Fraser v The King - [2023] SASCA 74

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
FRASER v THE KING
[2023] SASCA 74
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
29 June 2023
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ARSON AND LIKE OFFENCES - SENTENCE
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - AID, ABET, COUNSEL OR PROCURE - DIFFERENT VERDICTS FOR ACCUSED AND CO-ACCUSED
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 appellant pleaded guilty to one count of counselling or procuring a person to commit arson, contrary to ss 85(1) and 267 of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
The appellant’s offending related to an arson carried out on a business premises in Marion. The appellant was engaged by one of his co-accused (NR) using a messaging application known as AN0M. The arson was motivated by the vengeance of NR. The appellant arranged for his other co-accused (IB) to carry out the arson. The arson was carried out using three Molotov cocktails and caused significant damage to the building and contents, as well as to the business. The appellant arranged for payment to be made by NR to IB, but did not himself profit from his role in causing the arson.
In sentencing the appellant, the sentencing judge adopted a starting point of 11 years imprisonment. The appellant was entitled to a reduction in his sentence of up to 35 per cent on account of his early plea of guilty. However, the sentencing judge considered that a reduction of 35 per cent would be so inappropriate that it would, or may, affect public confidence in the administration of justice. The sentencing judge instead allowed a reduction of 25 per cent, resulting in a sentence of eight years and three months imprisonment. Proceeding on the basis that the appellant was a serious repeat offender under s 54 Sentencing Act 2019 (SA), the judge fixed a non-parole period of six years, seven months and seven days, being four-fifths the length of the head sentence.
The appellant appeals his sentence on grounds which contend that the sentence imposed was manifestly excessive (Ground 1), and that the sentencing judge erred first, in not granting the maximum reduction of 35 per cent (Ground 2), and secondly in finding that the appellant was a serious repeat offender (Ground 3).
Permission to appeal was granted in respect of Grounds 1 and 2, and was referred for hearing in conjunction with the appeal on Ground 3.
Held (per the Court), granting permission to appeal on Ground 3, allowing the appeal on Ground 1 and resentencing the appellant:
1.having regard to the circumstances of the offending, as well as the appellant’s personal circumstances, the head sentence imposed was manifestly excessive;
2.the appellant is re-sentenced to a head sentence of nine years imprisonment, reduced by about 30 per cent on account of his early plea of guilty to six years and four months imprisonment, with a non-parole period of five years and 24 days (being four-fifths the length of his head sentence on account of him being a serious repeat offender).

Criminal Law Consolidation Act 1935 (SA) ss 20AA, 20, 40, 84, 267; Sentencing Act 2017 (SA) ss 40, 53, 54, referred to.
GAS v The Queen (2004) 217 CLR 198; Giorgianni v The Queen (1985) 156 CLR 473; R v Bahrami (2020) 137 SASR 327; R v Bishop [2008] SASC 186; R v Colson (1999) 73 SASR 407; R v Davies (2006) 164 A Crim R 353; R v KCF (2006) 167 A Crim R 475; R v James (1981) 27 SASR 348; R v McPhee [2014] SASCFC 107; R v Shannon (1979) 21 SASR 442; The Queen v AZ (2019) 269 CLR 507, considered.

FRASER v THE KING
[2023] SASCA 74
Court of Appeal – Criminal: Livesey P, Doyle and David JJA

THE COURT: The appellant pleaded guilty to one count of counselling or procuring a person to commit arson.[1] The maximum penalty for this offence is imprisonment for life.
[1] Contrary to ss 85(1) and 267 of the Criminal Law Consolidation Act 1935 (SA).
In sentencing the appellant, the judge adopted a starting point of 11 years imprisonment. The appellant was entitled to a reduction in his sentence of up to 35 per cent on account of his early plea of guilty. However, the sentencing judge considered that, for various reasons, a reduction of 35 per cent would be so inappropriate that it would, or may affect, public confidence in the administration of justice.[2] The sentencing judge decided instead to allow a reduction of 25 per cent, resulting in a sentence of eight years and three months imprisonment. Proceeding on the basis that the appellant was a serious repeat offender under s 54 of the Sentencing Act 2017 (SA), the judge fixed a non-parole period of six years, seven months and seven days, being four-fifths the length of the appellant’s head sentence.
[2] Sentencing Act 2017 (SA), s 40(5).
In his appeal against sentence, the appellant contends that the sentence imposed was manifestly excessive (Ground 1). He also contends that the sentencing judge erred in not granting the maximum reduction of 35 per cent (Ground 2), and in finding that the applicant was a serious repeat offender (Ground 3).
Permission to appeal was granted with respect to Grounds 1 and 2. Permission to appeal in relation to Ground 3 was referred for hearing as on appeal.
Circumstances of the offending
The appellant’s offending related to an arson carried out on the Harcourts Packham business premises on Sturt Road, Marion, at 4.45 am on 17 January 2021. As elaborated upon below, the arson caused significant damage to the building and contents, as well as to the business.
The offending involved the use of a messaging platform or application known as AN0M. Users of AN0M purchased phones that were pre-loaded with the application and paid a subscription fee to use it. Users were under the impression that messages exchanged with other users of the application were encrypted and private, such that they could avoid detection by law enforcement.
Between 15 and 17 January 2021, the appellant used the AN0M application to correspond with one of his co-accused (NR).
The relevant messages began shortly after 10.30 pm on 15 January 2021, with NR asking for a “huge solid” in relation to the Harcourts Packham building at 290 Sturt Road. NR explained that his sister had ceased working at Harcourts and was still owed a significant amount of money. He also alleged that his sister’s former boss had sent her messages that he regarded as “sick”, and had tried to “hit on her”. NR asked the appellant whether he could “send some boys to torch it tonight”, in exchange for $5,000 cash. The appellant responded the following day saying that he had made an inquiry of his “co-offender from the ATM thefts” and that he was interested. He added that he would also make enquiries of a couple of other people.
At about 5.40 pm on 16 January 2021, NR sent the appellant a message, saying that he wanted it “done tonight”, later explaining that this was because he would be away in the Barossa that night (and so would have an alibi). Shortly after 9.00 pm, the appellant responded that he had a mate who was “gonna check it out”, and that “he wants it”. NR reiterated his desire that it be “done tonight”, but adding that “need you safe tho cant risk your safety”. At around 10.20 pm, the appellant sent a further message saying “my mate just calling around for a ride, if it can’t be done tonight, surely you can be seen somewhere else tomorrow night”. The appellant reassured NR that he was also “asking someone else”.
At 12.01 am on 17 January 2021, NR messaged the appellant saying “Just leave for tonight so not rushed if gotta find someone. I don’t want you or anyone getting done for rushed sloppy job, unless you have someone that’s ready and safe, then by all means”. The appellant replied “Cheers, I got a bloke who is keen as. But I don’t know if it will be tonight”.
The arson was carried out at 4.45 am on 17 January 2021 by the individual (IB) whom the appellant had arranged to do it. IB ‘firebombed’ the building, using three Molotov cocktails which were thrown into separate windows of the building.
