MICHAEL JOHN TEAGLE v THE KING [2023] SASCA 108

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE HEFFERNAN) DCCRM-21-1776, DCCRM 22-202, DCCRM-22-490 Applicant: MICHAEL JOHN TEAGLE Counsel: MR B ARMSTRONG - Solicitor: JON LISTER - BARRISTER & SOLICITOR Respondent: THE KING Counsel: MR W SCOBIE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 14/09/2023 File No/s: SCCRM-22-329 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. TEAGLE v THE KING [2023] SASCA 108 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Bleby) 5 October 2023 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - DEPRIVED BACKGROUND CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - OTHER SUBSTANCES AND OFFENCES INVOLVING MULTIPLE SUBSTANCES OR OFFENCES Appeal against sentence. The applicant pleaded guilty to multiple drug trafficking and possession offences contrary to the Controlled Substances Act 1984 (SA). The relevant offending fell within two tranches committed in April 2021 and August 2021 respectively. The most significant of the applicant’s offending was one count of trafficking in a large commercial quantity of a controlled drug (1,4-Butanediol, also known as fantasy). This formed the subject of Count 2 in the August offending. The primary judge’s sentencing remarks had regard to the applicant’s drug addiction, deprived childhood, and that August offending had occurred while he was on home detention bail for the April -- 1 of 15 -- offending. The judge also considered the applicant’s criminal history, most relevantly a conviction in 2018 for trafficking a controlled drug for which he was sentenced to a term of imprisonment. In sentencing, the judge indicated that he proposed to sentence the applicant on the basis he had a significant profit motive. He adopted a notional starting point of 11 years in respect of Count 2 in the August offending. He reduced the sentence in accordance with the applicable discount to eight years, three months. He made the other sentences within that tranche of offending wholly concurrent with that sentence. The judge made the sentences in the April tranche wholly concurrent with the highest sentence in that group. He then applied partial concurrency as between the two groups of sentences. Once allowances were made for time spent in custody and on home detention bail, the resultant combined head sentence was 10 years, nine months and 23 days. The sole ground of appeal was that the sentences were manifestly excessive. Held (by the Court), granting permission to appeal but dismissing the appeal: 1. The notional starting point of 11 years adopted by the primary judge for Count 2 in the August offending was manifestly excessive. However, that did not render the overall sentence manifestly excessive. The sentencing judge’s provision for concurrency between the individual sentences in each tranche of offending, as well as for partial concurrency between the two groups of sentences, ameliorated the effect of that excessive starting point. 2. The starting point of 11 years for Count 2 in the August offending was an outcome error in respect of a constituent part of the final head sentence. It follows that it is the duty of the Court to exercise the discretion afresh. 3. Having regard to all the matters relevant to sentence, including the applicant’s deprived upbringing, circumstances and his addiction, the offending was on any view serious. Each group of offending is properly characterised as a separate incursion, particularly having regard to the applicant’s second tranche of offending occurring while on home detention bail. The Court would not impose a different sentence to that which the primary judge ultimately imposed. Criminal Law Consolidation Act 1935 (SA) s 138(2); Controlled Substances Act 1984 (SA) ss 32(2), 32(3), 32(1), 33I(1(b), 18(3); Summary Offences Act 1953 (SA) ss 41, 21F(1)(b); Sentencing Act 2017 (SA) s 26, referred to. Brougham v The King [2023] SASCA 75; Bugmy v The Queen (2013) 249 CLR 571; Kentwell v The Queen (2014) 252 CLR 601; Peterson v Western Australia [2019] WASCA 207; R v Perry [2022] SASCA 127; R v Young (2016) 126 SASR 41, considered. -- 2 of 15 -- TEAGLE v THE KING [2023] SASCA 108 Court of Appeal – Criminal: Livesey P, Lovell and Bleby JJA 1 THE COURT: This application for permission to appeal against sentence raises a single issue, being whether the sentence imposed by the District Court in respect of a number of trafficking and possession offences contrary to the Controlled Substances Act 1984 (SA) (‘CSA’) is manifestly excessive. The Notice of Appeal initially raised a further ground, being that the judge erred in finding that the applicant’s offending had a significant profit motive. However, the applicant abandoned that ground during the hearing of the appeal. 2 The relevant offending comprised two groups of offences, committed on 28 April 2021 and 16 August 2021 respectively. The following tables set out the offences in each group, the judge’s starting point for penalty in respect of each offence, the reduction the judge applied in each case on account of the applicant’s guilty plea, the resulting sentence and the extent to which the judge made the sentences concurrent or cumulative. 