ROWEN WOOLDRIDGE v THE KING [2024] SASCA 139

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE SUTCLIFFE) DCCRM-22-71 Appellant: ROWEN WOOLDRIDGE Counsel: MR D MOEN - Solicitor: MCGRATH LAWYERS Respondent: THE KING Counsel: MS R RICHARDSON WITH MS E CATTRALL - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 22/11/2024 File No/s: SCCRM-24-014721; SCCRM-24-041390 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. WOOLDRIDGE v THE KING [2024] SASCA 139 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Bleby) 5 December 2024 CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE This is an appeal against conviction and sentence. Following a trial by judge alone, the appellant was found guilty of trafficking in a large commercial quantity of a controlled drug, contrary to s 32(1) of the Controlled Substances Act 1984 (SA) (‘the CSA’) (Count 1). He was also found not guilty of cultivating controlled plants for sale, contrary to s 33B(3) of the CSA (Count 2). The charges arose out of a police search of the appellant’s home address. During that search, police located a locked bedroom which had been converted into a grow room used to cultivate cannabis. Throughout the grow room and other areas of the premises they located a total of 8.871 kg of female flowering cannabis, the subject of Count 1. They also located six juvenile cannabis plants in the laundry, the subject of Count 2. The appellant was sentenced for the trafficking offence, as well as three offences to which he had pleaded guilty: (i) cultivating controlled plants (being an alternative to the Count 2 charge of which he was acquitted); (ii) diverting electricity; and (iii) possessing prescribed equipment. -- 1 of 19 -- For the cultivation offence, the judge imposed a conviction and a fine of $475. For the trafficking offence, the appellant was sentenced to imprisonment for three years and 10 months, and for each of the offences of diverting electricity and possessing prescribed equipment, imprisonment for one month and 22 days, made wholly concurrent with the sentence for the trafficking offence. The appellant appeals his conviction on three grounds: (i) that the verdict on Count 1 is inconsistent with the verdict on Count 2; (ii) that the judge did not properly identify the use to be made of the verdict on Count 2 in considering Count 1; and (iii) that the judge erred in her directions in relation to the evidence of the appellant’s good character. The appellant seeks permission to appeal against his sentence on two grounds: (i) that the appellant’s head sentence was manifestly excessive; and (ii) that the judge erred in declining to find exceptional circumstances justifying suspension of the appellant’s sentence of imprisonment. Held, (per the Court), granting permission to appeal against conviction and sentence, but dismissing both appeals: 1. Due to the operation of the presumption in s 32(5) of the CSA, and the fact that the trial judge did not accept the appellant’s evidence, or otherwise make any positive finding to the effect that the appellant cultivated the six plants the subject of Count 2 for his personal use, the guilty verdict on Count 1 was not inconsistent with the not guilty verdict on Count 2. 2. There was no need, or occasion, for the judge to expressly bring her conclusion in relation to Count 2 into account when addressing Count 1, as the judge did not make any finding in the context of Count 2 which was probative of Count 1; 3. The trial judge’s description of the use to be made of the appellant’s evidence of good character was orthodox and appropriate, and did not involve any misdirection; 4. The appellant’s head sentence was within the permissible range and was neither unreasonable nor plainly unjust; and 5. The judge did not err in finding that the appellant’s personal circumstances did not amount to exceptional circumstances justifying suspension of his sentence of imprisonment. Controlled Substances Act 1984 (SA) ss 32(1), 32(5), 33B(3), 33K(1)(b), 33K(1)(a)(ii), 33LA, 33LA(a)(ii); Electricity Act 1996 (SA) s 85(1)(a); Sentencing Act 2017 (SA) s 26, referred to. Adams (a pseudonym) v The Queen (2022) 141 SASR 204; Melbourne v The Queen (1999) 198 CLR 1; R v C, CA [2013] SASCFC 137; R v Kong (2013) 115 SASR 425; R v Lyberopoulos [2017] SASCFC 139; R v Mangelsdorf (1995) 66 SASR 60; R v Skinner (2016) 126 SASR 120 (2016) 126 SASR 120; R v Trimboli (1979) 21 SASR 577; R v Wooldridge [2024] SADC 29; R v Yavuz (2018) 130 SASR 231; R v Young (2016) 126 SASR 41, considered. -- 2 of 19 -- WOOLDRIDGE v THE KING [2024] SASCA 139 Court of Appeal – Criminal: Livesey P, S Doyle and Bleby JJA 1 THE COURT: Following a trial by judge alone, the appellant was found guilty of trafficking in a large commercial quantity of a controlled drug, contrary to s 32(1) of the Controlled Substances Act 1984 (SA) (‘the CSA’) (Count 1). He was also found not guilty of cultivating controlled plants for sale, contrary to s 33B(3) of the CSA (Count 2). 2 The charges arose out of a police search of the appellant’s home address. During that search, police located a locked bedroom which had been converted into a grow room used to cultivate cannabis. Throughout the grow room and other areas of the premises they located a total of 8.871 kg of female flowering cannabis, the subject of Count 1. They also located six juvenile cannabis plants in the laundry, the subject of Count 2. 3 In addition to the offence of trafficking in a large commercial quantity of a controlled drug, the appellant was also sentenced for three other offences to which he had pleaded guilty: (i) cultivating controlled plants (being an alternative to the Count 2 charge of which he was acquitted); (ii) diverting electricity; and (iii) possessing prescribed equipment. The appellant was sentenced to a single sentence of imprisonment for three years and 10 months, with a non-parole period of one year and 11 months. As Count 1 was a serious and organised crime offence, home detention was not available, and the appellant’s sentence could only be suspended if the Court was satisfied that exceptional circumstances existed for doing so. The judge declined to suspend the appellant’s sentence of imprisonment. 4 The appellant seeks permission to appeal against his conviction and sentence. 