R v Pishdari - [2018] SASCFC 94

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PISHDARI; R v ROBERTS; R v MITCHELL; R v JOHNSTON; R v REYNOLDS; R v MACKAY
[2018] SASCFC 94
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Bampton)
13 September 2018
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 - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE
Appeal against sentence – six appellants who were among members and associates of a fledgling chapter of an outlaw motorcycle gang were convicted variously with aggravated kidnapping, aggravated blackmail, and participating in a criminal organisation – appellants sentenced by a Judge of this Court to various terms of imprisonment – whether Judge erred in application of sentencing principles – whether sentences imposed were manifestly excessive.
Held per Nicholson J (Kourakis CJ agreeing):
1.       Both personal and general deterrence are significant considerations when sentencing for the offence of participating in a criminal organisation (per Kourakis CJ at [2], per Nicholson J at [20]).
2.       The fact that a person is a member, nominee or an associate of an outlaw motorcycle gang may of itself support a conclusion that he or she is of bad character with poor prospects for rehabilitation and an enhanced need for personal deterrence, notwithstanding an otherwise moderate or good prior criminal record (per Kourakis CJ at [2], per Nicholson J at [23]-[24]).
Per Bampton J
1.       Allegiance to a violent criminal organisation is highly significant in sentencing an offender who identifies with an outlaw motorcycle gang as it is relevant to culpability, general and specific deterrence, punishment and rehabilitation. The gang culture of violence and adherence to criminal activities warrants significant weight being placed on general deterrence. Specific deterrence must be given significant weight in sentencing a gang member who freely associates with this culture.
Obiter per Kourakis CJ
1. There are strong reasons arising out of the principle of legality to read down the word ‘sentencing’ in clause 2(1) of Schedule 1 of the Sentencing Act 2017 (SA) to mean only the sentencing of a convicted person at first instance.
In relation to the appellant Pishdari:
Held per Bampton J (Kourakis CJ and Nicholson J agreeing), allowing the appeal:
1.       The sentence is manifestly excessive. A starting point of 20 years imprisonment for the offences as committed by this offender was outside the available range (per Nicholson J at [31], per Bampton J at [221]).
2.       The Judge was correct to impose a longer sentence on the appellant as compared to his co-offenders (per Nicholson J at [31], per Bampton J at [215]).
3. The appellant fell to be sentenced as a serious repeat offender pursuant to section 20B of the Criminal Law (Sentencing) Act 1988 (SA) (per Nicholson J at [32], per Bampton J at [223]).
4.       The sentences imposed by the Judge are set aside.
Held per Nicholson J (Kourakis CJ agreeing):
1.       The appellant is resentenced for counts 5 and 8 to one term of imprisonment for eight years and for counts 11 and 12 to one term of imprisonment for eight years, to be served cumulatively on the sentence imposed for counts 5 and 8.
2.       A non-parole period of 12 years and ten months is fixed.
3.       The terms of imprisonment and non-parole period are backdated to commence 27 May 2015.
Per Bampton J, dissenting:
1.       The appellant should be resentenced to a head sentence of 13 years and non-parole period of 10 years and five months, backdated to 27 May 2015.
In relation to the appellant Roberts:
Held per Nicholson J (Kourakis CJ agreeing), granting permission to appeal on grounds 2 and 3 but dismissing the appeal:
1.       The sentence imposed was not unreasonable. It was within the range available for the offences as committed by this offender.
Held per Bampton J (Kourakis CJ and Nicholson J agreeing):
1.       The findings of fact challenged on appeal were open to the Judge on the evidence before his Honour (per Nicholson J at [33], per Bampton J at [254]).
2.       With respect to the complaint as to parity, there is nothing to distinguish the culpability of the appellant from that of Johnston and Reynolds (per Nicholson J at [34], per Bampton J at [256]).
3.       The reduction of five per cent given for the appellant’s plea of guilty was within the available discretion on the facts, in particular the late timing of the plea (per Nicholson J at [35], per Bampton J at [258]).
