GREEN (A PSEUDONYM) v THE KING [2024] SASCA 147

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA ([REDACTED]) [REDACTED] Applicant: GREEN (A PSEUDONYM) Counsel: [REDACTED] - Solicitor: [REDACTED] Respondent: THE KING Counsel: MS J LITSTER WITH MR W MARSH - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: [REDACTED] File No/s: [REDACTED] 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. GREEN (A PSEUDONYM) v THE KING [2024] SASCA 147 Judgment of the Court of Appeal (The Honourable Justice S Doyle, the Honourable Justice Bleby and the Honourable Auxiliary Justice Nicholson) 19 December 2024 CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - RELEVANT MATTERS - GENERALLY CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - PRIOR CRIMINALITY CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - CO-OPERATION WITH POLICE OR ASSISTANCE TO AUTHORITIES - GENERALLY CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES The applicant appeals against the sentence imposed in the District Court following guilty pleas to one count of trafficking in a large commercial quantity of a controlled drug, contrary to section 32(1) of the Controlled Substances Act 1984 (SA), and one count of possessing prescribed equipment, contrary to section 33LA(a) of the Controlled Substances Act 1984 (SA). In [redacted], police found 8.84 kilograms of cannabis in the applicant's home, 5.89 kilograms of which were packaged for sale, with the remaining amount found loose in various bags and containers. -- 1 of 27 -- This was the subject of the trafficking charge. A carbon filter was also found which was the subject of the prescribed equipment charge. Previously, the applicant had been convicted of selling a large commercial quantity of a controlled drug [redacted] and a quantity of a controlled drug [redacted] and sentenced to imprisonment [redacted]. Following his arrest for the present offending, the applicant provided confidential assistance to police, informing them about a number of persons involved in other offences. This information resulted in a number of arrests, the laying of multiple charges and the seizure of a substantial amount of property. The sentencing Judge began with a single term of imprisonment for eight years and applied the available common law discretion to allow a discount of around 15 per cent for the applicant's cooperation with police. A further discount of 35 per cent was applied following the 15 per cent reduction on account of the applicant's early guilty pleas. And a final reduction of two months was made to account for seven days served in custody and around 16 months spent on home detention bail. Ultimately, the sentencing Judge imposed a single sentence of imprisonment for four years, two months and 20 days with a non-parole period of two years and nine months. The sentencing Judge declined to suspend the sentence pursuant to sections 96(3)(c) and 96(6)(a) of the Sentencing Act 2017 (SA). And also declined to make a declaration under section 37 of the Sentencing Act 2017 (SA) which would provide a statutory basis for reduction in sentence following the applicant's cooperation with police. A summary of the appeal grounds addressed at the hearing is as follows: • That the sentence imposed was manifestly excessive; • The sentencing Judge erred in failing to apply section 37 of the Sentencing Act 2017 (SA); • The sentencing Judge erred in applying an inadequate common law discount; • The sentencing Judge erred in making findings without factual foundation; • The sentencing Judge erred in finding that the applicant's cooperation with police did not constitute exceptional circumstances with the meaning of section 96(6)(a) of the Sentencing Act 2017 (SA); and • The sentencing Judge erred in only reducing the applicant's sentence by two months in relation to time served and time spent on home detention. HELD (Nicholson AJA with S Doyle and Bleby JJA agreeing): 1. Leave to appeal and appeal allowed on the ground of manifest excess. 2. Leave to appeal on all other grounds refused. 3. The original sentence is set aside and the applicant is resentenced to imprisonment for three years and five months with a non-parole period of two years and two months, backdated to commence on 22 September 2023. Controlled Substances Act 1984 (SA) ss 32, 33LA; Sentencing Act 2017 (SA) ss 26, 37, 40, 96; Criminal Law (Sentencing) Act 1988 (SA) s 38, referred to. R v Golding (1980) 24 SASR 161; O’Neill v The Queen (2020) 137 SASR 1; GZO v The Queen (2021) 138 SASR 256; Donnelly (A Pseudonym) v The King [2022] SASCA 125; House v The King (1936) 55 CLR 499; R v Gallaghe (1991) 23 NSWLR 220; R v Franceschini (2015) 123 SASR 396; R v Skinner (2016) 126 SASR 120; Kentwell v The Queen (2014) 252 CLR 60; Hili v The Queen (2010) 242 CLR 520; R v Morse (1979) 23 SASR 98; R v Lyberopoulos [2017] SASCFC 139; R v -- 2 of 27 -- Yavuz (2018) 130 SASR 231; Owens v The King [2024] SASCA 65; Ribbon v The Queen [2022] SASCA 15, considered. -- 3 of 27 -- -- 4 of 27 -- GREEN (A PSEUDONYM) v THE KING [2024] SASCA 147 Court of Appeal – Criminal: S Doyle and Bleby JJA and Nicholson AJA 1 S DOYLE JA: I would allow the appeal, set aside the sentence and resentence the applicant as proposed by Nicholson AJA. I agree with his Honour’s reasons. 2 BLEBY JA: I would allow the appeal, set aside the sentence and resentence the applicant as proposed by Nicholson AJA. I agree with his Honour’s reasons. NICHOLSON AJA. Introduction 3 The applicant has sought leave to appeal from a sentence imposed in the District Court, upon his pleading guilty to one count of trafficking in a large commercial quantity of a controlled drug1 and one count of possessing prescribed equipment.2 The maximum penalties for these two offences are, respectively, a fine of $1 million or imprisonment for life or both and a fine of $10,000 or imprisonment for two years or both. The sentencing Judge imposed the one sentence3 of imprisonment for four years, two months and 20 days with a non- parole period of two years and nine months. [Redacted]. 4 The head sentence was structured in the following way. The Judge commenced with a single term of imprisonment for eight years. Her Honour declined to make a declaration pursuant to section 37 of the Sentencing Act 2017 (SA) (“Sentencing Act”) which would have permitted a statutory based discount for the applicant’s cooperation with the police in connection with other drug dealing offending not involving the applicant. However, the Judge did exercise the available common law discretion to allow a discount of fractionally more than 15 per cent for that cooperation. Her Honour allowed a further discount of 35 per cent on account of the applicant’s early pleas.4 This discount was applied to the balance remaining after first applying the 15 per cent discount rather than to the initial starting point of eight years. The Judge then allowed a further reduction of two months on account of seven days served in custody and 15 months and 22 days spent on home detention bail. 5 The grounds of appeal, as amended, are as follows. 1. The Learned Sentencing Judge erred in imposing a sentence which was manifestly excessive, in that: 1 Subsection 32(1) of the Controlled Substances Act 1984 (SA). 2 Subsection 33LA(a) of the Controlled Substances Act 1984. 3 Section 26 of the Sentencing Act 2017 (SA). 4 Subsection 40(3) of the Sentencing Act 2017. -- 5 of 27 -- [2024] SASCA 147 Nicholson AJA 2 1.1. The head sentence and non-parole period were manifestly excessive; and/or 1.2. The sentence was not suspended. 2. The Learned Sentencing Judge erred in failing to properly apply s 37 of the Sentencing Act 2017 (SA) 2.1. Her Honour misapprehended the test in s 37(1), in that her Honour impermissibly implied into the meaning of the words in s 37(1)(b) the following: 2.1.1. a requirement that the information provided by the applicant would need to relate to high ranking members of declared criminal organisations; and/or 2.1.2. a requirement which involved the promise to give evidence or actually giving evidence in relation to the information provided. 2.2. Her Honour misapprehend the test in s 37(1) by impermissibly restricting the consideration of s 37(1)(b) to that information provided which met the threshold test in s 37(1)(a) and in so doing failed to give consideration to the broader circumstances in which the information was provided. 2.3. The failure to make a declaration was plainly wrong. 3. The Learned Sentencing Judge erred in allowing a common law discount for cooperation of “about 15%”. 