GEORGE AWKAR v THE KING [2023] SASCA 118

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE CUTHBERTSON) DCCRM-21-1052, 22-777, 21-1246, 22-756 Appellant: GEORGE AWKAR Counsel: MR S HENCHLIFFE KC - Solicitor: TIM CLARKE & CO LAWYERS Respondent: THE KING Counsel: MS A CAIRNEY WITH MR P SCHAEFER - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 14/08/2023 File No/s: SCCRM-22-016498 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. AWKAR v THE KING [2023] SASCA 118 Judgment of the Court of Appeal (The Honourable Justice David, the Honourable Justice Stanley and the Honourable Justice Stein) 16 November 2023 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES This is an appeal against sentence. The appellant pleaded guilty to drug trafficking offences charged on two separate Informations, committed over the course of about 15 months from 27 March 2020 to 7 June 2021. The offending involved the appellant receiving, distributing, and selling methylamphetamine on behalf of a lucrative drug syndicate who communicated via the AN0M platform. All of the offences were committed in breach of two suspended sentence bonds. On 24 November 2022, the sentencing Judge revoked the two previously suspended sentences and imposed a penalty of imprisonment in respect of each, to be served wholly concurrently. His Honour then sentenced the appellant for the two offences charged on the first Information, which were ordered to be served cumulatively on the revoked suspended sentences. The appellant made no complaint about these aspects of the sentencing process. -- 1 of 18 -- The sentencing Judge then proceeded pursuant to s 26 of the Sentencing Act 2017 (SA) (‘the Sentencing Act’) and imposed a single penalty for the remaining 10 offences charged on the second Information, which his Honour ordered to be served cumulatively on the previous sentences. The final head sentence imposed, after reduction on account of the appellant’s guilty pleas, was 16 years, 10 months, and 19 days. A non-parole period of 12 years, one month, and three weeks was fixed. In relation to the offences charged on the second Information, the appellant fell to be sentenced as a ‘serious repeat offender’. Accordingly, s 54(1)(b) of the Sentencing Act required the non-parole period to be at least four-fifths of the head sentence imposed for the offences which enlivened the serious repeat offender provisions. Whilst the non-parole period was four-fifths of the overall head sentence, it was in fact 85 per cent of the head sentence imposed for the offences which enlivened the serious repeat offender provisions. The sentence was ordered to commence from the time the appellant was remanded in custody, that being 8 June 2021. The appellant sought permission to appeal against sentence on the following grounds: 1. The sentencing Judge erred in the application of the principles relating to totality (Ground 1). 2. The sentencing Judge erred in the application of the principles relating to concurrency (Ground 2). 3. The sentence was manifestly excessive (Ground 3). The respondent conceded that the sentencing Judge made several discrete errors in applying the totality principle (Ground 1) but contended that upon re-sentence this Court should not impose a different sentence and, accordingly, the appeal should be dismissed. Held, per the Court, dismissing the appeal: 1. The sentencing Judge erred by applying the totality principle to the notional head sentence imposed pursuant to s 26 of the Sentencing Act for the offences charged on the second Information before taking into account the appellant’s mitigating circumstances, including his guilty pleas. 2. On re-sentence, this Court would not impose a lesser head sentence or non-parole period. Accordingly, the appeal is dismissed. Controlled Substances Act 1984 (SA) ss 32(1), 32(2), 32(3); Criminal Law Consolidation Act 1935 (SA) s 138(1); Motor Vehicles Act 1959 (SA) s 91(5); Sentencing Act 2017 (SA) ss 26, 26(2a), 54(1)(b), referred to. R v Copeland (No 2) (2010) 108 SASR 398; R v Culley (2019) 134 SASR 92, discussed. Attorney-General (SA) v Tichy (1982) 30 SASR 84; Edmonds (A Pseudonym) v The Queen [2022] SASCA 11; House v The King (1936) 55 CLR 499; Kentwell v The Queen (2014) 252 CLR 601; Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610; R v Place (2002) 81 SASR 395; R v Russell (A Pseudonym) [2022] SASCA 143; Warner v The King [2022] SASCA 142; White (A Pseudonym) v The Queen [2022] SASCA 78, considered. -- 2 of 18 -- AWKAR v THE KING [2023] SASCA 118 Court of Appeal – Criminal: David JA, Stanley and Stein AJJA 1 THE COURT: The appellant pleaded guilty to drug trafficking offences and a money laundering offence committed over the course of about 15 months from 27 March 2020 to 7 June 2021. The offending involved the appellant receiving, distributing, and selling methylamphetamine on behalf of a lucrative drug syndicate who communicated via the AN0M platform. 2 The offences were the subject of two separate Court files. In relation to file DCCRM-21-1052 (‘the first Information’), the appellant pleaded guilty to: • one count of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (‘the CSA’), for which the maximum penalty is 10 years imprisonment or a fine of $50,000 or both; and • one count of engaging, directly or indirectly, in a transaction involving cash of the value of $85,3701 that the appellant knew to be tainted property, contrary to s 138(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’), for which the maximum penalty is 20 years imprisonment. 3 Both offences were committed on 7 June 2021. 