Per Bampton J, dissenting:
1.       The appeal should be allowed and the sentence imposed set aside.
2.       The appellant should be resentenced to a head sentence of six years and seven months imprisonment, with a non-parole period of three years and seven months, backdated to 8 September 2016.
In relation to the appellant Mitchell:
Held per Nicholson J (Kourakis CJ agreeing), dismissing the appeal:
1.       The appellant’s sentence, when compared with the sentence imposed on Johnston, does not offend the parity principle (per Kourakis CJ at [4], per Nicholson J at [39]).
2.       The sentence imposed was within the range available to the Judge for the offence as committed by this offender.
Held per Bampton J (Kourakis CJ and Nicholson J agreeing):
1.       The factual error made by the Judge is of no consequence and could have no material effect on the sentence imposed (per Nicholson J at [40], per Bampton J at [294]).
Per Bampton J, dissenting:
1.       The appeal should be allowed and the sentence set aside.
2.       The appellant should be resentenced to a head sentence of four years and six months’ imprisonment, and a non-parole period of three years, commencing 18 June 2015.
In relation to the appellant Johnston:
Held per Nicholson J (Kourakis CJ agreeing), dismissing the appeal:
1.       The complaint with respect to the discount of five per cent given for the appellant’s plea of guilty to the participation offence is without merit.
2.       There is no statutory or other obligation to identify a discount for a plea when fixing a non-parole period.
3.       The head sentence was within the range available to the Judge when sentencing this offender for the offences he committed.
4.       The non-parole period was within the range available to the Judge. While it might be seen as severe, the appellant’s continued significant association with outlaw motorcycle gangs operates as a counterweight to his otherwise good criminal record with respect to the fixing of the non-parole period.
Per Bampton J, dissenting:
1.       The appeal should be allowed and the sentence set aside.
2.       The appellant should be resentenced to a head sentence of eight years and nine months imprisonment, and a non-parole period of five years and four months, commencing 27 May 2015.
In relation to the appellant Reynolds:
Held per Nicholson J (Kourakis CJ agreeing), granting permission to appeal on ground 3 but dismissing the appeal:
1.       The Judge’s failure to allow the full ten per cent discount potentially available for the appellant’s guilty was within the available discretion.
2.       The head sentence and non-parole period were both within the range available for the offence of participating in a criminal organisation as committed by this offender.
Held per Bampton J (Kourakis CJ and Nicholson J agreeing):
1.       Permission to appeal on grounds 2 and 5 is refused.
2.       The appellant’s culpability for count 7 is not distinguishably different from that of Johnston or Roberts. His circumstances are not such as to engage a parity concern (per Nicholson J at [49], per Bampton J at [358]).
Per Bampton J, dissenting:
1.       The appeal should be allowed and the sentence set aside.
2.       The appellant should be resentenced to a head sentence of three years and nine months’ imprisonment, and a non-parole period of two years and three months, commencing 11 March 2016.
In relation to the appellant Mackay:
Held per Nicholson J (Kourakis CJ agreeing) and Bampton J granting permission and allowing the appeal:
1.       The non-parole period imposed by the Judge was manifestly excessive when regard is had to all the circumstances, including the fact that the appellant was obliged to serve a two year sentence for Commonwealth offending before the non-parole period for the State offending would commence (per Nicholson J at [52]-[53], per Bampton J at [398]).
Held per Nicholson J (Kourakis CJ agreeing):
1.       The head sentence imposed was within the range available to the Judge.
2.       The non-parole period fixed by the Judge is set aside and a new non-parole period of three years, four months and 20 days is fixed with respect to the head sentence for the State offending, to commence at the expiration of the Commonwealth sentence.
Per Bampton J, dissenting:
1.       The sentence imposed should be set aside.
2.       The appellant should be resentenced to a head sentence of six years, one month and 20 days, backdated to 8 May 2017, with a non-parole period of one year, seven months and 20 days, commencing 8 May 2019.