3 As to the April offending (File DCCRM-21-1776): Count Offence and maximum penalties Starting point Discount Sentence Notes 1 Trafficking in a commercial quantity of a controlled drug; s 32(2) CSA (1,4- Butanediol). Maximum penalty: 25 years or $200,000, or both. 8 years 25% 6 years 2 Trafficking in a controlled drug; s 32(3) CSA (methylamphetamine). Maximum penalty: 10 years or $50,000, or both. 4 years 25% 3 years Concurrent with count 1 3 Trafficking in a controlled drug; s 32(3) CSA (methylamphetamine). Maximum penalty: 10 years or $50,000, or both. 3 years 25% 2 years, 3 months Concurrent with count 1 -- 3 of 15 -- [2023] SASCA 108 The Court 2 4 As to the August offending (File DCCRM-22-202): Count Offence and maximum penalties Starting point Discount Sentence Notes 1 Trafficking in a controlled drug; s 32(3) CSA (methylamphetamine). Maximum penalty: 10 years or $50,000, or both. 4 years 25% 3 years Concurrent with count 3 2 Trafficking in a large commercial quantity of a controlled drug; s 32(1) CSA (1,4- Butanediol). Maximum penalty: life imprisonment or $1,000,000, or both. 11 years 25% 8 years, 3 months 3 Trafficking in a controlled drug; s 32(3) CSA (methylamphetamine). Maximum penalty: 10 years or $50,000, or both. 4 years 25% 3 years Concurrent with count 3 4 Money laundering s 138(2) of the Criminal Law Consolidation Act 1935 (SA). Maximum penalty: 4 years. 4 months 25% 3 months Concurrent with count 3 5 Possess controlled drug for supply; s 33I(1)(b) of the CSA (buprenorphine strips). Maximum penalty: 10 years or $50,000 or both. 12 months 35% 7 months, 25 days Concurrent with count 3 6 Possess prescription drug s 18(3) of the CSA (OxyNorm). Maximum penalty: 2 years or $10,000. 4 months 25% 3 months Concurrent with count 3 -- 4 of 15 -- [2023] SASCA 108 The Court 3 7 Unlawful possession s 41 of the Summary Offences Act 1953 (SA). Maximum penalty: 2 years or $10,000. 3 months 25% 2 months, 8 days Concurrent with count 3 5 The applicant further pleaded guilty to and was sentenced for the following offence (File DCCRM-22-490): Count Offence and maximum penalties Starting point Discount Sentence Notes 1 Possess prohibited weapon; s 21F(1)(b) of the Summary Offences Act 1953 (SA). Maximum penalty: $20,000 or 2 years. 3 months 30% 2 months, 4 days Concurrent with DCCRM- 21-1776. 6 Finally, the applicant pleaded guilty to the offence of failing to comply with a bail agreement. He was convicted without further penalty. 7 The judge allowed partial concurrency between the total sentences for each of the April and August offending groups and set a combined head sentence of 11 years’ imprisonment. He deducted eight days on account of time spent in custody and a further two months on account of time spent on home detention bail. That resulted in an adjusted head sentence of 10 years, nine months and 23 days. He then had further regard to the application of the principle of totality, concluding that having made the allowance for partial concurrency, no further adjustment was required. 8 The judge set a non-parole period of four-fifths of the head sentence, the applicant being a serious repeat offender. This resulted in a non-parole period of eight years, seven months and 25 days. The circumstances of the offending The April offending 9 At about 9:30am on 28 April 2021, police attended the premises in Flinders Street, Adelaide in relation to a search authorised by a warrant issued under the CSA. They knocked and announced their presence but there was no reply. They forced entry and located the applicant in the bedroom together with the registered tenant of the property. -- 5 of 15 -- [2023] SASCA 108 The Court 4 10 Police searched the premises and located various identification documents in the names of different people. They suspected that these were unlawfully obtained. They executed a General Search Warrant and continued to search the property. When searching the open plan kitchen, dining and living area, police found a backpack and a plastic shopping bag covered by a black motorcycle jacket. Inside the shopping bag were two plastic bottles containing a clear viscous liquid. One bottle contained 987 grams of 1,4-Butanediol and the other contained 44.6 grams of 1,4-Butanediol. These formed the subject of Count 1. 11 Inside the backpack was a smaller bag which contained some new plastic press-sealed bags and a wallet with photographic identification of the applicant, as well as $500 cash. 12 Police then found 4.21 grams of methylamphetamine in two bags on a coffee table. These were the subject of Count 2. Police found a further 1.55 grams of methylamphetamine in small amounts scattered throughout the house. This methylamphetamine was not the subject of any charge. There were also ice pipes, three sets of scales, numerous plastic resealable bags, six phones, a taser torch and $3,615 in cash on top of the TV cabinet in the bedroom. 