O'NEILL v The Queen - [2020] SASCFC 78

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
O'NEILL v THE QUEEN
[2020] SASCFC 78
Judgment of The Court of Criminal Appeal
(The Honourable Justice Stanley, The Honourable Justice Nicholson and The Honourable Justice Hughes)
26 August 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - CO-OPERATION WITH POLICE OR ASSISTANCE TO AUTHORITIES
Appeal against sentence.
The appellant pleaded guilty to one count of aggravated serious criminal trespass in a place of residence, one count of aggravated assault causing harm, and one count of aggravated robbery contrary to subsections 170(1), 20(4) and 137(1) of the Criminal Law Consolidation Act 1935 (SA) respectively.
On 8 September 2017, the appellant, as part of a joint criminal enterprise with at least four co-offenders, forced entry to the home of the victim. The offenders bound the victim and a visitor, and assaulted the victim while demanding money and property. Several items of property were stolen, including motor vehicles. The appellant, a former member of the Mongols Motorcycle Club, told police he had agreed to participate in the offending at the request of RM in order to repay a drug related debt owed to AM, who was RM’s brother and the then national sergeant of the gang. After pleading guilty, the appellant provided cooperation to police in the form of giving statements and an offer to give evidence at the trial of the co-accuseds. The appellant was sentenced to a single penalty of four years, nine months and 20 days imprisonment to be served cumulatively on existing sentences giving rise to a total period of imprisonment of nine years and five months. The pre-existing non-parole period of two years was increased to five years. In passing this sentence, the Judge gave a sentencing discount of 30 per cent for cooperation and 10 per cent for the guilty pleas.
The sole ground of appeal was that the sentence imposed is manifestly excessive, as the Judge erred in applying a discount pursuant to section 37 of the Sentencing Act 2017 (SA) of only 30 per cent; this was unreasonable being a discount outside the range available to the Judge in the circumstances.
Held per Nicholson J (Stanley and Hughes JJ agreeing) dismissing the appeal:
1. The Judge erred in making a declaration under section 37 of the Sentencing Act 2017 (SA) and in purporting to sentence the appellant according to its terms.
2. The Judge’s decision to apply a discount of 30 per cent was well within the discretionary range available to the Judge and not unreasonable, whether at common law or under section 37 in the circumstances of this case.
3. The head sentence and non-parole period are not manifestly excessive.
4. Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 5, s 20, s 83E, s 137, s 170; Sentencing Act 2017 (SA) s 26, s 36, s 37, s 38, s 39, s 40, s 41, s 42, s 43 , referred to.
House v The King (1936) 55 CLR 499; The Palace Gallery Pty Ltd v The Liquor and Gambling Commissioner & Ors (2014) 118 SASR 567; Owen v South Australia (1996) 66 SASR 251; K-Generation v Liquor Licensing Court (2009) 237 CLR 501; Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529; R v El Hani [2004] NSWCCA 162; DPP (Cth) v AB (2006) 94 SASR 316; Veen v The Queen (1978) 143 CLR 458; R v B, TB; R v J-M, AM [2013] SASCFC 40; R v Bray; R v Malatesta [2017] SASCFC 104; R v Zhang (2017) 265 A Crim R 113, discussed.

O'NEILL v THE QUEEN
[2020] SASCFC 78
Court of Criminal Appeal: Stanley, Nicholson and Hughes JJ

STANLEY J: I would dismiss the appeal. I agree with the reasons of Nicholson J.
NICHOLSON J.
Introduction
The appellant,[1] after pleading guilty, was convicted by a Judge of the District Court of the following offences: aggravated serious criminal trespass in a place of residence, in contravention of subsection 170(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA);[2] aggravated assault causing harm, in contravention of subsection 20(4) of the CLCA;[3] and aggravated robbery in contravention of subsection 137(1) of the CLCA.[4] Each of the offences was aggravated in two ways: by committing the offence in company; and by the use of various offensive weapons including a knife, a taser, and a baseball bat.[5] The appellant was initially also charged with false imprisonment. However, this charge was later discontinued. It was accepted that the appellant committed the offences on a joint criminal enterprise basis with at least four co-offenders.
[1]    A Judge of this Court previously granted permission to appeal.
[2]    This offence attracts a maximum penalty of life imprisonment.
[3]    This offence attracts a maximum penalty of five years imprisonment.
[4]    This offence attracts a maximum penalty of life imprisonment.
[5]    However, the last was not alleged in the information for count 1.
The Judge imposed a single penalty pursuant to section 26 of the Sentencing Act 2017 (SA) (the Act) of imprisonment for four years, nine months and 20 days. That sentence was ordered to be served cumulatively upon a seven month sentence the earlier suspension of which was revoked by the Judge following the appellant’s breach of bond. Those sentences were ordered to be served cumulatively on a sentence of four years and 19 days previously imposed by another Judge for unrelated offending and which the appellant commenced to serve on 21 November 2018. The total period of imprisonment ordered was nine years and five months, rounded down from nine years, five months and nine days, commencing from 21 November 2018. The existing non-parole period of two years was increased to five years which also commenced on 21 November 2018.