4 In relation to file DCCRM-22-756 (‘the second Information’), the appellant pleaded guilty to: • five counts of trafficking in a large commercial quantity of a controlled substance, contrary to s 32(1) of the CSA, for which the maximum penalty is life imprisonment or a fine of $1,000,000 or both; • one count of trafficking in a commercial quantity of a controlled drug, contrary to s 32(2) of the CSA, for which the maximum penalty is 25 years imprisonment or a fine of $200,000 or both; and • four counts of trafficking in a controlled drug, contrary to s 32(3) of the CSA, for which the maximum penalty is 10 years imprisonment or a fine of $50,000 or both. 5 All offences were committed in breach of two suspended sentence bonds. The first was imposed in the District Court on 8 July 2019 (DCCRM-18-1775) for the offence of trafficking in a controlled drug.2 On that date, Judge Kudelka 1 The amount was incorrectly listed on the first Information as $85,550. 2 The suspended sentence bond was later enforced by His Honour Judge Cuthbertson on file DCCRM-21-1246 and then consolidated onto DCCRM-21-1052. -- 3 of 18 -- [2023] SASCA 118 The Court 2 (then Judge Chapman) sentenced the appellant to four years imprisonment, reduced by 30 per cent on account of his guilty plea, to two years, nine months, and 19 days. A non-parole period of one year and six months was fixed. The sentence was suspended upon the appellant entering a bond to be of good behaviour for three years. 6 The second suspended sentence bond was imposed in the Port Adelaide Magistrates Court on 10 October 2019 (MCPAD-19-875) for an offence of driving whilst disqualified.3 Magistrate Foley convicted the appellant and placed him on a bond to be of good behaviour for a period of 12 months. 7 On 24 November 2022, the sentencing Judge proceeded as follows. His Honour enforced the bond imposed on 8 July 2019 (DCCRM-21-1246), and revoked the suspended sentence of two years, nine months and 19 days with a non-parole period of one year and six months. The bond imposed on 10 October 2019 was enforced (DCCRM-22-777) and the appellant was called up for sentence; a penalty of six months imprisonment was imposed, to be served concurrently with the earlier revoked suspended sentence. 8 As to the offending charged on the first Information: for the offence of trafficking in a controlled substance (Count 1), the sentencing Judge imposed a head sentence of imprisonment for six years, reduced by 35 per cent on account of the appellant’s guilty plea, to three years, 10 months and three weeks; and for the offence of money laundering (Count 2), his Honour imposed a head sentence of imprisonment for three years, reduced by 35 per cent on account of the appellant’s guilty plea to one year, 11 months and one week, to be served concurrently with the sentence for Count 1. A non-parole period of two years and six months was fixed. The sentence was ordered to be served cumulatively on the earlier sentences (DCCRM-21-1246 and DCCRM-22-777). 9 In relation to the remaining offences, charged on the second Information, the sentencing Judge proceeded pursuant to s 26 of the Sentencing Act 2017 (SA) (‘the Sentencing Act’) and imposed a single penalty for all 10 offences. A starting point of 12 years imprisonment was adopted, which was reduced by 15 per cent on account of the appellant’s guilty pleas to a head sentence of 10 years, two months and one week. The appellant was sentenced for these offences as a ‘serious repeat offender’. Accordingly, a non-parole period of 10 years, two months and one week was fixed, that being 80 per cent of the head sentence. His Honour ordered that the sentence be served cumulatively on the earlier sentences. His Honour then accumulated the three non-parole periods. 10 Accordingly, a head sentence of 16 years, 10 months, and 19 days with a non-parole period of 12 years, one month and three weeks was imposed. The 3 The suspended sentence bond was later enforced by His Honour Judge Cuthbertson on file DCCRM-22-777 and then consolidated onto DCCRM-21-1052. -- 4 of 18 -- [2023] SASCA 118 The Court 3 sentence was ordered to commence from 8 June 2021, being when the appellant was remanded in custody. 11 The sentences were structured in the following way: Count Offence Amount Notional Sentence DCCRM-21-1246 1 Trafficking in a controlled drug, contrary to s 32(3) of the CSA. 33.2g (methylamphetamine) 2 years, 9 months and 19 days with a non-parole period of 1 year and 6 months. DCCRM-22-777 1 Drive disqualified, contrary to s 91(5) Motor Vehicles Act 1959 (SA) NA 6 months (wholly concurrent with sentence imposed on file DCCRM-21-1246). DCCRM-21-1052 1 Trafficking in methylamphetamine, contrary to s 32(3) of the CSA. 121.7g (methylamphetamine) 3 years, 10 months, and 3 weeks. 2 Money laundering, contrary to s 138(1) of the CLCA. $85,370 1 year, 11 months and 1 week (wholly concurrent with sentence imposed for Count 1). Total head sentence 3 years, 10 months, and 21 days (to be served cumulatively on the sentence for DCCRM-21- 1246 and DCCRM-22-777). Non-parole period 2 years and 6 months. DCCRM-22-756 1 Trafficking in a large commercial quantity of a controlled substance, contrary to s 32(1) of the CSA. 4kg (methylamphetamine) 2 years (notional) 2 Trafficking in a large commercial quantity of a controlled substance, contrary to s 32(1) of the CSA. 4kg (methylamphetamine) 1 year (notional) 3 Trafficking in a large commercial quantity of a controlled substance, contrary to s 32(1) of the CSA. 3kg (methylamphetamine) 2 years (notional) 4 Trafficking in a controlled substance, contrary to s 32(3) of the CSA. 158.56g (methylamphetamine) 1 year (notional) 5 Trafficking in a controlled substance, contrary to s 32(3) of the CSA. 280g (methylamphetamine) 1 year (notional) 7 Trafficking in a controlled substance, contrary to s 32(3) of the CSA. 140g (methylamphetamine) 1 year (notional) 8 Trafficking in a controlled substance, contrary to s 32(3) of the CSA. 250g (methylamphetamine) 1 year (notional) -- 5 of 18 -- [2023] SASCA 118 The Court 4 17 Trafficking in a commercial quantity of a controlled substance, contrary to s 32(2) of the CSA. 870g (methylamphetamine) 18 months (notional) 64 Trafficking in a large commercial quantity of a controlled substance, contrary to s 32(1) of the CSA. 1kg (methylamphetamine) 3 years (notional) 65 Trafficking in a large commercial quantity of a controlled