R v Niesen - [2015] SASCFC 165

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NIESEN
[2015] SASCFC 165
Judgment of The Court of Criminal Appeal
(The Honourable Justice Stanley, The Honourable Justice Nicholson and The Honourable Justice Lovell)
13 November 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS
The appellant pleaded guilty to trafficking in a large commercial quantity of a controlled drug, one count of cultivating more than a prescribed number of cannabis plants, three “serious firearm offences” and a number of less serious matters. The sentencing Judge imposed separate sentences for two of the “serious firearm” offences but not the third (count 5). The sentencing Judge, whilst allowing a discount of 30 per cent for early pleas did not nominate a starting point before application of the discount - whether a failure to nominate a notional starting point of a sentence amounts to an error of law – whether the final sentence imposed was manifestly excessive. On the Director’s cross-appeal – whether appellant should be resentenced to correct the failure of the sentencing Judge to sentence separately on count 5 – whether the final sentence imposed was manifestly inadequate.
Held per Nicholson and Lovell JJ:
1. While it is preferable, and in many cases highly desirable, for a sentencing judge to nominate a starting point, the failure of a sentencing judge to expressly do so does not of itself amount to an error that vitiates the exercise of the sentencing discretion.
Held per Stanley J:
2. The failure of the sentencing Judge to identify expressly the notional head sentence to which he applied the 30 per cent discount vitiates the exercise of the sentencing discretion. I would grant the appellant permission to appeal on ground 1, but dismiss the appeal because I am not satisfied that a different sentence should be imposed.
Held per Stanley J (Nicholson and Lovell JJ agreeing), dismissing the appeal:
3. The sentence imposed was not manifestly excessive.
4. Appeal dismissed.
Held per Nicholson and Lovell JJ, allowing the cross-appeal:
5. It was an error for count 5 to be included in the sentence involving the use of s18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act). The sentence is wrong and not available at law and the appeal should be allowed for the purpose of correcting the error. This involves resentencing the appellant, including by resentencing for count 5 separately from the other offences included in the section 18A sentence.
6. Nevertheless, the final head sentence and non-parole period we would impose would remain the same as that imposed by the sentencing Judge namely 6 years with a non-parole period of 4 years to commence 24 August 2014.
Held per Stanley J (Nicholson and Lovell JJ agreeing):
7. The sentence imposed was not manifestly inadequate.
Held per Stanley J (dissenting):
8. The sentencing Judge erred in failing to sentence count 5 as a serious firearm offence. As a result, s 20AAC(1)(d) of the Sentencing Act was contravened by the sentencing Judge utilising s 18A to sentence on count 5.
9. Mere error in the exercise of the sentencing discretion is insufficient to warrant allowing a Crown appeal against sentence. The cross-appeal should only be allowed if it is established that this Court’s intervention is required to correct a sentence which is so disproportionate to the seriousness of the offending that if it was allowed to stand it would erode standards of penalty and undermine public confidence in the administration of justice.
10. Permission to appeal on ground 1 of the cross-appeal granted. Permission to appeal on ground 2 of the cross-appeal refused. Cross-appeal dismissed.
Controlled Substances Act 1984 (SA) s 32(1), s 33K(1)(b), s 33LA(a); Firearms Act 1977 (SA) s 11(1), s 24A(7)(b); Firearms Regulations 2008 (SA) r 38(2), r 61, r 41(1); Summary Offences Act 1953 (SA) s 41(1), s 21F(1)(b); Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 20AA, s 20AAC(1)(d), s 10C, s 10B, s 9, Part 2 of Division 2AA, s 20AAB(1), s 10(2)(e), s 20AAC(2); Supreme Court Criminal Rules 2014 (SA) s 107(2); Criminal Law Consolidation Act 1935 (SA) s 352(2). s 353(4)(b), referred to.
R v Jongewaard (2009) 266 LSJS 283; House v The King (1936) 55 CLR 499; R v Kreutzer (2013) 118 SASR 211; Police v Chilton (2014) 120 SASR 32; R v Lutze (2014) 121 SASR 144; Dinsdale v The Queen (2000) 202 CLR 321; Bugmy v The Queen (2013) 249 CLR 571; Kentwell v The Queen (2014) 252 CLR 601; R v Copeland (No 2) (2010) 108 SASR 398; R v Becker (2005) 91 SASR 498; Cross v Police [2001] SASC 47; Hodgson v Police [2002] SASC 35; Corak v Police [2006] SASC 172; Frank v Police [2007] 98 SASR 547; Leslie v Police [2001] SASC 270; Jones v Police (2009) 263 LSJS 71; M, PA v Police (2012) 218 A Crim R 276; Lawrie v Police [2015] SASC 98; Papps v Police (2000) 77 SASR 210; Cross v Police [2001] SASC 47; R v McPhee [2014] SASCFC 107; R v Dwyer (2015) 121 SASR 587; R v Nguyen [2015] SASCFC 40; R v Ravet [2011] SASCFC 67; R v Wakefield (2015) 121 SASR 569; R v Capaldo [2015] SASCFC 56; R v Nemer (2003) 87 SASR 168; R v Payne (2004) 89 SASR 49; R v Koch [2015] SASCFC 31; The Queen v Drewett (1983) 35 SASR 344; R v Mangelsdorf (1995) 66 SASR 60; R v Harkin (2011) 109 SASR 334; The Queen v Morse (1979) 23 SASR 98; Hili v The Queen (2010) 242 CLR 520; R v McPartland and Polkinghorne (2014) 120 SASR 69; R v Violi [2015] SASCFC 2; R v O’Toole [2013] SASCFC 18; R v Willingham (No 2) [2012] SASCFC 104; R v Nozuhur [2013] SASCFC 81; R v Kong (2013) 115 SASR 425; Attorney-General v Tichy (1982) 30 SASR 84; Pearce v The Queen (1998) 194 CLR 610; Wong v The Queen; Leung v The Queen (2001) 207 CLR 584, 611, considered.