The notice of appeal contains the single ground, that the head sentence of four years, nine months and 20 days and the non-parole period of five years are manifestly excessive.
In arriving at the head sentence, the Judge nominated a starting point for all three offences of 10 years. He then allowed a discount of 10 per cent for the late guilty pleas and a further discount of 30 per cent for cooperation, pursuant to section 37 of the Act. His Honour allowed credit of one year, two months and 10 days for time served.
In support of the ground of manifest excess, the appellant contended that the Judge erred by applying a discount pursuant to section 37 of the Act of only 30 per cent; this was unreasonable[6] being a discount outside the range available to the Judge in the circumstances. The appellant contended that section 37 is to be construed as providing for a discount, in circumstances where section 37 applies, beyond that which would have been available at common law. This was the only basis relied on as establishing manifest excess.
[6] House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505.
Background to and circumstances of offending
The appellant is 34 years of age and was 31 at the time of this offending. He has a significant history of prior offending, and was subject to both a bail agreement and a good behaviour bond at the time of the offending. He is a former member of the Gypsy Jokers Motorcycle Club and more recently the Mongols Motorcycle Club (Mongols). He ceased being a member of the latter shortly prior to the offending.
The Judge accepted that the appellant had incurred a drug related debt. The Judge made no finding as to the amount of the debt nor how this debt originally came about. However, the appellant, when giving evidence, explained to the effect that he had been unable to repay the debt, as it had accumulated, because monies owed to him from selling drugs had not been collected when he went into prison. The debt was owed to AM, at the time, the national sergeant of the Mongols. AM was said, I infer euphemistically, to have required payment as soon as possible.
The appellant agreed to join the enterprise which led to the subject offending, with the understanding that his participation would amount to payment of some or all of this debt. The appellant said that he was asked to participate by a co-accused, RM, the younger sister of AM. The appellant gave this evidence.
Q.And you were approached by someone to commit these offences for which you pleaded guilty.
A.Yes, I was.
Q.Can you explain to his Honour how that came about.
A.I was approached by [RM]. She already knew I owed her brother money and that’s how it came to the events of what happened with [the victims].
Q.Where did that happen.
A.Two Wells.
Q.It wasn’t done over the phone or anything.
A.At the start of it it was; to approach each other yes, it was.
Q.And did you speak to [AM] as part of this.
A.No, no, I didn’t.
Q.But it was your view that he was behind it.
A.He was behind it, yes.
Q.And so what did you do.
A.I approached his sister because I was asked to.
Q.Approached who.
A.Approached [RM].
QYes.
A.And she’d asked me to help her out to move some vehicles and she made it quite clear that I still owed some money and that’s why I’d be helping.
Q.So what did you do.
A.I asked a couple of friends help me move some vehicles.
In the early hours of Friday 8 September 2017,[7] at least five masked persons, including the appellant, forced entry into the home of the victim, JA. The group comprised four males and one female, some wearing balaclavas and others wearing face masks with a skeleton print (count 1 - aggravated serious criminal trespass in a place of residence). Upon entering, the group detained JA, along with a female visitor, NS, who was staying over that night. JA was tasered and then punched in the face by different members of the group. JA’s hands were bound with tape and he was repeatedly punched and kicked by members of the group, including being “jabbed” in the back with a baseball bat (count 2 – aggravated assault causing harm).
[7] Approximately 2.30-3.00am.
A member of the group, who appeared to JA to be the leader, then demanded phones, keys, and money from the victims. At the direction of that member, another member held a knife to the back of JA’s neck as he lay bound on the floor (count 3 – aggravated robbery). The apparent leader then said to JA “If you move, I’ll cut your fucking throat, don’t fucking move”, and instructed another male “if he moves stab him, fucking kill him.”.
The group was on the premises for approximately 45 minutes. Three cars, three motorcycles, one trailer, electronic items, and $800 in cash were taken. A van also removed from the property was later found abandoned in the street. JA suffered pain in the right eyebrow, a nasal laceration, and swelling and bruising to the left temple. Police observed damage to the premises and the gates to the vehicle compound which was also located on the property.
The appellant’s premises were searched by police later that day and again the following day. Several items were located, including: a black balaclava, a Holden key identified by JA as belonging to him and which started the stolen silver Statesman,[8] and a green aluminium baseball bat also identified by JA. A fabric skull mask was located on the person of a female present at the appellant’s premises. A white Camry belonging to a co-accused was also located at the appellant’s premises. The appellant was subsequently arrested and charged.
[8] The key also had markings of Pickles Auction, from where JA had purchased the vehicle.