Crimes Act 1914 (Cth) s 20, s 20A; Criminal Law Consolidation Act 1935 (SA) s 5, s 5AA, s 20, s 39, s 40, s 83E, s 134, s 172, s 353; Criminal Law (Sentencing) Act 1988 (SA) s 10C, s 10, s 13, s 18A, s 20A, s 20B, s 20BA, s 58; Criminal Procedure Act 1921 (SA) s 158; Sentencing Act 2017 (SA) cl 2, Sch 1; Statutes Amendment (Serious and Organised Crime) Act 2012 (SA) s 30; Summary Procedure (Indictable Offences) Amendment Act 2017 (SA) s 41, referred to.
Hili v The Queen (2010) 242 CLR 520, applied.
R v Le [2015] SASCFC 152, discussed.
Dimozantos v The Queen (No 2) (1993) 178 CLR 122; Markarian v The Queen (2005) 228 CLR 357; Radenkovic v The Queen (1990) 170 CLR 623; R v Cekic & Ors [2016] SASCFC 26; R v Kite (1971) 2 SASR 94; R v MacGowan (1986) 42 SASR 580; R v M, STE (2013) 118 SASR 101; R v Palmer [2016] SASCFC 34; R v Perfezi & Ors (2014) 118 SASR 431; R v Perre (1986) 41 SASR 105; R v Roberts [2016] SASC 193; R v Woolridge (2015) 123 SASR 422, considered.

R v PISHDARI; R v ROBERTS; R v MITCHELL; R v JOHNSTON; R v REYNOLDS; R v MACKAY
[2018] SASCFC 94
Court of Criminal Appeal: Kourakis CJ, Nicholson and Bampton JJ

KOURAKIS CJ: I acknowledge the considerable assistance provided by Bampton J’s comprehensive summary of the circumstances of the offending and the personal circumstances of each of the appellants.
General deterrence must be accorded relatively substantial weight in sentencing offenders against s 83E of the Criminal Law Consolidation Act 1935 (SA) (CLCA) because of the insidious and serious threat to public order and safety posed by criminal organisations. At the same time, for the reasons given by Nicholson J, the character of a person who is willing to participate in or associate with an organisation of that nature undermines the confidence in which a court can have in his or her commitment and capacity to rehabilitate.
It is the weight which I accord those considerations which leads me to concur in the orders proposed by, and reasons of, Nicholson J.
In addition, I agree that, on the disparity ground of appeal pursued by counsel for Mitchell, the relevant differences when balanced out do not justify any sense of grievance.
I would also emphasise the importance of carefully identifying the conduct which constitutes a participation offence.[1] If the identified conduct includes conduct which would, in itself, constitute an offence, it is important to sentence by reference to the maximum penalty prescribed by s 83E, and in accordance with an evaluation of the sentencing considerations pertinent to s 83E, and not the offence which might have been, but was not, charged.
[1] Contrary to Criminal Law Consolidation Act 1935 (SA), s 83E.
Alternatively, the identified conduct may be closely related to, or even include an aspect of, conduct which is the subject of another conviction. In those cases, assuming that the principle of autrefois convict, or related principles, are not engaged, care should be taken in fixing the head sentences for each offence, which must, in accordance with s 83E(5), be served cumulatively to ensure that the total sentence does not exceed that which is proportionate to the offending as a whole.
It is not strictly necessary for me to determine the proper construction of the transitional provision enacted in clause 2(1) of Schedule 1 of the Sentencing Act 2017 (SA) (the new Act). I would identify the relevant question of construction to be whether the word ‘sentencing’ in that provision includes what is described in s 353(4) of the CLCA as ‘re-sentencing’. To put it another way, the question is whether the ‘substitu[tion]’ of the sentence the Court of Criminal Appeal thinks ought to have been passed for that passed at first instance is the ‘sentencing of a defendant’ within the meaning of that phrase in the transitional provision. It is not the use of the word ‘substitution’ which is important here. Whenever a sentence is quashed, another sentence must be substituted for it; the question is which Act is to govern the fixing of that sentence. The sentencing which follows the quashing of a sentence is a readily identifiable subclass of sentencing generally, which the Parliament might not have intended to include in the transitional provision.