substance, contrary to s 32(1) of the CSA. 2kg (methylamphetamine) 3 years (notional) Sum of notional sentences 16 years and 6 months. Head sentence imposed pursuant to s 26 Sentencing Act 12 years. Head sentence imposed after 15 per cent discount applied 10 years, 2 months, and 7 days. Non-parole period (80 per cent of head sentence) 8 years, 1 month and 21 days. The head sentence and non- parole period were ordered to be served cumulatively on sentences for DCCRM-21- 1246, DCCRM-22-777 and DCCRM-21-1052. DCCRM-21-1052; DCCRM-22-756; DCCRM-22-1246; and DCCRM-22-777 Cumulative total of all sentences 16 years, 10 months and 19 days. Final non-parole: to commence 8 June 2021 12 years, 1 month and 21 days. Appeal Grounds 12 The appellant complains that the sentencing Judge erred in his application of the principles relating to totality (Ground 1) and concurrency (Ground 2); and that the sentence was manifestly excessive (Ground 3). 13 Permission to appeal was granted in respect of Grounds 1 and 2. The question of permission to appeal on Ground 3 was referred to this Court for consideration on appeal. 14 The respondent filed a cross-appeal which complains that the sentencing Judge erred in his application of s 54(1)(b) of the Sentencing Act. The respondent contended that the appellant fell to be sentenced as a ‘serious repeat offender’ in relation to the offences charged on the first Information as well as the offences charged on the second Information (DCCRM-21-1052 and DCCRM-22-756); and by proceeding to only treat the appellant as a serious repeat offender in relation to the offences on the second Information, his Honour failed to fix a non-parole period which was four-fifths of the sentence imposed for those offences. At the appeal hearing, the respondent abandoned the cross-appeal and conceded that the non-parole period (including the revoked non-parole period of 18 months) was in fact four-fifths of the head sentence imposed for all offending for which the -- 6 of 18 -- [2023] SASCA 118 The Court 5 appellant fell to be sentenced as a ‘serious repeat offender’ (DCCRM-21-1052 and DCCRM-22-756). 15 The respondent also conceded that the sentencing Judge made various discrete errors in applying the totality principle (Ground 1) but contended that, upon re-sentence, this Court should not impose a lesser sentence and accordingly, the appeal should be dismissed. 16 For the reasons that follow, we dismiss the appeal. Factual circumstances of the offending 17 In considering whether a lesser sentence should be imposed by this Court than that imposed at first instance, it is necessary to outline the factual circumstances of the offending. 18 Between 27 March 2020 and 7 June 2021, through the use of a device programmed with the AN0M communications network (which allows end-to-end encrypted messaging between users of the network), the appellant participated in a lucrative and highly organised drug trafficking syndicate receiving, distributing, and selling controlled drugs, predominately methylamphetamine. During this period, the appellant was the user of an AN0M device operating under the handle ‘pizza’. Through his AN0M device, the appellant acted on the instructions of K, a leader of the syndicate. The appellant received and distributed drugs on behalf of K. The appellant subsequently received, and transferred the proceeds of sale to K, minus any profit, in payment for the controlled drugs. 19 As outlined earlier, the appellant fell to be sentenced for 12 offences, which were charged on two separate Court files. The charged offences were not isolated but occurred against a background of other similar uncharged acts. 20 More specifically, the factual circumstances of the charged offending were as follows: File DCCRM-21-1052 – trafficking in a controlled drug (Count 1) and money laundering (Count 2) 21 These offences occurred last in time. 22 On 7 June 2021, police attended the appellant’s premises at Semaphore, and executed a general search warrant. A search of the property led to the location of 121.7g of methylamphetamine, 89.2g of which was pure (Count 1). The drug was divided amongst four re-sealable plastic bags secreted in a suitcase located in the second bedroom4 with cash in the amount of $81,170. A further sum of cash in the amount of $4,200 was located in a black bag in the same bedroom, bringing the 4 The potential value of the drugs, if sold in point form, was between about $60,000 to $90,000 and, if sold in ounces, between about $19,000 and $21,000. -- 7 of 18 -- [2023] SASCA 118 The Court 6 total amount of cash found at the premises to $85,370 (Count 2).5 Other items of property located during the search of the premises included three Samsung mobile telephones, three Apple mobile telephones, nine ice pipes, a small quantity of cannabis and phials of steroids.6 One of the telephones retrieved in the search was subsequently confirmed to be an AN0M device with the user operating under the handle ‘pizza’. File DCCRM-22-756: Count 1 – trafficking in a large commercial quantity of methylamphetamine (4kg) 23 On or around 26 March 2020, K supplied an AN0M device to the appellant. On this date, K began communicating with the appellant via the AN0M device and informed him that methylamphetamine or ‘gear’ would be delivered to the appellant’s vehicle, and he would need to distribute it. 24 At around 11:00pm on 27 March 2020, 4kg of methylamphetamine was delivered to the appellant. The appellant confirmed receipt by sending an image of the drugs via his AN0M device. K directed the appellant to repackage the methylamphetamine into 125g parcels. The appellant sent three further images of the digital scales displaying weights of 930g, 1021g and 1021g, respectively. K instructed the appellant to distribute the methylamphetamine to other members of the syndicate. 