NR messaged the appellant later that day saying, “nice work”, to which the appellant responded “it got done?”, followed by “okay, he just sent me a crime stoppers thing showing it, can we organise his coin”. The appellant and NR then arranged payment which involved the appellant attending a fourth person’s home on 18 January 2021 to collect the cash. The appellant confirmed receipt of the money with NR, and confirmed that he had “passed it on”.
The appellant made further contact with NR on 20 and 21 January 2021, and again on 15 February 2021, offering to arrange further arson attacks in return for payment.
There was also evidence before the sentencing judge of communications between NR and the appellant on 5 April 2021, in the course of which the appellant attempted to arrange the arson of a business premises on Magill Road. However, the appellant was unsuccessful in his attempts to recruit an associate to carry out that arson. The appellant was not charged with any offence in respect of these post-offence communications. They were relied upon merely as shedding light upon the appellant’s association with NR, his use of the AN0M application, his lack of remorse, and his prospects of rehabilitation.
Police attended at the appellant’s premises on 29 June 2021 to execute a general search warrant. They arrested the appellant and searched his premises. They located a mobile phone with the AN0M application installed on it, and the mobile device was matched to the appellant’s AN0M username.
IB was charged with arson in contravention of s 85(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), and both NR and the appellant were charged with counselling or procuring IB to commit that offence in contravention of ss 85(1) and 267 of the CLCA.
The appellant pleaded guilty within four weeks of his first court appearance in the Magistrates Court, entitling him to a reduction in his sentence of up to 35 per cent. His co-accused maintained pleas of not guilty, and as at the date of sentencing were awaiting trial.
Victim impact statement
The majority owner of the building affected by the arson, who is also a director of the business which operates from the building, provided the sentencing court with a victim impact statement on behalf of himself and the 47 people who worked in the building at the time of the arson. He explained that the building was constructed in 1937 and is heritage listed. It is of some local significance, having been the first Marion Council Chambers. The owners had restored it from a derelict state and had spent a considerable sum of money making it suitable for use as their business premises and a visual amenity for the local community.
As mentioned earlier, the arson caused significant damage to the building. There was evidence before the sentencing judge quantifying the damage at about $350,000 (comprising $200,000 to repair the building and $150,000 to replace the contents), in addition to lost business earnings. By the date of sentencing, the owners had managed to restore the building a second time so that it was once again able to be used for their business. This took about eight months, during which time the business was required to operate from different premises, at a cost of about $7,000 per month.
The victim impact statement emphasised the significance of the arson in terms of the harm and fear caused to those who worked in the business, and indeed their families. None of them understood the motive for the attack or who was responsible for it. They did not know, for example, whether the premises or someone who worked there was being targeted by a disgruntled client, former employee or business rival. Staff members reported difficulties with insomnia, anxiety, depression, feeling unsafe in their homes and being socially anxious.
It became known in the media that the fire had been deliberately lit, using Molotov cocktails, and that those responsible were facing other serious criminal charges. This not only exacerbated the difficulties experienced by staff members, but also the reputational damage to the business. The business owners believe that this publicity led to speculation within the community about the nature of their associates and business dealings.
Personal circumstances
At the date of sentencing, the appellant was 47 years of age. He was born in Western Australia. He has not met his father. He had a difficult upbringing, with his mother suffering from a heroin addiction.
The appellant left school in year 9 and, at the age of 15 and after an incident in which he was assaulted by police, he moved to South Australia. By this time, he already had a significant history of juvenile offending in Western Australia. His offending continued after he moved to South Australia.
The appellant’s offending as a juvenile included offences of breaking and entering, escaping custody, illegal use of motor vehicles, arson, endangering life, assault causing harm and carrying an offensive weapon. As a result of this offending, the appellant spent several significant periods in youth detention. During his time in detention, he was the victim of sexual assaults. He is pursuing a compensation claim for that abuse through the redress scheme that was set up in the wake of the Royal Commission into the Abuse of Children in Institutional Care.
The appellant continued to offend into his adulthood including committing offences of assaulting police, assisting an offender, building break and felony, receiving, damaging property, larceny, assault occasioning actual bodily harm, aggravated assault, robbery, numerous instances of driving a motor vehicle without consent of the owner, numerous instances of failing to comply with bail and at least three instances of aggravated serious criminal trespass.
As a result of this history of offending, the appellant has spent much of his adult life in prison and has been given repeated warnings by the Court about the consequences of his offending. He has repeatedly struggled to obtain housing upon being released at the end of his prison sentences which has led to difficulty in obtaining approval for parole, and then in staying out of trouble once released. Indeed, on the most recent occasion that the appellant was released from custody, he found himself homeless and was required to ‘couch surf’, relying on people that he had met whilst in custody. This was hardly conducive to the appellant’s rehabilitation, and indeed provided the context in which he came to be provided with a phone enabled with the AN0M application, and exposed to the temptation to reoffend.
Despite these difficulties, the appellant had obtained employment in a crash repair shop prior to his arrest for the subject offending. He was also working in the metal shop in the Port Augusta prison whilst waiting to be sentenced, and had used his recent time in custody to obtain a Certificate III in Civil Construction and to undertake other courses.
The appellant has a 27-year-old son who is gainfully employed and has no criminal history.
The appellant provided the sentencing court with a letter in which he apologised for his offending and for any stress or financial losses brought about by his offending. He said that he unfortunately had no means of compensating the victims, adding that he would have compensated them if he had the means to do so. He said that he intended to use his time in prison to better himself by undertaking activities to educate himself, to undergo drug and alcohol counselling and to otherwise rehabilitate himself. He said that he hoped to leave prison drug free and employable, and to be a father figure for his son.
Sentencing remarks
The appellant was sentenced on 17 February 2022.
The sentencing judge set out the circumstances of the offending and the appellant’s personal circumstances in terms similar to the above.
His Honour described arson as a “particularly serious and dangerous offence”, and categorised this particular offending as “a very serious example” of arson. He considered that there was a high degree of premeditation involved, adding that the use of three Molotov cocktails suggested an intention to not only damage the building, but to destroy it. His Honour noted the significant value of the damage to the building and the business losses, as well as the fear and anxiety caused to those who worked in the business.
The sentencing judge described the offending as motivated by personal vengeance on the part of NR. As to the appellant’s involvement in the arson, his Honour noted that the appellant was aware of NR’s motivation and displayed no hesitation in agreeing to arrange the arson. The appellant knew that the person tasked with the arson was to receive payment of $5,000, and made sure that that payment was promptly made. His Honour described the appellant’s role as integral to the successful completion of the criminal enterprise and said that, for the purpose of sentencing the appellant, there was no reason to distinguish between the culpability of the appellant, NR and IB.