R v NIESEN
[2015] SASCFC 165
Court of Criminal Appeal: Stanley, Nicholson and Lovell JJ
STANLEY J:
Introduction

The appellant pleaded guilty to the following offences:
1.Traffic in a large commercial quantity of a controlled drug, namely, cannabis, contrary to s 32(1) of the Controlled Substances Act 1984 (SA) (CSA) (count 1);
2.Cultivate more than the prescribed number of cannabis plants contrary to s 33K(1)(b) of the CSA (count 2);
3. Possess prescribed equipment contrary to s 33LA(a) of the CSA (count 3);
4.Aggravated possess a firearm (class H) without a licence contrary to s 11(1) of the Firearms Act 1977 (SA) (Firearms Act) (count 4);
5.Possess a firearm (class H) with defaced, altered or removed characters contrary to s 24A(7)(b) of the Firearms Act (count 5);
6.Failure to keep a class C, D or H firearm secured contrary to regulations 38(2) and 61 of the Firearms Regulations 2008 (SA) (Firearms Regulations) (count 6);
7.Failure to store ammunition separately from firearms contrary to regulations 41(1) and 61 of the Firearms Regulations (count 7);
8.Possess a firearm (class B) without a licence contrary to s 11(1) of the Firearms Act (count 8);
9.Fail to keep a class B firearm secured contrary to regulations 38(2) and 61 of the Firearms Regulations (count 9);
10.Unlawful possession contrary to s 41(1) of the Summary Offences Act 1953 (SA) (Summary Offences Act) (count 10);
11.Use or have possession of a prohibited weapon contrary to s 21F(1)(b) of the Summary Offences Act (count 1 on the Magistrates Court file called up in order for sentence to be imposed for that offence at the same time).
On 25 March 2015 a Judge of the District Court sentenced the appellant to a head sentence of six years with a non-parole period of four years which was backdated to 24 August 2014 when the appellant was taken into custody.
In imposing sentence the sentencing judge indicated that he had discounted the sentence by 30 per cent to reflect the guilty pleas and the appellant’s cooperation in the administration of justice.
The sentence imposed comprised three components. First, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act), for all matters for which a sentence of imprisonment was available except for two firearm offences, the sentencing judge imposed a sentence of four years imprisonment. Secondly, the judge separately addressed the two firearm offences. The sentencing judge imposed a sentence of two years imprisonment in respect of count 4, which was to be served cumulatively with the sentence imposed pursuant to s 18A. With respect to the second firearm offence, which was count 8, the judge imposed a separate sentence of 12 months imprisonment to be served concurrently with the two years sentence imposed for the first firearm offence. Thirdly, with respect to all matters for which a sentence of imprisonment was not available the judge convicted the appellant without penalty.
The appellant appeals the sentence. A Judge of this Court gave permission to appeal on the ground that the sentence is manifestly excessive. The Director contended that the grant of permission given by a Judge of this Court to the appellant to argue the ground of manifest excess should be rescinded. On the hearing of the appeal the appellant sought and obtained permission to amend the grounds of appeal to add a further ground that the learned sentencing judge erred by failing to adequately identify any notional sentence or starting point from which the 30 per cent discount was deducted. Permission to appeal on this ground was opposed by the Director.
Further, the Director filed two notices of cross-appeal on 20 July 2015. Two separate notices were filed because the Director considered there was an issue as to whether an appeal lay as of right or required permission. In any event, the Director sought to appeal on two grounds. First, on the basis that the sentencing judge erred in failing to sentence count 5 as a serious firearm offence, which resulted in count 5 being impermissibly sentenced using s 18A where such use was prohibited by s 20AAC(1)(d) of the Sentencing Act. Secondly, on the ground that the sentence imposed is manifestly inadequate.[1] The appellant opposed permission being granted to the Director to cross-appeal.
[1] In his summary of argument the Director identified an error which did not form part of the grounds of cross-appeal. The error concerned the sentencing remarks in which the Judge adopted, without reciting, counsel’s articulation of the applicable maximum penalties. This articulation, by the prosecutor, contained an error as to the maximum fine which could be imposed for count 1, stating it as $50,000 rather than $500,000. Reliance on an incorrect maximum penalty is an error of law. However, the error could not have vitiated the exercise of the sentencing discretion. It is apparent from the sentence imposed that the Judge was not minded to impose both a fine and a custodial sentence. Accordingly, the error regarding the maximum fine was of no consequence. In any event, the error was favourable to the appellant and could not have resulted in the imposition of a heavier sentence.
Circumstances of the offending
On 24 August 2014 police attended at the appellant’s house. They found more than three kilograms of harvested cannabis drying in one of the bedrooms. On the bedroom floor they found a .270 bolt action rifle. The rifle was unloaded and there was no ammunition. In the kitchen they found a loaded .25 pistol. The identifying characteristics of the gun had been defaced. Located within a hidden cupboard in the kitchen was ammunition suitable for a number of firearms. Ammunition for a .410 shotgun was also found. In addition police located CCTV monitoring and recording equipment, a bud stripper, a money counting machine and offensive weapons in the form of a knuckle duster and a butterfly knife. There was also a glass ice pipe. In a shed at the rear of the premises police found a substantial hydroponic set up for growing cannabis including the necessary prescribed equipment. A separate grow room was set up in the shed with elaborate and expensive equipment. There were eight mature female plants being grown under hydroponic conditions. Each plant was capable of yielding at least 600 grams of dry usable material if harvested as photographed by the police. Depending on how the cannabis was sold, it was capable of being very valuable.
The appellant’s antecedents
The appellant is 36 years of age. He was educated to Year 11. He has been in a relationship with the mother of his three children since 1998. He is close to his children. The middle child suffers from a genetic disorder. He has been working as a pest control operator since 1998. He has a strong work history. The appellant commenced his own pest control business in 2011 which had been successful until he went into custody upon his arrest. He has been a moderately heavy user of cannabis. He was convicted in 2006 of cultivating cannabis for which he received a 14-month suspended sentence.
The appellant was assessed by Dr Jack White, a registered psychologist. Dr White considers his psychological profile does not indicate any major mental health problems, although his reported history and performance on various subjective tasks was characteristic of a diagnosis of attention deficit hyperactivity disorder (ADHD). Dr White was of the opinion that there may have been some relationship between ADHD and the appellant’s substance abuse. He recommended that the appellant be referred to a mental health professional to address the symptoms of ADHD. Further, he recommended that he be referred for assessment and treatment of his cannabis use.