Judge’s approach to sentence
The Judge characterised the offences as “very serious … particularly having regard to the circumstances”, noting that the victims were “easy targets in an isolated location” and the group of offenders was “well armed, equipped and intimidating to put it mildly”. The Judge described the impact of the offending on the victims of the offence and the circumstances of the offending. His Honour also canvassed the appellant’s personal circumstances which included a significant history of prior offending, acknowledged the difficulties the appellant would face in prison as a result of having left the Mongols and having agreed to provide assistance to the police, and expressed some optimism about the appellant’s prospects for rehabilitation.
As earlier indicated, the Judge started with a head sentence of 10 years imprisonment as to which his Honour allowed the discounts earlier mentioned and the credit for time in custody. In order to allow the discount for cooperation, his Honour made a declaration, over the opposition of the Director of Public Prosecutions that the appellant was a person who fell within section 37 of the Act.
The Judge was satisfied, based on “a combination of reasons”, that the appellant fell within the ambit of section 37. In allowing the discount of 30 per cent, the Judge said that a “significant discount” was called for given that the appellant was prepared to give evidence for the prosecution in the case against the other co-accuseds. The Judge observed the following:
I also make the general point that the policy behind the legislation is to reward persons, such as yourself, who cooperate in the manner proposed by you. A great deal of crime is committed by groups or gangs and it is very difficult to penetrate those groups because of the wall of silence they enforce and the risk and threat of violent retribution.
The Judge remarked that the cooperation had put the appellant at “significant risk” in the prison system and upon his release. There was also possible risk to the appellant’s family, resulting in an “additional discount”. His Honour remarked that the appellant would be labelled a “dog”, had spent time in protective custody, and had been “bashed” whilst in custody. The Judge also noted that the appellant had written a letter of apology and his Honour accepted that the appellant was drug free in custody, was willing to undertake rehabilitation programs and wished to live a law-abiding life upon release.
The appeal
The Director did not cross appeal on the applicability of section 37 with respect to the appellant. However, this issue was raised during the submissions on appeal. The challenge to the application of section 37 was dealt with in detail in the Director’s responding written submissions. Counsel for the appellant indicated that he was not embarrassed by the late raising of this issue. Section 37 provides as follows.
37—Reduction of sentences for cooperation etc with law enforcement agency
(1)A court may declare a defendant to be a defendant to whom this section applies if the court is satisfied that the defendant has cooperated or undertaken to cooperate with a law enforcement agency and the cooperation—
(a)     relates directly to combating serious and organised criminal activity; and
(b)     is provided in exceptional circumstances; and
(c)     contributes significantly to the public interest.
(2)In determining sentence for an offence or offences to which a defendant has pleaded guilty or in respect of which a defendant has been found guilty, the court may, if the defendant is the subject of a declaration under subsection (1), reduce the sentence that it would otherwise have imposed by such percentage as the court thinks appropriate in the circumstances.
(3)In determining the percentage by which a sentence is to be reduced under this section, the court must have regard to such of the following as may be relevant:
(a)     if the defendant has pleaded guilty to the offence or offences—that fact and the circumstances of the plea;
(b)     the nature and extent of the defendant's cooperation or undertaking;
(c)     the timeliness of the cooperation or undertaking;
(d)     the truthfulness, completeness and reliability of any information or evidence provided by the defendant;
(e)     the evaluation (if any) by the authorities of the significance and usefulness of the defendant's cooperation or undertaking;
(f)     any benefit that the defendant has gained or is likely to gain by reason of the cooperation or undertaking;
(g)     the degree to which the safety of the defendant (or some other person) has been put at risk of violent retribution as a result of the defendant's cooperation or undertaking;
(h)     whether the cooperation or undertaking concerns an offence for which the defendant is being sentenced or some other offence, whether related or unrelated (and, if related, whether the offence forms part of a criminal enterprise);
(i)    whether, as a consequence of the defendant's cooperation or undertaking, the defendant would be likely to suffer violent retribution while serving any term of imprisonment, or be compelled to serve any such term in particularly severe conditions;
(j)    the nature of any steps that would be likely to be necessary to protect the defendant on release from prison;
(k)     the likelihood that the defendant will commit further offences,
and may have regard to any other factor or principle the court thinks relevant.
(4)In this section—
serious and organised criminal activity includes any activity that may constitute a serious and organised crime offence within the meaning of the Criminal Law Consolidation Act 1935.
Included in section 5 of the CLCA is the following definition.
serious and organised crime offence means—
(a)an offence against Part 3B; or
(b)an offence that—
(i)    is punishable by life imprisonment; or
(ii)     is an aggravated offence against a provision of this, or any other, Act,
if it is alleged that the offence was committed in the circumstances where—
(iii)    the offender committed the offence for the benefit of a criminal organisation, or 2 or more members of a criminal organisation, or at the direction of, or in association with, a criminal organisation; or
(iv)    in the course of, or in connection with, the offence the offender identified himself or herself in some way as belonging to, or otherwise being associated with, a criminal organisation (whether or not the offender did in fact belong to, or was in fact associated with, the organisation);
The three criteria in subsection 37(1) are cumulative. It follows from the definition in subsection 37(4) that the appellant will come within the first criterion for the making of a declaration under section 37 (paragraph (a) of subsection 37(1)), if the appellant, on whom the onus rests, satisfies the Court that:
the defendant has cooperated or undertaken to cooperate with a law enforcement agency and the cooperation relates directly to combating [any activity that may constitute a serious and organised crime offence] [as defined].
