Carter v The King - [2025] SASCA 82

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
CARTER v THE KING
[2025] SASCA 82
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice S Doyle and the Honourable Justice Stanley)
24 July 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Application for permission to appeal against sentence.
The applicant appeals against the sentence imposed on his conviction of doing an act capable of prejudicing the safe operation of an aircraft, intending to prejudice the safe operation of that aircraft, contrary to s 10 of the Aircraft Offences Act 1971 (SA).
The judge imposed a sentence of 3 years' imprisonment with a non-parole period of 16 months to be served on home detention.
The applicant’s grounds relate to the judge’s treatment of ss 3 and 10 of the Sentencing Act 2017 (SA), approach to the applicant’s financial hardship and loss, and reliance upon the decision in R v Baldetti. The applicant also complains that the sentence was manifestly excessive.
Held, per the Court, granting permission to appeal, but dismissing the appeal:
1.The judge dealt with both general deterrence and the applicant’s financial hardship and loss appropriately.

2. The judge’s reliance upon R v Baldetti was not misplaced.
3. The sentence imposed was not manifestly excessive.
Aircraft Offences Act 1971 (SA) s 10; Sentencing Act 2017 (SA) ss 3, 10(2) , referred to.
Athans v The Queen [2022] SASCA 71; Hackett v The Queen [2021] SASCA 32; R v Baldetti [2008] SASC 232, discussed.

CARTER v THE KING
[2025] SASCA 82
Court of Appeal – Criminal: Kourakis CJ, S Doyle and Stanley JJA

THE COURT: At about 11.15 pm on 30 December 2018, from the backyard of his house in West Beach, the appellant shone a laser at a police helicopter as it was preparing to land at Adelaide Airport.
After a trial by jury, the appellant was convicted of doing an act capable of prejudicing the safe operation of an aircraft, intending to prejudice the safe operation of that aircraft, contrary to s 10 of the Aircraft Offences Act 1971 (SA). The maximum penalty for this offence is imprisonment for 14 years.
The appellant was sentenced to a term of three years imprisonment, with a non-parole period of 16 months. The judge made an order that the sentence be served on home detention.
The appellant seeks permission to appeal against his sentence. As argued before this Court, his proposed grounds of appeal may be distilled as follows:
·the judge erred by prioritising or elevating the consideration of general deterrence over the primary sentencing objective, under s 3 of the Sentencing Act 2017 (SA), of protecting the safety of the community;
·the judge failed to have regard to the principle in s 10(2) of the Sentencing Act that a court must not impose a sentence of imprisonment unless it decides that the seriousness of the offence is such that the only penalty that can be justified is imprisonment, or that imprisonment is required for the purpose of protecting the safety of the community;
·the judge erred in his approach to the appellant’s financial hardship and loss;
·the judge erred in his reliance upon the decision in R v Baldetti;[1]
·the sentence imposed was manifestly excessive.
[1] R v Baldetti [2008] SASC 232.
For the reasons which follow, we are not persuaded that the judge fell into error. We would grant permission to appeal, but dismiss the appeal.
Circumstances of the offending
On 30 December 2018, a police helicopter was returning to Adelaide Airport. There were three people on board: an experienced helicopter pilot, Mr O’Donnell, and two police officers, Brevet Sergeant McFarlane and Brevet Sergeant Olivier. At about 11.15 pm, the helicopter was flying at an altitude of about 4,500 feet and descending to land at the airport, when it was hit by a laser shone by the appellant. The appellant shone the laser at the helicopter about four or five times, each time for about 15 to 20 seconds, with a short interval between each occasion.
There was significant glare as the bright light from the laser refracted around the cockpit of the helicopter. It caused distraction for the pilot, who suffered temporary flash blindness, losing visibility for a few seconds and then experiencing after-images in his vision. The night vision goggles he had been using shut down briefly, rendering them unusable for a few seconds. The pilot was restricted in the direction that he could look.