I observe that there are strong reasons arising out of the principle of legality to read down the word ‘sentencing’ to mean only the sentencing of a convicted person at first instance. If the transitional provision is construed to include re-sentencing on appeal it would, for all practical purposes deprive the appeal conferred by s 353 of the CLCA of any meaningful application to those cases which attract the mandatory sentencing provisions of the new Act. An appeal against a sentence in cases of that kind, which would otherwise be allowed, may have to be dismissed because the application of the new Act would result in a more severe punishment being imposed, a result which is prohibited by s 353(5) of the CLCA. The retrospective confirmation of erroneously imposed sentences is inconsistent with common law principle and, in the absence of clear language, a legislative provision which should not be so construed.
The problematic application of the new Act on non-parole periods if a head sentence were to be reduced on appeal, having regard to the prohibition on imposing a more severe sentence in s 353(5) of the CLCA, is an additional reason to doubt that the Parliament intended the transitional provision to extend to re-sentencing on appeal.
NICHOLSON J.
Introduction
I gratefully adopt Bampton J’s helpful summary of the nature and circumstances of the involvement of each appellant in the offences each committed, their personal circumstances, including their level of involvement with the Nomads and any other outlaw motorcycle gang (OMCG) and their prior criminal involvements, the factors relevant to and conclusions to be drawn with respect to their prospects for rehabilitation and the submissions on appeal relied on by each appellant and the Director of Public Prosecutions.
However, I have taken a different view as to the ultimate disposition of each appeal. Given that the primary ground of appeal in each case is manifest excess and that I agree with much of that which Bampton J has written, I can keep my reasons relatively brief. Before turning to the individual matters, I make the following general observations.
A sentence will be manifestly excessive “if upon the facts it is unreasonable or plainly unjust” and even though the nature of the error that has resulted in that conclusion is not discoverable.[2] In the usual case, the factors relevant to an assessment of whether or not a particular sentence is manifestly excessive are: the maximum sentence prescribed by law; the standards of sentencing customarily observed for offences of the kind in question; the seriousness of the offence committed when compared with other examples of the offence in question; and the personal circumstances of the offender.[3]
[2] House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505.
[3] The Queen v Morse (1979) 23 SASR 98 at 99.
The offence of participating in a criminal organisation, contrary to section 83E(1) of the Criminal Law Consolidation Act 1935 and with respect to which the appellants Pishdari, Johnston, Reynolds and Roberts were convicted, was enacted in this State only relatively recently.[4] It has no close statutory or common law comparators other than perhaps conspiracy based offences. There have to date been very few convictions and sentences passed with respect to section 83E(1). The only appellate consideration of a sentence imposed for this offence of which I am aware is that in R v Le.[5] There have been some sentences passed at first instance that do not appear to have been considered on appeal.
[4] Inserted in 2012 by section 30 of the Statutes Amendment (Serious and Organised Crime) Act 2012.
[5] [2015] SASCFC 152.
I have read the District Court sentencing remarks for Harrison (25 February 2014), Cranwell (7 November 2014), Thanh Tong Ta and Vinh Nam Ta (15 May 2015) and Strang (22 July 2015). Each of these, as well as Le, involved the same drug distribution syndicate and multiple additional drug related offences, whereas the offence here under consideration involved participation in a criminal organisation with a view to orchestrating and/or participating in acts of extreme violence. The factual bases and other circumstances relevant to sentencing in these earlier drug cases were quite different from those presently under consideration.[6]
[6] In addition, each of these District Court sentences, other than the matter of Harrison, and the sentence in Le arose out of the same substratum of facts and was imposed by the same Judge rendering them even less useful for comparison purposes.