It is common ground that the appellant cooperated with a law enforcement agency and it was accepted by the prosecution that the cooperation related directly to combating[9] the activity that constituted the offences to which the appellant pleaded guilty. The cooperation provided and agreed to be provided comprised identifying the roles played by the appellant and his co-accuseds in the offending, that is, what occurred on the day and his agreement to give such evidence at the trial of the co-accuseds.
[9] It should not be assumed that I either agree or disagree with this concession. Given my ultimate conclusion in this matter, it is unnecessary that I do either. I simply mention that the notion of “combating” usually speaks to the present continuous and/or future. The question might arise as to whether cooperation with respect to that which has already occurred falls within “combating” that activity.

The Director’s primary contention is that, in the circumstances of this matter, the appellant’s cooperation did not relate directly to combating serious and organised criminal activity, as defined.
The Director also contended that the cooperation was not provided in exceptional circumstances (paragraph (b) of subsection 37(1)) nor did it contribute significantly to the public interest (paragraph (c) of subparagraph 37(1)).
Appellant’s submissions
Counsel for the appellant argued that the appellant fell within the ambit of subsection 37(1) because the cooperation provided met each of the criteria for a declaration under that subsection.
The first criterion required the appellant to have provided cooperation related directly to “serious and organised criminal activity”. There was no challenge by the Director that the Mongols is a criminal organisation nor that its activities include the selling of drugs.
Each of the three offences was aggravated[10] and two of them attracted a maximum penalty of imprisonment for life.[11] In order for any of these offences to qualify as a serious and organised crime offence the appellant primarily sought to invoke paragraph (b)(iii) of the definition by alleging that the appellant committed the offences at the direction of, or in association with a criminal organisation (the Mongols).
[10] Paragraph (b)(ii) of the definition of “serious organised crime offence”, Criminal Law Consolidation Act 1935 (SA) s 5.
[11] Paragraph (b)(i) of the definition of “serious organized crime offence”, Criminal Law Consolidation Act 1935 (SA) s 5.
I interpolate here that the appellant’s reliance on paragraph (b)(iii) of the definition of “serious and organised crime offence” depends on the acceptance of a particular reading of the chapeau to placita (iii) and (iv) in paragraph (b) – “if it is alleged that the offence was committed in the circumstances where …”. Again, I do not need to decide the point (it was not argued on the appeal) and I will accept the appellant’s implicit assumption for the purpose of this appeal. However, a question to be considered might be whether section 37(1)(a) is engaged simply because in sentencing submissions, the accused asserts the matters in (iii) or (iv) or is it the case that an allegation of that nature has to have been made by the prosecution when prosecuting the offence or in sentencing submissions.
I return to the appellant’s submission. It was contended that the words in paragraph (b)(iii) of the definition of “serious and organised crime offence” are to be construed broadly. In support of this contention, counsel referred to the appellant’s written statements to the police and to evidence and submissions before the sentencing Judge.
The appellant’s statement of 4 September 2019 set out how the appellant became involved in the offending. The appellant said that he received a text from a co-accused WP, telling him that he needed to “catch up with [RM] for a big job”. The appellant went to RM’s house where he was told by RM that she needed help moving cars, as she knew the person “personally” and they “owed some money”. RM said that AM knew about it. WP, who was also at the house, then joined the conversation and the appellant told WP that RM needed help. At the time of this conversation the appellant had an association with AM and owed him $18,000. In an addendum statement dated 11 September 2019, the appellant clarified that AM was the Australian national sergeant of the Mongols, and the appellant was associated with him through the club. He also noted that the amount owed had increased to $36,000 following his non-payment of the original debt as a result of his arrest shortly after the offending, and that the debt was owed to AM and not the club.
Counsel then referred the Court to the transcript of the sentencing submissions on 10 September 2019. The only submissions that appear to have been made by counsel directly referable to this first criterion, are those related to the appellant’s willingness to appear as a witness for the prosecution. However, during the course of submissions the appellant gave evidence, which included the following:
(i)the appellant joined the Mongols at the end of 2015, start of 2016 when he was 29;
(ii)a description of how the appellant became involved with the club and the requirements to become a fully-patched member;
(iii)the appellant left the club on 28 August 2017 due to club tension, leadership issues, and not wanting to spend time away from his family;
(iv)on 28 August 2017, the appellant said he was leaving after a fight with AM, the national sergeant of the Mongols;
(v)RM is the younger sister of AM;
(vi)the repercussions of leaving the Mongols included outstanding moneys owed by the appellant to AM had to be paid;
(vii)the debt totalled $18,000 and was drug related, and incurred by the appellant whilst he was in gaol;
(viii)the debt was due as soon as possible, possibly two days to a week, but no more than that;
(ix)if the appellant didn’t meet the deadline he would probably end up in hospital or “crippled”; and
(x)the appellant was approached by RM who asked him to help “move some vehicles” and “made it quite clear that [the appellant] still owed some money and that’s why [the appellant would] be helping”.[12]
[12] See also paragraph [9] above.