The laser did not affect the mechanical operation of the helicopter or its on-board equipment. However, the pilot had received laser safety training and considered that it would not be safe to try to land the helicopter while the laser was being shone at it. Accordingly, he caused the helicopter to level off at approximately 4,000 feet and to orbit around the source of the light.
The helicopter was equipped with a wide-angled CCTV camera and an infrared camera. This equipment had been stowed for landing, but was rapidly deployed, enabling the police officers on board the helicopter to identify the address from which the laser was being shone. Police officers on the ground were notified of the address, and soon arrived at the appellant’s home. Although he denied any involvement in shining the laser at the helicopter, the appellant was later arrested.
Personal circumstances
The appellant was 62 years of age at the date of sentencing.
He was born and raised in Adelaide. He had a stable and loving upbringing. He was a good student, and after completing his schooling, obtained a Bachelor of Applied Science and Valuation. He later obtained a Graduate Certificate in Business Administration. The appellant proceeded to have a successful career as a valuer and property manager. He initially worked as a trainee valuer with a bank, and then as a regional valuer for a government department. He worked for a couple of private companies as a valuation consultant. He then moved into various property management roles for organisations in South Australia, Victoria and Tasmania.
The appellant returned to South Australia in 2005, and since that time has been running a property management agency with his brother. This has involved them providing a variety of valuation and property management services.
The judge accepted that the appellant’s business would suffer if he were sentenced to a term of imprisonment:
I accept your business would suffer and you would lose many clients if you were sentenced for a term of imprisonment, and you would therefore suffer a significant loss of income. However, insofar as that might affect you, that would be an inevitable consequence of any term of imprisonment. Insofar as it might affect any other person involved in your business, those persons are not dependent such that I would take into account the effect on them of the sentence that I might impose on you.
The appellant had been a member of various professional organisations, and was on the board of the Australian Property Institute. He had been involved in the delivery of professional education programs for members of that organisation.
The appellant had been a volunteer for a surf life saving club, serving as both a patrol member and as the club vice president.
The appellant had been married, but that ended in an amicable divorce. The marriage resulted in two sons, who were aged 31 and 32 at the time of sentencing. The appellant has been in a relationship with his current partner for about six years. He lives with her, and her two children from an earlier relationship.
The judge was provided with a number of personal and professional references on behalf of the appellant. They included detailed accounts of his personal and professional qualities. He was described as a trusted friend with strong family values, and as having a reputation for honesty and hard work.
At the time of his offending, the appellant was affected by a combination of pain medication and alcohol. He had earlier had surgery for a back injury, and was taking medication which included Pregabalin (a sedative that causes drowsiness, dizziness and impaired balance). As the toxicologist, Professor White, explained, it was not recommended that Pregabalin be taken with alcohol, given the risk that they might interact and exacerbate their usual impairing effects. The appellant was also taking Targin, which is a combination of oxycodone and maxolon, and can induce drowsiness and dizziness. As the appellant had last taken Targin more than 12 hours before his offending, Professor White did not think this would have had any significant effect upon the appellant at the relevant time.
The judge accepted that the appellant had consumed a significant amount of alcohol in the lead up to his offending. In particular, he accepted that the appellant had consumed 15 alcoholic drinks from late afternoon and during the evening. The appellant had a blood alcohol reading of .122 at 1.30 am in the morning. In Professor White’s opinion, his reading at the time of his offending would have been about .155. He suggested that the appellant would have been suffering from very significant effects of alcohol at the time, which would have included sedation, failure to maintain concentration, and impaired thinking and decision-making. He said that these effects may have been exacerbated by the medications referred to above.
The judge also accepted that, at the time of his offending, the appellant and his family had been suffering from stress relating to his younger son having recently been charged with a serious criminal offence. Based upon a report from the psychologist, Dr Lim, the judge accepted that the appellant was suffering from an adjustment disorder caused by the stress resulting from his son’s issues and his own arrest. He also accepted Dr Lim’s opinion that the appellant was suffering from a mild alcohol disorder at the time of his offending.
In Dr Lim’s opinion, which the judge accepted, the appellant had a low risk of reoffending. She explained that this opinion was based upon the appellant not having any personality disorder, and indeed having a demonstrated capacity to lead a pro-social life.