The judge’s sentencing remarks
The judge commenced by observing that the appellant was committed for sentence for trafficking in a large commercial quantity of cannabis and related drug offences. In addition, he also fell to be sentenced for two firearm offences and related offences including possession of prohibited weapons. He noted that pleas of guilty had been made at a very early stage as a result of which he proposed to discount the sentence he would otherwise have imposed by 30 per cent to reflect the pleas and the appellant’s cooperation in the administration of justice.
The judge referred to the appellant’s personal circumstances and the circumstances of the offending. He indicated that he would sentence on the basis that the appellant was engaged in a significant commercial operation dealing in cannabis and that the guns in his possession were associated with his drug dealing. The guns were to be used for protection.
The judge referred to the appellant’s prior drug offending. He indicated that this further drug offending together with the added component of a loaded firearm emphasised the need for personal and general deterrence in fixing sentence. The judge said:[2]
I have taken into account the various references that have been provided on your behalf. People speak well of you as a family and community man and as a good work colleague. You have worked well in custody. I acknowledge that your time in gaol is going to be difficult for your family, particularly your growing children.
I have taken into account the report of Dr White… I note … that Dr White recommends some mental health treatment and, clearly, there is also the need for substance abuse rehabilitation.
I do not stay to refer to the individual maximum penalties involved in this case but I rely upon those that were referred to during the course of the submissions.
…
I have taken into account your working history, and that is referred to again in Dr White’s report and your long involvement in the pest control business.
[2] Sentencing Remarks of Judge Rice delivered 25 March 2015 at 3.
The judge then imposed sentence saying:[3]
I will deal with the firearms offences separately and I will do that in a moment or two.
I propose to use s.18A and pass a single sentence upon all matters for which a sentence of imprisonment is available and, in so doing, I impose a sentence of four years imprisonment. With respect to all matters in respect of which a sentence of imprisonment is not available, I convict without further penalty.
Dealing with the two firearms offences, that is the actual firearms themselves, in particular I say this: with respect to the first firearms offence, that is the one in relation to the pistol (Court [sic] 6 of Magistrates Court Information), I impose a sentence of two years imprisonment. That is cumulative on the four years imprisonment. For the second firearms offence, that is the rifle (Court [sic] 10 of Magistrates Court Information), I impose a separate sentence of 12 months imprisonment, but that is to be concurrent with the two years for the pistol offence.
In all, that makes sentences totalling six years. I impose a non-parole period of four years to date from the date you went into custody, namely 24 August 2014.
[3] Sentencing Remarks of Judge Rice delivered 25 March 2015 at 3 – 4.
Appellant’s submissions
The appellant submits that the exercise of the sentencing discretion miscarried in two ways. First, having regard to the new sentencing regime imposed pursuant to s 10C of the Sentencing Act, the sentencing judge erred in failing to identify the notional head sentence which formed the starting point for fixing sentence before the application of the 30 per cent discount for the guilty pleas. Secondly, having regard to the appellant’s personal circumstances and good prospects of rehabilitation, the head sentence of six years with a non-parole period of four years is manifestly excessive, especially when compared with sentencing imposed for similar offending.
Respondent’s submissions
The respondent submits that the failure of the sentencing judge to articulate expressly a notional head sentence to which he applied the 30 per cent discount for the appellant’s guilty pleas does not constitute an error and permission to appeal on this ground should be refused. Further, the sentence was not manifestly excessive and permission to appeal on this ground should be rescinded. The respondent submits that the offending was objectively serious and the sentencing judge was bound to impose a sentence which properly reflected the need for general and personal deterrence. Proper weight was given to the personal circumstances of the appellant.
The cross-appeal
It is convenient at this stage to address the grounds of the cross-appeal.
The prosecution submits that not only is the sentence imposed not manifestly excessive, it is manifestly inadequate. Its leniency is so unjust or unreasonable that it can be inferred there has been a failure to exercise properly the sentencing discretion. Further, and in any event, the prosecution submits that the sentencing judge erred in failing to sentence count five as a serious firearm offence within the meaning of s 20AA of the Sentencing Act as a result of which the judge erred in using s 18A for the sentencing of count 5 contrary to s 20AAC(1)(d). This constitutes an error of law. The Director submits this error contributed to the imposition of a sentence that is manifestly inadequate.
The appellant / respondent to the cross-appeal[4] does not contest the submission that the judge erred in failing to sentence for count 5 as a serious firearm offence in consequence of which s 20AAC(1)(d) of the Sentencing Act was contravened. However, he submits that notwithstanding the error of law the Court should refuse permission to cross-appeal because of the lengthy delay in bringing the cross-appeal. The appellant was granted permission to appeal against sentence on 15 June 2015. The cross-appeal was filed on 20 July 2015. It is 20 days out of time.[5] The Solicitor-General conceded candidly that the explanation for the delay was the failure to identify the error raised by ground 1 of the notices of cross-appeal until a short time before the appeal was argued, when submissions were being prepared.
[4] For convenience I will refer to Mr Niesen as the appellant when considering the cross-appeal.
[5] Rule 107(2) Supreme Court Criminal Rules 2014 (SA).
Principles on appeal

The test to be applied in determining whether to interfere on appeal with a decision on sentence is set out in R v Jongewaard[6] where Doyle CJ said:[7]
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
[6] [2009] SASC 346, (2009) 266 LSJS 283.
[7] [2009] SASC 346 at [40], (2009) 266 LSJS 283 at 288-289.
A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King[8] does the appeal court have the power to quash the sentence passed below. As was said in R v Kreutzer by Kourakis CJ,[9] if the error identified by the appeal court is manifest excess or inadequacy (an outcome error), the Full Court will fix the sentence it thinks ought to have been imposed. If the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the Full Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal.
[8] [1936] HCA 40, (1936) 55 CLR 499.
[9] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214-215.