During the argument on appeal, it was further submitted that the appellant was of the view, by inference, that some or all of the debt would be relieved if he participated in “moving” the vehicles.
Counsel submitted that the appellant’s cooperation was directly related to combating serious and organised criminal activity. It was put that the collection of a “bikie debt” from an ex-member who is trying to leave the Mongols, and the techniques used to keep such people involved, was consistent with other legislative attempts to break-up clubs, and is directly related to combating organised crime.
Counsel also submitted, although did not fully develop, that the appellant also fell within paragraph (a) of subsection 37(1) because the cooperation directly related to combating activity that may constitute an offence against Part 3B of the CLCA; in this case, the appellant’s participation in the subject offending, may constitute an offence under section 83E of the CLCA.[13] The use of the phrase “may constitute” a serious and organised crime offence in subsection 37(4) meant that it was not necessary for the appellant to have been charged with the section 83E offence. The cooperation must merely be related directly to combating an offence against section 83E. In advancing this submission, the appellant submitted that his disclosure of the participants and his preparedness to give evidence against them fell within the Part 3B offence alternative.
[13] 83E—Participation in criminal organisation
(1)A person who participates in a criminal organisation—
(a)knowing that, or being reckless as to whether, it is a criminal organisation; and
(b)knowing that, or being reckless as to whether, his or her participation in that organisation contributes to the occurrence of any criminal activity,
is guilty of an offence.
Maximum penalty: Imprisonment for 15 years.
(2)A person who assaults another person, knowing that, or being reckless as to whether, he or she is, by that act, participating in a criminal activity of a criminal organisation, is guilty of an offence.
Maximum penalty: Imprisonment for 20 years.
(3)A person who destroys or damages property belonging to another person, or threatens to destroy or damage property belonging to another person, knowing that, or being reckless as to whether, he or she is, by that act, participating in a criminal activity of a criminal organisation, is guilty of an offence.
Maximum penalty: Imprisonment for 20 years.
The appellant submitted that the second criterion (paragraph (b) of subsection 37(1)) that the cooperation of the appellant was provided in exceptional circumstances, was also satisfied. It was argued that, by implication, the sentencing Judge had found that the cooperation had been provided in exceptional circumstances. The following findings supported that implication.
(i)as a result of the cooperation, the appellant has been and will be exposed to significant physical risk in the prison system and upon his eventual release;
(ii)the appellant, if not already, will be labelled a “dog”;
(iii)the appellant has spent periods of time in protective custody and will be subject to protective custody for much, if not all, of his time in prison; and
(iv)the appellant has been assaulted whilst in custody.
Counsel also relied on the matters referred to in the appellant’s evidence summarised at paragraph [21] above and the following matters raised during sentencing submissions without objection, as constituting exceptional circumstances.
(i)the appellant entered protective custody two and a half months after entering custody;
(ii)the appellant was assaulted on three separate occasions;
(iii)the debt has doubled since the appellant went into custody;
(iv)the appellant has fears for the future, being worries about his safety, for at least the first 10 years out of custody; and
(v)the appellant has worries for the safety of his family.
Counsel for the appellant submitted without objection that the appellant’s first statement had been posted on the internet and distributed throughout the South Australian prison system yet, not withstanding this, the appellant continued to provide information to police. It was also submitted that the rarity of a former fully-patched member of an outlaw motorcycle gang giving evidence in court against co-accuseds is by itself exceptional.[14]
[14] The available information discloses that only one of the co-accuseds was a member of the gang, but that person pleaded guilty prior to the appellant’s cooperation.
The third and final criterion in 37(1) is that the cooperation contributes significantly to the public interest. The appellant submitted that this was satisfied by the following.
(i)the rarity of a former fully-patched member of a motorcycle gang giving evidence in relation to criminal activities by an outlaw motorcycle gang.
(ii)that the cooperation implicated additional persons involved in the offending; and
(iii)that the cooperation expedited the trial by contributing to the withdrawal by a co-accused of an application for a separate trial and the removal of that issue from the voir dire.
Respondent’s submissions
The Director’s primary submission on the applicability of subsection 37(1), was that the appellant did not satisfy the first criterion. It was submitted that there is nothing in the appellant’s evidence to suggest that the offending occurred for and on behalf of the Mongols, or in furtherance of the Mongols criminal activity. To the contrary, the Director submitted that the appellant’s 4 September 2019 statement to the police revealed that the debt was an obligation owed to AM by virtue of their association. When pressed on this issue, the Director accepted that it was open to the Judge, on the balance of probabilities, to infer that the debt was owed to the Mongols by virtue of the appellant’s engagement in drug trafficking. However, even if that were to be accepted, the cooperation did not relate to the Mongol’s drug trafficking activities. It was submitted that the evidence did not permit that inference to be drawn.