5 The appellant’s proposed appeal against conviction raises three grounds, namely: (i) that the verdict on Count 1 is inconsistent with the verdict on Count 2; (ii) that the judge did not properly identify the use to be made of the verdict on Count 2 in considering Count 1; and (iii) that the judge erred in her directions in relation to the evidence of the appellant’s good character. 6 The appellant seeks permission to appeal against his sentence on two grounds, namely: (i) that the appellant’s head sentence was manifestly excessive; and (ii) that the judge erred in declining to find exceptional circumstances justifying suspension of the appellant’s sentence of imprisonment. 7 For the reasons which follow, permission to appeal against conviction and sentence should be granted, but the appeals dismissed. BACKGROUND 8 The prosecution case in relation to Count 1 was that the appellant was in possession of 8.871 kg of dry, 100 per cent female flowering cannabis, intending -- 3 of 19 -- [2024] SASCA 139 The Court 2 to sell at least 2 kg. In relation to Count 2, the prosecution case was that the appellant cultivated the six juvenile cannabis plants intending to sell the plants or their products. 9 The appellant admitted both the possession of the cannabis and the cultivation of the plants. He gave evidence at trial that he established the grow room and cultivated the cannabis for his own personal use, and was not intending to sell any of the cannabis plants or products. 10 The sole issue in relation to both counts was therefore whether the appellant had the requisite intention to sell. In the case of Count 1, the prosecution relied on the presumption, under s 32(5) of the CSA, that, in the absence of proof to the contrary, the appellant had the cannabis in his possession for sale. In the case of Count 2, the prosecution case included reliance upon the inferences that could be drawn from the offending arising out of Count 1. Prosecution case 11 Evidence was led from police that they attended the appellant’s Morphett Vale home address on 27 April 2021. Towards the rear of the house they found a room with a locked door (referred to as ‘bedroom 3’). The keys to that door were located by police in the kitchen pantry. Upon entering bedroom 3, police found a room containing multiple ballast boxes attached to the wall, electrical cords which had been hung down and across the room, and numerous growing mediums for a hydroponic set up. 12 Contained within bedroom 3 was a partitioned wall with another locked door. Having also located the key to this door in the kitchen pantry, police entered and found a purpose-built hydroponic set up. There were no cannabis plants being grown at the time. But the room contained black pots with soil, and drying racks hanging from the ceiling containing bags of cannabis head. The following items were seized from that room: 14 ballast boxes; nine light globes and light shades; cannabis on a drying rack in five large bags, each containing between 433 grams and 443 grams; cannabis on a drying rack in eight large bags, seven containing between 441 grams and 493 grams and one containing 241 grams; four further bags, each containing a significant quantity of moist, mouldy and decomposing cannabis plant material and stem, with a couple of these bags also containing some rubbish;1 and a large cannabis grinder. 13 Police also gave evidence that within the laundry of the Morphett Vale premises they located a small black tent containing six juvenile cannabis plants being grown under a light. They also located a bucket containing 400 grams of cannabis in two bags. 14 In the garage, police located various items, including a bucket containing 690 grams of cannabis; a further bucket containing approximately a kilogram of 1 There was no charge in relation to the cannabis material in these bags. -- 4 of 19 -- [2024] SASCA 139 The Court 3 cannabis; six resealable plastic bags (one containing 3.9 grams of cannabis, one containing 5.3 grams of cannabis, and the remaining four containing a total of 53.8 grams of cannabis resin); five further resealable bags on a bench containing between 0.6 grams and 10.9 grams of cannabis material of varying quality; a small bag in a drawer containing less than 0.6 grams of cannabis plant material and 21 cannabis seeds; and a bong in a drawer. 15 During their search, police also found six light globes and a carbon filter in the shed; five light shades and light globes in a bathroom adjacent to bedroom 3; and $700 in the main bedroom. 16 The appellant had earlier pleaded guilty to possessing prescribed equipment, contrary to s 33LA of the CSA. He had also pleaded guilty to the offence of diverting electricity, contrary to s 85(1)(a) of the Electricity Act 1996 (SA), an electrical technical standards and safety officer having confirmed that this had occurred at the Morphett Vale premises. 17 Detective Brevet Sergeant Rex, from the Drug and Organised Crime Task Force, gave expert evidence about cannabis, including its consumption, cultivation and sale. He said that when smoking cannabis using a cone, a person might consume between about 0.2 grams and 0.5 grams of cannabis, and when smoking it through a cigarette, they might consume between about 0.5 grams and 0.7 grams. He said that, in his experience, a person who possesses cannabis for personal use typically has between a couple of grams and up to 200 grams in their possession, with quantities greater than this indicative of trafficking. When asked to comment on the level of sophistication apparent from the set up at the Morphett Vale premises, DBS Rex said that it suggested ‘a good level of knowledge in regards to cannabis hydroponic cultivation’. He identified aspects of the grow room which were designed to maximise yield. Defence case 18 The appellant gave evidence that the cannabis in his possession was for his personal use, and that the plants growing in the tent in the laundry were cuttings he took some weeks earlier from plants in the grow room as a ‘back up’, in case something went wrong in the process of cultivation. He said that he never sold, or intended to sell, any of the cannabis, the cannabis plants or their products. 19 The appellant explained that it took him a ‘good couple of months’ to put the grow room together, and that he had done so to grow marijuana for his personal use. The crop had been growing for approximately three months prior to the police attending. The plants in the laundry had been growing for about six weeks. 