95 For those reasons, we do not consider that the sentencing Judge misapplied the principle of totality, or that the sentence is manifestly excessive. 32 Being the 15 years imposed for the State offences plus the non-parole period of three years and two months for the Commonwealth offence. 33 Being the mandatory 12 years imposed for the State offences plus the non-parole period of three years and two months for the Commonwealth offence. 34 Edmonds (A Pseudonym) v The King [2022] SASCA 11 at [69] per Livesey P, Doyle and David JJA. -- 23 of 35 -- [2024] SASCA 21 Livesey P and David JA 22 Conclusion 96 We grant permission to appeal but dismiss the appeal. -- 24 of 35 -- [2024] SASCA 21 Livesey P and David JA 23 Annexure A Count No. Charge Drug Type Quantity Cost on basis of listed price Maximum Penalty Defendant Guilty Plea Reduction 1 Trafficking Large Commercial Quantity LSD 100 tabs $900 Life imprisonment or a fine of up to $1,000,000 or both Booker 25% 2 Trafficking MDMA 50 pills $700 10 years imprisonment or a fine of up to $50,000 or both Booker 25% 3 Trafficking Cocaine 1 gram $355 10 years imprisonment or a fine of up to $50,000 or both Booker 25% 4 Trafficking MDMA 100 pills $1,400 10 years imprisonment or a fine of up to $50,000 or both Booker 25% 5 Trafficking Large Commercial Quantity LSD 100 tabs $900 Life imprisonment or a fine of up to $1,000,000 or both Booker 25% 6 Trafficking DMT 1 gram $190 10 years imprisonment or a fine of up to $50,000 or both Booker 25% 7 Trafficking Large Commercial Quantity LSD 100 tabs $900 Life imprisonment or a fine of up to $1,000,000 or both Booker 25% -- 25 of 35 -- [2024] SASCA 21 Livesey P and David JA 24 8 Trafficking Cocaine 1 gram $355 10 years imprisonment or a fine of up to $50,000 or both Booker 25% 9 Importing Commercial Quantity (Cth) LSD 8000 tabs Between $72,000, if sold in 100 tab lots to $128,000 if sold in 5 tab lots Life imprisonment or a fine of up to $2,062,500 (7500 penalty units with each penalty unit as $275) Booker 25% allowed 10 Trafficking Cannabis 28 grams $340 10 years imprisonment or a fine of up to $50,000 or both Booker 25% 11 Trafficking Large Commercial Quantity LSD 100 tabs $900 Life imprisonment or a fine of up to $1,000,000 or both Booker 25% 12 Trafficking Large Commercial Quantity LSD 200 tabs $1,800 Life imprisonment or a fine of up to $1,000,000 or both Booker 25% 13 Trafficking Cocaine 1 gram $355 10 years imprisonment or a fine of up to $50,000 or both Booker 25% 14 Trafficking Commercial Quantity LSD 20 tabs $250 25 years imprisonment or a fine of up to $200,000 or both Booker 25% 15 Trafficking Large Commercial Quantity LSD 250 tabs $2,150 Life imprisonment or a fine of up to Booker 25% -- 26 of 35 -- [2024] SASCA 21 Livesey P and David JA 25 $1,000,000 or both 16 Trafficking Large Commercial Quantity LSD 200 tabs $1,800 Life imprisonment or a fine of up to $1,000,000 or both Booker 25% 17 Trafficking Large Commercial Quantity LSD 250 tabs $2,150 Life imprisonment or a fine of up to $1,000,000 or both Booker 25% 18 Trafficking Large Commercial Quantity LSD 100 tabs $900 Life imprisonment or a fine of up to $1,000,000 or both Booker 25% 19 Trafficking Cocaine 1 gram $355 10 years imprisonment or a fine of up to $50,000 or both Booker 25% 20 Trafficking Commercial Quantity LSD 20 tabs $250 25 years imprisonment or a fine of up to $200,000 or both Booker 25% 21 Trafficking Large Commercial Quantity LSD 100 tabs $900 Life imprisonment or a fine of up to $1,000,000 or both Booker 25% 22 Trafficking Commercial Quantity LSD 50 tabs $500 25 years imprisonment or a fine of up to $200,000 or both Booker 25% 23 Trafficking Commercial Quantity LSD 20 tabs $250 25 years imprisonment or a fine of up to Booker 25% -- 27 of 35 -- [2024] SASCA 21 Livesey P and David JA 26 $200,000 or both 24 Trafficking Large Commercial Quantity LSD 100 tabs $900 Life imprisonment or a fine of up to $1,000,000 or both Booker 25% 25 Trafficking Large Commercial Quantity LSD 250 tabs $2,150 Life imprisonment or a fine of up to $1,000,000 or both Booker 25% 26 Trafficking Cocaine 3.5 grams $1,150 10 years imprisonment or a fine of up to $50,000 or both Booker 25% 27 Trafficking Commercial Quantity LSD 50 tabs $500 25 years imprisonment or a fine of up to $200,000 or both Booker 25% 28 Trafficking Commercial Quantity LSD 50 tabs $500 25 years imprisonment or a fine of up to $200,000 or both Booker 25% 29 Trafficking Large Commercial Quantity LSD 