The appellant had no history of any criminal offending.
Sentencing remarks
After summarising the appellant’s offending and personal circumstances in terms similar to the above, the judge turned to the sentence to be imposed.
The judge commenced by observing that the offending was serious, as reflected by the maximum penalty of 14 years imprisonment prescribed by Parliament for this offence. He added that shining a laser at an aircraft was self-evidently a dangerous thing to do, which could in certain circumstances have led to catastrophic consequences. In the present case, the laser had interfered with the pilot’s operation of the helicopter in the manner described above.
The judge then emphasised the importance of general deterrence:
In cases such as this, general deterrence is [of] primary importance. There is a need to protect aircraft from threats posed by people performing acts, such as you have done, of prejudicing the safe operation of the aircraft.
He then stated that ‘a term of imprisonment is the only sentence that reflects the seriousness of the offending’, and imposed a sentence of three years imprisonment.
In determining an appropriate non-parole period, the judge said that he had had regard to the appellant’s prior history, his personal circumstances, his prospects of rehabilitation and all the purposes of sentencing, including general deterrence. In imposing a non-parole period of 16 months, the judge summarised:
You have no prior criminal history or record and you have led a pro-social life. Your referees refer to your good character and how this offending was out of character. You have low risk of reoffending as further demonstrated by the fact that you have not reoffended since the offending, which occurred over five years ago, and you were suffering from a number of particular stresses at the time of the offending. I accept that the conviction has an effect on your personal and professional reputation, and your ability to pursue some activities.
Taking these matters into account and the [prospects] of rehabilitation, and serving the minimum period to meet the protective and punitive purpose of punishment, I impose a non-parole period of 16 months.
The judge next considered whether this sentence of imprisonment should be suspended. In explaining why he did not accept that there was good reason to suspend, the judge accepted that the appellant’s personal circumstances (his age, his low risk of recidivism, the fact that he had particular stresses at the time of his offending which he was now able to manage, his good personal qualities, and his significant personal and professional responsibilities) were all matters that weighed in favour of suspension. However, emphasising the importance of general deterrence, the judge said:
However, I am mindful of the seriousness of the offending and the need for general deterrence in offending such as yours. I have had regard to the decision of the Court of Criminal Appeal in R v Baldetti [2008] SASC 232 where the Court held that general deterrence was of the utmost importance in a case of similar offending, and that a suspended sentence would not satisfy the requirement for general deterrence which, in that case, outweighed matters personal to the defendant.
Relying upon the need for adequate deterrence, specific and general, the judge did not think suspension was appropriate given the seriousness of the offending. This was so despite the additional weight that could be given to personal circumstances in this context.
As for home detention, the judge said that, having regard to matters including the appellant’s prospects for rehabilitation and his personal qualities, the appellant was a suitable person for home detention. Noting that the paramount consideration was the safety of the community, the judge did not consider that imposing a home detention order would involve any risk to the community, given his low risk of reoffending. The judge considered that a home detention order would give proper effect to the primary and secondary aims of sentencing, adding that he did not think that a custodial sentence was required to achieve those aims, including general deterrence, given the appellant’s age, personal qualities, demonstrated pro-social life, lack of any prior convictions, low risk of reoffending, and particular stresses he was under at the time of his offending. The judge added that a home detention sentence involved a higher level of punishment, community protection and deterrence than a suspended sentence. After re-emphasising some of the appellant’s personal circumstances, the judge concluded that a home detention order, with conditions, was appropriate.
Some factual matters
Before coming to the appellant’s more significant arguments, we note that he advanced some complaints about the factual basis upon which he was sentenced.
The appellant argued that the judge erred in referring to the helicopter as ‘approaching Adelaide Airport’. However, given that he accepted that the helicopter was in the process of landing (‘generally about the purpose of landing’), we do not think this complaint goes anywhere.