13 The applicant was arrested and taken to the City Watch House before being interviewed. He told police that the 1,4-Butanediol and the methylamphetamine belonged to him and were for personal use. 14 Police then went to the applicant’s home address in Munno Para. They entered the property under the authority of a General Search Warrant. Inside the applicant’s bedroom they located 1.54 grams of methylamphetamine on his bedside table, as well as a further 0.56 grams of methylamphetamine inside the bedside table. This methylamphetamine was the subject of Count 3. Police also found in the bedroom a homemade taser, a total of 12.16 grams of 1,4-Butanediol in two containers, two phones, a set of scales and numerous glass pipes. None of these were the subject of any charge. 15 Police then obtained a stored communications data warrant in relation to the applicant’s phone number. They identified text messages indicative of trafficking having been sent from that number, including messages sent and received on 26 April 2021 between the applicant and an unidentified person referring to ‘ltr’ and ‘5ltr’, cash amounts, ‘balls’ and ‘hb’. The August offending 16 The applicant was on home detention bail at his Munno Para address in relation to the charges connected to the April offending. At about 6:50pm on Monday, 16 August 2021, police attended both the front and rear of that address for the purposes of a search. There were three males in the garage visible through the open roller door at the front. As police approached, one of the males removed an item that was holding the roller door up. Police prevented the roller door from -- 6 of 15 -- [2023] SASCA 108 The Court 5 being fully closed and pulled it up. One of the males inside remained standing in the centre of the garage and the other two ran out through the back door. 17 The police officers who were around the back observed the two males exit the garage and run in different directions. They ran towards one, the applicant, and said ‘Stop, Police’. The applicant continued to run and turned right towards the fence line. He arrived at the fence with police about five to 10 metres away from him. Police saw the applicant throw an item over the fence, following which they detained him. They also pursued the other male and detained him at the back door to the house. 18 Police searched the fence line where the applicant had been seen to throw an item over the fence. They located a white object in a bush along the fence line. The item was comprised of multiple white napkins kept together with a rubber band. Inside the napkins were three plastic resealable bags containing crystals and crystalline powder in the amounts of 27.8 grams (22.3 grams of methylamphetamine), 27.8 grams (22.4 grams of methylamphetamine), and 27.8 grams (22.3 grams of methylamphetamine). These amounts formed the subject of Count 1. 19 Police then searched the garage, where they found various items as follows. 20 In the top drawer of the cupboard on the right-hand wall, they found: • a plastic resealable bag containing 23.6g (19.0g of methamphetamine) of crystals. This formed the subject of Count 3; • 6 lots of unused plastic resealable bags stored in boxes or larger plastic resealable bags; • a set of scales; • a Samsung mobile phone that was switched on. 21 On top of the cupboard on the right-hand wall, they found: • a tick list; • $6,600 cash. This formed the subject of Count 4; • a Pyrex measuring jar containing clear liquid residue; • a plastic measuring tub with clear liquid residue; • a plastic tub with clear liquid residue; • a plastic syringe with clear liquid residue. -- 7 of 15 -- [2023] SASCA 108 The Court 6 22 On a shelf next to the cupboard on the right-hand wall, they found a funnel with clear liquid residue. Underneath that cupboard, they found two stolen number plates. Resting on the third drawer, which was open, they found an OPPO mobile phone which was turned on and plugged into a charger. 23 In a storeroom at the back of the garage, they found a petrol can containing 3.928kg of 1,4-Butanediol. This formed the subject of Count 2. 24 In bedroom 1, in a small set of cupboards, police found numerous documents in the name of the applicant including a birth certificate. Then, in that room, they found an OPPO mobile phone on the bed and a glass pipe and a glass bottle for smoking behind the TV and on a table next to the door. 25 In the top left drawer of the tallboy in the bedroom, they found: • $1,650 cash in $50 notes. $935 of this amount formed the subject of Count 7; • a wallet with the applicant’s ID cards containing a further $485 cash of various denominations; • 45 buprenorphine strips in a plastic resealable bag, separated into three further quantities with ‘20’ written on their front, inside a medication box prescribed to the applicant. These formed the subject of Count 5; and • medication prescribed to the applicant. 26 In the bottom drawer of a smaller cupboard next to the tallboy, they found in a Coles bag: • six boxes of OxyNorm 10mg (four boxes containing five vials, one containing four vials and one containing three vials. Each had prescribed patients’ details removed). These formed the subject of Count 6. 27 Under the TV on the tallboy, they found a CCTV hard drive. 28 Underneath the bed, they found a Samsung mobile phone turned on and plugged into a charger. 