25 On 28 March 2020, the appellant distributed approximately 1kg of methylamphetamine to two members of the syndicate and a further 125g to another member of the syndicate. On 18 April 2021, the appellant supplied a further 250g to the latter syndicate member. In total, the appellant distributed approximately 2.37kg of the 4kg of methylamphetamine received on 27 March 2020 and sold the balance of approximately 1.625kg over the course of the following weeks. Count 2 – trafficking in a large commercial quantity of methylamphetamine (4kg) 26 On 8 June 2020, K arranged for 4kg of methylamphetamine to be delivered to the appellant’s vehicle. The appellant was directed to sell the drugs promptly at a low price. At around 3:30pm, the drugs were delivered, and K informed the appellant that several associates would be attending his address at Semaphore to collect various quantities each comprising between 250-500g. In total, the appellant sold or distributed 3kg of the drug and stored the balance of approximately 1kg at his premises. In the following days, on account of its poor quality, most of the drug was returned to the appellant. On 18 June 2020, about 3.25kg of the methylamphetamine was returned to the supplier. Count 3 – trafficking in a large commercial quantity of methylamphetamine (3kg) 27 On 18 June 2020, a delivery driver attended the appellant’s address and collected 3.25kg of methylamphetamine (the subject of Count 2) and substituted it 5 It was accepted at first instance that this money was intended for K. 6 In relation to the phials of steroids, the appellant was convicted and penalised on 6 July 2021. -- 8 of 18 -- [2023] SASCA 118 The Court 7 with 3kg of ‘wet’ methylamphetamine. On the same day, K instructed the appellant to repackage the methylamphetamine into six, 500g parcels. The appellant used his AN0M device to acknowledge receipt of the drugs and sent an image of an oil-like substance on a set of digital scales. 28 K informed the appellant that several associates would be attending the following day to collect quantities of the drug, each between 500-750g. In the following days, the appellant supplied that methylamphetamine to several members of the drug syndicate. Count 4 – trafficking in a commercial quantity of methylamphetamine (158.56g) 29 On 2 December 2020, the appellant received methylamphetamine from K. Later that day, the appellant sent a message to K via his AN0M device stating ‘[j]ust letting you know that was 5oz and 18.56g’ (158.56g). K responded asking for feedback on the quality of the product, to which the appellant replied, ‘I have given it to one only and very good but need to push to my old good runners tomorrow’. 30 The following day, the appellant forwarded text messages from users of the substance to K regarding the quality of the methylamphetamine. He then sent K a message saying, ‘[t]his is one of the real good runners that he picked in the past about most of the stuff. I trust his review coz he is a pusher not much of a user’. K replied, ‘[w]ell that’s good news I’ll make u priority first option on everything ok’. 31 On 6 December 2020, K informed the appellant that there was more methylamphetamine arriving soon. 32 On 8 December 2020, the appellant replied, ‘[o]k let me know. Its def a winner I have been pushing it and now my old ones start to come back for the quality and price’. Count 5 – trafficking in methylamphetamine (280g) 33 On 14 December 2020, K arranged for another syndicate member to deliver 280g of methylamphetamine to the appellant and directed the appellant to sell it for $5,200 per ounce. The appellant proceeded to sell the methylamphetamine over the following weeks and, on 22 December 2020, sent a message to K updating him on the sale of the product. He said, ‘[d]ef its picking up even though they not buying big like we used to sell but its def moving’. Count 7 – trafficking in methylamphetamine (140g) 34 On 27 January 2021, K instructed a courier working for the syndicate to deliver 140g of methylamphetamine to the appellant. K directed the appellant to sell ‘5os @ 4800’ or ‘[e]ven push 5 or 5200 to keep customers [there]’. The appellant acknowledged receipt of the drug and informed K that he had given the delivery driver ‘35k’. -- 9 of 18 -- [2023] SASCA 118 The Court 8 35 On 2, 3 and 6 February 2021, K asked the appellant about the progress of sale. On 12 February 2021, the appellant informed K that the methylamphetamine was ‘moving ok no complaint but its building up as I am pushing them 42-43’. Count 8 – trafficking in methylamphetamine (250g) 36 On 22 February 2021, K arranged for 250g of methylamphetamine to be delivered to the appellant at his home. Once the appellant confirmed that he had received the product, K instructed him to check his phone daily as he would have another kilogram for him on either Wednesday, Thursday or Friday. 37 On 25 February 2021, the appellant sent a message to K which said, ‘[o]k good people loves it so far’. Count 17 – trafficking in a commercial quantity of methylamphetamine (870g) 38 On 3 May 2021, due to difficulties experienced by the appellant in selling methylamphetamine, K messaged the appellant offering to ‘move’ a kilogram worth of the substance. The appellant agreed. K then told the appellant that due to a price drop he would have to reallocate the methylamphetamine to his ‘country guy’ (another member of the syndicate). 39 On the evening of 15 May 2021, the appellant provided the other syndicate member with 870g of methylamphetamine. Count 64 – trafficking in a large commercial quantity of methylamphetamine (1kg) 40 On 17 March 2021, K instructed the appellant to collect 1kg of methylamphetamine from a location in Prospect, which he did. 41 On 18 March 2021, the appellant confirmed the weight of the methylamphetamine and informed K that he was having difficulty selling it. 42 On 24 March 2021, the appellant reported to K that he was having more success ‘moving’ the product. Count 65 – trafficking in a large commercial quantity of methylamphetamine (2kg) 43 On 24 March 2021, K directed another syndicate member to deliver 2kg of methylamphetamine to the appellant at a location in Prospect. Later, the appellant confirmed the transaction had occurred. The appellant proceeded to sell the product over the following weeks. 