The appellant also challenged the judge’s finding that he shone the laser four to five times for 15 to 20 seconds on each occasion. Although one of the officers on the helicopter could not remember the number or duration of the laser strikes, the judge’s finding was supported by the evidence of the pilot. The appellant has not established any error in this finding.
The appellant complained that the judge did not refer to a safety report which included reference to the crew of the helicopter not suffering any effects from the laser, and describing the risk index as ‘minimal’. We do not think it was necessary for the judge to refer to this document, or that the entries referred to establish error in the factual basis which his Honour accepted. This document was not referred to in sentencing submissions. It seems to us that the reference in the report to the crew suffering no effects may have been a reference merely to the crew not suffering from any ongoing physical effects, a matter acknowledged by the judge. In any event, the judge was entitled to make the findings he did based on the direct evidence of those in the helicopter. Whilst the judge was required to sentence on a basis consistent with the jury’s verdict, he was not confined to findings which must necessarily have been made by the jury in reaching their verdict. The judge was entitled to take his own view of the evidence and, for example, to accept the evidence of the pilot or other occupants of the helicopter about the effect upon them of the laser.
The judge stated that the appellant had not spent any time in custody when in fact he had been conveyed to the watch house upon his arrest, and was held in custody for several hours before being granted bail. However, again, we do not think this was a matter of any material significance in the scheme of things.
The appellant relied upon some matters of detail in relation to his personal circumstances which were not expressly referred to in the judge’s sentencing remarks. These included some matters mentioned in Dr Lim’s report. In our view, these were matters of detail which did not require specific reference. They were consistent with, and encompassed within, the more general findings made by his Honour.
Inappropriate prioritisation of general deterrence
The appellant argued that the judge erred in prioritising a secondary sentencing purpose (general deterrence) over what ought to have been the primary purpose of the sentencing exercise, namely protecting the safety of the community. In developing this argument, the appellant relied upon the judge’s repeated references to the importance of general deterrence in sentencing the appellant (as summarised above), including at one point referring to it as a matter of ‘primary importance’.
We do not think the appellant has established error. The judge was not required to include express reference to protecting the safety of the community as the primary purpose of sentencing. It can be assumed a sentencing judge is familiar with basic sentencing principles, except to the extent that his or her remarks might suggest otherwise. There is nothing in the sentencing remarks in the present matter that suggests any misunderstanding of these principles.
It is true that the judge emphasised general deterrence. However, this was entirely appropriate in the present case. Various types of offences are routinely described as giving rise to a particular concern with general deterrence, and we see no difficulty with the present offence being described in this way. Given the dangers associated with the conduct which it proscribes, it is appropriate that the sentencing response to this offence include a strong measure of deterrence.
The appellant’s criticism of the judge’s emphasis upon general deterrence also suggests a misunderstanding of the role of the purposes or objectives of sentencing in an individual case, and of their interrelationship. It is not inconsistent with community safety having primacy that general deterrence nevertheless becomes a prominent, or even the dominant, consideration in arriving at an appropriate sentence in a particular case. Put another way, even if community safety might not, in and of itself, require a sentence of imprisonment (of a particular length, or indeed at all), that does not mean that the contemplated sentence of imprisonment may not be required in order to achieve other sentencing objectives. Further, the objectives are often interrelated. In many cases, the mechanism through which community safety is sought to be achieved is through imposing a sentence which has a sufficient measure of personal and general deterrence to ensure that the community is not at risk from like offending by the defendant or others in the community.

We have considered the judge’s sentencing remarks carefully. Reading them as a whole, we do not consider that they demonstrate an inappropriate focus upon general deterrence, whether at the expense of protecting the safety of the community or otherwise. The judge did not inappropriately prioritise or elevate this sentencing objective. To the contrary, his focus upon this objective was entirely appropriate in the circumstances of the present offence and offender.
Failure to apply the s 10(2) precondition to imprisonment
The appellant argued that the judge failed to apply s 10(2) of the Sentencing Act, which provides that a court must not impose a sentence of imprisonment unless it decides that the seriousness of the offence is such that the only penalty that can be justified is imprisonment, or that imprisonment is required for the purpose of protecting the safety of the community.
