SCOTT VANSON v THE KING [2024] SASCA 62

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE THOMAS) DCCRM-23-007320 Applicant: SCOTT VANSON Counsel: MR W MICKAN - Solicitor: CALDICOTT + ISAACS LAWYERS Respondent: THE KING Counsel: MS N ZUCKERMAN WITH MS R TAN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 18/03/2024 File No/s: SCCRM-23-032562 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. VANSON v THE KING [2024] SASCA 62 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David) 16 May 2024 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PROCEDURE CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - OTHER SUBSTANCES AND OFFENCES INVOLVING MULTIPLE SUBSTANCES OR OFFENCES Appeal against sentence. On 15 June 2022, police located 26 cannabis plants in three hydroponic grow rooms at the applicant’s property. The dry usable cannabis material had a potential value of between $10,000 and $15,000. The applicant pleaded guilty to three offences, namely, diverting electricity from a power system contrary to s 85(1)(a) of the Electricity Act 1996 (SA), cultivating a commercial quantity of controlled plants for sale, and possessing prescribed equipment, contrary to ss 33B(2) and 33LA(1) of the Controlled Substances Act 1984 (SA). The sentencing judge imposed a total head sentence for the three counts of three years six months and 25 days with a non-parole period of one year and nine months, applying the discount for the applicant’s pleas of guilty. Her Honour declined to suspend the sentence or to order that the sentence be served on home detention. -- 1 of 11 -- The applicant submitted that there was a tension between the judge’s finding that the applicant’s prospects of rehabilitation justified a shorter non-parole period and the caution her Honour expressed in respect of the question of whether to suspend the sentence. The primary issue on appeal was whether the failure to suspend the sentence or to order that it be served on home detention was unreasonable or plainly unjust. Held (by the Court), granting permission to appeal but dismissing the appeal: 1. The learned sentencing judge did not fail to take into account the positive indicators of the applicant’s steps towards rehabilitation when considering the question of suspension. 2. The objectives of community protection and general and specific deterrence spoke heavily against the imposition of a non-custodial sentence. 3. While there was scope for leniency, the applicant had a long association with illicit drugs. The offending was serious and it was motivated by profit. The failure to suspend the sentence or to order that it be served on home detention was not unreasonable or plainly unjust. Controlled Substances Act 1984 (SA) ss 33B(2), 33LA(1); Electricity Act 1996 (SA) s 85(1)(a), referred to. R v Dell [2016] SASCFC 156; R v Filipponi [2016] SASCFC 148; R v Hevko [2018] SASCFC 22; R v Hibeljic [2018] SASCFC 35; R v Hosking (2017) 128 SASR 37; R v Reiner (1974) 8 SASR 102; R v Young (2016) 126 SASR 41, considered. -- 2 of 11 -- VANSON v THE KING [2024] SASCA 62 Court of Appeal – Criminal: Livesey P, Bleby and David JJA 1 THE COURT: This is an application for permission to appeal against sentence. The applicant pleaded guilty to the following offences: • cultivating a commercial quantity of controlled plants for sale, contrary to s 33B(2) of the Controlled Substances Act 1984 (SA) (‘CSA’). The maximum penalty for this offence was $200,000 or imprisonment for 25 years or both (Count 1); • possessing prescribed equipment, contrary to s 33LA(1) of the CSA. The maximum penalty for this offence was $10,000 or imprisonment for 2 years or both (Count 2); • diverting electricity from a power system, contrary to s 85(1)(a) of the Electricity Act 1996 (SA). The maximum penalty for this offence was $20,000 or imprisonment for 2 years (Count 3). 2 On 11 August 2023, a judge sentenced the applicant as follows. For Count 1, the judge indicated a starting point of four years. She reduced that by 15 per cent for the applicant’s guilty plea to three years, four months and 25 days. 3 For Count 2, the judge indicated a starting point of six months. She reduced that by 15 per cent for the guilty plea to five months and four days, to be served wholly concurrently with the sentence for Count 1. For those two offences, this resulted in a head sentence of three years, four months and 25 days. 4 For Count 3, the judge indicated a starting point of six months. She reduced that by 15 per cent for the guilty plea to five months and four days. She ordered that three months and four days of that sentence were to be served concurrently with the sentence for Count 1. This resulted in a total head sentence for the three counts of three years, six months and 25 days. 5 The judge set a non-parole period of one year and nine months. She declined to suspend the sentence or to order that the sentence be served on home detention. 6 The primary issue arising on the appeal is whether the failure to suspend the sentence or to order that it be served on home detention was unreasonable or plainly unjust. The applicant cast this complaint as a species of outcome error. He also prosecuted three complaints of process error in the sentencing judge’s reasoning to the conclusions against suspension and home detention. Background 7 On 15 June 2022, police attended at the applicant’s property at Gawler South. They located 26 cannabis plants in three hydroponic grow rooms. They also found -- 3 of 11 -- [2024] SASCA 62 The Court 2 75 light globes, 27 ballast boxes, 28 light shades and a carbon filter. There was a set of scales and a bag of cannabis in the kitchen. In the laundry were pieces of cardboard and paper, both of which displayed growing instructions. The electricity at the property had been diverted. It was a well-organised hydroponic setup. Police arrested the applicant and another man, Sartain, at the scene. 