50 tabs $500 Life imprisonment or a fine of up to $1,000,000 or both Booker 25% 30 Trafficking Large Commercial Quantity LSD 100 tabs $900 Life imprisonment or a fine of up to $1,000,000 or both Booker 25% 31 Money Laundering ($460,300) N/A N/A N/A 20 years imprisonment Booker 25% 32 N/A LSD 5 tabs $80 N/A Booker/Suri- Tucker N/A -- 28 of 35 -- [2024] SASCA 21 Livesey P and David JA 27 33 N/A LSD 5 tabs $95 N/A Booker/Suri- Tucker N/A 34 N/A LSD 20 tabs $290 N/A Booker/Suri- Tucker N/A 35 N/A MDMA 5 pills $150 N/A Booker/Suri- Tucker N/A 36 N/A LSD 20 tabs $290 N/A Booker/Suri- Tucker N/A 37 N/A LSD 20 tabs $250 N/A Booker/Suri- Tucker N/A 38 N/A LSD 100 tabs $900 N/A Booker/Suri- Tucker N/A 39 N/A LSD 100 tabs $900 N/A Booker/Suri- Tucker N/A 40 Trafficking Large Commercial Quantity – s 33N LSD See Counts 32-39 above $2,805 Life imprisonment or a fine of up to $1,000,000 or both Booker/Suri- Tucker 35% for Booker. 25% for Suri- Tucker 41 Trafficking Large Commercial Quantity LSD 243 tabs $2,089 Life imprisonment or a fine of up to $1,000,000 or both Booker/Suri- Tucker 35% for Booker. 25% for Suri- Tucker 42 Trafficking Cannabis 694.6 grams Between $2,108, if sold in 112 gram lots to $8,434 if sold in 28 gram lots 10 years imprisonment or a fine of up to $50,000 or both Booker/Suri- Tucker 25% 43 Trafficking Cannabis 1.794 kg Between $19,114, if sold in 112 gram lots, to $21,662, if sold in 28 gram lots 10 years imprisonment or a fine of up to $50,000 or both Booker/Suri- Tucker 25% -- 29 of 35 -- [2024] SASCA 21 Livesey P and David JA 28 44 Trafficking LSD 10 tabs $145 10 years imprisonment or a fine of up to $50,000 or both Booker/Suri- Tucker 25% 45 Trafficking LSD 10 tabs $145 10 years imprisonment or a fine of up to $50,000 or both Booker/Suri- Tucker 25% 46 Trafficking LSD 10 tabs $145 10 years imprisonment or a fine of up to $50,000 or both Booker/Suri- Tucker 25% 47 Trafficking LSD 5 tabs $85 10 years imprisonment or a fine of up to $50,000 or both Booker/Suri- Tucker 25% 48 Trafficking Cocaine 3.47 grams $1,150 10 years imprisonment or a fine of up to $50,000 or both Booker/Suri- Tucker 25% 49 Trafficking Cocaine 3.45 grams $1,150 10 years imprisonment or a fine of up to $50,000 or both Booker/Suri- Tucker 25% 50 Trafficking Cocaine 0.99 grams $355 10 years imprisonment or a fine of up to $50,000 or both Booker/Suri- Tucker 25% 51 Trafficking Cocaine 0.23 grams $88.75 10 years imprisonment or a fine of up to $50,000 or both Booker/Suri- Tucker 25% 52 Trafficking Cocaine 25.31 grams $7,321 10 years imprisonment or a fine of up to $50,000 or both Booker/Suri- Tucker 25% -- 30 of 35 -- [2024] SASCA 21 Livesey P and David JA 29 53 Trafficking Large Commercial Quantity LSD 243 tabs $2,089 Life imprisonment or a fine of up to $1,000,000 or both Booker/Suri- Tucker 25% 54 Trafficking Cannabis 239.4 grams $2,287 10 years imprisonment or a fine of up to $50,000 or both Booker 25% 55 Trafficking Cannabis Resin 33.9 grams N/A 10 years imprisonment or a fine of up to $50,000 or both Booker 25% 56 Trafficking MDMA 31.2 grams $1694 10 years imprisonment or a fine of up to $50,000 or both Booker 25% 57 Trafficking Psilocin 181 grams $2,715 10 years imprisonment or a fine of up to $50,000 or both Booker 25% 58 Trafficking Cocaine 7.05 grams $2,150 10 years imprisonment or a fine of up to $50,000 or both Booker 25% 59 Trafficking Commercial Quantity LSD 87 tabs $980 25 years imprisonment or a fine of up to $50,000 or both Booker 25% 60 Possess Prescription Drug Testosterone N/A N/A 2 years imprisonment or a fine of up to $10,000 Booker 25% 61 Money Laundering ($340,145) N/A N/A N/A 20 years imprisonment Booker 25% -- 31 of 35 -- [2024] SASCA 21 Livesey P and David JA 30 97 DOYLE JA: I agree with the reasons of Livesey P and David JA, and would grant permission to appeal but dismiss the appeal. 98 I write merely to make some addition observations in relation to the operation of the principle of totality in cases where a sentence is said to be ‘crushing’, in the context of the present appellant’s complaints of manifest excess (Ground 1) and a misapplication of the totality principle (Ground 2). 