In recent times this Court has considered the bounds of appellate review of the exercise of the sentencing discretion. In Police v Chilton[10] Kourakis CJ, with whom David J agreed, said:[11]
It is not an appealable error, in accordance with the principle in House v The King, that a sentencing Judge has placed too little or too much weight on one or more of the applicable sentencing considerations. It is in the very nature of a discretion that different judges will evaluate the considerations relevant to its exercise in different ways.
Over familiarity with the decision in House v The King can at times obscure the strictness of the limited grounds for the appellate interference it prescribes. The grounds on which a discretion can be set aside are analogous to the grounds of judicial review. Neither the exercise of a judicial discretion, nor the making of an administrative decision, are vitiated by giving a relevant matter less or more weight than the judge before whom the decision is impugned would have given it. The Magistrates Court is a Court of Record. Its judgments are final orders. They are not provisional opinions subject to the approval of this Court. The sentences imposed in the Magistrates Court can only be set aside for error in accordance with House v The King.
The twin mischiefs which this Court must avoid in sentencing appeals are, on the one hand, too readily imagining error in the interstices of the necessarily economic sentencing remarks of busy magistrates and, on the other, too readily excusing error as a merely infelicitous expression of no consequence. The mischiefs can be avoided by fidelity to, and a rigorous application of, the prescript in House v The King.
[Citations omitted].
[10] [2014] SASCFC 76, (2014) 120 SASR 32.
[11] [2014] SASCFC 76 at [17] – [19], (2014) 120 SASR 32 at 38.
In R v Lutze[12] Vanstone and Parker JJ applied the approach taken by the Chief Justice in Chilton referring to the High Court’s elucidation in Dinsdale,[13] Bugmy[14] and Kentwell[15] of the principle in House v King.
[12] [2014] SASCFC 134, (2014) 121 SASR 144.
[13] Dinsdale v The Queen [2000] HCA 54, (2000) 202 CLR 321.
[14] Bugmy v The Queen [2013] HCA 37, (2013) 249 CLR 571.
[15] Kentwell v The Queen [2014] HCA 37, (2014) 252 CLR 601.
In Dinsdale Gleeson CJ and Hayne JJ observed that grounds of appeal complaining that a judge had failed to pay proper regard to sentencing principles, had placed undue emphasis on personal factors, and that the sentence failed to adequately reflect the seriousness of the offences, were little more than particulars of the ground that the sentence was manifestly inadequate. Likewise, in Bugmy the court said that assertions that inadequate weight had been placed on particular facts or principles amounted merely to particulars of the complaint that the sentence was manifestly inadequate. It said that the authority of an appeal court to substitute a sentence imposed by a court below was not enlivened by its view that it would have given greater weight to deterrence and less weight to the appellant’s subjective case. The power is only engaged if the court is satisfied that the sentencing judge’s discretion miscarried because a sentence was imposed that was outside the range of sentences that could be justly imposed for the offence consistently with sentencing standards. In Kentwell the plurality of French CJ, Hayne, Bell and Keane JJ referred to the dichotomy between specific error and process error as discussed by Kourakis CJ in Kreutzer.[16]
[16] R v Kreutzer [2013] SASCFC 130, (2013) 118 SASR 211.
In Lutze Vanstone and Parker JJ said:[17]
The sort of error referred to as “specific” or “process error” is not merely a perceived failure to give appropriate weight to a particular factor. It is an identifiable error of fact or law, which in all but the rare case will be express. Indeed, it is no part of the task of a sentencing judge to expressly ascribe weight to the myriad factors which inform the sentencing process, that is, the instinctive synthesis referred to by McHugh J in Markarian v The Queen (2005) 228 CLR 357. It is very often impossible to discern the relative weight given to a particular factor; and the exercise is rarely profitable.
A submission that the sentencing judge did not give adequate weight to a factor is not, of itself, capable of enlivening the appeal court’s authority to intervene. Such a submission falls short of an assertion that no account was taken of a material consideration. It is not a complaint of specific error. At most, it can form part of a submission that there was manifest error; that is, that only by failing to give adequate weight to the material consideration could the judge have reached a sentence which is so unreasonable or plainly unjust, or, as the High Court recently put it, “outside the permissible range of sentences for the offender and the offence”.
[17] R v Lutze [2014] SASCFC 134 at [46] – [47], (2014) 121 SASR 144 at 153 – 154.
Against this understanding of the principles which circumscribe the appellate function, I turn to a consideration of the grounds of the appeal.
Ground 1: the failure to identify expressly the notional head sentence
The appellant seeks permission to argue that the sentencing judge erred in failing to identify the notional starting point of his sentence to which the 30 per cent discount was applied. He submits that the statutory regime for sentencing enacted in sections 10B and 10C of the Sentencing Act obliges a court in sentencing to identify the notional head sentence it adopts as part of the requirement to give reasons for the imposition of sentence. Mr Aitken, counsel for the appellant, submits that the bare statement by the sentencing judge that he proposed to discount the sentence by 30 per cent, to reflect the guilty pleas and the appellant’s cooperation in the administration of justice, is inadequate given the failure to identify the starting point. This is because the reasons fail to demonstrate that the provisions of s 10C have been applied.
The Solicitor-General, who appeared for the respondent, submits that the remarks of the sentencing judge leave no doubt as to the sentence imposed, nor as to the means by which the judge arrived at that sentence. He submits that the real issue for consideration by this Court is whether the sentence finally imposed is manifestly excessive or inadequate. He submits the sentencing judge’s remarks were sufficient to understand the process of reasoning adopted and no error occurred.
In R v Copeland (No. 2)[18] Gray J explained that the purpose of sentencing remarks is primarily to provide an explanation to a defendant for the sentence imposed, but also to demonstrate that correct principles have been applied. He said that when sentencing remarks address these concerns, not only is the defendant informed about the punishment to which he or she is subject, but it also assists the appellate court in understanding the basis for the sentence and in performing its appellate function.[19] This principle is reinforced by the provisions of s 9 of the Sentencing Act which provides:
[18] [2010] SASCFC 61, (2010) 108 SASR 398.
[19] [2010] SASCFC 61 at [29], (2010) 108 SASR 398 at 409.