3.1. Having regard to the nature, quality and quantity of the information provided the discount was simply too low. 4. The Learned Sentencing Judge erred in making an adverse finding against the applicant on the basis of his cooperation. The following findings are made without factual foundation: 4.1. That the provision of information and circumstances in which the applicant has done so discloses a level of involvement in relation to the criminal activities to which that information applies. 4.2. That the applicant is closely connected with a number of other operations. 5. The Learned Sentencing Judge erred in finding that the applicant “participated in this offending for other reasons [redacted] but more likely as part of a larger and quite sophisticated operation” (SR7[1]). 5.1. There was no evidence to support a finding that the applicant participated in the offending in the manner suggested in the emphasised portion of her Honour’s remarks above. 6. The Learned Sentencing Judge erred in finding that the applicant’s circumstances and, in particular the cooperation with police, did not constitute an exceptional circumstances, [sic] within the meaning of s 96(6)(a) of the Sentencing Act 2017 (SA) to suspend the sentence. 7. The Learned Sentencing Judge’s sentencing remarks are inadequate. -- 6 of 27 -- [2024] SASCA 147 Nicholson AJA 3 7.1. The sentencing remarks do not properly expose the basis upon which the Court concluded that exceptional circumstances within the meaning of s 96(6)(a) of the Sentencing Act 2017 (SA) were not made out. 7.2. The sentencing remarks do not properly expose the basis upon which the Court concluded that “participated in this offending for other reasons [redacted] but more likely as part of a larger and quite sophisticated operation” (SR7[1]). 7.3. The sentencing remarks do not properly expose the basis upon which her Honour concluded that s 37(1)(b) of the Sentencing Act 2017 (SA) was not engaged. 8. The Learned Sentencing Judge erred in only reducing the applicant’s sentence by two months for seven days spent in custody and almost 16 months on home detention. In other words, the applicant was only credited one month and three weeks for the almost 16 months home detention. Appeal ground 7 was not pressed at the hearing of the appeal. Circumstances of the offending 6 The factual basis of the offending to be discerned from the sentencing remarks was as follows: (i) On [redacted], police found 8.84 kilograms of cannabis in the applicant’s home, 5.89 kilograms of which was located in the garage packaged for sale in 13 one-pound heat sealed bags. The balance consisted of smaller loose amounts in various bags and containers. The applicant submitted that his plea to the trafficking offence related only to the 13 pounds (5.89 kilograms) of packaged cannabis. He maintained that he was responsible for only 1090.1 grams of the balance (2.95 kilograms) which was for personal use. (ii) The applicant did not give evidence to this effect and whilst not expressly referred to in the sentencing remarks, it is to be inferred that the Judge did not accept this asserted fact in mitigation. Her Honour sentenced on the basis of the statutory presumption that the full amount of 8.84 kilograms possessed by the applicant was the subject of the trafficking charge. (iii) Also found in the applicant’s home were a carbon filter, a number of empty vacuum-seal bags, a quantity of psilocin, various medications, three (aged) tick lists, $3,500, some steroids and a small resealable plastic bag containing cocaine. Most of these items were not the subject of any criminal charge dealt with by the Judge. Whilst not referred to in the sentencing remarks, the carbon filter was the subject of the prescribed equipment charge. (iv) The 13 heat-sealed bags of cannabis related to a commercial operation conducted by another person, [redacted]. The applicant facilitated this operation by permitting [redacted] to use the garage of his property to package and store cannabis. -- 7 of 27 -- [2024] SASCA 147 Nicholson AJA 4 (v) The Judge implicitly accepted the applicant’s explanation that he knew of and permitted his garage to be used for this commercial purpose, because [redacted]. The applicant said that he also retained some cannabis left over during the packaging process with which he “made” cannabis cookies and butter, “mostly for” analgesic purposes, although the applicant admitted that he “might have sold” some to friends if they asked. However, during sentencing submissions, the applicant’s counsel indicated that the cookies and butter “was a program that [the applicant] had in mind”. (vi) Nevertheless, the Judge did not accept that this was the full extent of any benefit to be received. I do not accept that you did not expect to gain a significant financial benefit or alternatively, were to receive an intangible benefit for the repayment of debts or the like. Her Honour’s negative finding here was expressed as an expectation. The Judge did not make a positive finding as to the nature or extent of any significant financial benefit or other intangible benefit in fact enjoyed or to be enjoyed. However, the Judge did make the following finding. As I have said, I do not accept that your offending was related to the opportunity for you to get cannabis and to use cannabis, although this was a by-product of it. In my view you participated in this offending for other reasons [redacted] but more likely as part of a larger and quite sophisticated operation. (vii) Whilst not entirely clear, the Judge appeared to find that the applicant’s offending with respect to the 13 bags was not isolated. Her Honour said that she found it hard to understand how the applicant had “become involved in such serious offending over time” and that he “participated in [the] offending … more likely as part of a larger and quite sophisticated operation”.5 This latter finding is challenged by appeal ground 5. 7 Whilst not mentioned in the sentencing remarks, during sentencing submissions, the applicant conceded the following additional matters. (i) He also received some money although it was not made clear whether this was some of, all of, or more than the $3,500 found by the police. (ii) He was aware of and assumed “responsibility” only for various portions of the loose cannabis weighing, in total, 1090.1 grams. As earlier noted, it would seem that the Judge did not accept this limitation. (iii) The cannabis that he retained was not to be sold; he would smoke it over about three months. The cookies and butter was a program he had in mind. 5 Emphasis added. -- 8 of 27 -- [2024] SASCA 147 Nicholson AJA 5 (iv) The operation with [redacted] “had been going on [for] a few weeks”. (v) The value of the seized cannabis was between $46,000 and $62,000 if sold in pound amounts. The applicant’s personal circumstances relied on by the Judge 8 The applicant was [redacted] at the time of sentencing. His parents separated when he was very young. Thereafter, he had little contact with his father and they are now estranged. The applicant described his father as a violent and abusive alcoholic. [Redacted]. The applicant had a steady employment history after leaving school until he suffered quite severe injuries [redacted] and he returned to work intermittently. 9 In [redacted], the applicant was convicted of selling a large commercial quantity of a controlled drug [redacted] and a quantity of a controlled drug [redacted]. He was sentenced to imprisonment [redacted]. 10 [Redacted]. 11 The applicant’s prior record discloses other minor criminal offending which is of no direct relevance to the sentencing task before the Judge in the present case. 12 The Judge had before her a detailed report by the forensic psychologist, Dr Loraine Lim, prepared in order to assist with sentencing. Dr Lim examined the applicant’s substance abuse issues which included an addiction to cocaine. The applicant had in the past experienced symptoms that caused distress and which had negative social, emotional and vocational effects, although no formal mental ill health diagnosis has been made. In Dr Lim’s opinion, the applicant’s depression and anxiety, as reported to her, appeared to be a reaction to his current legal predicament. Nevertheless, Dr Lim was of the view that the applicant meets the criteria for a number of disorders including a somatic symptom disorder which has caused the applicant to use cannabis as a pain medication. The applicant exhibits antisocial personality traits such as recklessness and an “external locus of control”6 but according to Dr Lim is not beset with a significant personality disorder. 