8 The cannabis plants were healthy and thriving. Twelve were of medium size, immature and not yet flowering. The anticipated yield of the crop was approximately 5 kg of dry useable cannabis plant material, with a potential value on the market of between $10,000 and $15,000. 9 At the time of sentencing, the applicant was 45 years old and had been married for 14 years. He and his spouse have two children. The elder, the applicant’s stepdaughter, attends university. The applicant’s son is at high school. Both children are dependent on the applicant. The applicant’s wife wrote a letter to the Court, explaining the importance of the applicant’s role in both children’s lives. 10 The applicant’s offender history report discloses a considerable course of offending between 1997 and 2008. This mostly comprised driving and dishonesty offences between 1997 and 2005. In 2008, the applicant was convicted of possessing amphetamines for sale in 2005. He received a suspended sentence. In November 2005 he was fined for producing cannabis. In 1997 he was fined for possessing cannabis and equipment to administer cannabis. He has, over time, received a total of eight suspended sentence bonds. He has only been before a court for breach of bond on one occasion. 11 Prior to sentencing for the present offending, the applicant had not been convicted of any offence for 15 years. 12 The applicant had a difficult childhood. His parents separated when he was seven and he attended several different schools. He had no relationship with his father. His mother suffered from alcoholism and had a number of relationships characterised by emotional abuse and domestic violence. The applicant left home when he was 16. 13 The applicant’s father-in-law, with whom the applicant had a close relationship, died suddenly four years before the offending. In consequence, the applicant’s mother-in-law and brother-in-law moved into a granny flat on the applicant’s property. The mother-in-law’s health had declined, and the brother-in- law required care as a result of suffering a brain injury some years ago. The applicant played an active role in his care. 14 The applicant completed an apprenticeship as a motor mechanic on leaving school and went on to work as a manager for a repair business. He later started his own business. Subsequently, he worked at a glass-blowing business for 14 years. At the time of his arrest, he was a substitute shift manager at the business and was -- 4 of 11 -- [2024] SASCA 62 The Court 3 responsible for 33 employees. His employer provided a supportive reference. The applicant was also undertaking an apprenticeship at an electrical and engineering firm. This employer, likewise, provided a supportive reference. 15 The applicant has a long history of mental health issues, characterised by anxiety and depression. These issues have been exacerbated by drug and alcohol use. The applicant has sought and obtained assistance for his mental health issues and has completed drug and alcohol rehabilitation programs. The approach of the sentencing judge to suspension and home detention 16 The judge gave a comprehensive account of the applicant’s history and personal circumstances. Immediately before proceeding to sentence, she said, in respect of both the applicant and his co-offender: You jointly set out to gain from the sale of the cannabis you were growing. There was plainly a commercial purpose for your offending. You intended selling and profiting substantially from the sale of the cannabis despite your intended personal use. You both engaged in your offending as a convenient way of raising cash. Whilst your offending involved a small number of plants in terms of the commercial range, it was nevertheless a well set up business venture motivated primarily by profit. Given the objective seriousness of your offending, principles of general and personal deterrence must be reflected in your sentences as well as the paramountcy of the protection of the community. 17 The judge then proceeded to sentence the applicant as recorded above. When setting the non-parole period of one year and nine months, she said: In doing so, I have had regard to your personal circumstances, including your prospects of rehabilitation and the effect that imprisonment will have on your family, and I fix a lower non-parole period than I might otherwise have done. 18 The judge then addressed the questions of suspension and home detention. She said as follows: I now turn to the question of whether or not good reason exists to suspend your sentence. I have considered carefully the submissions made by your counsel I referred to earlier as to whether there is good reason to suspend your sentence despite your antecedents. I find your relapse into a counterproductive lifestyle, as your counsel described it, to deal with the stresses of life very troubling given your antecedents, although dated in all the circumstances. This is so having regard to the pattern of your earlier offending and that your last incursion into offending involving illicit drugs occurred as a result of very similar stresses. Despite the protective factors of stable employment, your good work ethic and character references, the support you enjoy from your partner and family, and the previous leniency extended to you by this court, you relapsed into previous habits. I am therefore cautious about your prospects of rehabilitation. Having regard to the objective seriousness of your offending and the need for general and personal deterrence, I do not find there is good reason to suspend your sentence. Nor is it -- 5 of 11 -- [2024] SASCA 62 The Court 4 appropriate, in my view, that you serve your sentence on home detention given the seriousness of your offending. 