99 In sentencing an offender, the sentencing judge’s overarching obligation is to impose a sentence which is proportionate to the circumstances of the offending and the offender, having regard to the objectives or purposes of the sentencing exercise,35 and the various principles governing that exercise.36 100 The principle of totality is merely one of the several techniques available to a sentencing judge to ensure that an aggregate sentence imposed in respect of multiple offences is not disproportionate.37 Some of the key authorities governing the application of the principle of totality were conveniently summarised in the reasons of Lovell and Hinton JJ in R v Smoker:38 In Mill v The Queen, a unanimous High Court said:39 35 As currently set out in ss 3 and 4 of the Sentencing Act 2017 (SA). 36 See, for example, the non-exhaustive list of principles mentioned in s 10 of the Sentencing Act. 37 R v W, PL [2017] SASCFC 119 at [43]-[47] (Doyle J, Bampton and Lovell JJ agreeing); Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [59] (Livesey P, Doyle and David JJA), and the cases referred to therein. 38 R v Smoker (2016) 126 SASR 201 at [69]-[71] (Lovell and Hinton JJ); applied in R v W, PL [2017] SASCFC 119 at [47] (Doyle J, Bampton and Lovell JJ agreeing). 39 (1988) 166 CLR 59 at 62-63; see also, Pearce v The Queen (1998) 194 CLR 610 at [45] (McHugh, Hayne and Callinan JJ). -- 32 of 35 -- [2024] SASCA 21 Doyle JA 31 The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57, as follows (omitting references): “The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong’; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.” So stated the principle acknowledges that in sentencing for more than one offence each representing separate incursions into criminality, the aggregation of such sentences consistent with principle carries with it the risk of the imposition of an overall sentence that is disproportionate to the overall offending and the circumstances of the offender. That the concept of proportionality underpins this principle was made clear by the High Court in its approval40 of this Court’s approach in R v Knight.41 In Knight this Court said:42 [I]t seems to us that when regard is had to the totality of the sentences which the applicant is required to undergo, it cannot be said that in all the circumstances of the case, the imposition of a cumulative sentence was incommensurate with the gravity of the whole of his proven criminal conduct or with his due deserts. To use the language of Lord Parker L.CJ. in Reg. v. Faulkner, ‘at the end of the day, as one always must, one looks at the totality and asks whether it was too much’. To similar effect in R v E, AD, Doyle CJ said:43 … In its nature the totality principle involves what might be called a final check or consideration, intended to ensure that in the course of aggregating penalties the court has not arrived at an aggregate that is disproportionate to the seriousness of the offending conduct taken as a whole, so as to impose a sentence which is, in the circumstances, so crushing as to call for intervention on the grounds of mercy. Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. 101 In constructing an aggregate sentence, a sentencing judge may well have used techniques such as concurrency (including partial concurrency) with a view to achieving, or at least going a long way towards achieving, an aggregate sentence that is proportionate. However, the principle of totality involves an overall or final review of the aggregate sentence (sometimes referred to as a ‘last look’) to ensure that that this has been achieved; to ensure that the sentence ultimately to be 40 (1988) 166 CLR 59 at 63. 41 (1981) 26 SASR 573. 42 (1981) 26 SASR 573 at 576 (Walters, Zelling and Williams JJ). 43 (2005) 93 SASR 20 at [38]; See also R v Place (2002) 81 SASR 395 at 425-6 (Doyle CJ, Prior, Lander and Martin JJ); R v Randall-Smith and Davi (2008) 100 SASR 326 at [104]-[106] (Gray and Layton JJ). -- 33 of 35 -- [2024] SASCA 21 Doyle JA 32 imposed is not only adequate to achieve the objectives of the sentencing exercise, but also proportionate to the circumstances of the offending and the offender.44 102 The discussion of the principle of totality in R v Smoker is useful not only for its emphasis upon the role of proportionality in the application of the principle of totality, but also for ensuring that care is taken when seeking to adjust a sentence on account of its ‘crushing’ effect. Properly understood, the label ‘crushing’ usually connotes no more than that a reduction in an aggregate sentence may be appropriate to ensure proportionality between the sentence ultimately to be imposed and the overall criminality of the offending and circumstances of the offender.45 As