In considering the appellant’s personal circumstances, the sentencing judge noted several submissions made on the appellant’s behalf in support of his prospects of rehabilitation and by way of mitigation more generally. These included the appellant’s difficult upbringing; the appellant’s institutionalisation as a result of his frequent periods in custody and consequent difficulties in obtaining parole and in not re-offending; his success in obtaining employment while on parole on this occasion; his early guilty plea; his asserted remorse and growing awareness of the impact of his offending upon others; his exhaustion by his life of offending and desire to accept his punishment for this matter and move forward from his history of offending; and his desire and motivation to have a relationship with his son and indeed play a role as a father figure in his life.
Whilst accepting the potential significance of these matters, the sentencing judge considered that it was difficult to have any confidence that the appellant would avoid offending in the future, given his lengthy criminal history. He regarded it as unlikely that the victims would take much comfort from the appellant’s claim that he would have liked to compensate them, but was unfortunately unable to do so. The judge did not attach any weight to this claim, and rejected the appellant’s apology as self-serving. The judge added that whatever remorse the appellant now claimed to feel, it was not apparent in the weeks following the arson given his attempts to solicit further opportunities for similar criminal activity. The judge was satisfied that the appellant’s remorse was primarily for the position in which he now found himself.
The appellant’s counsel submitted that the appellant and the community would benefit from the appellant having a lengthy period under a structured and supervised regime which promoted his rehabilitation and integration into mainstream society. The judge took the view that, for a person of the appellant’s age and criminal history, the window for successful rehabilitation was becoming smaller. The judge said that he regarded the appellant’s prospects for rehabilitation as “poor but perhaps, given what you have told me about your courses in custody, not totally exhausted.”

Whilst accepting that it was in the interest of the appellant and the community that the appellant be rehabilitated, the judge emphasised that this was only one of many considerations in the sentencing process; other considerations included the protection of the community, general deterrence and personal deterrence.
In underscoring the importance of general and personal deterrence, the sentencing judge said:
General deterrence is of particular importance where arson has been committed as an act of vengeance. People tempted to commit this offence out of spite or a desire for revenge must be shown that severe penalties will be imposed. The maximum penalty of life imprisonment reflects not merely the infinite number of ways in which this offence can be committed but also the gravity Parliament attaches to offending of this kind.
In your case personal deterrence is also called for. Having spent most of your adult life in prison or on parole you had no hesitation in agreeing, once again, to commit a serious criminal offence. The brazen manner in which you immediately agreed to do so suggests that you did not experience even a flicker of conscience about the matter. The evidence suggests that you were not tempted and then motivated by money; the payment going entirely to the firebomber. Your readiness to commit the offence seems to have been motivated simply by the fact that NR was one of your criminal associates and it was in your interests to do him a favour.
Despite concluding that the appellant was a serious repeat offender (see below), the judge decided not to exercise his discretion under s 54(1)(a) of the Sentencing Act to impose a sentence which was disproportionate. His Honour concluded that having regard to the facts of the matter, the need to protect the community, the need for personal and general deterrence, the need for adequate punishment, and the matters personal to the appellant (including his antecedents), a starting point of 11 years imprisonment was appropriate.
The sentencing judge then addressed the appellant’s plea of guilty. The judge noted counsel’s submission that the appellant should be given the full reduction for which he was eligible (35 per cent). In support of this, counsel had submitted that, coming at such an early stage, the appellant’s plea had considerable utilitarian value. The judge considered, however, that the utilitarian value of the plea had been diminished by reason of the decisions of the co-accused to plead not guilty:
I accept your submission to some extent but, of course, because of the circumstances of your offending two other persons have been charged. They have not pleaded guilty and a full investigation has had to be conducted. Much of the utilitarian effect of your plea has been diminished by that fact.
Having earlier expressed the view that the appellant’s apology was self-serving, and that his remorse was primarily for the position in which he now found himself, the judge said that he was satisfied that the appellant’s plea was “motivated overwhelmingly by pragmatic motives and the need to secure the maximum discount available”.
The sentencing judge acknowledged that the prosecution had not opposed the appellant receiving the maximum reduction, but pointed out that that did not bind him. The judge ultimately decided to confine the reduction in the appellant’s sentence on account of his guilty plea to 25 per cent:
On one hand, your offending was an example of organised crime by a career criminal and in pleading guilty it must have been apparent to you that because of your use of the AN0M app, the case against you would prove to be overwhelming. On the other hand, there is a real public interest in promoting early pleas of guilty even when they are primarily entered for pragmatic reasons.
In the end I am persuaded that a reduction of 35% would be so disproportionate to the gravity of the offence in all the circumstances I have identified and so inappropriate given your repeated incursions into criminal conduct and your lack of genuine remorse, that a discount of 35% would, or may, affect public confidence in the administration of justice.[3]   I am also satisfied that the case against you is so overwhelming, given the evidence from the AN0M app obtained from your phone which was located at your place of residence, that a reduction of your sentence by 35% would be so inappropriate that it would, or may, affect public confidence in the administration of justice.[4]
I have reached those conclusions after considering what reasonable and right-minded members of the public, who understand the statutory discount scheme and the nature and purpose of the discretion reposed in a sentencing judge, would think of you receiving the full statutory discount.[5]
I have determined to allow you a 25% discount. In doing so, I acknowledge that I am taking an exceptional course. It is exceptional but appropriately so.
[3]     Criminal Law Sentencing Act 2017 (SA), s 40(5)(a).
[4]     Criminal Law Sentencing Act 2017 (SA), s 40(5)(i). See affidavits of Detectives Widdrington (23 August 2021) and McGilchrist (23 August 2021).
[5]     R v Bahrami [2020] SASCFC 111, [50]-[59].
This resulted in an adjusted head sentence of eight years and three months imprisonment.
Proceeding on the basis that the appellant was a serious repeat offender, the judge fixed a non-parole period of six years, seven months and seven days; being four-fifths the length of the head sentence, as required by s 54(1)(b) of the Sentencing Act.
The head sentence and non-parole period were backdated to the day on which the appellant was taken into custody.
Manifest excess
In Ground 1 the appellant contends that his sentence was manifestly excessive. In particular, he contends that a starting point of 11 years imprisonment is outside the range available to the sentencing judge having regard to the appellant’s role in the offending and the objective seriousness of the offence.
The principles governing the determination of whether a sentence is manifestly excessive are well known and need not be repeated. In order to succeed on this ground of appeal, it is necessary for the appellant to establish that the sentence imposed upon him was plainly unjust or unreasonable, in the sense that it fell outside the range of sentences that might reasonably be imposed having regard to all of the circumstances of the offending and the offender.