19 The judge ordered the sentence to commence from the date of sentencing, 11 August 2023. The appeal 20 It is convenient to address first the complaints of process error in the judge’s decision not to suspend the sentence or to order that it be served on home detention. 21 The applicant submitted that there was a tension between the judge’s finding that his prospects of rehabilitation warranted a shorter than usual non-parole period and the expression of caution in the second paragraph quoted above, when it came to the question of suspension. These paragraphs, he submitted, detailed exhaustively the matters the judge had regard to when considering the applicant’s prospects of rehabilitation in the context of the question of suspension. 22 The applicant submitted that it followed from the limited scope of these paragraphs that the judge erred in not having regard to the evidence of his rehabilitation between the date of arrest and sentence. This included his receipt of treatment and counselling for substance abuse issues, obtaining an apprenticeship, continuing to care for his dependants and gaining insight into his mental health and criminogenic risk factors. 23 The difficulty with this submission is that it necessarily treats the above paragraphs as not only exhaustive of the treatment of the question of suspension but also as decontextualised from the balance of the reasons. The judge had earlier detailed the applicant’s offending history and noted expressly the lapse of time since his last conviction. She had earlier referred to the applicant’s ‘relevant but dated antecedents’ and to the previous suspension of a sentence for possessing amphetamines for sale, on the basis that the applicant had ‘taken advantage of the opportunities to rehabilitate yourself and abstain from illicit drug use’. 24 On the topic of rehabilitation, the judge had said: I am told that since your arrest you have once again taken steps to deal with your addiction and attended some relevant counselling. Your counsel emphasised your success in rehabilitating yourself in the past and the importance of rehabilitation as a means of protecting the community and urged me to extend further leniency to you again by finding there is good reason to suspend your sentence or by imposing home detention. 25 We do not think it can be said that the judge failed to take into account the applicant’s actual rehabilitation or the extent to which imprisonment would interfere with that. The paragraphs devoted to the question of suspension, above, incorporated the judge’s earlier observations and noting of counsel’s submissions. Sentencing remarks do not constitute a written judgment; nor do they constitute an -- 6 of 11 -- [2024] SASCA 62 The Court 5 exhaustive inventory of facts and matters taken into account.1 Having said that, offenders are entitled to know the basis on which they have been sentenced. 26 The sentencing judge had regard to the steps the applicant had taken towards rehabilitation since his arrest. The paragraphs on the specific topic of suspension, set out above, detail the matters on which the judge relied in the context of the earlier discussion about the applicant’s history and prospects. We do not think it can be said, when these paragraphs are read in context, that the judge failed to take into account the positive indicators of the applicant’s rehabilitation. We dismiss this complaint. 27 The second complaint of process error was that the judge failed to address features relevant to the question of personal deterrence. The applicant submitted that it could not be ignored that his previous suspended sentence bond had been imposed in 2008, in respect of offending that had occurred in 2005. Since then, there was evidence of his rehabilitation, he had married and had a child, raised another child and had led a productive and prosocial life. He had satisfied the penalty previously imposed. 28 The applicant contrasted this history with the sentencing judge’s simple reference to his antecedents being ‘dated in all the circumstances’. In his submission, this concealed the true character of his rehabilitation and prosocial conduct since his last offending. He submitted that when taken together with the circumstances of his offending (which he described as ‘extenuating’), these considerations materially changed the complexion of the antecedents, and their relevance to his prospects of rehabilitation and the need for personal deterrence. Not addressing those matters amounted, in the applicant’s submission, to a failure to take into account material considerations. 29 The sentencing judge had, earlier, given a sufficiently comprehensive account of the nature and historical distance of the applicant’s previous offending. She had also identified, and accepted, key features of the applicant’s life since that offending, including his relationship with his father-in-law and the care he had been giving to his mother-in-law and brother-in-law. She accepted the account of the circumstances that had led to the applicant reoffending. She accepted that the applicant was in stable employment and had a meaningful relationship. 30 The judge did not rehearse these matters again when it came to considering the question of suspension. For the reasons discussed above, however, we are not satisfied that this amounted to a failure to take into account the matters of which the applicant now complains. It is true that the judge’s remarks were relatively short. The paragraphs relevant to the question of suspension, set out above, incorporated the matters relevant to rehabilitation that the sentencing judge had earlier traversed. Brevity does not equate to error. In our view, it cannot be said 1 R v Reiner (1974) 8 SASR 102 at 114-115. -- 7 of 11 -- [2024] SASCA 62 The Court 6 that the judge failed to have regard to these matters when considering suspension. We dismiss this complaint. 