9—Court to inform defendant of reasons etc for sentence
(1)A court must, on sentencing a defendant who is present in court (whether in person or by video or audio link) for an offence or offences, state the sentence that it is imposing for the offence or offences and its reasons for imposing that sentence, including (for example) any reason why a sentence that would otherwise have been imposed for the offence or offences has been reduced.
(1a)Nothing in subsection (1) requires a court to state any information that relates to a person's cooperation, or undertaking to cooperate, with a law enforcement agency.
(2)The validity of a sentence is not affected by non-compliance or insufficient compliance with this section.
The provisions of s 9 and, in particular, sub-sections (1) and (2) create an obvious tension. Section 9(1) imposes a mandatory obligation to give reasons for the imposition of sentence including any reason why a sentence that would otherwise have been imposed for the offence or offences has been reduced. That construction is supported by authority establishing that a failure to give reasons for sentence may amount to an error justifying the setting aside of that sentence.[20] This construction appears to conflict with the terms of s 9(2) which provides that the validity of a sentence is not affected by non-compliance or insufficient compliance with the section.
[20] R v Becker [2005] SASC 186, (2005) 91 SASR 498; Cross v Police [2001] SASC 47 at [32]; Hodgson v Police [2002] SASC 35; Corak v Police [2006] SASC 172; Frank v Police [2007] 98 SASR 547; Leslie v Police [2001] SASC 270.
The apparent conflict between s 9(2) and the obligations imposed by s 9(1) were considered in Hodgson v Police[21] where Doyle CJ said:[22]
Does that mean that the sentence is valid but wrong in law and liable to be set aside? Or, does it mean that the sentence is valid and not liable to be set aside unless the absence of reasons is such that a court on appeal cannot properly discharge its functions, or unless the court takes the view that having regard to the sentence imposed, it was necessary for the court to give reasons?
[21] [2002] SASC 35.
[22] [2002] SASC 35 at [7].
However, Doyle CJ did not consider it necessary to resolve this issue in that case.
This tension was considered by Gray J in Jones v Police.[23]Gray J analysed various authorities which construe s 9. He said that common to the approach of the authorities has been a distinction between the concepts of validity and error. While a failure to comply with s 9(1) will not prevent a sentence delivered from standing as a valid and enforceable order of the Court, s 9(2) does not preclude a separate challenge alleging that the otherwise valid order was reached by a faulty means such as an error of law or fact, with the result that it should be set aside.[24] He said:[25]
The provisions of section 9 do not prevent a Court from setting aside a decision where a failure to provide adequate reasons frustrates the discharge of the appellate function by a court of review, or where such failure results in justice being not seen to be done. Section 9(2) saves such a sentence from being regarded as “invalid” in the sense that the sentence will remain a valid order of the Court. However, section 9(2) will not save such an order from being set aside in the event that it was arrived at in error.
[23] [2009] SASC 137 at [23] – [42], (2009) 263 LSJS 71 at 74 – 80.
[24] [2009] SASC 137 at [37], (2009) 263 LSJS 71 at 79.
[25] [2009] SASC 137 at [39], (2009) 263 LSJS 71 at 79 – 80.
In M, PA v Police[26] the Full Court cited Jones with apparent approval.[27] Recently, in Lawrie v Police[28] Sulan J considered the operation of s 9. After referring to Corak v Police[29] and Jones, he said that a failure to give adequate reasons will not in itself invalidate a sentence, however, a failure to give adequate reasons may amount to error.[30]
[26] [2012] SASCFC 24, (2012) 218 A Crim R 276.
[27] [2012] SASCFC 24 at [30] and [32], (2012) 218 A Crim R 276 at 284.
[28] [2015] SASC 98.
[29] [2006] SASC 172.
[30] See also Papps v Police [2000] SASC 183, (2000) 77 SASR 210; Cross v Police [2001] SASC 47 at [24] – [26].
In this case the sentencing judge utilised the provisions of s 10C and purported to discount the sentence he would otherwise have imposed by the maximum allowable for the appellant’s guilty plea, namely, 30 per cent. Having done so, he arrived at a head sentence of six years. An arithmetic extrapolation from that result leads to the conclusion that the necessary starting point for the head sentence of six years, after a 30 per cent discount is applied, is a notional head sentence of eight years, six months and 26 days (using a 30-day month). On its face, that appears an unlikely starting point. At the least it raises the question whether the judge erred in the arithmetic calculation of the head sentence after allowing the 30 per cent discount. The failure of the judge to identify a notional starting point means this court is unable to determine whether there may have been an arithmetic error in the application of the discount. The absence of identification of the starting point creates uncertainty. The court cannot know whether the appellant received the full benefit of the 30 per cent discount to which the judge considered he was entitled pursuant to s 10C. In my view, the failure to identify the relevant starting point frustrates the discharge of the appellate function. I consider the absence of an express identification of the starting point means the judge has failed to provide an adequate explanation for the sentence imposed. The failure to identify expressly the starting point means this Court cannot be satisfied that the correct approach has been taken.
This is important in the context of the operation of s 10C. The enactment of s 10C is intended to change the approach to sentencing. In particular, it is intended to effect a change to the approach to discounting a sentence for an early guilty plea. The purpose is utilitarian. It is to regulate and make transparent sentencing discounts for guilty pleas and to encourage offenders to plead early, thereby decreasing delays in the criminal justice system. This Court has emphasised in a series of decisions[31] that it is incumbent upon a sentencing judge to provide adequate reasons if the judge is to depart from the maxima discounts prescribed by s 10C. The reason for this obligation is that the efficacy of the scheme will be undermined if defence counsel and their clients cannot be confident in their expectations of the advantage of an early guilty plea. By parity of reasoning, I consider that in utilising s 10B or s 10C, a sentencing magistrate or judge is obliged to identify the notional starting point before the discount is applied. Otherwise neither the accused nor an appellate court can know whether the sentencing magistrate or judge has committed an arithmetic error in calculating the amount of the discount. In these circumstances too, the efficacy of the scheme will be undermined if defence counsel and their clients cannot be confident in their expectations of the advantage of an early guilty plea. These considerations distinguish the current position from that which obtained prior to the enactment of s 10B and s 10C. As Nicholson J said in Nguyen,[32] the greater emphasis under the statutory regime on the utility of an early guilty plea, compared with the more amorphous position which previously applied in fixing sentence having regard to considerations of remorse and contrition which a guilty plea evidenced, renders the giving of reasons and an understanding of the basis upon which the sentence has been fixed, more important.