13 The Judge did not accept all of Dr Lim’s conclusions including that the applicant presented a low risk of reoffending. Her Honour said this. I do not accept the opinion of Dr Lim that you are at low risk of reoffending as I consider her opinion is based on the incorrect premise that your offending was related to some form of self-medication rather than knowing and engaging in a commercial enterprise [redacted]. You knew that you were at risk of going to gaol when you became engaged in this offending. You facilitated, on your own admission, a person utilising your premises to engage in a significant commercial enterprise in respect of cannabis. A large amount of 6 A belief that external forces outside a person’s control are mostly responsible for events that occur in the person’s life. Locus of control falls on a spectrum. -- 9 of 27 -- [2024] SASCA 147 Nicholson AJA 6 cannabis was found at your premises, along with other equipment that demonstrates your engagement in relation to the operation. 14 The applicant provided a large number of very positive references from family members and friends in support of a submission that the applicant was basically a good person who had made foolish decisions. The Judge accepted that the applicant is highly regarded and that his family relies upon him to a significant extent. It was also submitted that he had demonstrated high levels of remorse and “complete rehabilitation” during his period of time on home detention such that the need for personal deterrence is negligible. The Judge neither expressly accepted nor rejected this submission, although the tenor of her Honour’s remarks as a whole indicate scepticism. Grounds of appeal 15 It will be convenient to deal with appeal grounds 1 and 6 together and at the end of this section. Appeal ground 2 16 Section 37 of the Sentencing Act provides as follows. 37—Reduction of sentences for cooperation etc with law enforcement agency (1) A court may declare a defendant to be a defendant to whom this section applies if the court is satisfied that the defendant has cooperated or undertaken to cooperate with a law enforcement agency and the cooperation— (a) relates directly to combating serious and organised criminal activity; and (b) is provided in exceptional circumstances; and (c) contributes significantly to the public interest. (2) In determining sentence for an offence or offences to which a defendant has pleaded guilty or in respect of which a defendant has been found guilty, the court may, if the defendant is the subject of a declaration under subsection (1), reduce the sentence that it would otherwise have imposed by such percentage as the court thinks appropriate in the circumstances. (3) In determining the percentage by which a sentence is to be reduced under this section, the court must have regard to such of the following as may be relevant: (a) if the defendant has pleaded guilty to the offence or offences—that fact and the circumstances of the plea; (b) the nature and extent of the defendant's cooperation or undertaking; (c) the timeliness of the cooperation or undertaking; (d) the truthfulness, completeness and reliability of any information or evidence provided by the defendant; -- 10 of 27 -- [2024] SASCA 147 Nicholson AJA 7 (e) the evaluation (if any) by the authorities of the significance and usefulness of the defendant's cooperation or undertaking; (f) any benefit that the defendant has gained or is likely to gain by reason of the cooperation or undertaking; (g) the degree to which the safety of the defendant (or some other person) has been put at risk of violent retribution as a result of the defendant's cooperation or undertaking; (h) whether the cooperation or undertaking concerns an offence for which the defendant is being sentenced or some other offence, whether related or unrelated (and, if related, whether the offence forms part of a criminal enterprise); (i) whether, as a consequence of the defendant's cooperation or undertaking, the defendant would be likely to suffer violent retribution while serving any term of imprisonment, or be compelled to serve any such term in particularly severe conditions; (j) the nature of any steps that would be likely to be necessary to protect the defendant on release from prison; (k) the likelihood that the defendant will commit further offences, and may have regard to any other factor or principle the court thinks relevant. (4) In this section— serious and organised criminal activity includes any activity that may constitute a serious and organised crime offence within the meaning of the Criminal Law Consolidation Act 1935. 17 The jurisdictional requirement for the making of a declaration and thereby enlivening the power to grant a sentence reduction in accordance with section 37, is the satisfaction of all of paragraphs (a), (b) and (c) in subsection 37(1). There was no dispute between the parties concerning the satisfaction of paragraph (a) and the Judge did not appear to take issue with paragraph (c). The Judge refused to make the enlivening declaration because her Honour did not consider paragraph (b) to have been satisfied. For the reasons which follow, the Judge was correct to do so; as such it is unnecessary to decide whether or not paragraphs (a) and (c) have, in fact, been satisfied. 18 The cooperation provided by the applicant was categorised and explained in detail by the police in two confidential letters provided to the sentencing Judge [redacted].7 It is unnecessary to set out this detail; the nature and extent of the cooperation can be sufficiently described in generic terms. 7 Typically referred to as “Golding” letters; R v Golding (1980) 24 SASR 161. -- 11 of 27 -- [2024] SASCA 147 Nicholson AJA 8 19 [Redacted]. The information provided was substantial in amount and very useful. 20 The Judge [redacted] briefly summarised the nature and extent of the cooperation. However, her Honour was not satisfied that the cooperation had been provided in exceptional circumstances, as required by paragraph (b) of subsection 37(1) for the reasons that: the cooperation only involved giving of information; it did not involve a promise to give evidence, nor the giving of evidence; and it did not appear to involve high ranking members of declared criminal organisations that might have exacerbated the risk the applicant was assuming. 21 Under appeal ground 2 the applicant complains that the Judge misapprehended the relevant test for paragraph (b) of subsection 37(1) in that her Honour incorrectly imported requirements that high ranking members of a declared criminal organisation had to have been involved and that the applicant had to have exposed himself further by giving or being willing to give evidence. The Judge also failed to give consideration to the broader circumstances in which the information had been provided. 22 Section 37 has been referred to in a number of appellate decisions in this State but usually only briefly and tangentially. The only judgment of which I am aware in which a more general analysis of its terms has been offered is that in O’Neill v The Queen (“O’Neill”).8 It is not necessary to restate any of that analysis here. However, I reiterate the position there taken that, when addressing paragraph (b), “the whole of the circumstances of the cooperation are to be considered”.9 Nevertheless, for any of the circumstances under consideration to be of assistance they must be relevant to the statutory mandated requirement that the cooperation has been “provided in” exceptional circumstances. 23 The focus is on the provision of the information, not the existence or nature of the information simpliciter. For example, the nature and extent of the information, and therefore the cooperation, (in this case, provision of the information) may be very substantial – it was in this case. However, that will not, of itself, render its provision to have been in exceptional circumstances. It will be a factor only. It may be a powerful factor if, for example, the nature and extent of the information is such that its mere provision to law enforcement authorities would expose an accused to a much greater personal risk than otherwise typically would follow from such conduct. The mere provision of such information anonymously with protections in place such as suppression orders will expose an accused to limited, ordinarily to be expected, risk. The nature of the information and its usefulness to enforcement authorities will always be taken into account 8 [2020] SASCFC 78; (2020) 137 SASR 1 at [18]-[58] (Nicholson J with whom Stanley and Hughes JJ agreed). 9 O’Neill v The Queen [2020] SASCFC 78; (2020) 137 SASR 1 at [57]. -- 12 of 27 -- [2024] SASCA 147 Nicholson AJA 9 when a common law discount is considered.10 Something more is envisaged by section 37. 