This provision reflects a fundamental principle which guides the sentencing exercise. Although it is not something which a sentencing judge would ordinarily be expected to mention in terms, the judge in this case did so, stating that ‘a term of imprisonment is the only sentence that reflects the seriousness of the offending’.
Whilst it cannot be said that the judge overlooked the principle, ultimately the only way of determining whether a sentence of imprisonment was in fact necessary is by considering the totality of the circumstances of the offending and the offender. Once the interrelationship between community safety and general deterrence is understood in the sense described above, it cannot seriously be contended that a sentence of imprisonment was not required in this case. It plainly was. A good behaviour bond would not have adequately achieved either the primary or secondary sentencing objectives.
The real issues in this case were the length of the sentence of imprisonment, and whether it ought to have been suspended or served on home detention. These are matters best addressed in the context of the appellant’s submission of manifest excess in the sentence imposed.
Financial hardship and loss
We have set out earlier in these reasons the passage from the judge’s sentencing remarks in which he accepted that the appellant’s business would suffer, and that he would lose many clients, and hence significant income, if he were sentenced to a term of imprisonment. Relevantly, the judge also acknowledged later in his sentencing remarks the effect that a conviction would have on the appellant’s personal and professional reputation. The judge noted that this may affect the appellant’s ability to pursue some activities.
The appellant contends that by referring to his financial hardship as an inevitable consequence of imprisonment, the judge did not adequately take into account the financial loss he would suffer, and hence extra-curial punishment he would suffer, regardless of the form of sentence imposed.
We are not persuaded that the evidence provided clear support for any significant business hardship or financial loss in the event that the appellant was not imprisoned, and was permitted to serve his sentence on home detention (with conditions that enabled him to continue working). It seems to us that the appellant’s submission on appeal was predicated upon what became an application to adduce further evidence on the appeal. The evidence he sought to rely upon was correspondence from the office of Consumer and Business Affairs to the effect that consideration was being given to whether to cancel, suspend or impose conditions upon his registration as a land agent. He also sought to rely upon additional material relevant to the financial implications of his sentence for his business.
We accept that the principles governing the receipt of further evidence are often applied more flexibly in the context of sentence appeals.[2] However, we are not persuaded that this is an appropriate case in which to receive the evidence sought to be adduced. The judge accepted the likely impact of the appellant’s conviction upon his personal and professional reputation. The appellant had an opportunity to put information about the likely financial impact on his business before the sentencing judge, and took that opportunity. The judge accepted the relevance of that evidence, but approached the matter on the basis that its primary significance lay in the hardship and financial loss that would be suffered by the appellant in the event of his imprisonment. It was not contemplated that there would be any significant loss in the event that he were permitted to serve his sentence on home detention. As it happens, there now appears to be some basis for thinking that financial loss has been occurring and may become worse if the appellant loses his registration as a land agent. However, not only was this last matter always a possibility, in reality, it remains just a possibility. It would be speculative for the sentencing court to attempt to form any clear view as to the likely outcome of the foreshadowed review of his registration as a land agent, or the consequential hardship and losses for the appellant through his business. Put another way, we are not persuaded that the further evidence is relevantly fresh, or that it would be influential in the outcome of the sentencing exercise.
[2] See the discussion in Athans v The Queen [2022] SASCA 71 at [21]-[30] (Livesey P, Doyle and Bleby JJA).
For these reasons, we would refuse the appellant’s application to adduce further evidence on the appeal. We do not accept that he has established error in the judge’s approach to his financial hardship or loss.
Consideration of R v Baldetti
Before coming to the appellant’s more general submissions in support of his contention of manifest excess, it is convenient to address what he contends was the judge’s misplaced reliance upon the decision of the Court of Appeal in R v Baldetti.[3]
[3] R v Baldetti [2008] SASC 232.