The Director accepted that the Mongols featured in the background. However, the cooperation was not in relation to the organised criminal activities of that gang.
The Director contended that the requirement “relates directly to”, by its terms, is not to be construed broadly. The necessary relationship must be a direct one. However, more flexibility may be found in the definition of “serious and organised criminal activity” because the definition in subsection 37(4) is inclusive. Something other than a serious and organised crime offence, as defined, might qualify. Nevertheless, and even if so, the appellant’s cooperation in this case, whilst it might have related to serious criminal activity, did not relate to activity that answered the description “organised” – it did not relate to an organisation or the furtherance of an organisation’s purposes.
The Director also contended that the circumstances in this matter were not exceptional nor did the cooperation contribute “significantly” to the public interest. The prosecution case against the remaining co-accuseds is circumstantial. By inference, all of the co‑accuseds participated in the home invasion. The value of the appellant’s evidence is in its capacity to identify who did what. But the prosecution case does not stand or fall with the appellant’s evidence. The matters relied on by the appellant are matters that are taken into account and allowed for when a discount at common law is given for cooperation. Something more is required for section 37 which whilst it permits a discount greater than that ordinarily available at common law it does so only in exceptional circumstances.
Consideration
Whilst not expressly stated to be so, section 37 supplements rather than replaces the common law dealing with sentence discounts following cooperation with law enforcement authorities. This is clear when the mischief sought to be overcome by and the purpose of section 37 is understood according to the Attorney-General’s second reading speech when this section was first introduced as section 10A of the Criminal Law (Sentencing) Act 1988 (SA).[15] In South Australia the common law continues to apply[16] in that extrinsic material such as a Minister’s second reading speech can only be considered to determine the mischief to which an Act is directed or to identify the purpose of a statutory provision.[17] However, it remains within the province of the Court, by reference to the words of the statute, to determine its operation and effect.[18]
[15] Section 37 of the Act was first introduced in 2012 (operational on 11 March 2013) as section 10A of the Criminal Law (Sentencing) Act 1988 (SA) (together with other reforms, sections 10B and 10C relating to sentencing discounts). Section 10A was repealed by the Act but replicated in identical terms in section 37 of the Act, as were sections 10B and 10C (now sections 39 and 40). In addition, other sections relating to sentencing discounts were introduced (sections 36, 38, and 41 to 43).
[16] Cf; for example, section 15AB of the Acts Interpretation Act 1901 (Cth).
[17] The Palace Gallery Pty Ltd v The Liquor and Gambling Commissioner & Ors [2014] SASCFC 26; (2014) 118 SASR 567 at [49]; Owen v South Australia [1996] SASC 5574; (1996) 66 SASR 251 at 256-257; K-Generation v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 at 521-522.
[18] The Palace Gallery Pty Ltd v The Liquor and Gambling Commissioner & Ors [2014] SASCFC 26; (2014) 118 SASR 567 at [49]; Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 at 538.
The second reading speech was given by the then Attorney-General for the State of South Australia, the Honourable JR Rau on 11 July 2012. The mischief to be addressed was identified in these terms.
The Government remains determined … to continue its ongoing efforts against the organised criminal gangs involved in serious crime.
These criminal gangs consider that they are above the reach of the law, and conventional law enforcement is often ineffectual in dealing with them because of the strong fears that their thuggery engenders and the resulting unwillingness of many witnesses to testify or assist the authorities in the investigation and prosecution of such criminals.
The purposes of the Bill introducing section 10A, now section 37, were explained in these terms.
[to encourage] offenders involved in serious and organised crime to turn on their criminal associates and to assist the authorities in the investigation and prosecution of other offenders and/or other crimes.
.  .  .  .
For many years now the courts have sought through substantial reductions in sentences where appropriate … to encourage offenders to assist authorities, especially in serious and organised crime.
.  .  .  .
This Bill builds on and promotes this important policy … The Bill does not cover normal or routine co-operation and is confined to exceptional co-operation or undertakings of exceptional co-operation … .
.  .  .  .
The Bill is confined to discounts for “exceptional” co-operation in the context of serious and organised crime by what can be termed as “supergrasses”. It will arise only in narrow and specific circumstances … The Bill will allow a court to go beyond [the existing range of discounts at common law for] those offenders who fall within the category of a true supergrass.
.  .  .  .
It is necessary that there is a clear distinction between the supergrass who provides valuable and exceptional co-operation to the authorities in the context of serious and organised crime as defined in the Bill and the offender who in contrast provides merely standard or normal co-operation. In the former case, it may be appropriate for the Court to exceed the normal common law range … reduction … In the latter case, it would be inappropriate for the offender to receive excessive and unjustifiable discounts in sentence in return for such standard or normal co-operation. Hence the vital distinction in the Bill between “normal” co-operation where the common law continues to apply and “exceptional” co-operation where the possible discount is at large and could …[19] exceed the normal range at common law… .