20 By way of background to his cannabis use, the appellant said that he had suffered an injury to his back at work in 2016, which resulted in him making a WorkCover claim. He had established the grow room in order to cultivate cannabis that he could use to help with his back injury and pain. -- 5 of 19 -- [2024] SASCA 139 The Court 4 21 The appellant gave evidence about his cannabis use. He consumed it by smoking it with a bong, and by way of cigarettes. He was smoking up to three joints on a daily basis. He was unable to say, even approximately, how much cannabis he would put in a bong or cigarette when smoking it. 22 During cross-examination, the appellant said that he would purchase cannabis from other people. He declined to name them, but said there were three of them. He only bought ‘J-bag’ and ounce amounts because that was all he needed and was more affordable. It was not necessary for him to buy it a pound at a time. 23 When asked about establishing the grow room, the appellant said that he had spent one to two hours a night, for two to three months, to establish it. He was not able to say how much the ballast boxes had cost him as he had purchased other things at the same time. If he had to guess the cost of everything he purchased at that time, it would be in the range of $5,000 to $7,000. He did not consider this to be a large amount of money. He was spending more on buying cannabis, although he was not able to say how much he was spending on cannabis each year. On the appellant’s evidence, he built the grow room intending only to use it for one cultivation. When asked whether he had gone to a significant effort to set it up, he said ‘not really’. 24 As for the cannabis in the garage, the appellant said he was going to dispose of it because it was ‘rubbish’ from clippings he had dried. When asked why he had not turned off the light on the six plants being cultivated, he said he had not had a chance to do so because he had stitches in his leg and was not very mobile. 25 Mr Knight, a friend of the appellant, also gave evidence. This included saying that he had known the appellant for approximately 10 years, that the appellant had never offered him cannabis, and that the appellant was a passionate, hardworking, family man. The trial judge’s reasons 26 The trial judge’s reasons2 included a thorough summary of the evidence. This included the evidence of DBS Rex, which her Honour accepted. Her Honour then undertook a detailed summary and assessment of the accused’s evidence. 27 In assessing the accused’s evidence, the judge commenced by noting the appellant’s good character, the absence of any evidence of previous involvement in trafficking in cannabis, and the absence of the usual indicia of sale or unexplained wealth. 28 However, her Honour then went on to identify and address various difficulties with the appellant’s evidence. She described his evidence as evasive in some respects, and implausible in other respects. The judge emphasised the relative sophistication of the set up, and the time and expense involved in 2 R v Wooldridge [2024] SADC 29 (‘Reasons’). -- 6 of 19 -- [2024] SASCA 139 The Court 5 establishing it. She also noted that the amount of cannabis located in the appellant’s premises far exceeded what he might need for his personal use, and that much of it was packaged in amounts of approximately one pound (consistent with it being packaged for sale). Her Honour ultimately rejected the appellant’s evidence as to his intended use of the cannabis as ‘implausible’. 29 The trial judge then set out the following operative reasoning in support of her verdicts of guilty for Count 1, and not guilty for Count 2:3 Consideration of count 1 The prosecution case relies on the presumption in s 32(5) of the Act that the accused possessed the cannabis for sale but also the inferences that can be drawn from the manner in which the grow room was established, the total quantity and value of the cannabis and that the cannabis in the grow room was packaged in amounts that approximated amounts of a pound. I reject the accused’s evidence that all the harvested cannabis was for his personal use. The accused has not satisfied me on the balance of probabilities that he did not intend to sell at least 2 kilograms of the cannabis. It follows that I am satisfied beyond reasonable doubt that the accused is guilty of count 1. Consideration of count 2 I direct myself that it is impermissible for me to reason that because the accused is guilty of count 1, he must therefore be guilty of count 2 or that he is of bad character and therefore more likely to have committed the offence. The evidence of count 1 is circumstantial evidence relevant to an assessment of the accused’s intention in cultivating six cannabis plants. It is evidence capable of supporting an inference that the accused was in the business of selling cannabis and as a circumstantial fact, makes it more likely in relation to count 2 that the accused intended to sell at least some or all of the cannabis plants or their products. It cannot be used for any other purpose. As it might be thought unlikely that a person would cultivate 6 cannabis cuttings for personal use when in possession of a large quantity of dried cannabis, I am satisfied the probative value of the evidence of count 1 for the identified purpose outweighs any prejudicial effect it may have on the accused. The use is and can be, kept separate and distinct from any impermissible use (i.e. mere bad person reasoning, or reasoning which involves a propensity or disposition as circumstantial evidence). The scale of the cultivation in the grow room, the effort involved in the construction of the grow room and the timing of the cultivation of the six cuttings, is strong circumstantial evidence that the accused was in the business of selling cannabis and that in furtherance of that business, he cultivated the six cuttings with the intention to grow the plants to maturity, with the intention of selling any of them or their products. The accused’s evidence was that the cuttings had been growing for six to seven weeks, and he started growing them as a back-up crop to replace the first crop if it failed, and he harvested the mature plants in