31 The applicant’s third complaint of process error related to the refusal to order that the sentence of imprisonment be served on home detention. The applicant pointed to the third of the paragraphs extracted above, where all that the judge said on this topic was: Nor is it appropriate, in my view, that you serve your sentence on home detention given the seriousness of your offending. 32 The essence of the applicant’s complaint was that this statement elided the different considerations relevant to the questions whether to suspend on the one hand, and whether to order that the sentence be served on home detention, on the other. 33 It is well-established that questions of suspension and home detention are separate. In R v Hibeljic,2 Doyle J referred to the decision of the Court of Criminal Appeal in R v Hevko3 and said:4 It is true that R v Hevko emphasises the need to ensure that proper attention is paid to the particular nature of the discretion to order that a sentence of imprisonment be served on home detention. While the range of considerations relevant to that discretion reflects the same matters relevant to the earlier exercises of discretion in arriving at an appropriate head sentence, in fixing a non-parole period and in determining whether to suspend the sentence of imprisonment, nevertheless the issues at each stage are different, and require a separate and distinct weighing and synthesis of those factors. 34 The applicant submitted that the weight to be given to various considerations will differ, depending on the sentencing stage. He gave the example of the need for denunciation potentially requiring greater weight when setting the head sentence than when considering whether to suspend. Separately, there may be factors rendering the offending sufficiently serious not to warrant suspension, but not so as to preclude home detention. 5 35 This general propositional framework is undoubtedly correct. Nevertheless, in Hibeljic, Doyle J also went on to say:6 At the same time, where the circumstances of the offending and of the offender have been essayed in the sentencing remarks, it will not generally be necessary to repeat these matters at each stage of the sentencing process. While the issues differ at each stage, there is often little different that can usefully be said at each stage. Having at some point in the sentencing remarks set out all relevant considerations, the conclusion at each stage (including in relation to home detention) often admits of little by way of analysis, let alone by way of detailed exposition of that analysis. While this Court needs to ensure that 2 [2018] SASCFC 35. 3 [2018] SASCFC 22. 4 R v Hibeljic [2018] SASCFC 35 at [74]. 5 R v Hosking (2017) 128 SASR 37 at [60]. 6 R v Hibeljic [2018] SASCFC 35 at [75]. -- 8 of 11 -- [2024] SASCA 62 The Court 7 adequate regard has been had to the differing discretions at each stage of the sentencing exercise, it at the same time needs to be wary of mandating an approach that would require that sentencing remarks include a detailed or exhaustive explication of every step in the process. To do so would result in sentencing remarks becoming unnecessarily, and indeed undesirably and artificially, long and would risk the resort to formulaic repetition in an attempt to articulate what is, after all, meant to be the product of an instinctive synthesis that is often not readily susceptible of detailed articulation. 36 In that case, unlike in Hevko, there had been no failure to identify a salient feature of the offending in the sentencing remarks.7 37 In the present case, the applicant submitted that the judge’s sentencing remarks did not identify any recognition of the difference between the discretion to suspend and the discretion to order that the sentence be served on home detention. The only factor to which she referred expressly when turning to the question of home detention was the seriousness of the offending. 38 We are not persuaded that the need to consider the question of home detention separately required a further and separate express exposition of the relevant matters insofar as they applied to the question of home detention specifically. Given the judge’s earlier articulation of the relevant considerations in her general sentencing remarks, we do not think that this further exercise was necessarily susceptible to that kind of separate articulation.8 39 The seriousness of the offending was the principal matter that stood in opposition to home detention (and suspension), to the extent that these non-custodial options were recommended by the various ameliorating factors on which the applicant relied. In this regard, it is helpful to have regard to the observations of Doyle J in R v Dell:9 The significance of the less onerous nature of a home detention order is that courts will need to be astute to ensure that the making of such an order – even if it will assist in the rehabilitation of the defendant and provide sufficient personal deterrence – does not inappropriately undermine achievement of the objectives of punishment and general deterrence. The ultimate sentence imposed must always be appropriate having regard to the criminality of the conduct involved, and the Court’s concern to achieve a level of punishment and general deterrence. The greater the weight to be attached to these objectives in an individual case, the less likely it will be appropriate that there be an order for home detention. It is notable that the legislature has not chosen to circumscribe the courts’ discretion by proscribing a home detention order in respect of any particular category of offence, or in respect of sentences of imprisonment beyond a particular period of length. However, this does not mean that home detention orders will not generally be inappropriate in respect of many types of offences, and in respect of defendants the subject of lengthy terms of imprisonment. To the contrary, there will be many cases in which the nature of the offending is such that the need to ensure achievement of the broader objectives of sentencing will for practical purposes foreclose any exercise of the discretion in favour of 7 R v Hibeljic [2018] SASCFC 35 at [77]. 