[19] Hansard contains the word “not” at this point. It is plainly a typographical error.
In a number of places in the second reading speech, the Attorney referred to the common law discount range for cooperation of “about 20-40 or 50%”. The fons et origo for this proposition is sometimes said to be the observation of Howie J (with whose reasons Simpson and Bell JJ agreed) in R v El Hani.[20]
The range of discount normally appropriate for assistance has been held to be 20 per cent to 50 per cent. The cases usually cited for support for such a range include Cartwright (1989) 17 NSWLR 243 and R v Chu (NSWCCA, unreported, 16 October 1998). In Chu the Chief Justice noted that English authorities supporting a range up to two-thirds had not apparently been followed in this State. It should be noted that Cartwright and Chu were both decided before Thomson and Houlton and were cases where the discount for assistance included the benefit to be received for a plea of guilty.
[20] [2004] NSWCCA 162 at [71].
However, the following points should be noted.
(i)As Perry J (with whose reasons Nyland and Layton JJ agreed) in DPP (Cth) v AB[21] observed, “it does not appear that any clearly defined range has been established in South Australia” which on my understanding remains the case.
(ii)The range suggested in El Hani referred to combined discounts for plea and cooperation.
(iii)In this State, there is a series of legislated maximum discounts for early pleas which vary according to the timing of the pleas. There is now a body of authority in this Court concerning the proper application of the relevant provisions. As such, any common law range based on a combined discount approach in circumstances where the unspecified discounts for an early plea were discretionary and unfettered in the way that applies in this State will be of reduced assistance.
[21] [2006] SASC 84; (2006) 94 SASR 316 at [76].
It was accepted by the Director that, in the event the appellant did not fall within section 37, he was still entitled to have his cooperation with the authorities taken into account in accordance with the common law approach. The Director does not challenge the decision to allow a discount of 30 per cent (in addition to the discount of 10 per cent for the early pleas) provided it was on this basis. According to the Director, whilst generous, a discount of 30 per cent, in the circumstances, was within the discretion available to the Judge.

The evidence discloses that the appellant engaged with other persons in a typical, and unfortunately all too commonplace, home invasion with associated offending, including aggravated robbery of, principally, motor vehicles. Let it be assumed that the appellant had previously engaged in drug dealing on behalf of or in association with AM or the Mongols, that as a consequence he accrued a debt due to AM or the Mongols and that the appellant was offered a means to discharge all or part of this debt.
Subsection 37(1)(a) requires the appellant’s cooperation to be such as “relates directly” to the combating of serious and organised criminal activity. The word “relates” can have a very wide and protean application but not so in subsection 37(1)(a). The word “directly” operates to strictly confine the nature of a qualifying relationship. The word when used as an adjective or, in this case, adverb, means “without changing direction or stopping” or “without anything else being involved or in between”, according to most dictionary definitions.[22]
[22] See, for example, Cambridge Dictionary (online at 10 August 2020) “directly” (def B1).
Furthermore, it is the cooperation itself that is to relate directly to combating serious and organised criminal activity. In this case, at best, the cooperation related directly to combating the conduct of the co-accuseds in their commission of the home invasion and associated offences. Whilst this conduct was serious criminal behaviour it was not of the nature of “serious and organised criminal activity”. In addition, the appellant’s cooperation does not relate directly to combating his own conduct – any cooperation in this respect was effected by and is subsumed in his plea of guilty.
The appellant’s cooperation (by agreeing to give evidence against the co‑accuseds), if it relates directly to combating anything, relates to combating the offences, in fact, committed by the co-accuseds. There is nothing in the evidence to demonstrate that the activity engaged in by the co-accuseds in connection with the home invasion or any of the offences committed, might constitute serious and organised criminal activity.
Their activity could not be said to constitute an offence under section 83E of the CLCA. There is no support for a finding that any of the co-accuseds (or the appellant for that matter) was participating in a criminal organisation nor in a criminal activity of a criminal organisation as required by section 83E.
None of the offences, in fact committed, has been shown to have been committed for the benefit of the Mongols or two or more members of the Mongols or at the direction of or in association with the Mongols. It would appear that the offences were committed by the co-accuseds, other than RM, at the request of the appellant or, at best for the appellant, at the request of and in association with RM.[23] Albeit, that the appellant understood that he would benefit with respect to his relationship with AM, a senior office bearer in the Mongols.
[23] There is no evidence to suggest that RM was a member of the Mongols.
There is insufficient evidence to make a finding as to why the co-accuseds became involved. There is no evidence to suggest that their or the appellant’s involvement had any direct relationship with drug trading by or any other organised criminal activity of the Mongols. The fact that the appellant felt compelled to be involved because of his debt to AM or the Mongols does not assist to characterise the appellant’s cooperation as being directly related to combating any such activity.