the grow room about a week prior to police attendance. There 3 Reasons at [151]-[160]. -- 7 of 19 -- [2024] SASCA 139 The Court 6 is no basis to reject the accused’s evidence about the age of the cuttings or the timing of the harvest. There was no indication that steps had been taken to prepare the grow room to receive the plants or to prepare larger pots for the plants. This is significant given the expert evidence establishes that cuttings are transferred to larger pots only a few weeks into the growing cycle. That the six- to seven-week-old plants had not been transferred to pots in the grow room or steps taken to prepare the grow room to receive them, raises some doubt as to what the accused was intending to do with them. The prosecution case was that the 6 cuttings were for the accused’s next cultivation for the purposes of sale, however if that was the case, it could be expected that the plants would have been moved into the grow room, or some preparations made to move them by the time police attended. The evidence does not provide an adequate explanation for why the plants remained in the laundry if the accused intended to sell any of them or their products. It follows that I am not satisfied that the evidence establishes beyond reasonable doubt that the accused intended to sell any of the 6 cannabis plants or their products. 30 In summary, for Count 1, the judge noted the prosecution reliance upon the presumption of an intention to sell under s 32(5) of the CSA. Having rejected the appellant’s evidence that all of the harvested cannabis was for his personal use, the presumption was not rebutted, and the appellant’s guilt was proven beyond reasonable doubt. 31 However, for Count 2, the prosecution did not have the benefit of a presumption in proving an intention to sell the cannabis, or cannabis products, from the six plants found in the laundry. Her Honour noted the evidence which was probative of such an intention. But having regard to the appellant’s explanation for the six plants, the fact that those plants had not been moved into the grow room, and the absence of any physical evidence suggesting that the process for this to occur had commenced, the judge was not ultimately persuaded beyond reasonable doubt that the appellant intended to sell any of the six cannabis plants or their products. In other words, her Honour could not exclude as a reasonable possibility that these six plants were not intended for sale. CONVICTION APPEAL 32 As mentioned at the outset of these reasons, the appellant seeks permission to appeal on three grounds. Ground 1: inconsistent verdicts 33 The appellant contends that the trial judge’s verdict of guilty on Count 1 is inconsistent with her verdict of not guilty on Count 2. In particular, he contends that the judge must have believed his evidence that he did not cultivate the cannabis the subject of Count 2 (the six plants in the laundry with an intention to sell them or their products), and that this was an integral part of the prosecution case as to the appellant’s involvement in an enterprise to sell the cannabis the subject of Count 1 (the 8.871 kg harvested from the grow room). In particular, he submits that, given the connection between the two counts, the judge’s rejection of his -- 8 of 19 -- [2024] SASCA 139 The Court 7 evidence that he grew the cannabis the subject of Count 1 solely for personal use was inconsistent with what the appellant described as her Honour’s ‘finding … that the appellant cultivated for personal use’ in the context of Count 2. 34 The principles governing inconsistent verdicts are well known and not in dispute. In short, an appeal against conviction on the ground that a guilty verdict is unreasonable by reason of inconsistency with a not guilty verdict on some other count(s) will only succeed where the different verdicts cannot rationally be reconciled; where they represent an affront to logic and commonsense, or otherwise suggest some misunderstanding or breakdown in a jury’s (or, here, the trial judge’s) process of reasoning, such that justice requires intervention. 35 These principles have no application in the present case. The appellant’s submissions proceed on a misconceived understanding of the trial judge’s reasoning in relation to Count 2, and the differences between the evidence and forensic tasks in relation to Counts 1 and 2. 36 The trial judge did not accept the appellant’s evidence, or otherwise make any positive finding, to the effect that the appellant cultivated the six plants the subject of Count 2 for his personal use. Rather, the judge’s essential reasoning, set out above, was merely that an intention to sell the cannabis from these plants was not established beyond reasonable doubt. This reasoning did not involve any acceptance of the appellant’s evidence as to the six plants he cultivated, and was, in any event, anchored in the evidence which was specific to the six plants. It was anchored in an inability to exclude the possibility that the six plants were not intended to be moved into the grow room and form part of the appellant’s trafficking enterprise, or otherwise intended for sale. 37 Understood in this way, there is no inconsistency between the judge’s verdicts of guilty for Count 1 and not guilty for Count 2. There was no acceptance of the appellant’s evidence, and no positive finding, of personal use underpinning the judge’s verdict on Count 2. To the extent that her Honour allowed for a reasonable possibility of personal use in the context of Count 2, this was anchored in the evidence that was specific to the six plants the subject of that count. The existence of this possibility was not inconsistent with an intention to sell the cannabis harvested from the grow room and the subject of Count 1. Further, and in any event, given the availability of a presumption of an intention to sell for Count 1, a possibility (as opposed to probability) of an intention to sell, even if related to all of the cannabis and not just the six plants, would not necessarily be inconsistent with a verdict of guilty on Count 1. Ground 2: use of the verdict on Count 2 38 The appellant next argues that the trial judge erred in failing to identify the use to be made of Count 2 in relation to Count 1. In particular he argues that her Honour failed to have regard to her conclusions in relation