The appellant acknowledged the generally serious and dangerous nature of arson, particularly when committed as a calculated act of vengeance, as reflected by the maximum penalty of life imprisonment. Whilst emphasising these features of arson, the Full Court in R v James[6] also noted the breadth of the sentencing court’s discretion in arriving at an appropriate sentence:
In our view, the crime of arson cannot be regarded as a crime so usually or so often dealt with in this Court as to be identified with any particular tariff or range of penalty. We doubt very much whether any sophisticated formulation of tariff can be devised, or any precise guidelines laid down, for a crime where there can be so many different, aggravating or mitigating circumstances. Varying factual situations must necessarily be encountered in relation to the crime of arson and, to our minds, there can be no established pattern of dealing with any particular set of facts. The legislature has seen fit to provide a maximum penalty of life imprisonment for arson, leaving the Court a discretion exercisable within wide limits in fixing a sentence in respect of each offender. It seems to us that ordinarily a substantial sentence of imprisonment is called for by reference to the immediate gravity of the crime and its consequences. Arson, in all its forms, is an extremely serious and dangerous crime, and the element of general deterrence must be given proper weight, in order to reflect the Court’s condemnation of the crime, especially where it is committed with an appreciation of what is being done and there is a calculated act of vengeance. We entirely agree with her Honour’s remarks that “it is important that people who are likely to seek revenge by setting another’s property alight should know that, if they do so, they are likely to be visited by condign punishment.
[6] R v James (1981) 27 SASR 348 at 351 (Walters, Zelling and Williams JJ).
Whilst cognisant of the limitations in the utility of comparison with other cases, the appellant drew this Court’s attention to two decisions of the Court of Criminal Appeal involving sentences for arson.
In R v Davies[7] the appellant pleaded guilty to arson after setting fire to a public building occupied by Family and Youth Services (FAYS). The appellant had used petrol as an accelerant, and the building was completely destroyed. The arson caused in excess of $3 million in damage, and resulted in substantial disruption to the functioning of an important government department. Whilst the appellant had personal circumstances deserving of sympathy, the offending was serious. The appellant’s offending had been motivated by her anger as a result of decisions made by the staff of FAYS in relation to the care of her child, including increasing the father’s level of access with a view to him later being given custody.
[7] R v Davies (2006) 164 A Crim R 353.
From a starting point of 10 years, and after a reduction for the appellant’s plea of guilty, the sentencing judge imposed a sentence of eight years and two months imprisonment, with a non-parole period of four years and eight months. By majority (Perry and Vanstone JJ, Gray J dissenting) the Court dismissed the appeal, holding that whilst towards the upper end, the sentence was within the appropriate range given the unusually serious nature of the offending.
In R v Bishop,[8] the appellant was charged with two counts of arson. The first involved the appellant setting fire to some rubbish bins in a shed at a primary school. The fire destroyed both the shed and its contents, with a replacement value in excess of $90,000. The second occurred less than two weeks later and involved the appellant setting fire to a hayshed. It was a large hayshed full of hay at the time, and the fire destroyed the shed and its contents, with a value of approximately $700,000. The sentencing judge accepted that the appellant’s conduct involved criminally stupid behaviour, as opposed to being motivated by vengeance or any other more sinister motive.
[8] R v Bishop [2008] SASC 186.
The appellant was sentenced to five years imprisonment for the first arson (reduced to three years and nine months on account of his guilty plea) and 10 years imprisonment for the second arson (reduced to seven years and six months on account of his guilty plea), to be served cumulatively. In dismissing the appeal, the Court (Anderson J, Doyle CJ and Bleby J agreeing) accepted that the total head sentence, whilst at the high or severe end of the available range, was nevertheless appropriate.
The applicant accepted the seriousness of the arson in the present case, given that it was motivated by vengeance (on the part of NR, but to the appellant’s knowledge) and the extent of the damage caused. He also accepted the absence of any room for leniency given the appellant’s personal circumstances, particularly his history of offending. However, he contended that the circumstances of this case did not warrant a starting point of 11 years.
In support of this contention, the appellant noted the greater value of the damage caused in the two decisions mentioned above, particularly given that the dollar sums referred to reflected valuations carried out over 15 years ago.
More significantly, the appellant emphasised the role played by the appellant in the present case. The appellant’s liability lay in his having counselled or procured the arson. The appellant accepted that under s 267 of the CLCA, as at common law, he was “liable to be prosecuted and punished as a principal offender”. However, the appellant contended that this did not require that he be sentenced on the basis that his culpability was necessarily the same as the principal offender. He contended that the sentencing judge erred in treating his culpability as the same as that of both the principal offender (IB) and his other co-accused (NR).
There is no doubt that the appellant is right to contend that whilst a person who aids, abets, counsels or procures is to be prosecuted and punished as a principal offender, the punishment they receive will depend upon their role in the offending and their personal circumstances. This is not to say that an accessory will always be less culpable than the principal. Indeed, there will be circumstances in which a controlling or dominant aider or abettor may be equally culpable, or even more culpable than the principal.[9] But there will plainly be circumstances in which the culpability of an accessory will be less than that of the principal (or indeed another accessory). The relative culpability of those involved in a criminal enterprise will depend upon a close examination of their roles, and the circumstances of the case more generally.
[9] GAS v The Queen (2004) 217 CLR 198 at [23] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ); R v KCF (2006) 167 A Crim R 475 at [10] (Nettle JA, Neave JA and King AJA agreeing).
In the present case, it seems to us that there were grounds to treat the appellant as less culpable than both NR and IB. It is plain from the AN0M messages exchanged between NR and the appellant that NR was the instigator of the offending. He was the one who had the motive of vengeance and paid for the arson to be carried out. Whilst the appellant did not take much convincing to become involved, knew of NR’s motive, and played an essential role in facilitating the commission of the arson, it does appear from the messages that the appellant was subservient to NR and indeed was in financial debt to him. He did not profit from arranging for the arson to be carried out.
We are also inclined to think that the appellant’s culpability was less than that of IB. Whilst IB was recruited by the appellant to carry out the arson, it is significant that he physically carried out the offence. It was IB who obtained or made the Molotov cocktails and threw them into the building that was then destroyed by fire.
All of that said, the focus must be not so much on the relative levels of culpability, as a close assessment of the appellant’s personal level of culpability. It was important that he be sentenced having regard to his role as, in effect, a middleman in the arrangement of the arson. As mentioned, he was aware of NR’s motive of vengeance, and played an important role in facilitating the arson on behalf of NR by arranging for IB to physically carry it out. His was an essential role in the commission of the offence, albeit that he was not the instigator of the offending, did not personally carry it out and did not profit from it.
Bearing the appellant’s role in mind, but also having regard to the totality of the circumstances of the offending, as well as the appellant’s personal circumstances, we are persuaded that the starting point of 11 years was manifestly excessive. Accordingly, we would grant permission to appeal, allow the appeal on Ground 1 and resentence the appellant.
Reduction for guilty plea
Having decided to allow the appeal on Ground 1, there is no need to determine whether the sentencing judge erred in declining to award the maximum available reduction (35 per cent) in the appellant’s sentence on account of his early guilty plea, or indeed whether he erred in confining the appellant to a reduction of 25 per cent. However, as the appellant must be resentenced, it is nevertheless appropriate to make some observations as to the issues raised by this ground of appeal. These will inform the approach taken on resentence.