24 The factors listed in subsection 37(3) are expressly relevant to and to be taken into account when exercising the percentage deduction to be allowed should a declaration under subsection 37(1) be made. However, these factors, in particular those in paragraphs (g), (h), (i) and (j) are also indicative of the underlying purpose of the regime and the nature of the exceptional circumstances in which the cooperation has to have been provided. 25 It is important not to treat and critique sentencing remarks as if they comprise considered and detailed reasons for judgment. It is evident [redacted] that her Honour was apprised of and considered all of the circumstances relevant to sentencing. As I read her Honour’s remarks, she was not implying “into the meaning” of the subsection 37(1)(b) requirement the factors identified and complained about in appeal subgrounds 2.1.1 and 2.1.2. These were matters that, in the context of all of the sentencing considerations before her Honour, were sufficient in her Honour’s opinion to preclude the circumstances in which the cooperation was provided from being characterised as exceptional. 26 A matter not considered in O’Neill was the nature of the enquiry required by subsection 37(1). Before a declaration can be made that section 37 is to apply, the sentencing court must “be satisfied” that the defendant has cooperated or undertaken to cooperate with a law enforcement agency and that the cooperation is of the nature set out in paragraphs (a), (b) and (c) of subparagraph 37(1). Whether or not a residual discretion to make the declaration (“may declare”) or, if made, to reduce the sentence following the making of a declaration (“the court may”) subsists, can be put to one side. The first hurdle, the satisfaction of paragraphs (a), (b) and (c) is a jurisdictional fact that must be established before any such discretionary or obligatory power becomes available. In any particular case, the requirements of paragraphs (a), (b) and (c) either exist or do not exist; the finding or otherwise of satisfaction calls for a judicial evaluation of the relevant evidence and it is not discretionary. As such, the sentencing Judge was either correct or incorrect in finding that the cooperation was not provided in exceptional circumstances; House v The King11 considerations do not apply. 27 As the respondent has submitted, the applicant’s cooperation and the circumstances in which it was provided did not involve: (i) a promise to give or the giving of evidence; (ii) the applicant providing active participation in assisting the police; 10 Such a discretion at common law remains available, notwithstanding the regime available in section 37, see eg. GZO v The Queen [2021] SASCA 67; (2021) 138 SASR 256, O’Neill v The Queen [2020] SASCFC 78; (2020) 137 SASR 1, Donnelly (A Pseudonym) v The King [2022] SASCA 125. 11 [1936] HCA 40; (1936) 55 CLR 499. -- 13 of 27 -- [2024] SASCA 147 Nicholson AJA 10 (iii) evidence of specific risk to the safety of the applicant or his family; (iv) cooperation prior to the arrest of the applicant; (v) revoked membership of an outlaw motorcycle gang; or (vi) information in relation to the applicant’s associates involved in the offending concerning which the applicant was charged. The existence of any or all such matters is not necessary in order to establish that the cooperation has been provided in exceptional circumstances. However, they are indicative of the type of matters that will assist. 28 Any risk of harm to which the applicant and his family might have been exposed in this case has been limited and there is no evidence to suggest that the risk to which he is subject is out of the ordinary. Further, whilst the cooperation was ongoing and extensive, as the Judge pointed out, only limited aspects might have served to satisfy the requirement under paragraph (a) of subsection 37(1); two matters that involved two and three persons, respectively, charged with offences carrying maximum penalties of imprisonment for life. 29 The Judge did not err in the manner contended in subgrounds 2.1.1 and 2.1.2 and 2.2. I also agree that the requirement in paragraph (b) of subsection 37(1) was not satisfied. Appeal ground 3 30 The common law discount allowed was approximately 15 per cent. The total of the two discounts, for the pleas and for cooperation, was approximately 50 per cent. However, the discounts, given the manner of the Judge’s application as earlier explained, gave rise to an actual reduction from the Judge’s starting point of eight years of approximately 45 per cent. 31 The manner of the Judge’s application of the reduction is not the subject of a ground of appeal; as a result of the reasoning in GZO v The Queen12 (“GZO”) any such complaint would be unsuccessful. However, the applicant contends that, having regard to the extensive cooperation provided and by reference to other cases,13 a discount of 15 per cent was erroneously low. The applicant does not identify any misapplication of principle or reliance on irrelevant considerations or failure to rely on relevant considerations by the Judge. The contention is to the effect that 15 per cent fell outside the discretionary range available to the Judge, that is, no Judge acting reasonably would arrive at 15 per cent in this case. 32 The rationale underpinning the factors relevant to the common law discretion to allow a sentence reduction for cooperation have recently been canvassed by 12 [2021] SASCA 67; (2021) 138 SASR 256. 13 See the collection of cases discussed in GZO v The Queen [2021] SASCA 67; (2021) 138 SASR 256. -- 14 of 27 -- [2024] SASCA 147 Nicholson AJA 11 Doyle JA (with whom Bleby and David JJA agreed) in Donnelly (A Pseudonym) v The King.14 The common law has long recognised the appropriateness of extending leniency to defendants who cooperate with law enforcement agencies in the detection and prosecution of other offenders.15 This common law approach was reflected in s 10(1)(h) of the Criminal Law (Sentencing) Act 1988 (SA). It is not expressly reflected in the Sentencing Act 2017 (SA) but, consistently with the recent decision of this Court in GZO v The Queen,16 it continues to apply. The rationale for leniency on account of cooperation lies in the policy that “it is not expedient that there should be honour among thieves”.17 It reflects the public interest in encouraging offenders to assist in the detection and prosecution of other offenders.18 As Deane and McHugh JJ observed in Malvaso v The Queen:19 It would be to close one’s eyes to reality to fail to recognize that in areas of organised crime in this country, particularly in relation to drug offences, the difficulties of obtaining admissible evidence are such that it is imperative, in the public interest, that there be a general perception that the courts will extend a degree of leniency, which would otherwise be quite unjustified, to those who assist in the exposure and prosecution of corrupt officials and hidden organizers and financiers by the provision of significant and reliable evidence. While the court exercises a broad discretion in determining the appropriate reduction in a sentence for cooperation, the exercise of that discretion nevertheless requires a focus upon the nature, extent and value of the cooperation.20 As Lord Bingham said in R v A and B:21 The extent of the discount will ordinarily depend on the value of the help given and expected to be given. Value is a function of quality and quantity. If the information given is unreliable, vague, lacking in practical utility or already known to the authorities, no identifiable discount may be given or, if given, any discount will be minimal. If the information given is accurate, particularised, useful in practice, and hitherto unknown to the authorities, enabling serious criminal activity to be stopped and serious criminals to be brought to book, the discount may be substantial. Hence little or no credit will be given for the supply of mass information which is worthless or virtually so, but the greater the supply of good quality information the greater in the ordinary way the discount will be. An assessment of the value of the cooperation may encompass some consideration of the results or outcome of the cooperation. However, the availability and extent of a reduction is not entirely dependent upon the relevant authorities in fact achieving some tangible result or outcome, or, indeed, even acting upon the information provided by the defendant. The focus is upon the willingness of the defendant to provide full and frank cooperation of a 14 [2022] SASCA 125 at [108]-[116]. 15 York v The Queen (2005) 225 CLR 466 at [3] (Gleeson CJ); R v Golding (1980) 24 SASR 161 at 172 (Wells J). 