Plainly, when considering the question of manifest excess, one has to be cautious about undertaking any comparison with the penalty of five years imprisonment imposed in Le which the Full Court found to be within the available range. Whether or not a higher sentence might also have been within the range was not before the Full Court. Furthermore, the starting point for the overall sentence imposed in Le was described on appeal as merciful.
For the foregoing reasons, consideration of the second and third factors identified earlier as relevant to the question of manifest excess is not as straightforward in the case of the participation offence sentences as in other cases. Nevertheless, a sentencing or appellate Judge’s appreciation of the nature and seriousness of the conduct in question, as compared with examples of other criminal conduct such as that involving the aiding and abetting of premeditated violence, orchestration of violence and threats of violence, will be of assistance when deciding if a particular sentence is within the range available.
It is trite to observe that the appropriate sentence will depend on the particular circumstances of the case. The question of manifest excess is not in the usual case to be determined according to a bare comparison with other cases. Ultimately, the proper approach to a question of manifest excess or manifest inadequacy is that as explained by a plurality in the High Court in Hili v The Queen.[7]
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”.
(emphasis supplied)
[7] [2010] HCA 45; (2010) 242 CLR 520 at [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (footnotes omitted).

The offence of participating in a criminal organisation when charged in conjunction with other offences can give rise to particular difficulties. Importantly, the risks of offending the De Simoni[8] principle and of double punishment must be avoided. In Le, the offender received a substantial prison term for the other related offending. A separate five year term was imposed with respect to the elements of the participation offence.
[8] The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383.
In Le,[9] Lovell J (with whose reasons Sulan and Peek JJ agreed) identified the following considerations as relevant to sentencing for the participation offence.
Section 83E(1) of the Act punishes an offender for participation in a criminal organisation and in particular for support and maintenance of that organisation through such participation. Section 83E(5) of the Act requires a sentence imposed on conviction to be cumulative on any other term of imprisonment. Thus, where substantive offending is also charged, the use of s 18A of the Sentencing Act for all of the offending is precluded. The purpose of the direction that a sentence imposed be served cumulatively is to ensure that the offending against s 83E(1) of the Act is not overlooked and to allow for ready identification of the punishment.
Clearly, an offence constituted by s 83E(1) of the Act will include conduct that in itself may constitute other criminal offences. It should be noted that the section is also wider and includes conduct which may be of itself neither the commission of a substantive offence nor accessorial offending. The fact that this section catches conduct wider than specific substantive offending can be seen in the interpretation section, namely, s 83D of the Act.
However, the provisions do not preclude the fixing of an overall sentence which properly reflects the criminality of the total offending.
Where offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the common elements. The punishment imposed should reflect what the offender has done.[10]
Thus, a sentencing judge should ensure that the sentence for an offence against s 83E(1) of the Act punishes only that conduct constituting the charged offence and not for the offending which has been separately charged and punished. The sentencing judge should also ensure that any sentence imposed on another count is not more severe than it would be by reason of the aggravating circumstance that the offence was committed as part of a criminal organisation.
[9] [2015] SASCFC 152 at [27]-[31].
[10] Pearce v The Queen (1998) 194 CLR 610, 623 [40].
Both personal and general deterrence are very significant considerations when sentencing for the offence of participating in a criminal organisation, particularly given the character of Pishdari, Johnston, Reynolds and Roberts. The effects of or consequences flowing from such participation are likely to be very detrimental over time to individual persons and to society generally. They can be insidious and difficult to identify and to prevent or suppress. In addition, the need for punishment or retribution so as to reflect society’s strong disapproval and rejection of conduct comprising participation in a criminal organisation is a very important consideration when sentencing for this offence.[11]
[11] For a statement of the considerations relevant at common law to the sentencing of offenders who have committed serious crimes, see Doyle CJ (with whom Prior and Vanstone JJ agreed) in R v Nemer [2003] SASC 375; (2003) 87 SASR 168 at [4]-[7].