Having pleaded guilty within four weeks of his first court appearance, the appellant was entitled to a reduction in his sentence of up to 35 per cent. In determining the appropriate extent of the reduction, the sentencing judge was required to exercise a broad discretion, having regard to the matters identified in s 40(5) of the Sentencing Act:
(5) In determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea made within a particular period, a court must have regard to such of the following as may be relevant:
(a)     whether the reduction of the defendant's sentence by the percentage contemplated would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of that particular defendant, that it would, or may, affect public confidence in the administration of justice;
(b)     the stage in the proceedings for the offence at which the defendant indicated an intention to plead guilty (including whether it would, in the opinion of the court, have been reasonable to expect the defendant to have done so at an earlier stage in the proceedings);
(c)     whether the defendant was initially charged with a different offence in respect of the same conduct and whether (and at what stage in the proceedings) negotiations occurred with the prosecution in relation to the offence charged;
(d)     in the case where the defendant has been charged with more than 1 offence—whether the defendant pleaded guilty to all of the offences;
(e)     if the defendant satisfies the court that the defendant could not reasonably have been expected to plead guilty at an earlier stage in the proceedings because of circumstances outside of the defendant's control—that fact;
(f)      whether or not the defendant was made aware of any relevant matter that would have enabled the defendant to plead guilty at an earlier stage in the proceedings;
(g)     whether at any stage in the proceedings for the offence—
(i)      the defendant disputed the factual basis of the plea; and
(ii)     a hearing occurred in relation to the dispute; and
(iii)    the dispute was not resolved in favour of the defendant;
(h)     if the prosecution satisfies the court that the defendant intentionally concealed the commission of the offence to which the defendant's sentence relates—that fact, and the period of time for which the concealment persisted;
(i)      whether the prosecution's case against the defendant (the assessment of which should ordinarily be made by reference to evidence in the form of an affidavit, or any other documentary evidence) is so overwhelming that a reduction of the defendant's sentence by the percentage contemplated would be so inappropriate that it would, or may, affect public confidence in the administration of justice;
(j)      whether any genuine remorse on behalf of the defendant for the commission of the offence is so lacking that a reduction of the defendant's sentence by the percentage contemplated would be so inappropriate that it would, or may, affect public confidence in the administration of justice,
and may have regard to any other factor or principle the court thinks relevant.
As explained in R v Bahrami,[10] the utilitarian value of a plea of guilty is an important consideration in the exercise of the sentencing court’s discretion.[11] However, as the Court in that case emphasised, the sentencing court retains a broad discretion in determining the appropriate reduction. The utilitarian value of a plea does not automatically entitle the defendant to a reduction at or near the relevant maximum reduction given the timing of the relevant plea.[12] This was so under the version of s 40(5) in force at the time of R v Bahrami, and is a fortiori the position now that that subsection has been amended to include express reference to the considerations mentioned in ss 40(5)(g)(h), (i) and (j).
[10] R v Bahrami (2020) 137 SASR 327.
[11] R v Bahrami (2020) 137 SASR 327 at [23]-[31], [41]-[49] (Kourakis CJ), [92]-[94] (Livesey J).
[12] R v Bahrami (2020) 137 SASR 327 at [46], [60] (Kourakis CJ), [91], [95], [98]-[100], [110]-[111] (Livesey J), [142] (Bleby J).

In reducing the appellant’s sentence by 25 per cent, as against a maximum reduction of 35 per cent, the sentencing judge was influenced by the following considerations:
·much of the utilitarian value of the appellant’s plea was diminished by the not guilty pleas maintained by his co-accused, NR and IB;
·the overwhelming strength of the prosecution case against the appellant, and corresponding inference that the appellant’s plea was entered for pragmatic reasons;
·the gravity of the appellant’s offending;
·the appellant’s history of repeated incursions into criminal conduct; and
·the appellant’s lack of genuine remorse.
The first complaint made by the appellant is the lack of any notice that he would receive less than the maximum reduction. The prosecution did not contend for a reduction of less than 35 per cent, and the sentencing judge did not foreshadow any intention to confine the appellant to a lesser reduction.
In response to this complaint, it should first be observed that the sentencing judge was not bound by the prosecutor’s attitude to an appropriate reduction in sentence. While it would have been appropriate for the judge to attach some weight to the prosecutor’s attitude, he was ultimately entitled, indeed required, to exercise his discretion having regard to the considerations set out in s 40(5) of the Sentencing Act.
Further, we do not think it was necessary for the judge to foreshadow any intention to confine the appellant to a reduction in sentence of less than the maximum. If a judge is contemplating such an approach, then it will ordinarily be appropriate and desirable that this be raised during sentencing submissions so as to ensure both that defence counsel is prompted to address the matter and that the judge has the assistance of submissions from both counsel. However, we do not think a failure to do so will ordinarily involve any error on the part of the sentencing judge. Given the confirmation in R v Bahrami that there is no entitlement to the maximum reduction, and hence that the extent of the reduction for a plea of guilty is always a matter within the sentencing judge’s discretion, sentencing submissions should ordinarily proceed on the basis that it is appropriate and necessary for counsel to address the extent of any reduction on account of the defendant’s plea(s) of guilty.
The second complaint made by the appellant relates to the judge’s reliance upon the overwhelming strength of the prosecution case. Whilst not suggesting that this was an irrelevant consideration, the appellant points out that the early timing of the plea meant that the only information about the prosecution case available to the appellant at the time of his plea was the ‘facts of charge document’. Even accepting that this was the only information available to the appellant, it is significant that it made it plain that police had obtained the AN0M messages between NR and the appellant in relation to the arson, and had also gathered evidence linking the appellant to the relevant device and username. In our view, this was a sufficient basis to conclude that the prosecution had a strong case against the appellant.
The only potential qualification to this, and the other aspect of the appellant’s complaint about the judge’s reliance upon the strength of the prosecution case, is that the judge did not make any reference to the potential availability of a challenge to the admissibility of the AN0M messages. It is notorious that a number of defendants in unrelated criminal proceedings are pursuing a range of challenges to the legality and fairness of police access to, and reliance upon, information obtained from AN0M devices. The appellant contends that it was relevant both to the merits of the case against him, and to the utilitarian value of his guilty plea, that he decided not to take any equivalent challenge to the lawfulness or admissibility of the AN0M messages central to the case against him.
We accept the general relevance of the appellant’s preparedness to forego any challenge to the lawfulness or admissibility of the evidence against him. However, in circumstances where the legal merit of that challenge was unknown, and essentially speculative, we do not think it was a particularly significant matter. We do not think it provided a basis for impugning the judge’s exercise of his discretion as to the appropriate reduction for his guilty plea.
The third complaint made by the appellant relates to the sentencing judge’s observation that much of the utilitarian value of the appellant’s plea had been diminished by the not guilty pleas maintained by his co-accused, NR and IB. In our view, there is merit in the challenge to this aspect of the judge’s reasoning.