44 It is evident from a recitation of the factual circumstances of the charged offending, and indeed upon reviewing the AN0M device material, that the appellant was a trusted member of a lucrative and highly organised drug syndicate which was distributing large amounts of methylamphetamine throughout the community. His role involved receiving, selling, and distributing large quantities of that drug and the proceeds of its sale as part of the syndicate over a period of -- 10 of 18 -- [2023] SASCA 118 The Court 9 about 15 months. The appellant’s offending was protracted and persistent and committed for financial profit. The appellant’s personal circumstances 45 At the time of sentencing, the appellant was 56 years old. He is now aged 57. He was born in Lebanon and is one of seven children. Growing up, the appellant had a close and supportive relationship with his parents and siblings, but experienced periods of hardship due to the civil unrest in Lebanon where he was often confronted with violence. When aged 18, he moved to Australia to study civil engineering. His immediate family remained in Beirut, but he had extended family already residing in Australia. 46 Shortly after moving to Australia, the appellant entered an arranged marriage with his cousin and, at the encouragement of his uncle, began working in the family business, which included a pizza bar and video store. In 1991, the appellant started his own business, San Giorgio’s Pizza Bar. The business was initially successful. While running the business, the appellant engaged in several community-based activities. In 1995, he joined the local church committee and volunteered as a radio announcer for a Lebanese radio station. He also became the youngest master of the Regency Lodge 233 of the Freemasons, which he joined in 1989, and was vice-president of the ‘Free Lebanon’ movement. 47 The appellant returned to Lebanon with his wife, for a short period of time, before moving back to Australia in 1998. The appellant’s marriage broke down the following year. From about 2000 to 2010, the appellant provided his family with financial support, including his ex-wife, and would send $1,000 each month to his parents, who remained living in Lebanon. 48 In 2010, the appellant opened a second restaurant, Alamare. It was around this time that one of the appellant’s sons expressed a desire to return to Lebanon. The appellant paid $160,000 to help his son establish a pizza bar in Lebanon. A year later, in 2011, his son returned to Australia after which time, the appellant’s father, who was still living in Lebanon, was unable to maintain the business. The appellant was forced to sell the pizza bar at a significant loss. This created tension between himself and his son. 49 In about 2012, the appellant was in a significant amount of debt and was concerned he would also lose his Adelaide business, San Giorgio’s Pizza Bar. At the direction of his ex-father-in-law, the appellant liquidated the business and financially reconstituted it under his sons’ names, who took ownership of the restaurant. In 2013, the appellant was effectively working as an employee for the business (and his sons). His relationship with his sons broke down when he discovered that one of them had been taking money from the business to fund a gambling addiction. The appellant became estranged from his sons and ceased working at the restaurant. He was unemployed from that time until 2015. -- 11 of 18 -- [2023] SASCA 118 The Court 10 50 It was in this context, in 2013, that the appellant started using methylamphetamine. He was able to abstain from drug use for a period in 2016, when he returned to Lebanon to spend time with his family. However, upon his return to Australia, he promptly relapsed into drug abuse. 51 In October 2017, the appellant was charged with the offence of trafficking in a controlled drug (DCCRM-18-1775). After pleading guilty to the offence, and while on bail awaiting sentence, the appellant completed a 16-week intensive drug rehabilitation counselling program, the Matrix Program. At the time of sentencing, in July 2019, the appellant submitted that he was no longer consuming drugs. It was in these circumstances that a suspended sentence of imprisonment was imposed. 52 In September 2019, the appellant travelled to Lebanon to be with his mother, who became severely ill in December 2019. He paid for her care and medical treatment. In March 2020, the appellant’s mother passed away and the appellant funded the funeral expenses. This placed him in debt. Upon his return to Australia, the appellant was approached by former drug associates to whom he owed money, who demanded he pay his debts. The appellant then resumed selling methylamphetamine to pay his outstanding debts and fund his own drug addiction. 53 In a psychological report dated 28 May 2019 (first tendered on sentencing submissions relating to the October 2017 drug offence), Mr Luke Broomhall expressed the opinion that the appellant suffered from Stimulant Use Disorder (Methamphetamine) which emanated from distress caused by his estrangement from his family, and the loss of his business in 2012. Mr Broomhall considered that the appellant’s risk of re-offending was in the low range if he remained abstinent from illicit drug use. But should the appellant relapse, his risk of re-offending would increase significantly. Of course, the appellant did in fact relapse into drug use and then committed the offences the subject of this appeal. 