29 Police found a single round of ammunition in the washing machine. They found $200 cash in $50 notes on the applicant’s person. They found a Samsung mobile phone on one of the other men. 30 While police were searching the house, various people attended at the address or in the vicinity of the address. Some of those people were unable to give a plausible reason for their presence. At about 8:07pm, police reviewed the mobile phone that was on the bed in the applicant’s room. This contained messages relating to trafficking in controlled drugs. -- 8 of 15 -- [2023] SASCA 108 The Court 7 31 Police interviewed the applicant after 11:00pm that night. The applicant agreed that he had said to police at the house that the items in the shed belonged to him. He declined to answer questions in relation to the drugs and drug paraphernalia or with respect to the $6,600 cash located in the garage. With respect to the $200 located on the coffee table on the lounge, the applicant said that the cash was his and that he had put it there when police put him in the lounge room. He said he had taken it out of his pocket. He said he was a concreter and that the cash had come from his work. 32 In relation to the $485 in the wallet with the applicant’s ID that was in the bedroom, the applicant said it was his savings from working. He said the same in relation to the $1,650 located on the tallboy with the wallet. He denied any knowledge of the buprenorphine strips. He declined to comment on the vials of Oxycodone. He also declined to comment in relation to the messages on his mobile phone. 33 The applicant was taken into custody on 17 August 2021. He was tested for illicit substances. The test returned a positive result for methylamphetamine and amphetamine. That formed the basis for the offence of failing to comply with his bail agreement. 34 In the event, the applicant pleaded guilty to the offences as listed above. The applicant’s personal circumstances 35 The applicant was 38 years old at the time of sentencing. His personal circumstances were recorded in a psychological report provided to the sentencing judge. 36 The applicant’s father died from a drug overdose soon after the applicant was born. The applicant’s mother suffered from alcoholism and required periods of time in rehabilitation. She had a number of partners, some of whom were aggressive and violent towards the applicant. The applicant had an insecure childhood, with the family moving both intrastate and interstate to and from Queensland. The applicant reported being an insecure and anxious child. 37 The applicant was sexually abused by the father of a friend when he was in year six. He reported the abuse to his mother, but she did not believe him. 38 The applicant left school at 15. He worked in furniture removal and as a driver for a brothel. He has had an intermittent work history, with his drug abuse and periods of imprisonment affecting his ability to obtain employment. He has a 20-year-old son and an 11-year-old daughter. He has contact with his son. He has been in his current relationship for over 12 months. His partner is pregnant, and he maintains regular contact with her. 39 The applicant began using cannabis at 13. Following his return to Adelaide from Queensland at 15, he began to live with one of his half siblings, whom he -- 9 of 15 -- [2023] SASCA 108 The Court 8 regarded as a role model. However, that person committed suicide, following which the applicant commenced using amphetamine. The applicant has tried most drugs, except for opioids. He told the psychologist that in 2021 he was smoking around an 8-ball of amphetamine a day, and orally ingesting fantasy all day. While he had withdrawn from substance abuse in prison, he continued to think about drugs as drug use helped him block negative thoughts and memories and allowed him to avoid dealing with reality. 40 The applicant was diagnosed with a depressive condition in prison 10 years ago. He has attempted suicide on three occasions, most recently about five years ago. He avoided contact with professionals within the mental health system, preferring to use methylamphetamine to self-medicate. 41 The psychologist considered that the applicant satisfied the criteria for a diagnosis of Post Traumatic Stress Disorder, and that treatment was required to mitigate that condition and to improve the applicant’s stress management skills. The sentencing judge accepted that the applicant’s disadvantaged upbringing and chronic addiction were matters that had led the applicant to this and previous offending and that they had influenced his conduct. 42 While in prison, the applicant has completed the Making Changes and Behaviour Desistance programs. The latter of these is a seven-week course. The sentencing judge noted that the applicant was currently on the waiting list to join the SMART Recovery drug program. The applicant said that his current priorities are to avoid using drugs so as to be a father to his as yet unborn child and to be in a position to provide a secure, stable and supportive environment for his partner and child. 