The appellant in R v Baldetti was convicted of the same offence of prejudicing the safe operation of an aircraft in contravention of s 10 of the Aircraft Offences Act, as well as several other offences, being mostly firearms-related offences. The s 10 offending involved the appellant shining a laser at a helicopter for about 20 seconds. The helicopter had been flying over the Port Adelaide area, with two police officers on board observing the roadways below for untoward driving. The pilot became aware of a green light flashing around the cockpit of the helicopter. The pilot was blinded for about five to 10 seconds before being able to regain his normal vision and read the helicopter’s instruments. When later apprehended, the appellant said that he had been shining the laser at the helicopter because it had been shining a searchlight upon him. In terms of his personal circumstances, the defendant was only 23 years of age at the time of his offending with only a limited history of offending, a steady history of employment, and a number of positive personal references. He had been a user of methamphetamine, but had no reported psychiatric or psychological concerns.
For the s 10 offence, the appellant in R v Baldetti was sentenced to imprisonment for three years, reduced to two years and three months for his plea of guilty. After imposing a combined sentence for the s 10 and other offences of three years imprisonment, which was then reduced by two months for time served, the judge declined to suspend the sentence.
On appeal, the appellant in R v Baldetti argued that the judge erred in declining to suspend his sentence. In particular, the appellant argued that the judge erred in not attaching sufficient weight to the appellant’s good record, and the essentially spontaneous nature of his offending. In rejecting this argument, the Court emphasised the importance of general deterrence. David J explained:[4]
In my view, general deterrence is of the utmost importance in a case of this type. Despite the fact that the offending was unplanned and spontaneous, it was nevertheless, deliberate and extremely dangerous. The pilot was blind for a number of seconds and the helicopter was flying at a relatively low altitude. Such behaviour could have had fatal consequences, and it was clearly the duty of the sentencing judge to consider the need to protect aircraft from such threats. In my view, the sentencing judge correctly concluded that a suspended sentence of imprisonment would not satisfy the requirement for general deterrence, which outweighed those matters personal to the appellant.
[4] R v Baldetti [2008] SASC 232 at [22] (David J, Duggan and Vanstone JJ agreeing).
As well as agreeing with David J’s reasons, Duggan J added his own observations as to the importance of general deterrence:[5]
In deciding whether to suspend the sentence the sentencing judge was not restricted to a consideration of the personal matters which told in favour of the appellant. He was also required to revisit those circumstances which were relevant to the imposition of the head sentence.
Prominent amongst those considerations was the seriousness of the offence involving the aircraft. There were three people on board, it was flying at low altitude over a populated area and it was not far from a commercial airport. The requirement to give prominence to general and personal deterrence in these circumstances is self-evident.
[5] R v Baldetti [2008] SASC 232 at [4]-[5] (Duggan J, Vanstone J agreeing).
The appellant in the present matter criticised the judge’s reliance upon R v Baldetti, suggesting that his Honour treated it as determinative of the issue of suspension. We do not accept this criticism. We do not read his Honour’s sentencing remarks as approaching the matter in such a rigid fashion. Rather, his Honour simply noted the similarity of the offending in that case, and its support for the seriousness of the offending and the importance of general deterrence as significant factors in determining whether to suspend the sentence to be imposed.
In any event, we consider that the decision in R v Baldetti does provide significant support for both the approach taken, and sentence ultimately imposed, by the judge in this matter. In particular, it supports the prominence afforded to general deterrence by the judge at various stages in the sentencing exercise.
The appellant also drew this Court’s attention to three first instance sentences for similar offending, one in the Magistrates Court and two in the District Court. Whilst each case turns on its own facts and circumstances, these decisions may be taken as supporting a more lenient approach, both in terms of the length of the head sentence and non-parole period, and the decision whether to suspend the sentence of imprisonment to be imposed. But they are merely first instance decisions, and are of limited assistance in this Court’s determination of whether the sentence imposed in the present case was manifestly excessive. Certainly these other sentences do not of themselves establish, or strongly suggest, error in the sentence imposed in the present case.
Manifest excess
The principles governing a submission of manifest excess in the exercise of the sentencing discretion are well known[6] and not in dispute. They do not need repeating.
[6] See, for example, Hackett v The Queen [2021] SASCA 32 at [8] (Kelly P, Lovell and Livesey JJA).