to Count 2 when addressing Count 1. -- 9 of 19 -- [2024] SASCA 139 The Court 8 39 This ground of appeal proceeds from the same misconceptions as Ground 1. Properly understood, the judge did not make any finding in the context of Count 2 which was probative of Count 1. Whilst the issue of an intention to sell arose in respect of both counts, it arose in different contexts. The judge’s reasons for acquitting the appellant on Count 2 did not involve any positive finding as to the appellant’s intention, and was in any event anchored in the evidence that was specific to the six plants in the laundry. The inability to be satisfied beyond reasonable doubt of an intention to sell the six plants was not probative of the appellant’s intention to sell the cannabis harvested from the grow room. 40 There was no need, nor occasion, for the judge to expressly bring her conclusion in relation to Count 2 into account when addressing Count 1. Whilst it was necessary for her Honour to consider Count 1 in the context of the evidence as a whole, including the evidence in relation to the six plants the subject of Count 2, the trial judge plainly did so. Ground 3: good character 41 The appellant contends that the trial judge misdirected herself in relation to the use to be made of the evidence of his good character. 42 The judge first addressed the appellant’s good character in the introductory section of her reasons, when addressing the approach to be taken to the accused’s evidence:4 I treat the accused’s evidence as I would any other witness. I bear in mind his previous good character when assessing his credibility as a witness, when considering whether to draw from the evidence the conclusion of his guilt and as a factor affecting the likelihood of him committing the offences charged. However, ultimately it is not a matter of whether it is likely that a person of previous good character would have committed the offences charged, but whether notwithstanding any good character, I find any of the offences proved beyond reasonable doubt. 43 Her Honour returned to the topic at the conclusion of her summary of the appellant’s evidence:5 The accused said he did not have any affiliation with illegal motorcycle gangs. The accused has no prior criminal history. It was submitted that this was evidence of good character. It is doubtful that an absence of criminal convictions is evidence of good character, but to the extent that it is, the evidence of good character is relevant to support his credibility and relevant in the way I have already directed myself. 44 Finally, in assessing the appellant’s evidence, the judge expressly stated that she had taken into account not only the absence of any indicia of sale or evidence 4 Reasons at [12]-[13]. 5 Reasons at [124]-[125]. -- 10 of 19 -- [2024] SASCA 139 The Court 9 of any other involvement in the trafficking of cannabis, but also ‘that the accused is of good character, and had not been a target of any other police operation’.6 45 It is not in dispute that the evidence of good character is admissible for two purposes: first, to support the credibility of the defendant; secondly, as a factor affecting the likelihood of the defendant committing the crime charged.7 46 The appellant accepts that the judge’s reasons identified both uses of the evidence of the appellant’s good character. However, he contends that the judge erred in her articulation of the second use. He contends that rather than the evidence being ‘a factor affecting the likelihood of him committing the offences charged’, the judge ought to have directed herself that the evidence affected the ‘probability’ of him committing the offences charged, or perhaps even that it demonstrated the improbability of him having committed the offences charged. 47 The appellant’s contention must be rejected. Her Honour’s description of the second use of the good character evidence was orthodox and appropriate. To the extent that some of the authorities have used the language of probability or improbability in describing the use that may be made of good character they have not done so in a sense that is intended to convey any different or greater relevance or use than described by the judge. Conclusion 48 None of the appellant’s proposed grounds of appeal against conviction has been made out. We grant permission to appeal, but dismiss the appeal against conviction. SENTENCE APPEAL 49 The appellant seeks permission to appeal his sentence on the two grounds identified at the outset of these reasons. 50 It is appropriate to commence by setting out the detail of the sentence imposed, the relevant sentencing considerations, and the key aspects of the judge’s sentencing remarks, before then addressing the appellant’s submissions in support of these two grounds. The sentence imposed 51 The appellant fell to be sentenced for four offences: • trafficking in a large commercial quantity of a controlled drug,8 with a maximum penalty of a fine of $1 million or imprisonment for life or both; 6 Reasons at [126]. 7 R v Trimboli (1979) 21 SASR 577 at 578 (King CJ); Melbourne v The Queen (1999) 198 CLR 1 at [30]- [31] (McHugh J); R v C, CA [2013] SASCFC 137 at [106] (Kourakis CJ). 8 Contrary to s 32(1) of the CSA. -- 11 of 19 -- [2024] SASCA 139 The Court 10 • cultivating controlled plants,9 with a maximum penalty of a fine of $2,000 or imprisonment for two years or both; • diverting electricity,10 with a maximum penalty of a fine of $20,000 or imprisonment for two years or both; and • possessing prescribed equipment,11 with a maximum penalty of a fine of $10,000 or imprisonment for two years or both. 52 As described earlier in these reasons, the appellant was convicted of the first of these offences following a trial by judge alone. As to the second offence, the appellant had pleaded guilty to this offence shortly before the commencement of the trial, but this was not accepted by the prosecution in satisfaction of the more serious charge of cultivating controlled plants for sale. Following the appellant’s acquittal of that more serious charge, he was convicted on his plea of guilty to the lesser charge. The appellant also pleaded guilty to the third and fourth offences listed above. 53 For the offence of cultivating controlled plants, the judge imposed a conviction and a fine of $500, reduced by five per cent on account of his guilty plea, to $475. 