43 The sentencing judge summed up the applicant’s criminal history, which includes a recent conviction and sentence of imprisonment for trafficking in a controlled drug, as follows: You have a lengthy criminal history, starting at the age of 18. The majority of your offending relates to driving offences but you also have convictions for damaging property, hindering police, failing to comply with your bail, dishonestly dealing with property without consent and assault. You were convicted in 2016 for possessing a controlled drug, again in 2017 for possessing a controlled drug and possessing equipment to use with a controlled drug, and again in 2018 for trafficking in a controlled drug. On that last occasion police found 43.7 g of methylamphetamine in your car. You were sentenced in this court by Judge Muscat to imprisonment for two years and 10 months with a non-parole period of one year and six months to commence from 7 March 2018. That can be regarded as a comparatively lenient sentence, from which you apparently learnt nothing. Sentencing 44 The applicant fell to be sentenced as a serious repeat offender. His counsel accepted that he was not eligible for either a suspended sentence or to serve his sentence on home detention. -- 10 of 15 -- [2023] SASCA 108 The Court 9 45 The judge accepted that the applicant did not appear to be wealthy on account of his offending but found that in both April and August he had significantly more fantasy (1,4-Butanediol) in his possession than would be required to offset a habit as a street-level user. His Honour indicated that he proposed to sentence the applicant on the basis that he had a significant profit motive, a conclusion supported by the presence of the tick list, the text messages and the cash in his possession. 46 The judge noted the significant amounts of methylamphetamine and fantasy involved in the offending. He noted the capacity for significant social damage inherent in the amounts of those drugs. The tick list and text messages demonstrated that these offences were not isolated. The judge also noted that this offending occurred with the applicant only recently having been sentenced for trafficking in methylamphetamine. He treated this as cause for caution in assessing the applicant’s prospects of rehabilitation. He noted, however, the applicant’s successful completion of the courses identified above. 47 The judge had regard to the paramount consideration of protection of the community, the need for adequate punishment and that personal and general deterrence were significant considerations. 48 The judge then sentenced the applicant in the manner set out above. The appeal 49 In support of his contention that the overall sentence was manifestly excessive, the applicant pointed to ‘signposts’ or ‘indicators’ of the claimed error, being matters to which he submitted the sentencing judge failed to have proper regard. These claimed failures were not alleged to amount to process errors. On a complaint of manifest excess, they are to be treated as matters relied on by the applicant as circumstances indicative of the erroneousness of the final sentence. These were the profound deprivation that marked the applicant’s childhood, the applicant’s addiction, the need to reduce the sentences for totality and an inadequacy of concurrency as between the sentences for the April offending and the August offending. 50 As to the deprivation that marked the applicant’s childhood, the applicant emphasised the principles enunciated in Bugmy v The Queen (‘Bugmy’),1 as summarised by the Western Australian Court of Appeal in Peterson v Western Australia:2 (a) The effects of an offender’s profound childhood deprivation do not diminish with the passage of time or repeated offending. 1 (2013) 249 CLR 571. 2 [2019] WASCA 207 at [54] (Buss P and Mazza JA). See also R v Perry [2022] SASCA 127 at [141]. -- 11 of 15 -- [2023] SASCA 108 The Court 10 (b) The effects of an offender’s profound childhood deprivation are to be given ‘full weight’ in every sentencing decision relating to the offender. (c) However, the effects of an offender’s profound childhood deprivation may point in different directions in relation to relevant sentencing factors; for example, those effects may diminish the offender’s moral culpability for the offending, but may also increase the importance of protecting the community from the offender’s criminal behaviour. (d) Those conflicting purposes of punishment, in a sentencing context, must be weighed in the balance. 51 As this Court in R v Perry noted, the undiminished effects of an offender’s profound childhood deprivation may impair the offender’s capacity to mature and learn from experience, as well as to reform.3 In any event, the applicant pointed to the various aspects of his childhood deprivation, outlined above, that in his submission ameliorated his moral culpability. He submitted that the sentencing judge had not sufficiently brought these matters to account. Again, he did not suggest process error. Rather, the effect of his submission was that these matters of deprivation contributed significantly towards an assessment of reduced moral culpability on his part, thereby contributing to the conclusion that the sentence was manifestly excessive. 