Some of the matters relied upon by the appellant have already been addressed. We refer in this respect to his complaint that the judge overemphasised general deterrence at the expense of a primary focus upon protecting the safety of the community. We refer also to the appellant’s complaint that the judge placed misplaced reliance upon the decision in R v Baldetti. We have explained why we do not consider that these submissions have any force.
The appellant emphasised the six years that had passed since he was arrested for his offending, and the impact that the legal process has had on his life in the interim. He has spent significant periods of time on bail, and with restrictions upon his liberty. It can be accepted that this was relevant in a very general way. However, this is not a case where there has been any culpable delay by the prosecution. It is more a case that the legal process has, as it too often does, taken a long time to play out. In part this was a consequence of an aborted trial, and then separate appeals in relation to both the appellant’s conviction and sentence. We do not think the time that has passed warranted any material moderation in the sentence imposed. Its relevance was confined to the general impact the effluxion of time had had on the appellant’s circumstances at the time of sentence. In this respect it is relevant that the judge expressly took into account, in assessing the appellant’s risk of reoffending as low, that he had not reoffended during the period that had intervened between his offending and the date of sentence. He had also taken the opportunity to address his difficulties with alcohol and develop strategies to address the stressors in his life.
In addition to the above matters, the appellant sought to emphasise several matters that tended to reduce the seriousness of his offending, to reduce the need for any personal deterrence, and to emphasise the favourable aspects of his personal circumstances.
As to the seriousness of the offending, the appellant focussed upon: the lack of any premeditation or malicious intent on his part; his intoxication having clouded his judgment; the relatively short period over which he operated the laser; and the fact that his conduct caused minimal disruption or distraction to the pilot of the helicopter, and did not in fact place it or its occupants in direct danger. As to the limited need for personal deterrence and his favourable personal circumstances more generally, the appellant relied upon: the particular stressors operating upon him at the time which he was now better placed to manage; his background of education and employment; his personal and professional references; his lack of any history of offending; and his consequential low risk of offending and good prospects for rehabilitation.
All of these matters were relevant considerations. However, as recounted earlier in these reasons, they were expressly taken into account at various stages of the sentencing exercise. Further, and more importantly when considering a submission of manifest excess, we consider that they were adequately reflected in the sentence imposed.
In arriving at a sentence, the judge was right to emphasise the seriousness of the appellant’s offending, given the risks associated with interfering with the safe operation of an aircraft. The seriousness of this type of offence is reflected in the maximum penalty of 14 years imprisonment. In the appellant’s case it is significant that his offending was relatively protracted, in the sense that it involved him targeting the helicopter three or four times for a duration of 15 to 20 seconds at a time. Whilst intoxicated at the time, his conduct was nevertheless deliberate and posed a real risk to the safety of those on board the helicopter and the public more generally. As in R v Baldetti, it was significant that the helicopter was flying at a relatively low altitude in the vicinity of an airport and in a suburban area. Whilst the appellant’s personal circumstances were generally favourable, the judge was right to emphasise the importance of protecting the safety of the community by ensuring a significant measure of general deterrence.
Having canvassed the range of matters relevant to the judge’s sentencing discretion, there is not much that can usefully be said by way of further analysis or explanation. A conclusion as to whether a sentence is manifestly excessive is ultimately a matter of impression.
Whilst the head sentence imposed by the judge might be considered heavy, we are not persuaded that it was outside the range of sentences that might reasonably have been imposed. The non-parole period fixed by the judge was appropriately lenient, given the appellant’s favourable personal circumstances.
Nor are we persuaded that it was unreasonable for his Honour to decline to suspend the sentence he imposed. In our view, it was appropriate for the judge to attach particular weight to the appellant’s favourable personal circumstances in considering whether to permit the appellant to serve his sentence on home detention. This is what the judge did in ordering that the appellant’s sentence be served on home detention.
The appellant’s sentence was not manifestly excessive.
Conclusion
For the reasons set out, we would grant permission to appeal, but dismiss the appellant’s appeal against sentence.