16 GZO v The Queen [2021] SASCA 67. 17 R v Barber (1976) 14 SASR 388 at 390 (Bray CJ); R v Golding (1980) 24 SASR 161 at 172 (Wells J). 18 R v Cartwright (1989) 17 NSWLR 243 at 250, 252-253 (Hunt and Badgery-Parker JJ); RJT v The Queen (2012) 218 A Crim R 490; [2012] NSWCCA 280 at [7]-[8] (Basten JA, Adams J agreeing); Will v The Queen (No 2) (2021) 16 ACTLR 50; [2021] ACTCA 14 at [56]-[66] (Murrell CJ and Charlesworth J). 19 Malvaso v The Queen (1989) 168 CLR 227 at 239 (Deane and McHugh JJ). 20 Nannup v The State of Western Australia [2011] WASCA 257 at [64] (Buss JA, McLure P and Mazza J agreeing). 21 R v A and B [1998] EWCA 3529 (Lord Bingham, Turner and Penry-Davey JJ agreeing). -- 15 of 27 -- [2024] SASCA 147 Nicholson AJA 12 nature which has the potential to assist the authorities.22 Thus, when the cases refer to the utilitarian nature of the rationale for a reduction in sentence, this must be understood as inviting a focus upon the utility to the administration of justice in encouraging cooperation of a potentially valuable nature in the detection and prosecution of crime,23 rather than the utility or benefit in fact gained from the information in the particular case. Further, consistently with this understanding of the utilitarian rationale, the focus is upon the cooperation provided, rather than the defendant’s subjective motivation for that cooperation. As developed later in these reasons it is relevant to consider whether the provision of information by a defendant was willing or voluntary, as opposed to compelled. However, a conclusion that the provision of information was motivated by genuine remorse or a genuine desire to assist, as opposed to being motivated by self-interest, while potentially relevant to other aspects of the sentencing discretion, is likely to be of limited relevance to the appropriate level of the reduction for cooperation.24 In order to achieve the objective of encouraging cooperation, the reduction must be sufficient to encourage full and frank cooperation, and to take account of the risks associated with that cooperation.25 Care must, however, be taken to ensure that the ultimate sentence imposed retains some reasonable relationship with the objective seriousness of the offence and the circumstances of the offender, and hence remains appropriate to achieve the objectives of the sentencing exercise.26 In GZO v The Queen,27 Bleby JA surveyed a number of the authorities addressing reductions in sentence for cooperation, including reference to the percentage reductions that have been made and the circumstances in which they were made. However, as his Honour pointed out, care is needed when having regard to the range of percentage reductions that appear in the authorities, because many of these reductions reflect reductions for both cooperation and pleas of guilty. Further, while these authorities may provide some guidance, no clearly defined range of appropriate reductions for assistance has been established.28 In considering the reduction in sentence available for cooperation, it may also be necessary to have regard to s 37 of the Sentencing Act … 22 R v Cartwright (1989) 17 NSWLR 243 at 252-253 (Hunt and Badgery-Parker JJ). 23 R v El Sayed (2003) 57 NSWLR 659 at [31]-[32] (Simpson J); Will v The Queen (No 2) (2021) 16 ACTLR 50; [2021] ACTCA 14 at [69]-[71] (Murrell CJ and Charlesworth J); Ungureanu v The Queen (2012) 272 FLR 84; [2012] WASCA 11 at [36] (Murphy JA, McLure P and Buss JA agreeing); R v Cartwright (1989) 17 NSWLR 243 at 253 (Hunt and Badgery-Parker JJ). 24 R v Nguyen (1989) 50 SASR 361 at 362-363 (King CJ); R v Choon Sien Tee (1994) 61 SASR 501 at 503-504 (King CJ); Ungureanu v The Queen (2012) 272 FLR 84; [2021] WASCA 11 at [33] (Murphy JA, McLure P and Buss JA agreeing); R v Cartwright (1989) 17 NSWLR 243 at 252-253 (Hunt and Badgery-Parker JJ). 25 York v The Queen (2005) 225 CLR 466 at [3] (Gleeson CJ); R v Harris (1992) 59 SASR 300 at 302 (King CJ, Olsson and Mullighan JJ agreeing): R v Gallagher (1991) 23 NSWLR 220 at 227 (Gleeson CJ); R v Cartwright (1989) 17 NSWLR 243 at 255 (Hunt and Badgery-Paker JJ). 26 SZ v The Queen (2007) 168 A Crim R 249 at [4]-[5] (Howie J, Simpson J agreeing), at [43]-[48] (Buddin J, Simpson J agreeing); R v Gallagher (1991) 23 NSWLR 220 at 232 (Gleeson CJ, Meagher JA agreeing); DPP (Cth) v AB (2006) 94 SASR 316 at [88]-[89] (Perry J, Nyland and Layton JJ agreeing). 27 GZO v The Queen [2021] SASCA 67 at [26]-[36] (Bleby JA, Kelly P and Lovell JA agreeing). 28 O’Neill v The Queen (2020) 137 SASR 1 at [44] (Nicholson J, Stanley and Hughes JJ agreeing); Director of Public Prosecutions (Cth) v AB (2006) 94 SASR 316 at [76] (Perry J, Nyland and Layton JJ agreeing); Ungureanu v The Queen (2012) 272 FLR 84; [2012] WASA 11 at [32] (Murphy JA, McLure P and Buss JA agreeing); R v Gallagher (1991) 23 NSWLR 220 at 228-229 (Gleeson CJ). -- 16 of 27 -- [2024] SASCA 147 Nicholson AJA 13 33 The nature, extent and value of the cooperation in the present case has been considered in the context of the earlier discussion of the section 37 application for a declaration; a substantial discount at common law is indicated. However, and particularly where a discount for an early plea also applies, the following observation of Gleeson CJ is pertinent.29 Care must also be taken to ensure that the ultimate sentencing result that is produced is not one that is so far out of touch with the circumstances of the particular offence and the particular offender that, even understood in the light of the considerations of policy which support the principles [underlying the giving of a cooperation discount] set out above, it constitutes an affront to community standards. I prefer his Honour’s language of “affront to community standards” to references, in some cases, in this sentencing context, to maintaining proportionality. Where a substantial discount for a plea (in this case, 35 per cent) with or without a further discount for cooperation, is mandated irrespective of the seriousness of the offence and the circumstances of the offender, the conventional sentencing element of proportionality necessarily will not always be satisfied. It might be suggested that the factors of the early plea and the cooperation, themselves, allow for the final sentence to be seen as “proportional”. However, this will not always be so. As Gleeson CJ has observed and as the public expect, the ultimate result should not be an affront to community standards. 34 The language employed by Gleeson CJ provides scope for a sentence that, in conventional terms, is disproportionately low but remains one that in the circumstances is not an affront to community standards. Nevertheless, the practical reality, as illustrated by a number of the case examples considered by Bleby JA in GZO,30 is that the earlier the plea and therefore the higher the discount for plea, the greater will be the downward pressure on any further discount for cooperation. 35 I am satisfied that a further discount of approximately 15 per cent, even where applied seriatum with the discount for plea resulting in a total effective discount of approximately 45 per cent, was within the range available to the Judge. It is not inconsistent with the example cases discussed in GZO.31 A higher discount might have been given by other Judges but 15 per cent was not unreasonable; her Honour did not err. Appeal grounds 4 and 5 36 The complaint under ground 4 is that the Judge made the following two findings adverse to the applicant, each of which did not have a “factual foundation”. 29 R v Gallagher (1991) 23 NSWLR 220 at 232. 30 GZO v The Queen [2021] SASCA 67; (2021) 138 SASR 256. 31 GZO v The Queen [2021] SASCA 67; (2021) 138 SASR 256. -- 17 of 27 -- [2024] SASCA 147 Nicholson AJA 14 (i) That the provision of information and circumstances in which the applicant has done so disclose a level of involvement in relation to the criminal activities to which that information applies. (ii) That the applicant is closely connected with a number of other operations. 