54 For the remaining offences, the judge imposed a single sentence pursuant to s 26 of the Sentencing Act 2017 (SA). However, she identified the following notional sentences: • for trafficking in a large commercial quantity of a controlled drug, imprisonment for three years and 10 months; and • for each of the offences of diverting electricity and possessing prescribed equipment, imprisonment for two months, but reduced on account of the appellant’s guilty pleas to imprisonment for one month and 22 days, and made wholly concurrent with the sentence for the trafficking offence. • The judge considered that the appellant’s personal circumstances, lack of relevant criminal history and good prospects of rehabilitation justified some leniency in setting the non-parole period. Her Honour fixed a non-parole period of one year and 11 months, being 50 per cent of the length of the head sentence. • The judge did not accept that exceptional circumstances existed to permit the sentence to be suspended. Home detention was not an available sentencing option. 9 Contrary to ss 33K(1)(b), 33K(1)(a)(ii) of the CSA. 10 Contrary to s 85(1)(a) of the Electricity Act. 11 Contrary to s 33LA(a)(ii) of the CSA. -- 12 of 19 -- [2024] SASCA 139 The Court 11 Circumstances of the offending 55 The circumstances of the offending have been summarised in the context of the conviction appeal, and need no further elaboration. 56 It is sufficient to observe that the offending occurred in the context of a cannabis trafficking enterprise that involved a relatively sophisticated hydroponic set up. The quantity of cannabis (8.871kg) the subject of the trafficking charge was estimated to have a value of between about $24,000 and $36,000 if sold in one pound quantities. If sold in smaller quantities, its value would increase, and might be between about $39,000 and $58,000. Personal circumstances 57 The appellant was 36 years of age at the date of sentencing. The detail of his personal history was set out in a report from his treating psychologist, Dr Black, and addressed at some length in the trial judge’s sentencing remarks. Some key matters are set out below. 58 The appellant’s parents separated when he was six years old. He was closer to his father. His mother experienced poor mental health while he was growing up, and was diagnosed with paranoid schizophrenia. The appellant became independent at the age of 17 years, when his mother moved in with her then partner and left the appellant and his older brother in the family home. The appellant took on family responsibilities, starting work at a young age and while still at school. Since that time, the appellant has maintained an excellent employment history, and has received several certificates evidencing his achievements and qualifications. 59 The appellant is married, and he and his wife have two young children, one who has just started school and another who is two years of age. The appellant expressed that his wife and children are the most important things in his life. The appellant runs his own business in carpentry and construction. As the sentencing judge acknowledged, a sentence of imprisonment will mean that his business will need to be wound up, with financial consequences for him and his family. 60 The appellant’s wife is the primary caregiver for the children. A sentence of imprisonment will mean that she will become a sole parent responsible for all their needs, and for the family’s finances. A sentence of imprisonment will require her to return to work as a registered nurse, and to make alternative care arrangements for the children. 61 The appellant has been on a mental health plan since 2012, and consulting Dr Black periodically since that time. He was initially referred to Dr Black for assessment and treatment of depression, and over the years has received support and treatment, including cognitive behavioural therapy. 62 In about August 2017, the appellant suffered a back injury at work and was diagnosed with bulging intervertebral discs. He has since suffered from chronic back pain, for which he has taken various medications. The appellant’s evidence -- 13 of 19 -- [2024] SASCA 139 The Court 12 at trial included that, as a form of self-medication, he became a regular smoker of marijuana, and built up a tolerance. A letter from his GP reported that he was prescribed CBD oil in 2022, or early 2023, in the context of his chronic back pain. It also had the added benefit of assisting with his sleep and anxiety, and having anti-inflammatory effects without the risks of stomach irritation or ulceration. The appellant has continued to use CBD oil. Whilst the appellant would not be permitted to use CBD oil in prison, the sentencing judge was provided with a report indicating that the appellant would be able to receive conventional treatment for his back injury, including pain relief, exercise and physiotherapy. 63 Dr Black explained that when the appellant first consulted him back in 2020, his assessment was that the appellant met the criteria for an adjustment disorder with depressed mood. However, over the years since then, he had developed skills to better manage his mental health, and his relationships with others. Whilst the appellant continued to experience significant stress, and some depression and anxiety, Dr Black considered that this was mostly related to these legal proceedings and fear of harm to his family. In Dr Black’s opinion, the appellant was not suffering from any diagnosable mental health condition, or from any alcohol or drug disorder. He also opined that the appellant had a low risk of re- offending. 64 Dr Black reported that the appellant had displayed genuine regret, and that he had underestimated the seriousness and impact of his offending. 65 The sentencing judge was provided with a number of character references from family and friends. As the sentencing judge recorded, they described not only the appellant’s deep remorse in relation to how his offending had impacted his family, but also his industrious work ethic, caring and selfless nature, and his commitment to his children and wife. 66 The appellant had no criminal history. Sentencing remarks 67 In her sentencing remarks, the judge summarised the circumstances of the offending. Her Honour then addressed the appellant’s personal circumstances in some detail, including setting out all of the matters summarised above. 