54 Prior to the age of about 49, the appellant had no significant criminal antecedents. He was first convicted of a drug-related offence in 2015, namely possessing a prescription drug and carrying an offensive weapon. For that offending the appellant was placed on a good behaviour bond for six months. As referred to earlier, on 8 July 2019, the appellant was convicted of trafficking in a controlled drug (methylamphetamine) for which he received a suspended sentence. On 10 October 2019, the appellant was convicted of the offence of driving while disqualified and placed on a good behaviour bond for 12 months to be called up for sentence should he breach the bond. On 6 July 2021, the appellant was convicted of possessing a prescription drug and was discharged without further penalty. 55 In relation to the most recent offending, the appellant was arrested on 7 June 2021. He has remained in custody since that time. While in custody, and prior to being sentenced, the appellant completed courses in horticulture, a Certificate III in retail, and a Certificate III in Christian Theology and Ministry and -- 12 of 18 -- [2023] SASCA 118 The Court 11 Christian Leadership. He has also participated in a Greyhound Training Program and completed various TAFE courses. The appellant has been offered employment by a family member upon his release from custody. 56 At the appeal hearing, and as relevant to re-sentence, the Court received a character reference from Reverend John Dunkley (a Chaplain at Mobilong Prison) who described the appellant as a positive influence on other inmates, showed respect for prison officers and diligently applied himself to the numerous training opportunities presented to him in custody. Grounds 1 and 2 – principles of totality and concurrency 57 The appellant complains that the sentencing Judge erred in his application of the principles of totality and concurrency. Notwithstanding that the first ground of appeal is conceded by the respondent, it is appropriate to consider the approach taken by his Honour in relation to the application of the principles of totality and concurrency before determining whether a lesser sentence should be imposed by this Court, as contended for by the appellant. 58 As outlined earlier, the sentencing Judge, first revoked the suspended sentence of two years, nine months and 19 days with a non-parole period of one year and six months imposed by Judge Kudelka on 8 July 2019 (DCRM-21-1246). His Honour then imposed a sentence of imprisonment of six months for the offence of driving whilst disqualified (DCCRM-22-777), which he ordered be served concurrently with the revoked suspended sentence. In relation to the penalty imposed for the offences charged on the first Information, his Honour adopted a starting point of six years for the offence of trafficking in a controlled substance, reduced by 35 per cent for the guilty plea, to three years, 10 months and three weeks with a non-parole period of two years and six months. For the money laundering offence, a sentence of three years, reduced by 35 per cent on account of the appellant’s guilty plea, to one year, 11 months and one week was made wholly concurrent with the earlier sentence. Both sentences were ordered to be served cumulatively on the previous sentences. 59 The appellant made no complaint about these aspects of the sentencing process. 60 The sentencing Judge then turned to the second Information and the 10 offences committed between 27 March 2020 and 24 March 2021. His Honour imposed individual notional sentences for each of those 10 offences. The total of the notional sentences was 16 years and six months imprisonment. His Honour said, ‘[t]hose sentences have all been reduced considerably because of the totality principle.’ His Honour then proceeded to impose a single penalty pursuant to s 26 of the Sentencing Act. His Honour said: … I impose one penalty of 12 years pursuant to s.26 of the Sentencing Act. -- 13 of 18 -- [2023] SASCA 118 The Court 12 That penalty of 12 years also has regard to the totality principle, and I reduce it by 15% for the pleas of guilty to a sentence of 10 years, two months and one week. 61 In adopting this approach, the sentencing Judge erred by applying the principle of totality to the notional sentence of 12 years before taking into account the appellant’s circumstances of mitigation, including his pleas of guilty.7 The respondent properly conceded that this amounted to an error of law. Ground 1 has been established. 62 The sentencing Judge then ordered that the sentence imposed for the 10 offences charged on the second Information be served wholly cumulatively on the earlier sentences, resulting in an accumulated head sentence of 16 years, 10 months, and 19 days imprisonment. His Honour then calculated the final non-parole period by adding up the non-parole periods imposed for the three ‘sets’ of offending, which resulted in a non-parole period of 12 years, one month and three weeks. 63 The appellant contended that the sentencing Judge erred in ordering that the sentences for the offences charged on the second Information be served cumulatively on the sentence imposed for the offences charged on the first Information (rather than at least partially concurrently);8 and by failing to apply the principle of totality at the final stage of the sentencing process.9 64 For the respondent it was said that it was open to the sentencing Judge to impose wholly cumulative sentences, and that whilst it was to be accepted that it was at the final stage of the sentencing process that his Honour was required to consider the principle of totality, the accumulated sentence was in fact proportionate to the appellant’s overall offending; it would not have been appropriate to further reduce the sentence for totality. 