[31] R v McPhee [2014] SASCFC 107; R v Dwyer [2015] SASCFC 12, (2015) 121 SASR 587 and R v Nguyen [2015] SASCFC 40.
[32] [2015] SASCFC 40 at [19].
These considerations distinguish the position in relation to s 10C, and for that matter, s 10B, from the position in relation to s 18A. In Copeland (No. 2)[33] this Court held that while, for the purpose of s 18A, it is desirable to set out the starting point for the sentences on each individual offence, the failure to do so is not, in itself, an error.[34] However, the different work to be performed by s 10B and s 10C compared with s 18A means that the failure to identify expressly the starting point for fixing sentence before applying the relevant discount fixed by reference to s 10B or s 10C constitutes an error. As I have said, it is an error because the exercise undertaken pursuant to s 10B or s 10C in applying the discount involves an arithmetic approach rather than an instinctive synthesis. The process of fixing sentence after the discount for the early guilty plea is deductive rather than inductive. This makes it necessary that a sentencing judge’s reasons expressly identify the arithmetic approach taken. This is an example of the exception identified by Kourakis J (as he then was) in Copeland (No. 2)[35] where he recognised that an arithmetic approach can be taken to the discrete matter of policy-based reductions in sentence for a plea of guilty and cooperation with the authorities.
[33] [2010] SASCFC 61, (2010) 108 SASR 398.
[34] See also R v Ravet [2011] SASCFC 67.
[35] [2010] SASCFC 61 at [108], (2010) 108 SASR 398 at 426.
Support for this approach is found in the judgment of this Court in R v Wakefield[36] where Blue J, with Kourakis CJ and Peek J agreeing, said:[37]
When a sentencing court utilises s 18A to impose a single penalty and application of s 10C requires differential discounts in respect of the individual offences, the sentencing court is obliged to explain how it has arrived at the single sentence imposed after application of the differential discounts. This requires identification of the notional starting head sentences for the individual offences and the notional discounts applied.
[36] [2015] SASCFC 10, (2015) 121 SASR 569.
[37] [2015] SASCFC 10 at [39], (2015) 121 SASR 569 at 580.

Blue J concluded that the sentencing judge’s failure to give reasons identifying the notional starting head sentences for the individual offences amounted to error that vitiated the exercise of the sentencing discretion. While Blue J was addressing the approach to be taken when s 18A is utilised to impose a single penalty for a number of offences to which s 10C applies, by parity of reasoning, the principle applied extends to a sentencing judge who is required to identify the notional starting head sentence when s 10C, or, for that matter, s 10B applies.
It may be that the sentencing judge arrived at a notional head sentence of eight years, six months and 26 days by a process of instinctive synthesis but I cannot be confident that is so, because the failure to identify expressly the starting point renders the sentencing process opaque and obscure. As this Court said in Capaldo[38] a purpose of s 10C is to make transparent sentencing discounts for guilty pleas. Without identifying the notional starting point in fixing sentence, the discount for a guilty plea is not transparent. This is of particular significance in the context of this appeal. Unlike the position which obtained prior to the enactment of sections 10B and 10C, the issue of whether a sentence is manifestly excessive is to be determined by reference to the notional head sentence not to the ultimate sentence imposed after applying the discount prescribed by those sections. This underlines the necessity of identifying expressly the notional head sentence.
[38] R v Capaldo [2015] SASCFC 56 per Gray and Sulan JJ at [43].
Accordingly, I consider the failure of the sentencing judge to identify expressly the notional head sentence to which he applied the 30 per cent discount vitiates the exercise of the sentencing discretion. It is an error that frustrates the discharge of this Court’s appellate function. Accordingly, I consider the appellant should be granted permission to appeal on this ground.
This is a process error. This enlivens the power of the court to resentence if the court considers a different sentence should have been imposed. This is an error that vitiates the sentencing process separately and distinctly from any consideration of whether the sentence is manifestly excessive or inadequate. However, both the appeal and the cross-appeal require consideration of whether there is an outcome error. Accordingly, before deciding whether a different sentence should have been imposed, I consider it convenient to address that issue. In order to do so, however, first it is necessary to consider the question of whether the court should grant permission to appeal on the cross-appeal. That question in turn invites consideration of the principles applicable to a Crown appeal against sentence.
Permission to appeal
The principles applicable to a Crown appeal against sentence were considered in R v Nemer.[39] Doyle CJ, with Prior J agreeing, said:[40]
The High Court has determined that the court should grant leave to the Director to appeal against sentence “only in the rare and exceptional case”: Everett v The Queen (1994) 181 CLR 295 at 299.
The result of the principles established by the High Court is that to obtain leave to appeal against sentence, the Director must do more than satisfy the court that an error may have occurred. The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”: see The Queen v Osenkowski (1982) 30 SASR 212 at 212‑213 King CJ; Everett at 300. Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion.
[39] [2003] SASC 375, (2003) 87 SASR 168.
[40] [2003] SASC 375 at [23] – [24], (2003) 87 SASR 168 at 172.
In R v Payne[41] the Court of Criminal Appeal, in considering the proper approach to Crown applications for permission to appeal against sentence, said:[42]
Leave should only be granted to establish some matter of principle, pursuant to which the Court of Criminal Appeal might give guidance to sentencing judges, or if it is necessary for the Court to establish and maintain adequate standards of punishment for a crime, or to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that standards of penalty and public confidence in the administration of justice can be maintained.
[41] [2004] SASC 160, (2004) 89 SASR 49.
[42] [2004] SASC 160 at [86], (2004) 89 SASR 49 at 70.
In R v Koch[43] Parker J, with whom Kourakis CJ and Bampton J agreed, said:[44]
It is apparent that in order to obtain leave to appeal against sentence the Director must do more than satisfy the court that an error may have been made. The Director did not submit that it is necessary in the present case to grant permission for an appeal so as to establish or maintain sentencing principles or standards. Thus the question is whether permission should be granted because the sentence is so far below the appropriate range of sentence that it reflects an error of principle such that allowing the sentence to stand would shake public confidence in the administration of justice.