I am not at this point persuaded that the definition of “serious and organised criminal activity” includes other activity falling outside a “serious and organised crime offence” as defined in section 5 of the CLCA. That latter definition is quite broad and comprehensive and there are no obvious signposts in section 37 that would allow a meaning to be given to “includes”, where it occurs in subsection 37(4), that could be suitably confined. The definition in subsection 37(4) looks to criminal activity – necessarily a criminal offence alleged or actually committed. To widen the definition to include criminal offences other than a “serious and organised crime offence” as defined in section 5 of the CLCA would necessarily involve an expansion of the terms of that definition and make the reference to that definition in subsection 37(4) rather otiose. The use of the word “includes” in a statutory definition does not necessarily render the definition inclusive rather than exhaustive.[24] The matter was not fully argued and does not need to be resolved. The appellant did not seek to come within a broader meaning to be given to serious and organised criminal activity. The view I have expressed to this point is preliminary only.
[24] See, for example, the discussion in D C Pearce and R S Geddes, Statutory Interpretation in Australia (Lexis Nexis, 7^th ed, 2011) at 6.61-6.65.
I agree with the Director’s submission that the appellant’s application under section 37 before the Judge should have failed at the first hurdle. With respect, the Judge erred in making a declaration under section 37 and in purporting to sentence the appellant according to its terms.
The Director also contends that the requirements in paragraphs (b) and (c) of subsection 37(1) that the cooperation is provided in exceptional circumstances and contributes significantly to the public interest have not been established on the facts. I have earlier briefly summarised the appellant’s and the Director’s respective submissions on this issue.
It is not necessary that I form a concluded view on this issue. I agree with the Director’s submissions that the nature of the cooperation appears to be relatively modest and the offences to which the cooperation relates, relatively commonplace. Further, it is well accepted that an offender who cooperates in this way will expose himself or herself and their family to retribution. Courts applying the law relating to discounts for cooperation deal with such matters routinely.
However, the whole circumstances of the cooperation are to be considered. It is unusual for a former member of an outlaw motorcycle gang to assist the police, simpliciter. And to assist the police with respect to offending in which such a gang or a senior office bearer of such a gang may have an interest is, perhaps, even more unusual. Further, the experience of the courts is that violence perpetrated whether in retribution or for other reasons by such gangs and their individual members, particularly where a former member is involved, often will be particularly brutal. The legislation is plainly intended to encourage cooperation in such circumstances. Without finally deciding, I incline to the view that the circumstances in which the appellant has provided or will provide his cooperation are “exceptional”.
Whether or not the cooperation, itself, has contributed or will contribute significantly to the public interest raises other considerations unnecessary to consider.
Before leaving section 37, the Director indicated that this case might present an opportunity for this Court to consider and explain the operation of section 37, its interaction with the common law and its interaction with other sections in subdivision 4 of Division 2 of the Act (sections 36 and 38 to 43 inclusive).
The Director’s principal contention was to the effect that when applying section 37, there was scope for a court to impose a sentence that is not proportionate,[25] rather a discount for cooperation in the exceptional circumstances envisaged by section 37 may well end up being disproportionate to the nature and circumstances of the offence.
[25] As to the need for proportionality at common law, see Veen v The Queen [1979] HCA 7; (1978) 143 CLR 458.
I do not think it would be appropriate for the Court on this occasion to explore the full ambit of section 37 and how it is that it can co-exist with the common law. First, it is not necessary to do so; the appeal can be determined on the facts once regard is had to the clear language of subsection 37(1)(a). Second, during submissions a number of issues of statutory construction arose which were not fully developed and did not have to be in the circumstances of this appeal.[26] Third, because of the manner in which this issue arose, the appellant’s counsel was not in a position to provide fulsome submissions on this wider issue.
[26] Some have been identified already. Another concerns whether the legislation requires a single combined discount (for plea and cooperation) or the identification of two separate discounts where section 37 operates. The second reading speech clearly contemplated a single discount but whether sections 37-41 effect this apparent intention is another question.
The appellant contends that even if the power to grant a discount pursuant to section 37 were not enlivened, the discount given of 30 per cent was too low even on the basis of common law principles.
I take the view that the appellant’s cooperation was and will be relatively moderate in terms of value to the authorities. However, it occurs in circumstances that have caused the appellant significant physical consequences and may lead to further physical retribution and at the least significant anxiety concerning the risk of future retribution. A substantial discount was warranted. Nevertheless, 30 per cent in addition to the discount for pleas, is substantial. In my view, it was well within the discretionary range available to the Judge whether at common law or under section 37 in the circumstances of this case.[27] The possibility that other judges may have allowed more does not of itself render the total discount of 40 per cent unreasonable and the consequent head sentence and non-parole period manifestly excessive.
[27] In arriving at this conclusion, I have had regard to the relevant considerations identified in the authorities, including R v B, TB; R v J-M, AM [2013] SASCFC 40, R v Bray; R v Malatesta [2017] SASCFC 104 and R v Zhang [2017] SASCFC 5; (2017) 265 A Crim R 113.
Conclusion
I would dismiss the appeal.
HUGHES J: For the reasons given by Nicholson J, I would also dismiss the appeal.