In R v Bahrami, Kourakis CJ summarised the benefits of taking a utilitarian approach to sentencing reductions for early guilty pleas:[13]
It is appropriate before proceeding further to elaborate on the financial and social costs of unnecessary trials, and conversely, therefore, to the social benefits of taking a utilitarian approach to sentence reductions for early guilty pleas. Criminal trials cannot be listed and heard immediately after the commission of an offence. The police must obtain detailed witness statements and subject physical evidence to sometimes painstaking costly and time consuming forensic examination. A plea entered within four weeks will save much of the delay and expense occasioned by the necessary preparation of the prosecution case. Of arguably greater importance, it provides very early relief to anxious victims and their families and assurance to the community that the offender has been apprehended.
Once the police investigation is complete, the defence must be given time to consider its defence. Only when both the prosecution and defence are sufficiently prepared can the court list the matter for trial. There is, of necessity, a queue of cases waiting for trial. Many months, or several years, may pass before trial, even though courts attempt to reduce that time by over-listing matters. In that time, the defendant may be on bail, and, if guilty, pose a risk to the community. The community therefore has a strong interest in resolving criminal matters quickly in order to reduce the time for which an offender is on bail. The community also benefits collectively from the early resolution of criminal accusations, even if the offender is in custody, because of the assurance that resolution gives about the effectiveness of the criminal law. Finally, the penalty imposed by a court operates as a stronger denunciation, and deterrent, and more effectively assuages a victim, the sooner it is pronounced.
[13] R v Bahrami (2020) 137 SASR 327 at [30]-[31] (Kourakis CJ).
Implicit in the sentencing judge’s approach in the present case was a view that because it was likely, as a result of the not guilty pleas of NR and IB, that the prosecution would be required to prepare and present its case against those defendants in any event, the financial and social benefits of the appellant’s plea were much diminished.
In a sense, this is true. However, we do not think this was a basis for confining the reduction in sentence available to the appellant. The utilitarian approach continued to justify a significant reduction in sentence. There are two broad reasons why that is so.
The first is that, in assessing the utilitarian value of a plea, the primary focus should be on the case against the particular defendant, rather than any co-accused. Even assuming the likelihood of a joint trial, there would still be some saving in the time and cost associated with no longer needing to prepare or present the case against the defendant who had pleaded guilty. Further, as emphasised in the second paragraph of the passage from Kourakis CJ’s reasons in R v Bahrami set out above, part of the benefit from a plea of guilty lies in the comfort and assurance to victims and the community from the prompt resolution of criminal accusations. The prompt resolution of criminal accusations also assists the effectiveness of the criminal law more generally. Here, the appellant’s early plea of guilty enabled the prompt resolution of the criminal accusation against him.
The second reason is that the rationale for the utilitarian approach to sentencing reductions for guilty pleas lies in the desirability of providing defendants with an incentive to co-operate in the administration of justice (with a view to achieving the many benefits described above) by rewarding a defendant’s willingness to co-operate.[14] In other words, the rationale focuses prospectively upon encouraging co-operation, and not just upon a retrospective consideration of the benefits which have in fact accrued. Understood in this way, it can be seen that the utilitarian approach requires that there be some level of confidence on the part of defendants (and their legal advisors) as to the fact and likely extent of the sentencing reduction they will achieve if they plead guilty.[15] Accordingly, it would be somewhat anomalous if the extent of any reduction were to be significantly influenced by a matter likely to be unknown to them and outside of their control, such as whether their co-accused will also plead guilty.
[14] R v Shannon (1979) 21 SASR 442 at 459-460 (King CJ), cited by Kourakis CJ in R v Bahrami (2020) 137 SASR 327 at [29].
[15] R v McPhee [2014] SASCFC 107 at [46] (Nicholson J), cited by Kourakis CJ in R v Bahrami (2020) 137 SASR 327 at [42].
For the reasons set out, we are satisfied that there remained significant utilitarian value in the appellant’s early plea of guilty, despite the decision of his co-accused to plead not guilty.
Having already decided that the appeal should be allowed on Ground 1, it is not necessary to reach a conclusion as to whether the judge separately erred in confining the appellant to a sentencing reduction of 25 per cent. In our view, the other matters relied upon by the sentencing judge did provide a proper basis for a reduction less than the maximum. They were relevant considerations under ss 40(5)(a), (i) and (j), as well as the ‘catch all’ reference in the concluding words of s 40(5) to “any other factor or principle the court thinks relevant”. However, as reflected in the approach to resentencing below, we would have allowed a reduction of more than 25 per cent.
Serious repeat offender
Under s 54(1) of the Sentencing Act, when sentencing a person who is a serious repeat offender,[16] the sentencing court is not bound to ensure that the sentence it imposes is proportional to the relevant offence (s 54(1)(a)), and any non-parole period fixed in relation to the sentence must be at least four-fifths the length of the sentence (s 54(1)(b)).
[16] Including an offence that resulted in the person being a serious repeat offender.
There is a qualification to this in s 54(2), which provides that the sentencing court may declare that s 54(1) does not apply if satisfied by evidence given on oath that the person’s personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community and personal and general deterrence (s 54(2)(a)), and it is not appropriate in all the circumstances that the person be sentenced as a serious repeat offender (s 54(2)(b)). The appellant did not seek to rely upon this qualification.
Under s 53(1) of the Sentencing Act, a person is taken to be a “serious repeat offender” if the person (whether as an adult or as a youth) has committed and been convicted of at least three serious offences[17] committed on separate occasions. In determining whether the person has committed three such offences, the offence for which the person is being sentenced is included (if it is of the relevant kind) (s 53(2)).
[17] Or two serious sexual offences.
A “serious offence” is defined in s 52:
serious offence means—
(a) a serious firearm offence within the meaning of Division 3; or
(b) any of the following offences if the maximum penalty prescribed for the offence is, or includes, imprisonment for at least 5 years:
(i) an offence under Part 5 Division 2 or 3 of the Controlled Substances Act 1984;
(ii)     an offence under a law of the Commonwealth dealing with the unlawful importation of drugs into Australia;
(iii) an offence involving a terrorist act (within the meaning of Part 5.3 of the Criminal Code of the Commonwealth);
(iv) an offence under Part 3 of the Criminal Law Consolidation Act 1935;
(v) an offence under section 137 of the Criminal Law Consolidation Act 1935;
(vi) an offence under section 170 of the Criminal Law Consolidation Act 1935;
(vii) an aggravated offence under section 170A of the Criminal Law Consolidation Act 1935;
(viii) an offence under section 85(1) of the Criminal Law Consolidation Act 1935;
(ix) an offence under section 85B of the Criminal Law Consolidation Act 1935;
(x)     a serious and organised crime offence (within the meaning of the Criminal Law Consolidation Act 1935);
(xa) an offence against section 31(2aa)(b) of the Intervention Orders (Prevention of Abuse) Act 2009;
(xi)    an offence under a corresponding previous enactment substantially similar to an offence referred to in a preceding subparagraph;
(xii) a conspiracy to commit, or an attempt to commit, an offence referred to in a preceding subparagraph;
(xiii) an offence under the law of another State or a Territory involving conduct that would, if committed in this State, be a serious offence,
provided that an offence listed in paragraph (a) or (b) is not a serious offence unless a sentence of imprisonment (other than a wholly suspended sentence or a sentence that consists only of a community based custodial sentence) has been, or is to be, imposed for the offence.