65 Given the appellant has established error in the application of the principle of totality, we have not gone on to consider appeal grounds 2 and 3. Further, the principles of totality and concurrency are well-established and need not be restated except to say that in sentencing an offender for multiple offences the sentence ultimately imposed must be proportionate to the overall criminality of the offending and the personal circumstances of the offender. The application of the principles of concurrency and totality are among the various methods available to a sentencing court to ensure that proportionality is achieved. Re-sentence 66 This Court, having been satisfied that the sentencing Judge made a specific error of the kind described in House v The King,10 must exercise its own 7 R v Place (2002) 81 SASR 395 at [90] per Doyle CJ, Prior, Lander and Martin JJ. 8 R v Copeland (No 2) (2010) 108 SASR 398 at [101]-[107] per Kourakis J. 9 Mill v The Queen (1988) 166 CLR 59; R v Place (2002) 81 SASR 395 at [85]-[90] per Doyle CJ, Prior, Lander and Martin JJ. 10 (1936) 55 CLR 499. -- 14 of 18 -- [2023] SASCA 118 The Court 13 independent discretion as to the appropriate sentence for all offences. If this Court concludes, after taking into account all relevant matters, that the same sentence or a heavier sentence is appropriate, there is no obligation to re-sentence the appellant, and the appeal will be dismissed.11 Thus, the issue for this Court’s consideration is whether, taking into account all relevant factors, a lesser aggregate head sentence and non-parole period is warranted for all offences and this offender, as contended for by the appellant. 67 In considering this question, we would adopt the following approach to sentence. 68 We would commence by revoking the suspended sentence of two years, nine months and 19 days with a non-parole period of one year and six months (DCRM-18-1775). Like the sentencing Judge, we would then impose a sentence of imprisonment of six months for the offence of driving whilst disqualified (MCPAD-19-875), but order that it be served cumulatively on the revoked suspended sentence, it being a separate and quite distinct incursion into crime. 69 In relation to the offences charged on the first Information, for Count 1, having regard to the large quantity of methylamphetamine, like the sentencing Judge, we would adopt a starting point of six years. For the money laundering offence, bearing in mind that the appellant was in possession of over $80,000 cash, and notwithstanding the fact that the money was not for the appellant’s direct benefit but was intended to be passed on to K, we would adopt a starting point of three years imprisonment. We would notionally order that the sentences for Counts 1 and 2 be served concurrently given they both occurred on the same day and formed part of the appellant’s ongoing role in a broader drug syndicate, notwithstanding that they were separate incursions into crime. We consider there is reason to afford the appellant the full benefit for his guilty pleas and reduce the sentence by 35 per cent to three years, 10 months and 25 days. 70 We would order the sentences be served cumulatively on the earlier revoked suspended sentence bond, resulting in a notional sentence of seven years, two months and 14 days. 71 In relation to the offences charged on the second Information, we would proceed pursuant to s 26 of the Sentencing Act and impose one penalty. There were several serious features to this course of offending. It was persistent and involved the distribution of large quantities of methylamphetamine, over a 12-month period, for profit. The offending was not isolated but occurred against a background of other similar uncharged acts reducing the scope for leniency. The offending was also committed in breach of two bonds (one of which was a suspended sentence bond for similar drug trafficking largely imposed on the basis the appellant was rehabilitated). Accordingly, the offending called for a significantly denunciatory sentence which emphasised both general and specific deterrence. We would adopt 11 Kentwell v The Queen (2014) 252 CLR 601 at [43] per French CJ, Hayne, Bell and Keane JJ. -- 15 of 18 -- [2023] SASCA 118 The Court 14 a starting point of 15 years imprisonment. We would find there was good reason to afford the appellant the full discount and reduce the sentence by 15 per cent on account of his guilty pleas, resulting in a sentence of 12 years and nine months. 72 In relation to the second Information, we indicate the following notional sentences (to comply with s 26(2a) of the Sentencing Act). For Counts 1, 2, 3, 64 and 65, we would adopt a starting point of eight years imprisonment for each offence bearing in mind the maximum penalty, the quantity of drug involved and the fact the appellant continued to distribute the drug over the following weeks and, in relation to Count 1, at least in part for his own direct profit. We would notionally order that those sentences be served concurrently. 73 For Counts 4, 5, 7 and 8, we would impose a notional sentence of seven years imprisonment given the lesser quantity of drug involved but noting that the appellant stored the drug at his premises and sold it over the following weeks. We would notionally order that the sentences be served concurrently with each other but order five years be served cumulatively on the earlier sentence. 74 In relation to Count 17, we would notionally impose a sentence of four years imprisonment having regard to the appellant’s limited role on this occasion, which was simply to supply or courier a commercial quantity of the drug to another member of the syndicate. We would notionally order two years be served concurrently and two years be served cumulatively with the earlier sentences. 