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…