37 The Judge described her remarks here as an “observation”. [Redacted]. They occurred soon after her Honour had declined to make a section 37 declaration and it is to be inferred that they played no part in reaching that decision. However, the observations were sandwiched between her Honour’s indication that a common law reduction would be allowed and the nomination of 15 per cent for that reduction. It is helpful to see her Honour’s observation in its full context. In these circumstances I do not consider it is appropriate to make declaration pursuant to s 37. There will, however, be a further reduction given to the defendant in recognition of his co-operation. I however, make this observation in relation to the cooperation in respect of these matters. The very fact that the defendant was able to give information about extensive drug dealings with other people to some extent indicates the level of involvement that he has, or knowledge that he has, in relation to such drug operations in this state. In one sense, it discloses his own level of involvement in relation to these criminal activities. Exactly how he has such information about so many different drug offences and offenders is not entirely clear. But, as I said, it does give rise to the inference that he is closely connected with a number of other operations. Nevertheless the information provided was significant and has lead to a number of arrests and prosecution. He has not and will not be required to give evidence nor play any other role. In the circumstances, I consider that, in addition to the 35% reduction for the pleas of guilty, he should receive a reduction of about 15%. 38 The crucial words the subject of the applicant’s complaint are: “to some extent indicates the level of involvement that he has, or knowledge that he has in relation to these criminal activities” and “give rise to the inference that he is closely connected with a number of other operations”.32 39 I make the following observations. (i) The italicised language used by the Judge is extremely non-specific. It is difficult to see how any material use could be made of such observations. (ii) The observation that the applicant had a level of “knowledge” follows ineluctably from the fact that he provided the information to the police. (iii) The observations that the applicant had an (unspecified) level of “involvement in relation to” the criminal activities and was “closely connected” with a number of other operations express little more than that the applicant was close enough to and trusted enough by other criminal operatives, to be able to come into possession of and to give to the police in 32 Emphasis added. -- 18 of 27 -- [2024] SASCA 147 Nicholson AJA 15 a clandestine manner the very extensive information that was the subject of the cooperation. (iv) In short, the Judge was quite justified in arriving at these generalised and qualified conclusions based solely on the nature of his own repeated criminal involvement in trafficking and the facts that the applicant had acquired and was able to securely pass on information of the nature and extent concerned. To put it more simply, the information by its nature, quantity and extent plainly was not such that the applicant might have acquired it from an acquaintance while shooting the breeze down at the hotel. 40 It is not clear that the Judge made use of these “observations” in any material way. If her Honour did, it would only have been with respect to the starting point of eight years and the common law discount of 15 per cent. If so, her Honour was entitled to do so; appeal ground 4 is not made out. 41 By appeal ground 5, the applicant complains that the following finding was not supported by the evidence. [The applicant] participated in this offending for other reasons [redacted] but more likely as part of a larger and more sophisticated operation. This statement was juxtaposed as a counterpoint to the Judge’s refusal to accept that the offending “was related to the opportunity for [the applicant] to get cannabis and to use cannabis”. 42 The applicant accepts that, standing alone, the impugned finding does little more than state the facts of the operation in which the applicant conceded he had been involved. However, the applicant contends that this finding must be read together with the impugned findings or observations [redacted], the subject of appeal ground 4. As such, it comprises an implicit finding by the Judge that the applicant’s offending was motivated by an “organisational or corporate” motive not just a motive to obtain a benefit for himself. 43 The precise nature of the motive distinction that the applicant seeks to draw here is unclear. The language used by the Judge also is somewhat opaque. However, at no time [redacted] does the Judge make a finding as to the precise nature of the benefit the applicant was to have enjoyed or as to the precise extent of the applicant’s involvement [redacted]. The prosecution case, as presented, was itself opaque and did not permit precise findings in these respects to be made. The Judge’s remarks, read as a whole, are to the effect that: (i) The applicant participated in the trafficking of a large commercial quantity, 8.84 kilograms, of cannabis which included 13 heat-sealed plastic one pound bags. (ii) That participation included allowing [redacted] to store the cannabis in the applicant’s garage. The submission that this was the applicant’s only -- 19 of 27 -- [2024] SASCA 147 Nicholson AJA 16 involvement was put forward as a mitigating factor. As such, the applicant was obliged to establish this contention on a balance of probabilities. He did not give evidence and on the evidence that was before her, the Judge was entitled to refuse to accept the submissions and to proceed to sentence on the basis that the applicant’s involvement was not so limited. (iii) Similarly, the Judge was entitled to refuse to accept, as mitigatory, that the applicant was to obtain only the limited benefit as contended for. 44 The Judge was entitled to make the finding impugned in appeal ground 5 and to sentence on that, albeit amorphous, basis. Appeal ground 8 45 The applicant contends that the allowance of two months on account of seven days and almost 16 months served in custody and on home detention bail, respectively, is too low. On the assumption that the Judge gave full allowance for the seven days33 the allowance for the time spent on home detention, one month and three weeks, represents approximately 11 per cent of the period of 16 months and at the low end of that typically allowed as credit for home detention bail although there are cases where less has been given. There is no mathematical formula typically applied in this respect and indeed no minimum that is required by law. In R v Franceschini,34 the position was summarised thus. At common law, a sentencing Judge in this State has a discretion to allow credit for time spent on home detention bail and to, in effect, fix a period by which the sentence otherwise to be ordered is to be reduced thereby. There is no obligation on a court to give any such credit.35 Further, where some allowance is made, it inevitably will be significantly less than the total amount of time spent on home detention bail, but there is no accepted formula. It is akin to a personal circumstance to be taken into account and the particular facts of each case will inform whether or not credit is warranted and the extent of any such credit that is warranted. Having said this, I have seen on occasions an allowance of up to one third of time spent on home detention bail to which no objection has been taken. In this case, the Judge allowed approximately five months for the 22 months spent on home detention bail (about 23 per cent). 46 The discount allowed by the Judge in this case which might be seen as parsimonious was plainly within the discretion available and appeal ground 8 exposes no error. However, that is not to say that the length of time spent on home detention ought not be considered as a personal circumstance bearing on the question of whether or not the final sentence is manifestly excessive although double counting given the amount of credit expressly given must be avoided (appeal ground 1). 33 It would have been quite exceptional not to have done so. 34 [2015] SASCFC 116; (2015) 123 SASR 396 at [42] (Nicholson J with whose reasons Bampton and Lovell JJ agreed). 35 R v Malesevic [1999] SASC 321, (1999) 204 LSJS 32; Kells v Police [2007] SASC 224; R v Penny [2012] SASCFC 16. -- 20 of 27 -- [2024] SASCA 147 Nicholson AJA 17 Appeal grounds 1 and 6 47 I will consider appeal ground 6, first, as a standalone ground, that is, that the Judge erred in not suspending the sentence and, in particular, in not finding that exceptional circumstances within subsection 96(6)(a) of the Sentencing Act existed. 48 The applicant’s trafficking offence falls within the definition in subsection 96(9) of the Sentencing Act of “serious and organised crime offence”. As such, the suspension of any sentence of imprisonment to be imposed is proscribed by subsection 96(3)(c) unless the sentencing court is satisfied that exceptional circumstances exist for doing so, in accordance with subsection 96(6)(a). 