As far as the issues of rehabilitation prospects and scope for leniency generally are concerned, I make the following further observations.
Where an offender is a member, nominee or even an associate of an OMCG, in the case of the latter where the person has some form of regular or ongoing association, the fact that the person may have limited criminal antecedents will need to be considered in that context.
Typically, when sentencing an offender, the extent and nature of their prior criminal record will be of assistance in assessing their character and propensities for the purpose of determining matters such as: whether leniency might be justified; the extent to which personal deterrence is to be a consideration; and prosects of rehabilitation. Each of the appellants, with the exception of Mitchell and Mackay, had relatively few serious criminal antecedents and this remains a factor in their favour. However, the fact that a person is a member, nominee or, depending on the circumstances, an associate of an OMCG may of itself support a conclusion that he or she is of bad character with poor prospects for rehabilitation and an enhanced need for personal deterrence and notwithstanding an otherwise moderate or good prior criminal record.
The fact that a person is prepared to associate themself with and participate in the ethos and activities of an OMCG says much about their character. It is common knowledge that many members of OMCGs see themselves as operating outside the law with a preparedness to participate in serious criminal offending, including acts of extreme violence. The fact that a person is prepared to participate in or be involved with such an organisation shows that person to be of very bad character, relevant to the sentencing considerations earlier identified. Each of the appellants in this matter, including those with relatively limited prior criminal records, had a sufficiently extensive association with the Nomads for this reasoning to apply.
Of course, the prior criminal record of a person who is in some way involved with an OMCG still must be carefully assessed. It remains relevant for both good or ill. Mr Mitchell, for example, according to the Judge’s findings, had a relatively limited involvement with the Nomads. However, he has an appalling prior criminal record as summarised by Bampton J. His record provides no warrant for leniency but rather emphasises the importance of personal deterrence and the need to protect the public, and his poor prospects for rehabilitation.
In the cases of the appellants Pishdari, Johnston, Mitchell and Mackay the Judge viewed their prospects for rehabilitation as poor.[12] In the case of Reynolds and Roberts, the Judge viewed their prospects more favourably, although did not expressly avow any confidence in this respect. The Judge gave extensive reasons for his conclusions on this topic and, on the basis of the information before his Honour, I am satisfied that each of the findings was properly arrived at.
[12] For Mackay, the Judge discussed matters relevant to rehabilitation at length but with no express conclusion. However, it is readily apparent that his Honour viewed those prospects as poor, at best.
The serious nature of each appellant’s offending, the strong need in each case for a sentence that will promote personal and general deterrence and for punishment by way of denunciation of the conduct, together with the guarded prospects for rehabilitation, meant that a severe, albeit proportionate, sentence was called for in each case.
Bampton J and the Chief Justice have considered the question whether or not any resentencing by this Court should take place pursuant to the recently enacted Sentencing Act 2017 (SA) (“the new Act”) rather than the Criminal Law (Sentencing) Act 1988 (SA) (“the old Act”) which was in force at the time the Judge passed sentence. In this respect, the prosecution contends for the former in reliance on the transitional provision in Schedule 1 to the new Act and noting that this Act came into effect on 30 April 2018. Clause 2(1) of that provision provides:
Subject to this clause, this Act applies to the sentencing of a defendant after the commencement of this Act, regardless of whether the offence for which the defendant is being sentenced was committed before or after that commencement.
Brief written submissions were received on the question of whether or not the transitional provision, properly construed, embraces a situation where an offender has been sentenced pursuant to the old Act but falls to be resentenced following a successful appeal after the commencement of the new Act. My preliminary view is that the situation may not be as straightforward as an initial reading of the transitional provision might first suggest. However, given the manner by which I would dispose of each appeal, it is not necessary that I form a concluded view on this question.
With these general observations in mind and bearing in mind my broad agreement with Bampton J to the extent set out at the beginning of these reasons, I turn to my conclusions with respect to each of the appeals.