8 R v Hibeljic [2018] SASCFC 35 at [75]. 9 [2016] SASCFC 156 at [55]-[56]. -- 9 of 11 -- [2024] SASCA 62 The Court 8 home detention. The length of the head sentence that has been imposed will often provide some indication of the weight that it is necessary to attach to the objectives I have mentioned.10 (Footnote in original) 40 Thus, in R v Filipponi, the Court of Criminal Appeal said:11 In the case of serious drug trafficking the demands of general deterrence and punishment are such that if these considerations have operated to preclude a suspended sentence then, in the ordinary case, it is unlikely that the purposes of sentencing will be met by imposing a home detention order. 41 The general proposition of the applicant as to the importance of not eliding the distinction between the questions of suspension and home detention is correct. However, in the present case, and notwithstanding the brevity of the judge’s separate express consideration of home detention, we are not satisfied that the judge did so. 42 There remains the question whether it was reasonably open to the judge to decline to impose a non-custodial sentence. The applicant pointed to the following factors: • the number of plants was at the lower end of the ‘commercial’ tier. There was no evidence as to the size of 14 of the plants and it was not clear how many were productive. The anticipated yield was relatively modest, especially with there being a split between two defendants and a degree of personal use; • there was no evidence that this was an ‘ongoing’ operation. Rather, it amounted to a one-off incursion into criminality. Against this, it must be recognised that this was nonetheless a sophisticated hydroponic setup, with plants of differing sizes. It must necessarily have been operational for quite some weeks; • the offending was not done to fund an indulgent or hedonistic lifestyle.12 It was done to relieve financial stresses. Accepting that, and bearing in mind that the primary offence was a cultivation and not a trafficking offence, we note that the judge set a starting point that matched the bottom of the indicated range in R v Young. However, Young is of less significance to the question whether to impose a custodial sentence than are the observations in other cases, such as R v Filipponi;13 • while the offending was technically sophisticated, it was not commercially sophisticated. Indeed, there was nothing to indicate that this was part of a broader commercial enterprise. On the other hand, the lack of involvement 10 R v Filipponi [2016] SASCFC 148 at [32]-[34]. 11 R v Filipponi [2016] SASCFC 148 at [37]. 12 See R v Young (2016) 126 SASR 41 at [65]-[67]. 13 R v Filipponi [2016] SASCFC 148 at [37]. -- 10 of 11 -- [2024] SASCA 62 The Court 9 of others necessarily meant that with the presumed assumption of all the risk, the applicant and his co-offender were entirely responsible for the enterprise; • the profits would be relatively low. As the judge found, they would be in the order of $10,000 to $15,000; • the circumstances in which the applicant came to cultivate the cannabis excited some leniency. This may be accepted. Indeed, the relatively low non-parole period was demonstrative of the judge’s acceptance of this consideration; • the applicant enjoys strong family and community support. He is industrious and hard working; • the applicant had a number of dependants; • the applicant was contrite; • since his arrest, the applicant had worked to address his criminogenic habits. This has included commencing the apprenticeship so as to place him in a position where he is not subject to the stresses caused by the long hours at the glass-blowing business. Imprisonment would interfere with his ability to continue with his efforts to rehabilitate more broadly; • the applicant had a demonstrated ability to rehabilitate and comply with periods of supervision. This may be accepted. However, as the judge found, it cannot be considered in isolation from his demonstrated tendency to relapse into previous offending habits; • the applicant had prospects of rehabilitation. This may be accepted, subject to the observations made above. 43 In short, there were factors that recommended leniency. However, as the above discussion shows, several of those factors were qualified. The offending was serious. It was motivated by profit. The applicant had a long association with illicit drugs and had previously been engaged in the sale of amphetamines. Notwithstanding that there was scope for leniency, which was reflected in a relatively short non-parole period, the objectives of community protection and general and specific deterrence spoke heavily against the imposition of a non-custodial sentence. It cannot be said that the failure to suspend the sentence or to order that it be served on home detention was unreasonable or plainly unjust. Conclusion 44 We grant permission to appeal but dismiss the appeal. -- 11 of 11 --