49 The provisions of section 96, presently material, are as follows. (1) Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond— (a) to be of good behaviour; and (b) to comply with the conditions of the bond referred to in subsection (2); and (c) to comply with any other conditions of the bond as the court thinks appropriate and specifies in the bond. (2) … (3) A sentence of imprisonment may not be suspended under this section if the defendant is being sentenced— (a) to a sentence of imprisonment that is to be served cumulatively on another term of imprisonment, or concurrently with another term of imprisonment then being served, or about to be served, by the defendant; or (b) as an adult to a period of imprisonment of 2 years or more for a prescribed designated offence; or (ba) as an adult for a serious sexual offence; or (c) as an adult for a serious and organised crime offence or specified offence against police; or (d) as an adult for a designated offence and, during the 5 year period immediately preceding the date on which the relevant offence was committed, a court has suspended a sentence of imprisonment or period of detention imposed on the defendant for a designated offence. (4) … (5) … (6) Despite subsection (3)(c) and (d), the court may, if satisfied that exceptional circumstances exist for doing so— -- 21 of 27 -- [2024] SASCA 147 Nicholson AJA 18 (a) suspend a sentence of imprisonment imposed on a defendant for a serious and organised crime offence or specified offence against police, or for a designated offence in the circumstances described in subsection (3)(d), on condition that the defendant enter into a bond of a kind described in subsection (1); or (b) make an order under subsection (4) in respect of a defendant being sentenced for a serious and organised crime offence or specified offence against police, or for a designated offence in the circumstances described in subsection (3)(d), if the period of imprisonment to which the defendant is liable under 1 or more sentences is more than 3 months but less than 12 months. (7) [not used] (8)-(11) … 50 The Judge held that the nature of the applicant’s offending and of his personal circumstances did not constitute exceptional circumstances for this purpose and declined to suspend the sentence imposed. [Redacted] her Honour specifically noted that she had taken into account the applicant’s cooperation when considering the question of exceptional circumstances. Her Honour said this. I have also taken into account his co operation when considering the question of exceptional circumstances. This is just one feature to be considered along with the circumstances of the offences and his personal circumstances. When considered either alone or in combination I do not find that there are exceptional circumstances to suspend this sentence that was committed shortly after he had completed parole on another serious drug offence and when he has participated in a trafficking in a large commercial quantity. 51 In the context of his consideration of a predecessor provision, section 38 of the Criminal Law (Sentencing) Act 1988 (SA) which, in material respects, contained provisions equivalent to those in section 96 referred to above, Doyle J (with whose reasons Kelly J agreed) observed as follows.36 In the context of the power to suspend a sentence where “exceptional circumstances” exist, the same reasoning applies. The nature of the exercise is such that it involves a consideration of the full range of the usual sentencing considerations, with a significant element of personal judgment inherent in the weighing of those various considerations. It follows that the identification of an error in the determination of whether or not exceptional circumstances warranting suspension exist (for the purposes of s 38(2ba)) requires an application of the principles governing the identification of error set out by the High Court in House v The King.37 That is so despite the “discretion” in question being one which is conditioned upon satisfaction as to the existence of “exceptional circumstances”. As to what is meant by “exceptional circumstances”, I commence by emphasising that while some consideration of, and elaboration upon, the words chosen by Parliament may assist in applying the test, the test remains one solely referrable to those words. The test is, and is only, whether, having regard to all the relevant sentencing considerations in the 36 R v Skinner [2016] SASCFC 106; (2016) 126 SASR 120 at [86]-[97]. 37 House v The King (1936) 55 CLR 499 at 504-505. -- 22 of 27 -- [2024] SASCA 147 Nicholson AJA 19 particular circumstances of the case, there exist exceptional circumstances warranting suspension of the sentence of imprisonment. However, in applying this test, it is plain that it was intended by Parliament to be a higher, or more demanding, test than the “good reason” test for suspension in s 38(1). This is plain not only from the words chosen to articulate the test, but also the reference during the Second Reading Speech (in relation to the 2014 amendments to s 38) to the distinction drawn between “good reason” and “exceptional circumstances” in R v Fowler.38 However, the Second Reading Speech does not provide any assistance as to what is meant by “exceptional circumstances” beyond the reference to R v Fowler, and a reference to the situations in which suspension will be warranted being “truly exceptional.” In R v Fowler, consideration of what was meant by exceptional circumstances occurred in the context of the Court emphasising that despite reference in some of the authorities to the test for suspension of some categories of offence requiring “exceptional circumstances”, the ultimate test for suspension under s 38(1) remained one of “good reason” and not one of “exceptional circumstances”. In considering the meaning of “exceptional circumstances” in that context, Gray and Layton JJ said:39 There is a substantial and important difference between the “exceptional circumstances” test as discussed in Manglesdorf and the “good reason” test to draw from the wording of the statute. The “good reason” test established by the legislature requires the sentencing judge to consider all of the circumstances of the instant case and make an assessment as to whether those circumstances give rise to good reason to suspend the sentence. On the other hand, the “exceptional circumstances” test implies that a sentencing judge ought to compare the circumstances of the instant case with other cases and determine whether there are aspects of the instant case that set it apart from the other cases and thereby justify an exercise of the discretion to suspend. This may lead the court to be asked to first consider what the common or typical features of drug trafficking cases are and then compare such features with the case at bar to decide whether such circumstances may be characterised as “exceptional” before considering then whether to suspend. Such an approach would require the fulfilment of conditions which contradict the statutory requirement. In this way, the “exceptional circumstances” test represents a significant departure from the test set down by Parliament. A number of decisions have considered the concept of “exceptional circumstances” in different legislative contexts. Some of those authorities were conveniently collected and summarised by Muscat DCJ in R v Bagguley,40 a decision referred to by the Judge in this case. For example, in R v Kelly,41 Lord Bingham said: It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a 38 R v Fowler (2006) 243 LSJS 285; [2006] SASC 18. 39 R v Fowler (2006) 243 LSJS 285; [2006] SASC 18 at [54]-[55]. 40 R v Bagguley [2015] SADC 137 at [65]-[70]. 