[43] [2015] SASCFC 31.
[44] [2015] SASCFC 31 at [28].
The Director submits that the sentence imposed reflects an error of principle, both in the failure to sentence count 5 as a serious firearm offence, and, in the manifestly unreasonably lenient overall sentence imposed for the offending. The Director submits that the sentence is so far below the appropriate standard of sentence for such offending that there are public policy considerations that outweigh the public interest in protecting the appellant from having his liberty twice placed in jeopardy.
The appellant submits that the court should refuse permission to cross-appeal because of the lengthy delay in instituting the cross-appeal. The conclusion I have reached on the appeal, that the sentence imposed is infected by error in failing to identify expressly the nominal starting point for the discount for the guilty pleas, warranting a grant of permission to appeal, renders the opposition to a grant of permission in relation to the cross-appeal moot. This is because the operation of s 352(2) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) enables the Director of Public Prosecutions to appeal without the need to obtain the permission of the Full Court where the appellant is granted permission to appeal against his sentence. As a result, it is unnecessary to address the appellant’s submission opposing permission to cross-appeal based on delay.
In my view, the correctness of ground 1 has been made out. The judge erred in failing to sentence count 5 as a serious firearm offence. As a result, s 20AAC(1)(d) of the Sentencing Act was contravened by the judge utilising s 18A to sentence on count 5. Section 20AAC(1)(d) provides:
20AAC—Sentence of imprisonment not to be suspended
(1) Subject to subsection (2), but despite any other provision of this Act or any other Act or law, the following provisions apply in relation to the sentencing of a person who is a serious firearm offender for a serious firearm offence (including where the offence is the serious firearm offence that resulted in the person being a serious firearm offender):
...
(d) if—
(i) the person is also being sentenced in respect of other offences; and
(ii) 1 or more of those offences are not serious firearm offences,
section 18A does not apply to the sentencing of the person in respect of the serious firearm offence (however nothing in this paragraph affects the operation of section 18A in respect of the other offences).
Part 2 of Division 2AA of the Sentencing Act provides for a specific modified sentencing regime in relation to the sentencing of serious firearm offenders for serious firearm offences. Pursuant to s 20AAB(1) a person is taken to be a serious firearm offender if he or she is convicted of a serious firearm offence. The offences which amount to a “serious firearm offence” are set out in s 20AA(1). Pursuant to s 20AA(1)(d) an offence against the Firearms Act involving the use or possession of a firearm if the use or possession of the firearm occurred in the course of, or was for a purpose related to, the commission of a serious drug offence, is defined as a serious firearm offence. The judge’s finding that the appellant possessed both of the firearms for a purpose relating to the commission of serious drug offences rendered the appellant liable to be sentenced as a serious firearm offender. As count 5 related to the same firearm as count 4, that offence is a serious firearm offence within the terms of the definition in s 20AA(1)(d). Accordingly, the regime in s 20AAC applied to count 5. The appellant fell to be sentenced for count 5 on the basis that it was a serious firearm offence in accordance with s 20AAC. It follows that, having regard to the provisions of s 20AAC(1)(d), the sentencing judge was prohibited from utilising s 18A in sentencing for count 5.
As a result, the sentence imposed was not according to law. This is a process error.
Notwithstanding that I am satisfied that the sentencing judge erred in failing to sentence count 5 on the basis that it constituted a serious firearm offence and, as a result, also erred by utilising s 18A to sentence on that count, it does not follow that the appeal will be allowed. If s 253(2) had not precluded consideration of whether the Crown should have been granted permission to appeal against sentence, I would have had to apply the principles relevant to the grant of a Crown appeal against sentence set out above. Permission having been rendered moot, I nonetheless consider those principles applicable to whether the Crown’s appeal should be allowed.[45] The Crown’s appeal will only be allowed in the rare and exceptional circumstances that, as a matter of public policy, the appeal should be allowed to establish some matter of principle; to give guidance to sentencing judges; to establish and maintain adequate standards of punishment for a crime; or to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention to maintain standards of penalty and public confidence in the administration of justice. Otherwise mere error in the exercise of the sentencing discretion is insufficient to warrant allowing a Crown appeal against sentence. The Solicitor-General submits that the sentence imposed reflects an error of principle, both in the failure to sentence count 5 as a serious firearm offence, and, in part as a result of that first error, in the manifestly unreasonably lenient overall sentence imposed for the offending. He submits that the sentence imposed is so far below the appropriate standard that the public policy considerations for the protection of the appellant are outweighed.
[45] The Queen v Drewett (1983) 35 SASR 344 per King CJ at 345 – 346; R v Mangelsdorf (1995) 66 SASR 60 per Doyle CJ at 71; R v Harkin [2011] SASCFC 24 at [30] – [35], (2011) 109 SASR 334 at 342 – 343.
In this case, there is no need for the Court to intervene to establish some matter of principle, or to give guidance to sentencing judges, or to establish and maintain adequate standards of punishment for a crime. The error in not sentencing count 5 as a serious firearms offence is idiosyncratic. It is almost certainly an oversight. It does not involve any error of principle. It is unlikely to be repeated by this or any other judge. Mere error in the exercise of the sentencing discretion is insufficient to warrant allowing a Crown appeal against sentence. The cross-appeal should only be allowed if it is established that the Court’s intervention is required to correct a sentence which is so disproportionate to the seriousness of the offending that if it was allowed to stand it would erode standards of penalty and undermine public confidence in the administration of justice.
This gives rise to the issue of whether the sentence imposed is manifestly inadequate. Accordingly, I turn to consider the sentence and whether it is manifestly inadequate or excessive.
Manifestly excessive / inadequate
In The Queen v Morse[46] King CJ identified the factors to be considered in determining whether a sentence is manifestly excessive. He identified those factors as the maximum sentence prescribed by law, the standards of sentencing customarily observed for offences of that kind, the seriousness of the offence committed when compared to other offences of its kind, and the personal circumstances of the offender.[47]
[46] (1979) 23 SASR 98.