75 As discussed earlier, the appellant contended that the sentencing Judge erred in ordering that the sentence for the offences committed on the second Information (DCCRM-22-756) be served wholly cumulatively on the sentences imposed on the first Information (DCCRM-21-1052). The appellant contended that the sentence should have been ordered to be served wholly concurrently, or at least partially concurrently, with the sentence imposed for the offences on the first Information. The appellant submitted that the offending all arose out of one incident or single course of conduct; therefore, to ensure that the sentence is proportionate to the overall criminality, the appellant submitted that his Honour should have ordered the sentence to be served concurrently rather than cumulatively.12 Alternatively, the appellant submitted that even if the offences on each Information constituted discrete criminal episodes there was still a basis for some degree of concurrency for the reasons explained in R v Copeland (No 2).13 76 It is to be accepted that the offences charged on each Information all arose out of the appellant’s continuous role in the drug syndicate. He was motivated to commit each offence for the same reason, namely, to repay outstanding debts 12 Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 92-93 per Wells J; Pearce v The Queen (1998) 194 CLR 610 at [40]-[50] per McHugh, Hayne and Callinan JJ. 13 R v Copeland (No 2) (2010) 108 SASR 398 at [102]-[110] per Kourakis J; See also: Edmonds (A Pseudonym) v The Queen [2022] SASCA 11 at [65]-[69] per Livesey P, Doyle and David JJA; Warner v The King [2022] SASCA 142 at [29]-[31] per Kourakis CJ, [90]-[104] per Livesey P; R v Russell (A Pseudonym) [2022] SASCA 143 at [34]-[36] per Kourakis CJ. -- 16 of 18 -- [2023] SASCA 118 The Court 15 accrued partly by reason of his drug addiction. Notwithstanding those matters, each offence constituted a distinct and separate incursion into crime; each offence occurred on a separate occasion, and the appellant had the opportunity to reflect on his conduct and desist from continuing to be involved in the drug syndicate. 77 While accepting that the offences committed on each Information did not constitute a single course of conduct, there was still a basis to notionally order that a portion of the sentence imposed on the second Information be served concurrently with the earlier sentences. This was a case where the imposition of a significant penalty for the offences on the first Information (made cumulative on the revoked suspended sentence bond) in part met the sentencing objectives of general and specific deterrence for the offences charged on the second Information. A partially concurrent sentence would ensure that a sentence which is proportionate to the offender, and the circumstances of the offending looked at as a whole, is achieved. For those reasons, we would notionally order that the sentence for the offences on the second Information (12 years and nine months) be served partially concurrently with the earlier sentences, with nine years and nine months to be served cumulatively. 78 This would result in a head sentence of 16 years, 11 months and 14 days. 79 It follows therefore that we would not have imposed a lesser head sentence than that imposed by the sentencing Judge. 80 As to the non-parole period, there was no contest before the sentencing Judge, or on appeal, that the appellant fell to be sentenced as a ‘serious repeat offender’ and accordingly, pursuant to s 54(1)(b) of the Sentencing Act, any non-parole fixed in relation to the sentence was required to be at least four-fifths of the length of the sentence. 81 For the purposes of s 54(1)(b), a non-parole period is fixed both when sentencing a defendant who is not then subject to a non-parole period, and when extending a non-parole period being served by a defendant who is sentenced for other offending. The latter situation was the case here as the appellant was sentenced for the relevant offending after the suspended sentence was revoked. The sentence to which s 54(1)(b) refers is the sentence, or contemporaneously imposed sentences, which enliven the obligation to fix (or extend) the non-parole period (here, the sentences imposed on DCCRM-22-777, DCCRM-21-1052, and DCCRM-22-756). 82 As the Court of Appeal recognised in R v Culley:14 … in the sentencing of a serious repeat offender who is subject to an existing non-parole period, the four-fifths requirement will be easily satisfied. The consequence is that a sentencing judge will retain a wider discretion when extending a non-parole period than 14 (2019) 134 SASR 92 at [58] per Kourakis CJ, Peek and Hughes JJ. -- 17 of 18 -- [2023] SASCA 118 The Court 16 when fixing one for a serious repeat offender who is not then subject to an existing non-parole period. 83 The sentencing Judge fixed a non-parole period of 12 years, one month and three weeks which, whilst 80 per cent of the accumulated head sentence, was in fact about 85 per cent of the sentence imposed for the relevant offences which enlivened the ‘serious repeat offender’ provisions, that being 14 years and 28 days. 84 The appellant contended that upon re-sentencing, this Court should consider imposing a non-parole period which was 80 per cent (rather than 85 per cent) for those offences. We are not persuaded that it is appropriate to do so. The appellant’s offending was persistent and committed over an extended period of time. It involved large quantities of the dangerous and widespread drug, methylamphetamine. After having regard to the appellant’s antecedents, and the fact that he re-offended whilst subject to a significant suspended sentence, we consider that he remains at risk of re-offending, notwithstanding his recent rehabilitative efforts undertaken whilst in prison. We would not impose a lesser non-parole period than that fixed by the sentencing Judge. 85 Next, we have considered the principle of totality, and had one final look at the aggregate sentence to ensure that it is proportionate to the overall criminality of the offences, viewed in their entirety, and having regard to all relevant facts and circumstances, including those referable to the offender personally.15 86 Bearing in mind the breadth and seriousness of the offending, for the reasons outlined earlier, and notwithstanding the favourable aspects of the appellant’s personal circumstances, we consider the aggregate sentence and extended non-parole period was proportionate to the offending and the offender. 87 We would therefore not impose a lesser head sentence or non-parole period than at first instance and the appeal should be dismissed. Orders 1. The appeal is dismissed. 15 White (A Pseudonym) v The Queen [2022] SASCA 78 at [53] per Lovell, Bleby and David JJA. -- 18 of 18 --