52 There can be no doubt that the applicant’s personal circumstances and history of abuse and deprivation engender sympathy and help to explain his offending. They must be brought to account in the application of the principles described above. Indeed, the judge paid express regard to those circumstances. However, as was recognised in Bugmy itself, the effects of profound childhood deprivation may point in different directions in relation to relevant sentencing factors. 53 Further, in the circumstances of this offending, personal and general deterrence remained highly significant considerations, having regard to the quantities of drug on each occasion and the indicia of sale. Moreover, the August offending occurred when the applicant was on home detention bail in respect of the April offending. The applicant’s personal circumstances of childhood deprivation and abuse were clearly relevant to an assessment of his moral culpability. Those circumstances sat among many other considerations that were required to be given weight in the sentencing exercise. 54 The applicant’s addiction was also a matter to be brought to account. The applicant complained that the judge failed to do so adequately. Again, this was not argued as a separate process error, except insofar as this complaint supported Ground 2, which the applicant abandoned during the hearing. The judge manifestly had regard to the applicant’s addiction. 55 On the complaint of a need to reduce the sentences for totality and the inadequacy of the applied concurrency, the starting point is to recognise that the 3 R v Perry [2022] SASCA 127 at [141]. -- 12 of 15 -- [2023] SASCA 108 The Court 11 sentencing judge made the individual sentences for the April offending wholly concurrent, the individual sentences for the August offending wholly concurrent and then applied partial concurrency as between those two groups of sentences. 56 The applicant’s ultimate submission was that either by not applying the principle of totality to reduce the sentence further, or by not providing for any greater concurrency as between the sentences, the ultimate sentence, having regard to the matters traversed above, was manifestly excessive. In developing this submission, he drew on the sentence for Count 2 of the August offending, in respect of which the sentencing judge adopted a starting point of 11 years for trafficking in a large commercial quantity of 1,4-Butanediol. He indicated that his research had not revealed a comparable sentence for that offence in respect of that drug. 57 There are a few strands to be drawn out in respect of this approach to sentence. First, the 11-year starting point for Count 2 in the August offending was very high indeed. Having said that, the offence concerned a large commercial quantity of 1,4-Butanediol. This trafficking was manifestly not isolated. Nor was it base-level trafficking of the kind for which the Court identified indicative sentences in R v Young.4 Indeed, as the Chief Justice said in that case:5 The text of the Amendment Act suggests that its purpose was to differentiate between trafficking based on the degree of commerciality involved. I take that from the use of the word commercial in the description of the more serious offences and the statutory provision for regulations to differentiate between the three tiers of offending based on quantity. The tiered approach generally and the increase in the maximum penalty for large commercial trafficking shows that Parliament intended offenders motivated by, and making substantial profits to be dealt with more severely. The notorious mischief to which the Amendment Act is addressed also suggest that that was its purpose. So too do the secondary Parliamentary materials. The illegal drug market is founded on addiction fuelled demand and profit driven supply. 58 The applicant was also on home detention bail in respect of the April offending and had relatively recently been sentenced for trafficking offences. Nevertheless, even allowing for these factors, in all the circumstances the starting point of 11 years for Count 2 in the August offending was manifestly excessive. An appropriate starting point would have been in the order of eight to nine years. 59 However, the analysis does not end there. In Brougham v The King,6 a sentencing judge imposed a single sentence under s 26 of the Sentencing Act 2017 (SA) (‘Sentencing Act’) in respect of four firearms offences. The Court found that two of the notional starting points that the judge identified were manifestly excessive. That was not the end of the matter:7 4 (2016) 126 SASR 41 at [66]-[68] (Kourakis CJ). 5 R v Young (2016) 126 SASR 41 at [60]. 6 [2023] SASCA 75. 7 Brougham v The King [2023] SASCA 75 at [31]. -- 13 of 15 -- [2023] SASCA 108 The Court 12 However, as the sentencing judge utilised s 26 and imposed one sentence, it is not sufficient that the applicant merely establish that the notional starting point for Count 3 was manifestly excessive. While notional starting points may provide some support for a submission that the sentence is manifestly excessive, the applicant must establish that the final sentence imposed for all the offending is manifestly excessive. When looking at the overall sentence, this Court is not bound to follow ‘notional sentences’ nor the sentencing Judge’s approach to concurrency when considering whether the single sentence is manifestly excessive. 