68 On the topic of the appellant’s family and financial hardship, the judge accepted that this was a relevant sentencing consideration, but said that the weight to be given to it depends on the circumstances of the case. Her Honour explained that the welfare of the appellant’s dependents must be balanced against the public interest in imposing an appropriate sentence that recognises the purposes of punishment and deterrence. Her Honour then observed: Financial hardship can, in some cases, materially affect the sentence if the hardship is out of the ordinary, special or uncommon. -- 14 of 19 -- [2024] SASCA 139 The Court 13 There is no basis for me to find that the financial hardship to your family will be out of the ordinary consequences that flow from a period of imprisonment. A sentence of imprisonment is likely to impact the emotional wellbeing of your young children, who are too young to understand the reasons for any absence. That is also a relevant sentencing consideration, but hardship to a person’s dependents will only have a significant impact on sentence in exceptional circumstances. In your case, what is material is that you are aware of the hardship that will follow for your wife and children. I accept that the responsibility you feel about your family’s predicament and grief that you will experience at being unable to be present for your children’s significant milestones would increase the burden of a sentence of imprisonment on you. That burden must be considered alongside all the other relevant sentencing considerations. That feeling of responsibility is also relevant to an assessment of your risk of re-offending and for the reasons that I will come to I accept you are at low risk of re-offending. 69 Whilst accepting that the appellant might not have known the precise legal consequences of his offending, the sentencing judge was satisfied that the appellant understood in a general sense the seriousness of his conduct. In support of this conclusion, the judge mentioned the efforts that the appellant had gone to in concealing the hydroponic set up, including using two locked doors. 70 The judge accepted that, notwithstanding that he did not admit his offending, he was nevertheless remorseful for his actions, at least in the sense that they had led to the convictions and adversely impacted his family. Her Honour accepted that the predicament in which the appellant now found himself had achieved s significant level of personal deterrence. She was also satisfied that the appellant had good prospects for rehabilitation, and that the risk of him re-offending was low. 71 The judge explained that the appellant was to be sentenced on the basis that a portion of the cannabis the subject of the trafficking charge was intended to be distributed in the community. The quantity in his possession far exceeded what he needed for his personal use. It went well beyond what was required to defray the costs of growing cannabis for his personal use. The judge was satisfied that the appellant’s primary intention was to turn a profit, and that had his grow room not been detected, he would have made a profit. 72 The judge accepted that the appellant’s personal circumstances, including that this was the first time in his life that he had faced the prospect of imprisonment, warranted some leniency. However, she explained that the matters in the appellant’s favour must be balanced against the seriousness of his offence. Her Honour explained that general deterrence was particularly important in sentencing for trafficking in controlled drugs; that such offending was prevalent and could lead to significant rewards, and required sentences which would serve as a deterrent to others. 73 The judge then identified the individual sentences mentioned earlier in these reasons, ultimately imposing a sentence of imprisonment for three years and 10 months. Having regard to the appellant’s personal circumstances, particularly his -- 15 of 19 -- [2024] SASCA 139 The Court 14 lack of any criminal history and prospects of rehabilitation, her Honour considered that a lenient non-parole period was appropriate. She fixed a non-parole period of one year and 11 months, being 50 per cent of the head sentence. 74 Because the offence of trafficking in a large commercial quantity of a controlled drug is a serious and organised crime offence, the judge was only conferred with a discretion to suspend the appellant’s sentence if satisfied that exceptional circumstances existed. Home detention was not an available sentencing option. 75 In declining to suspend the appellant’s sentence, the judge reasoned as follows: Your counsel has submitted exceptional circumstances arise from a combination of your personal circumstances including that prison will be more difficult for you as you will be unable to receive CBD oil, your preferred pain relief option for chronic back pain and remedial massage therapy. Your chronic back pain will not be managed in the same way in custody as in the community and this may result in some hardship for you. However, there is no basis to conclude that hardship will be significant as you will be able to receive appropriate and adequate treatment, albeit those treatment methods are not your preferred options. I have had regard to several authorities referred to me by counsel on the approach to the issue of exceptional circumstances and considered all the relevant sentencing criteria, including your personal circumstances, noting that general deterrence plays a significant role in sentencing for trafficking in controlled drugs. This was serious offending. You were solely responsible for the offending and had taken steps over some months to cultivate the cannabis. You obtained and used the prohibited equipment knowing that what you were doing was wrong and doing so with the intention to profit. Having regard to all the circumstances, I am not satisfied exceptional circumstances exist and so the sentence will start today. Ground 2: manifestly excessive head sentence 76 The appellant contends that the head sentence of three years and 10 months indicated for the offence of trafficking in a large commercial quantity of a controlled drug is manifestly excessive. 