41 R v Kelly [2000] QB 198 at 208. -- 23 of 27 -- [2024] SASCA 147 Nicholson AJA 20 circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered. In my view, this elaboration upon the meaning of exceptional circumstances is apposite in the present context. I also consider that some assistance can be derived from this Court’s consideration of “special reasons” in the context of minimum non-parole periods under s 32A of the Sentencing Act, and “special circumstances” in the context of s 10A of the Bail Act 1985 (SA). In those contexts, while emphasising the wide and flexible content of those terms, it has been held that their content is to be informed by the relevant statutory context, and in particular the objects of the provision in question and the mischief to which it was directed. It has been held that special reasons or circumstances connote reasons or circumstances which take the particular case out of the contemplated scope of the statutory provision, or outside of the circumstances contemplated by Parliament.42 While “exceptional circumstances” does connote circumstances outside of the range of circumstances ordinarily or normally encountered, the Court must be careful not to set the test so high that it becomes near impossible to satisfy. As Lord Bingham cautioned, in the passage extracted above, the circumstances need not be unprecedented or very rare. The exceptional nature of the circumstances may emerge from consideration of a single circumstance or a combination of circumstances. It may emerge from consideration of the circumstances of the offending, the circumstances personal to the offender or some combination of both. It may emerge from qualitative considerations (in the sense of circumstances of a type that do not commonly arise) or quantitative considerations (in the sense of circumstances arising to an uncommon extent or degree).43 Beyond these very general observations, it is neither possible nor desirable to be more prescriptive as to what will be required to establish “exceptional circumstances” sufficient to warrant suspension of a sentence of imprisonment under s 38(2ba). It will depend upon the facts of the particular case. 52 The applicant contends that the Judge stated the correct test for suspension in this case but erred in its application. It has not been submitted that her Honour acted on a wrong principle or failed to take account of a relevant consideration or took into account an irrelevant consideration. Rather, it is contended that “in all of the circumstances, but having particular regard to the co-operation … [the] exceptional circumstances test permitting … suspension … is met”. 53 The decision whether or not to suspend a prison sentence whether in accordance with the “good reason” test or the “exceptional circumstances” test is discretionary. The essence of the complaint is that her Honour, in exercising the available discretion, committed what is sometimes referred to as an “outcome” error being that as described by Dixon, Evatt and McTiernan JJ in House v The King.44 It may not appear how the primary judge has reached the result … but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has 42 R v Lombardi (2013) 115 SASR 577 at [20]-[23]; R v Barnett (2009) 198 A Crim R 251 at [75]-[85]. 43 Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66]. 44 [1936] HCA 40; (1936) 55 CLR 499 at 504-505. -- 24 of 27 -- [2024] SASCA 147 Nicholson AJA 21 been a failure properly to exercise the discretion which the law reposes in the court of first instance. 54 I agree with the Judge. When all of the circumstances, including the very substantial cooperation, are considered, this is not a case sufficiently out of the ordinary for trafficking cases such as to suggest exceptional circumstances. The offence was a very serious one and carried with it a maximum penalty of life imprisonment. The applicant’s involvement was significant – whilst his precise involvement has not been made clear, he is to be regarded as having participated at a higher level than that of say a courier or of turning a blind eye to the use of his garage as a storage facility. Whilst not unheard of, it is very rare to see a sentence with a starting point as high as eight years be suspended, although, this in a sense will be a function of the first two propositions just mentioned. The applicant’s personal circumstances are in his favour but this is not uncommon where drug traffickers are concerned and they are not compelling. Of major significance is the fact that the previous head sentence [redacted] for very similar but more serious offending did not deter the applicant. Similar offending was engaged in within [redacted] of completing the earlier sentence. I agree with the Judge that one cannot be confident that the likelihood of the applicant not reoffending should be seen as low. 55 In any event and irrespective of the additional hurdle imposed by subsections 96(3)(c) and 96(6)(a), I am not satisfied that there is good reason to suspend in the applicant’s case. 56 Appeal ground 1 raises the question of manifest excess. The principles that apply are well known. It must be shown that the sentencing Judge came to a sentence that was unreasonable or plainly unjust,45 that is, outside the permissible range for the offences and the offender concerned.46 Consideration must be given to all of the relevant sentencing factors including the maximum penalty available, customary standards of sentencing for like offending and the offender’s personal circumstances. In R v Morse,47 King CJ provided the following well accepted summary. This Court can interfere only if it is convinced that the sentence was manifestly excessive. To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. 57 All of the grounds of appeal but for ground 1 have been, to this point, rejected. However, the question remains whether a starting point of eight years, a cooperation discount of 15 per cent and an allowance of two months for time 45 House v The King [1936] HCA 40; (1936) 55 CLR 499. 46 Kentwell v The Queen (2014) 252 CLR 60 at [35]; Hili v The Queen (2010) 242 CLR 520 at [60]. 47 (1979) 23 SASR 98 at 99. -- 25 of 27 -- [2024] SASCA 147 Nicholson AJA 22 spent on home detention bail, in combination, render the final sentence to be served as manifestly excessive. 58 A significant sentence of imprisonment was required in order to achieve the necessary level of general deterrence. Personal deterrence was also a matter of concern, in circumstances where the offending occurred within [redacted] of the applicant completing his period of parole for similar offending. However, given the factual basis of the offending with the lack of specificity in the Judge’s findings48 concerning the applicant’s involvement and benefit to be obtained, and the applicant’s personal circumstances, the starting point of eight years, whilst not outside, was at the high end of the range and severe.49 Similarly, the 15 per cent discount for cooperation was at the low end of the range, with the Judge’s manner of application diluting the benefit of the subsequent reduction for the applicant’s plea of guilty. The allowance for time spent on home detention bail was also quite modest, and diluted by reason of it being deducted from the head sentence prior to determination of an appropriate non-parole period.50 It is true that there was no evidence that the applicant’s home detention bail conditions were particularly onerous or restrictive as compared with typical home detention bail conditions. Nevertheless, home detention bail does impose significant restrictions when compared with simple bail, even where permission to work and special occasion pass outs are given. The restrictions become and will be perceived as more onerous the longer the home detention bail continues. Almost 16 months is a long time to have been on home detention bail and the applicant was compliant. 59 In the circumstances of the offending and this offender, these three matters have caused the final sentence to be served of imprisonment for four years, two months and 20 days with a non-parole period of two years and nine months to be unreasonable and manifestly excessive. Adjusting each of the three factors above by only a modest amount, in combination, would bring the final sentence within range. 60 A starting point of seven years and six months, a cooperation discount of 15 per cent but applied, together with the discount for pleas of 35 per cent, to the starting point to give an effective discount of 50 per cent would result in a head sentence of three years and nine months. Having particular regard to the applicant’s personal circumstances, I would fix a non-parole period of two years and six months. After a deduction of four months for time served and on home detention bail, this results in a head sentence of three years and five months, and a non-parole period of two years and two months. 61 I would refuse leave to appeal on all grounds except ground 1.1. I would grant leave to appeal on ground 1.1, allow the appeal, set aside the original 48 Through no fault of the Judge given the case available to the prosecution, as presented. 49 Having regard to the discussion, and annexed summary of cases, in R v Lyberopoulos [2017] SASCFC 139 at [21]-[40] (Hinton J with whom Nicholson and Bampton JJ agree); see also R v Yavuz [2018] SASCFC 24; (2018) 130 SASR 231 at [62]-[74]. 50 Owens v The King [2024] SASCA 65 at [5]-[13]; applying Ribbon v The Queen [2022] SASCA 15. -- 26 of 27 -- [2024] SASCA 147 Nicholson AJA 23 sentence and resentence the applicant to imprisonment for three years and five months with a non-parole period of two years and two months, backdated to commence on 22 September 2023. -- 27 of 27 --