[47] (1979) 23 SASR 98 at 99.
Those same factors are relevant to a consideration of whether a sentence is manifestly inadequate.[48] To interfere with a sentence on the grounds of manifest inadequacy the court must be satisfied that the sentence imposed was definitely below the lowest end of the range of sentences that could be imposed on the facts before the sentencing judge.[49] In Hili v The Queen[50] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:[51]
As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.
[Citations omitted].
[48] Hili v The Queen [2010] HCA 45 at [60], (2010) 242 CLR 520 at 539.
[49] R v McPartland and Polkinghorne [2014] SASCFC 84 at [15].
[50] [2010] HCA 45, (2010) 242 CLR 520.
[51] [2010] HCA 45 at [59], (2010) 242 CLR 520 at 539.
The relevant maxima for the offences for which the appellant fell to be sentenced were:
·Traffic in a large commercial quantity of a controlled drug contrary to s 32(1) of the CSA - $500 000 and/or imprisonment for life;
·Cultivate more than the prescribed number of cannabis plants contrary to s 33K(1)(b) of the CSA - $2,000 and/or imprisonment for 2 years;
·Possess prescribed equipment contrary to s 33LA(a) of the CSA - $10,000 and/or imprisonment for 2 years;
·Aggravated possess a class H firearm whilst not authorised contrary to s 11(1) of the Firearms Act - $50,000 or imprisonment for 10 years;
·Possess a class H firearm with identifying characters defaced, altered or removed without authority contrary to s 24A(7)(b) of the Firearms Act - $35,000 or imprisonment for 7 years;
·Failure to secure a class C, D or H firearm contrary to r 38(2) and r 61 of the Firearms Regulations - $2,500;
·Failure to store ammunition in a locked container separate from firearms contrary to r 41(1) and r 61 of the Firearms Regulations - $2,500;
·Possess a class B firearm whilst not authorised contrary to s 11(1) of the Firearms Act - $20,000 or imprisonment for 4 years;
·Failure to secure a class B firearm contrary to r 38(2) and r 61 of the Firearms Regulations - $2,500;[52]
·Possess property, namely a .270 Tikka Rifle, which was reasonably suspected of having been stolen or obtained by unlawful means contrary to s41(1) Summary Offences Act - $10,000 or imprisonment for 2 years;
·Use or have possession of a prohibited weapon contrary to s24F(1)(b) Summary Offences Act - $20,000 or imprisonment for 2 years.
[52] The Magistrates Court committal notice lists the above offence as involving a class A firearm but the notice of appeal lists it as involving a class B firearm; the respondent’s outline on appeal lists it as involving a class B firearm but the appellant’s outline on appeal lists it as involving a class A firearm. In any event, the maximum penalty is the same.
The Magistrates Court committal notice and the respondent’s outline lists the above offence as being contrary to r 38(2) and r 61 but it seems that whether the firearm is class A or B the relevant provision is in fact r 38(1).
The appellant submits that the sentence is manifestly excessive for two reasons. First, that too much weight was given to the objective seriousness of the offending and insufficient weight was given to the personal circumstances of the appellant. Secondly, the comparison with sentences in other cases such as R v Violi,[53] R v O’Toole,[54] R v Willingham (No. 2)[55] and R v Nozuhur[56] reveals a disparity between sentences that can only be explicable by error.
[53] [2015] SASCFC 2.
[54] [2013] SASCFC 18.
[55] [2012] SASCFC 104.
[56] [2013] SASCFC 81.
The Director contends not only that the sentence is not so severe as to be manifestly excessive but it is in fact a sentence so lenient that it is manifestly inadequate. As I have already noted, he submits that the failure to sentence count 5 as a serious firearms offence resulted in a manifestly unreasonably lenient overall sentence such that the sentence is so far below the appropriate standard that it reflects an error of principle which, if left standing, will shake public confidence in the administration of justice.
In my view, the sentence imposed was neither manifestly excessive nor manifestly inadequate.
The appellant submits that the sentencing judge erred by placing too much weight on the objective seriousness of the offending and too little weight on the personal circumstances of the appellant, including, his relative youth, his limited relevant antecedent history, his good prospects of rehabilitation, his impressive work history, his commitment to his children and the opinion of Dr White. However, as Lutze makes plain, a submission that the sentencing judge did not give adequate weight to a factor is not, of itself, capable of enlivening the appeal court’s authority to intervene. At most, it constitutes particulars of the ground that the sentence was manifestly excessive. As it is, there is no complaint made that the judge failed to consider the particular personal circumstances of the appellant. Plainly he did.

We would use s 18A of the Act in relation to those offences that are not serious firearm offences and which can be visited with a term of imprisonment being counts 1 to 3, 10 and 11 noted on the Report as to Prisoner Tried. The appellant is entitled to 30 per cent discount from his sentence for the early plea. But for the plea we would have sentenced the appellant to five years imprisonment. To allow for the plea we would reduce that sentence to one of three years and six months imprisonment.
In relation to counts 4 and 8 we would impose the same sentences as the sentencing Judge. In relation to count 4, after allowing for the 30 per cent discount we would sentence the appellant to two years imprisonment. For count 8, after allowing for the 30 per cent discount, we would impose a sentence of 12 months imprisonment. These two sentences are to be served concurrently but cumulatively upon the sentence of three years and six months.
In relation to count 5, but for the plea of guilty, we would have imposed a sentence of eight months and two weeks imprisonment. After allowing for the discount of 30 per cent and a minor rounding up we would impose a sentence of six months imprisonment to be served cumulatively upon the sentences already identified.
The final head sentence we would impose is the same as that imposed by the sentencing Judge namely a sentence of six years imprisonment. Like the Judge we would set a non-parole period of four years. Both the head sentence and the non-parole period should commence from 24 August 2014 when the appellant was taken into custody.
Like the sentencing Judge, for all those matters for which a prison sentence was not available, being counts 6, 7 and 9 in the Report as to Prisoner Tried, we would convict without further penalty.
Orders
We would dismiss the appellant’s appeal. We would allow the appeal by the respondent and resentence the appellant to six years imprisonment with a non-parole period of four years backdated to commence on 24 August 2014.