this Court observed in Edmonds (a pseudonym) v The Queen:46 When invoking totality to reduce a sentence that might otherwise have been imposed on the ground that it would be crushing, it is important to appreciate that this does not ordinarily involve any exception to the overarching obligation of the sentencing court to impose a sentence that is proportionate having regard to the overall criminality of the defendant’s offending and to the defendant’s personal circumstances. In reflecting the desirability, having regard to the rehabilitative objective of a sentence, of ensuring that an offender retains the hope and incentive of achieving rehabilitation during their lifetime, the reduction of a crushing sentence on totality grounds is ordinarily a mere manifestation of the concern to ensure proportionality in the sentence ultimately imposed. 103 To the extent that the label ‘crushing’ permits intervention beyond this, that will be a rare occurrence.47 104 Importantly, in the context of the present case, the description of a sentence as ‘crushing’ does not necessarily mean that a reduction in the aggregate sentence for totality will be required. A fortiori, the principle of totality does not require that a sentence be reduced to the point where it is no longer ‘crushing’. Sometimes the nature of the overall offending – whether by reason of the number of offences or the serious nature of the offences – means that a long sentence must be imposed in order to ensure that the objectives of the sentencing exercise are achieved. The fact that the sentence to be imposed may accurately be described as ‘crushing’ from the perspective of the offender, whilst a relevant consideration, does not of itself mean that the sentence is not proportionate, and hence not an appropriate sentence to impose.48 105 In the present case, the sentencing judge fairly described the aggregate sentence she initially arrived at for the State offences as ‘crushing’. However, in criticising the relatively modest reduction that the sentencing judge then made for 44 R v W, PL [2017] SASCFC 119 at [49] (Doyle J, Bampton and Lovell JJ agreeing). 45 R v Smoker (2016) 126 SASR 201 at [80]-[85] (Lovell and Hinton JJ); R v W, PL [2017] SASCFC 119 at [49] (Doyle J, Bampton and Lovell JJ agreeing); White (a pseudonym) v The Queen [2022] SASCA 78 at [54] (Lovell, Bleby and David JJA). 46 Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [61] (Livesey P, Doyle and David JJA) (omitting citations); see also Warner v The King [2022] SASCA 142 at [161] (Doyle JA). 47 R v Smoker (2016) 126 SASR 201 at [80]-85] (Lovell and Hinton JJ); R v W, PL [2017] SASCFC 119 at [49] (Doyle J, Bampton and Lovell JJ agreeing). 48 White (a pseudonym) v The Queen [2022] SASCA 78 at [53]-[54] (Lovell, Bleby and David JJA). -- 34 of 35 -- [2024] SASCA 21 Doyle JA 33 totality (reducing the aggregate head sentence for the State offences from 17 years and three months imprisonment to 15 years imprisonment), the appellant’s submissions tended to overlook two matters. They tended to overlook the fact that in constructing the aggregate sentence for the State offences, the sentencing judge had already applied a very significant measure of concurrency in respect of the individual sentences she identified so as to achieve proportionality in the sentence to be imposed. They also tended to overlook the fact that, whilst it was appropriate for the sentencing judge, in having a ‘last look’ at the aggregate sentence, to observe that it might be regarded as ‘crushing’, and to make some reduction on this account, her Honour’s task was not to arrive at a sentence which would not be crushing. Nor was her task to arrive at a sentence that sought to prioritise the appellant’s hope and incentive of achieving rehabilitation over the balance of the sentencing objectives. Rather, the sentencing judge’s task was to arrive at a sentence which was proportionate to the overall criminality and circumstances of the offending and the offender, having regard to all of the objectives of the sentencing exercise. 106 For the reasons given by Livesey P and David JA, the nature and extent of the appellant’s offending required a long sentence, despite some of the favourable aspects of his personal circumstances. It has not been established that the sentence imposed was disproportionate. The complaints of manifest excess and a misapplication of the totality principle have not been made out. -- 35 of 35 --