Pishdari
There is no doubt that severe sentences were called for in the case of Pishdari. Further, because of his position and capacity to control and direct the others in their criminal conduct, Pishdari’s offending was more serious than and should be dealt with more severely than that of the other appellants. However, I agree with Bampton J that the sentence for Pishdari is manifestly excessive. A starting point of 20 years imprisonment for the offences as committed by this offender (that is, bearing in mind his personal circumstances) was outside the available range. I would allow the appeal and resentence Mr Pishdari as follows.
For counts 5 and 8 (participation in a criminal organisation) I would impose the one penalty of imprisonment for eight years backdated to commence 27 May 2015. For counts 11 (aggravated kidnapping) and 12 (aggravated blackmail) I would impose the one penalty of imprisonment for eight years, to be served cumulatively on the sentence imposed for counts 5 and 8. I would fix a non-parole period of 12 years and ten months. For the reasons given by Bampton J, Pishdari is to be dealt with as a serious repeat offender in accordance with the requirements of the old Act. The same would apply were he to be sentenced under the new Act. Whichever Act were to apply, Pishdari’s non-parole period must be at least four-fifths the length of the total sentence imposed.
Roberts
Roberts’ grounds of appeal are that the sentence imposed is manifestly excessive, that the Judge failed to have proper regard to the parity principle and that his Honour sentenced on the basis of an error of fact. I agree with Bampton J that the findings of fact challenged on appeal were properly arrived at by the Judge on the evidence before his Honour. In any event, the alternative factual basis contended for by Roberts would not cause me to impose any different sentence.
As to the parity issue, I agree that no material distinction is to be drawn with respect to the culpability of Roberts, Johnston and Reynolds concerning count 7. Even when their differing personal circumstances are taken into account, I am not satisfied that Roberts has a justifiable feeling of grievance to warrant any adjustment to his sentence.
Roberts also complains about receiving only a five per cent reduction and as to the Judge’s reasons for not allowing the maximum ten per cent potentially available under statute. I agree with Bampton J that the reduction given was within the available discretion on the facts. I also agree that, in the circumstances of this case, the fact that the plea came at the last possible moment was a sufficient justification for not allowing the full ten per cent. The utilitarian value of the plea was necessarily reduced and in all the circumstances the plea added little, if any, support to a finding of genuine contrition. A reduction by only five per cent was so plainly warranted that the Judge’s reasons for not allowing the maximum were adequate.
Thus far I am in agreement with Bampton J. However, I take a different view with respect to the complaint of manifest excess. The sentence imposed was not unreasonable. It was within the range available for the offences as committed by this offender.
Permission on ground 1 (manifest excess) has previously been granted. I would grant permission to Roberts to appeal on all other grounds but dismiss the appeal.
Mitchell
Mitchell contends that the Judge sentenced on a wrong factual basis, that his Honour paid insufficient regard to the parity principle, particularly with respect to the sentence imposed on Johnston, and that the sentence is manifestly excessive.
Mitchell has an extremely serious criminal record as summarised by Bampton J and one far more concerning than that of Johnston. Further, his personal circumstances differed materially. In particular, Mitchell maintained an association with the Nomads and Comancheros while awaiting trial. As a consequence, the considerations bearing on personal deterrence and prospects for rehabilitation differed with respect to the two men. I reject the contention that Mitchell’s sentence when compared with that for Johnston offends the parity principle and notwithstanding that during the relevant period Johnston appears to have had a more extensive association with the Nomads.
I agree with Bampton J that the Judge’s error of fact identified in her Honour’s reasons was not such as would have had any material effect on the sentence passed. After taking into consideration the correct finding, it would not cause me to sentence any differently.
However, I, again, take a different view on the question of manifest excess. The sentence imposed by the Judge was within the range available to the Judge for the offence as committed by this offender.
Permission has earlier been granted with respect to all of Mitchell’s grounds of appeal. However, I would dismiss his appeal.