The sentencing judge in the present case found that the appellant was a serious repeat offender. Whilst deciding not to impose a disproportionate sentence, his Honour fixed a non-parole period that was four-fifths the length of the head sentence.
The appellant challenges the judge’s conclusion that he was a serious repeat offender.
As set out above, the appellant only fell to be sentenced as a serious repeat offender if he had committed, and had been convicted of, three serious offences. A serious offence is an offence:
·which falls within paragraphs (b)(i) to (xiii) of the definition of a serious offence;
·for which the maximum penalty is imprisonment for at least five years; and
·for which a sentence of imprisonment (other than a wholly suspended sentence or a sentence that consists only of a community based custodial sentence) has been, or is to be, imposed.
In contending that the appellant was a serious repeat offender, the prosecutor relied upon four offences which were said to be “serious offences”:
·the subject offence of counselling or procuring an arson;
·an August 1991 offence of assault with intent to resist lawful apprehension (for which the appellant was sentenced to nine months imprisonment[18]);
·a May 1997 offence of assault occasioning actual bodily harm (for which the appellant was sentenced to 12 months imprisonment); and
·an October 1999 offence of robbery (for which the appellant was sentenced to three years and eight months imprisonment).
[18] Noting the challenge to whether this was in fact a sentence of imprisonment or detention, discussed below.
The appellant accepts that the last of these four offences is a serious offence, but challenges this characterisation of the first three offences.
As to the first, the respondent contends that it was an offence of arson under s 85(1) of the CLCA, thus falling within paragraph (b)(viii) of the definition of a serious offence. There is no dispute that the offence, with a maximum of life imprisonment, attracted a maximum sentence of at least five years imprisonment, and that the appellant was to be sentenced to a term of imprisonment for that offending.
The appellant, however, points out that he was charged with counselling or procuring the offence of arson under ss 267 and 85(1) of the CLCA, and contends that this is not an offence listed in any of paragraphs (b)(i)-(xiii) of the definition of a serious offence. In support of his argument, the appellant notes that paragraph (b)(xii) refers to a conspiracy to commit, or an attempt to commit, an offence referred to in a preceding paragraph. The appellant contends that in the absence of any equivalent reference to aiding, abetting, counselling or procuring an offence in the other paragraphs of the definition of a serious offence, this Court should not construe the definition of a serious offence as extending to the subject offending.
In support of this contention the appellant emphasises the significant consequences to a defendant of an offence he has committed being treated as a serious offence, and the consequential need for caution in accepting any loose construction of the definition, and appropriateness of resolving any real ambiguity as to meaning in his favour.[19]
[19] The Queen v AZ (2019) 269 CLR 507 at [52] (Kiefel CJ and Keane J), [163]-[164] (Edelman J).
There is an obvious difficulty, however, with the appellant’s contentions in relation to this first offence. Whereas conspiracy to commit an offence and attempt to commit an offence are each separate offences from the offence to which the conspiracy or attempt relates, the same cannot be said of accessorial liability. Under s 267 of the CLCA, which reflects the common law position, “a person who aids, abets, counsels or procures the commission of an offence is liable to be prosecuted and punished as a principal offender.” As confirmed by the High Court in Giorgianni v The Queen,[20] a person who aids, abets, counsels or procures the commission of an offence by a principal does not commit an offence separate from the primary offence committed by the principal. Rather, he or she is liable for that primary offence.
[20] Giorgianni v The Queen (1985) 156 CLR 473 at 490-492 (Mason J).
In our view, the subject offence fell within paragraph (b)(viii) of the definition of a serious offence. Given that the culpability of an accessory may be comparable with, and sometimes greater than, the person who commits the offence, there is nothing surprising or unexpected about this conclusion. To the contrary, it would be surprising were accessorial liability for offences otherwise treated as serious offences not also to be treated as serious offences.
As to the second of the offences said to be a serious offence (the August 1991 offence of assault with intent to resist lawful apprehension), the respondent acknowledges that this is no longer an offence under the CLCA, but relies upon paragraph (b)(xi) of the definition of a serious offence on the basis that it is an offence under a corresponding previous enactment that is “substantially similar” to an offence referred to in a preceding subparagraph. More particularly, the respondent contends that what was formerly the offence of assault with intent to resist lawful apprehension under s 43 of the CLCA, is substantially similar to the current offence of assaulting a prescribed emergency worker in the course of official duties under s 20AA of the CLCA (being an offence under Part 3 of the CLCA, and hence falling within paragraph (b)(iv) of the definition of a serious offence).
As at August 1991, s 43 of the CLCA was in the following terms:
Assaults in the course of resisting arrest, etc.
43. Any person who –
…
(b) assaults, resists or wilfully obstructs any police officer in the due execution of his duty or any person acting in aid of such officer;
(c) assaults any person with intent to resist or prevent the lawful apprehension or detention of himself, or of any other person, for any offence,
shall be guilty of a misdemeanour and liable to be imprisoned for a term not exceeding five years.

Section 20AA(3) of the current version of the CLCA provides:
(3) A person who assaults a prescribed emergency worker acting in the course of official duties is guilty of an offence.
Maximum penalty: Imprisonment for 5 years.
The appellant does not accept that the offence under the former s 43(c) is substantially similar to the offence under the current s 20AA(3).
In our view, consideration of whether two offences are substantially similar for the purposes of paragraph (b)(xi) of the definition of a serious offence calls for a relatively broad comparison of the two offences, focusing upon the elements of the two offences and having regard to the gravamen of each of those offences, but ultimately searching for similarity in the general nature of the conduct addressed by the offences rather than any identity in the elements or terms of those offences.
It is to be accepted that there are differences between the former s 43(c) offence and the current s 20AA(3) offence. The former requires a specific intention (being an intention to resist lawful apprehension) that is not required by the latter. And the latter embraces a broader class of victims, not confined to police officers. It can be said that the gravamen of the former encompasses the specific intention that it requires, whereas the gravamen of the latter is focused upon the identity of the victim. While this is true, we consider that there is nevertheless a similarity in the substance of the conduct addressed by each offence. They both address assaults of police officers acting in the lawful execution of their duties. We do not think that the greater breadth of s 20AA(3) precludes a finding that the former s 43 is substantially similar to it.
The appellant also challenges the characterisation of this second offence as a serious offence on a second basis; namely, that the prosecution failed to prove that the appellant was sentenced to imprisonment[21] as opposed to detention (bearing in mind that he committed the offence as a youth and that the offence was dealt with in the Children’s Court).[22]
[21] Noting that the concluding words of paragraph (b) of the definition of a serious offence require the imposition of a sentence of “imprisonment”.