77 The principles governing consideration of a submission of manifest excess are well known and not in dispute. In short, the appellant must demonstrate that the sentence imposed was unreasonable or plainly unjust; that the sentence was outside the permissible range of sentences having regard to the circumstances of the offending and the offender. 78 This Court has repeatedly emphasised the gravity of drug trafficking offending, given the harm caused to society. The relevant sentencing -- 16 of 19 -- [2024] SASCA 139 The Court 15 considerations have been canvassed in authorities including R v Mangelsdorf,12 R v Kong,13 R v Young,14 R v Lyberopoulos15 and R v Yavuz.16 79 The gravity of drug trafficking offending is reflected in the maximum penalties imposed by Parliament. In the case of trafficking in a large commercial quantity of a controlled drug, the maximum penalty is a fine of $1 million or imprisonment for life or both. 80 In the present case, the appellant’s offending involved 8.871 kg of cannabis, being an amount more than four times the threshold for a large commercial quantity, and with a potential value of between about $24,000 and $58,000, depending upon how it was sold. Whilst there was no evidence or indicia of previous trafficking, the set up was a sophisticated one which involved significant effort and expenditure by the appellant. He intended to make a profit. As described by the sentencing judge, the lengths the appellant went to in an attempt to conceal his set up demonstrate at least a general awareness of the seriousness of his offending. 81 It is to be acknowledged that the appellant’s personal circumstances were generally favourable. He has no history of offending, a long and consistent history of employment, a low risk of re-offending, and good prospects of rehabilitation. Prison will cause hardship by reason of both the implications for his young family being without his financial and emotional support, and his inability to access his preferred treatment for his back injury. 82 Whilst these personal circumstances are relevant considerations, the authorities nevertheless emphasise the paramountcy of general deterrence in sentencing for trafficking offending. The sentence must involve a sufficient level of punishment to deter others from engaging in similar conduct, despite the potential rewards that are on offer. 83 In considering the appellant’s submission of manifest excess in the head sentence he received, we have considered the appellant’s offending and personal circumstances in light of the authorities involving cannabis trafficking collated in the annexure to the reasons of Hinton J (with which Nicholson and Bampton JJ agreed) in R v Lyberopoulos. As the Court (Kourakis CJ, Blue and Hinton JJ) subsequently observed in R v Yavuz, whilst the sentences vary widely, and there are limits to the use that may be made of other sentences, the cases surveyed ‘do suggest that offenders who traffic in large commercial quantities of cannabis can ordinarily expect to receive lengthy custodial sentences that are not suspended and are served in prison.’17 12 R v Mangelsdorf (1995) 66 SASR 60. 13 R v Kong (2013) 115 SASR 425. 14 R v Young (2016) 126 SASR 41. 15 R v Lyberopoulos [2017] SASCFC 139. 16 R v Yavuz (2018) 130 SASR 231. 17 R v Yavuz (2018) 130 SASR 231 at [97] (Kourakis CJ, Blue and Hinton JJ). -- 17 of 19 -- [2024] SASCA 139 The Court 16 84 A determination of manifest excess is ultimately a conclusion which does not permit of much analysis or explication. Having considered all the matters outlined above, we are satisfied that the appellant’s head sentence was within the permissible range; it was neither unreasonable nor plainly unjust, given the importance of general deterrence as a sentencing consideration. The appellant’s favourable personal circumstances were appropriately reflected in a relatively lenient non-parole period. Ground 1: exceptional circumstances to suspend 85 The appellant contends that the judge erred in not finding exceptional circumstances justifying suspension of the appellant’s sentence of imprisonment. 86 The principles relevant to determining the existence of exceptional circumstances are not in dispute. The parties relied upon the articulation of those principles in R v Skinner,18 as applied in R v Yavuz.19 87 In contending for the existence of exceptional circumstances, the appellant relied primarily upon the hardship to his family, but in combination with all of the other relevant sentencing considerations, and particularly his favourable personal circumstances outlined above. 88 It cannot be said that the judge overlooked the hardship to the appellant’s family. Whilst not accepting that the hardship to be experienced by reason of the appellant’s wife and two young children being without his financial and emotional support was exceptional, so as to justify any significant impact upon the appellant’s sentence, her Honour nevertheless recognised this unfortunate circumstance as a relevant sentencing consideration. Her Honour’s approach was consistent with the consideration of hardship to dependents in Adams (a pseudonym) v The Queen.20 89 At the risk of repetition, the appellant’s personal circumstances were favourable. However, even when considered in combination, they were not relevantly exceptional. In the language used by the Court in R v Yavuz, they were not circumstances which ‘so markedly change the nature of the particular case that it is no longer within the mischief which the legislature intended to address’ when making the suspension of a sentence of imprisonment imposed in respect of a serious and organised crime offence subject to the existence of exceptional circumstances. 18 R v Skinner (2016) 126 SASR 120 at [13]-[14] (Blue J), [87]-[97] (Doyle J, Kelly J agreeing). 19 R v Yavuz (2018) 130 SASR 231 at [114]-[115] (Kourakis CJ, Blue and Hinton JJ). 20 Adams (a pseudonym) v The Queen (2022) 141 SASR 204 at [32] (Livesey P), [101] (Doyle JA), [103] (Bleby JA). -- 18 of 19 -- [2024] SASCA 139 The Court 17 Conclusion 90 Neither of the appellant’s proposed grounds of appeal against sentence has been made out. We grant permission to appeal, but dismiss the appeal against sentence. ORDERS 91 For the reasons set out above, we grant permission to appeal against conviction and sentence, but dismiss both appeals. -- 19 of 19 --