60 In the present case, the sentencing judge did not proceed under s 26. Rather, he made the sentence for each offence within a group totally concurrent with the longest sentence imposed within that group. There are two difficulties with taking this course. First, it makes the final sentence highly dependent on the longest individual sentence in the group. There is an attendant risk that in taking this approach, the longest sentence may be approached inadvertently with an eye to sentencing for all the offending, and not just the offence to which it relates. Here, for the reasons discussed above, the starting point for Count 2 in the August offending was manifestly excessive. 61 The second difficulty is that this approach tends to obscure the criminality attaching to the individual offences. Thus, with respect to the methylamphetamine trafficking offences in this case, the starting point for each offence was four years, with the exception of Count 3 in the April offending, which was three years. There was little meaningful distinction drawn between these sentences, notwithstanding the more egregious circumstances of the August offending. Ultimately, however, by reason of the judge’s approach to concurrency, each of these sentences fell fully within the longest sentence for each group. 62 The risk is then that the final sentence becomes a product of approximation, rather than a considered approach to totality. In sentencing for each offence individually, it would have been preferable to select starting points that reflected the criminality of the offending in each case, apply some degree of concurrency both within and as between the groups, and then, if necessary, adjust further for totality. That would have reflected more completely the totality of the offending in what was, admittedly, already a complex sentencing exercise. Alternatively, this sentencing task was amenable to the imposition of a single sentence under s 26 of the Sentencing Act. 63 In any event, the Notice of Appeal, as maintained, complains of one error only: The learned sentencing Judge erred in imposing sentences which were manifestly excessive. 64 On its terms, this ground incorporates the individual sentences that were then imposed concurrently within the groups and partially concurrently as between the groups. While the Notice of Appeal does not particularise the starting point of 11 years for Count 2 in the August offending, the appeal was argued (and no objection -- 14 of 15 -- [2023] SASCA 108 The Court 13 was taken) so as to incorporate a complaint that this starting point was manifestly excessive, and thereby rendered the ultimate sentence manifestly excessive. 65 It follows from our conclusion that the starting point for Count 2 in the August offending was in error that the discretion has miscarried. It is not necessary to assess the degree to which the error influenced the outcome. It is the duty of the Court to exercise the discretion afresh.8 However, as the High Court went on to say in Kentwell v The Queen:9 After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters … that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. 66 In the present case, the error was an outcome error in fixing one sentence that formed a constituent part of the final head sentence of 11 years. 67 However, the judge’s approach to concurrency with respect to each group of offending ameliorated the effect of the excessive starting point for Count 2 in the August offending. In respect of both groups of offending, this approach was very much to the applicant’s advantage. The judge then made further provision for concurrency as between the two groups. This was to the applicant’s further advantage in circumstances where each group constituted a separate course of offending, broken up by the applicant’s arrest and release on home detention bail. 68 We have had regard to all the matters relevant to sentence discussed above, including the applicant’s deprived upbringing and circumstances and his addiction. The offending was on any view serious. It represented repeated instances of drug trafficking in amounts that extended, in the case of the April offending, to a commercial quantity of 1-4, Butanediol and in the case of the August offending, to a large commercial quantity of that drug. Each group of offending included a further two counts of trafficking in methylamphetamine. Each group is properly characterised as a separate incursion, particularly having regard to the applicant’s arrest and release on home detention bail following the April offending. Notwithstanding the error in respect of Count 2 in the August offending, we would not impose a different sentence from that which the judge ultimately imposed. Conclusion 69 We grant permission to appeal but dismiss the appeal. 8 Kentwell v The Queen (2014) 252 CLR 601 at [43]. 9 (2014) 252 CLR 601 at [43]. -- 15 of 15 --