[22] Noting the distinction drawn between imprisonment and detention: R v Colson (1999) 73 SASR 407 at [13] (Doyle CJ, Prior and Mullighan JJ agreeing), in the context of the predecessor legislation.
In the course of sentencing submissions, the prosecutor initially relied upon an antecedent report in the usual form. That report stated that on 23 August 1991, the appellant was convicted of several offences, including not only assault with intent to resist lawful apprehension, but also illegal use of a motor vehicle, escape lawful custody, assault occasioning actual bodily harm, assault police, carry offensive weapon, and building breaking and felony. It stated that he received a sentence of “9 months imprisonment” for the first of these offences, with no additional penalty being imposed in respect of the balance of the offences dealt with on that occasion. Significantly, this was in a context where the same antecedent report also referred to a large number of previous offences the appellant had committed while a juvenile, and to the appellant having received sentences of detention in respect of several of these offences. In other words, the report drew a distinction between periods of detention and periods of imprisonment.
Counsel for the appellant did not concede that this was sufficient to establish that the appellant was sentenced to a period of imprisonment as opposed to detention. As a result the prosecutor obtained an affidavit from a police officer who deposed to having conducted a check of the police records in relation to the juvenile criminal history of the appellant. The officer said that these checks confirmed the detail from the antecedent report summarised above, and attached a printout from police records to this effect.
The appellant contends that this was inadequate proof that a sentence of imprisonment, as opposed to detention, was imposed. The point having been taken, it would have been preferable had the Court been provided with the relevant records from the Children’s Court. That did not happen, and this Court was told (from the bar table) that this was because those records were not able to be located. However, we do not think there was any error in the sentencing court relying upon the terms of the antecedent report, as confirmed by the check conducted with police records. Given that the report appeared to distinguish between sentences of detention and sentences of imprisonment, and that the history and nature of the appellant’s offending was consistent with the imposition of a sentence of imprisonment, we do not think the judge fell into error in relying upon the material that was before him.
For the reasons set out, we are satisfied that the second offence relied upon by the prosecution was properly characterised as a serious offence.
As to the third of the offences said to be a serious offence (the May 1997 offence of assault occasioning actual bodily harm), this is also an offence which no longer exists. The prosecution once again relied upon paragraph (b)(xi) of the definition of a serious offence, this time contending that what was formerly the offence of assault occasioning actual bodily harm under s 40 of the CLCA is substantially similar to the current offence of assault causing harm under s 20(4) of the CLCA (being an offence under Part 3 of the CLCA and hence within paragraph (b)(iv) of the definition of a serious offence).
We interpolate that there was some confusion at the time of sentencing submissions as to whether the prosecutor sought to rely upon s 20(4) of the CLCA (assault causing harm) or s 24 of the CLCA (assault causing harm with intent to cause harm) as the current offence that is substantially similar to the offence of which the appellant was convicted. Whilst the sentencing judge referred to the latter in his sentencing remarks, it would appear that this was a slip, given that the prosecutor had confirmed his reliance upon the former by the time the judge pronounced sentence.
As at May 1997, s 40 of the CLCA was in the following terms:
Assaults occasioning harm
40. Any person convicted of assault occasioning actual bodily harm shall be liable to be imprisoned for a term not exceeding five years or, where the victim was at the time of the commission of the offence under the age of twelve years, for a term not exceeding eight years.
Section 20(4) of the current version of the CLCA provides:
(4)     A person who commits an assault that causes harm to another is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 3 years;
(b)     for an aggravated offence (except one to which paragraph (c) or (d) applies)—imprisonment for 4 years;
(c)     for an offence aggravated by the use of, or a threat to use, an offensive weapon—imprisonment for 5 years;
(d)     for an offence aggravated by the circumstances referred to in section 5AA(1)(c), (ca) or (ka)—imprisonment for 7 years.
Note—
This offence replaces section 40 (assault occasioning actual bodily harm) as in force prior to the commencement of this subsection and, consequently, see Coulter v The Queen (1988) 164 CLR 350.
As reflected in the note to s 20(4), it was enacted to replace what was formerly s 40. We are satisfied that the former is substantially similar to the latter. The former carried a maximum sentence of five years imprisonment (in the case of a victim at least 12 years of age).
On one construction of the definition of a serious offence, it is sufficient to satisfy the introductory words of paragraph (b) that the former offence relied upon in paragraph (b)(xi) carried a maximum of five years imprisonment. Whilst paragraph (b)(xi) requires that this former offence be substantially similar to an offence referred to in a preceding paragraph (here, the current s 20(4), being an offence under Part 3 of the CLCA, and hence an offence referred to in paragraph (b)(iv) of the definition), it does not require that that offence carry a maximum of five years imprisonment.
That said, the construction of this aspect of the definition of a serious offence was not the subject of any detailed submissions and we acknowledge that the definition is capable of being read as also requiring that the substantially similar current offence carry a five year maximum. If this construction of the definition were to be adopted there would be a further issue, because the current s 20(4) of the CLCA contains a range of maxima. Whilst certain versions of the aggravated offence carry maxima of at least five years imprisonment, the basic offence carries a maximum of only three years imprisonment.
On the former construction of the definition of a serious offence, there is no such issue, and the third offence is a serious offence. However, whether this construction is to be preferred need not be resolved for the purposes of the present case, because having concluded that the first, second and fourth offences are serious offences, we are nevertheless satisfied that the appellant has committed, and been convicted of, three serious offences.
In summary, the appellant has not established any error in the sentencing judge’s finding that the appellant was a serious repeat offender.
Resentencing
It remains to re-sentence the appellant. In so doing, it is not necessary to set out the circumstances of the offending or the personal circumstances of the appellant. They have already been addressed at length.
In our view, an appropriate starting point for the appellant’s head sentence is nine years imprisonment.
In exercising the Court’s discretion as to an appropriate reduction in the appellant’s sentence on account of his early plea of guilty, we would reduce the head sentence to six years and four months imprisonment, being a reduction of approximately 30 per cent. Whilst accepting that there remained significant utilitarian value in the appellant’s early plea, we are satisfied that, by reason of the seriousness of the offending, the strength of the prosecution case and the lack of any genuine remorse on the part of the appellant, any greater reduction would, or may, affect public confidence in the administration of justice.
For the reasons set out, the appellant is to be sentenced as a serious repeat offender. We would therefore fix a non-parole period of five years and 24 days, being four-fifths the length of the appellant’s head sentence.
We would backdate the sentence of imprisonment and non-parole period to commence on the day the appellant was taken into custody.
Conclusion
For the reasons set out, and noting that there has already been a grant of permission in respect of Grounds 1 and 2, we grant permission to appeal in respect of Ground 3. We allow the appeal, set aside the sentence imposed below and resentence the appellant to a sentence of six years and four months imprisonment, with a non-parole period of five years and 24 days. We backdate the sentence of imprisonment and non-parole period to the day the appellant was taken into custody. We leave in place the forfeiture order made by the sentencing judge.