Johnston
In his notice of appeal, Johnston relied on the ground of manifest excess with respect to which permission has earlier been given. During submissions he raised three other or more specific complaints: the Judge erred in only allowing a five per cent discount on account of the guilty plea for the participation offence; the Judge failed to identify whether the non-parole period had also been so discounted; and the non-parole period fixed failed to reflect Johnston’s prospects for rehabilitation and other relevant matters.
The complaint about the discount is without merit for the same reasons earlier given with respect to this complaint by Roberts. Further, leaving aside the practice in this Court when setting a non-parole period against a mandatory life sentence, there is no statutory or other obligation to identify a discount for a plea when fixing a non-parole period. There are two approaches available to a sentencing judge. The first is to fix a notional head sentence and a notional non-parole period before applying any available discount to each. The second, which the Judge adopted, is to determine a total period of imprisonment after allowing for any plea discount or discounts available and to then fix a non-parole period with reference to the already discounted total period of imprisonment. By the second approach, the offender still receives the benefit of the discount at the stage of the fixing of the non-parole period. It usually will be more convenient to apply the second approach in cases involving multiple offences not all of which attract the same (or any) discount, as was the case for Johnston.
On a reading of the Judge’s remarks concerning Johnston as a whole, it is not the case that his Honour ignored Johnston’s personal circumstances and prospects for rehabilitation or overtly overstated the seriousness of his antecedents. The appellant’s real complaint here is that insufficient weight or undue weight, respectively, were accorded these matters. Such, even if made out, would not amount to process errors in the House v The King[13] sense and would not of itself enliven an appeal court’s authority to intervene. Such a contention may form part of a submission serving to explain how it may have come about that an outcome error (manifest excess or inadequacy) has resulted. In the present appeal, the factors complained of by Johnston and the weight they might properly bear are to be considered in the context of the contention that the sentence imposed was manifestly excessive.
[13] [1936] HCA 40; (1936) 55 CLR 499 and, see generally, R v Lutze [2014] SASCFC 134; (2014) 121 SASR 144 at [46]-[47], and subsequent authorities such as R v Kohlhagen [2016] SASCFC 19 at [48] and [1] and R v Taylor [2016] SASCFC 54 at [23].
As to this latter question, again, I am not satisfied that the sentence imposed was unreasonable in the sense of falling outside the limits of the Judge’s decisional freedom when sentencing this offender for the offences he committed.
I acknowledge that a non-parole period of 75 per cent of the total period of imprisonment imposed for a person with minimal prior criminal antecedents might be seen as severe. However, Mr Johnston had maintained a significant association with the Nomads and later the Comancheros which, for the reasons earlier given, operates as a counterweight to his otherwise good criminal record.
Both the head sentence and the non-parole period were within the available range. I would dismiss Johnston’s appeal.
Reynolds
The grounds of appeal are set out in the reasons of Bampton J. Permission to appeal on grounds 1, 2 and 5 has previously been given. Ground 3 requires permission and ground 4 was abandoned. I would grant permission for ground 3 but, like her Honour, I would dismiss grounds 2, 3 and 5. I agree that the circumstances of Reynolds are not such as to engage a parity concern with respect to either Johnston or Roberts. Their respective culpability with respect to count 7 was broadly the same and Reynolds’ personal circumstances are not sufficiently distinguishable, particularly given his strong association with the Nomads first as a full member and subsequently as a nominee. The Judge’s failure to allow the full ten per cent discount potentially available was within the available discretion for the reasons earlier given. As for ground 1 (manifest excess) in my view, a head sentence of four years and nine months after discount, with a non-parole period of two years and ten months, was within the range available for the offence of participating in a criminal organisation as committed by this offender, a full Nomads member albeit later downgraded to a nominee.
I would dismiss Reynolds’ appeal.
Mackay
Mackay contends that both the head sentence of five years, nine months and 20 days imposed for counts 11 and 12 and the non-parole period of four years and five months are manifestly excessive. As far as the head sentence is concerned, the Director’s submissions on appeal, as summarised by Bampton J, should be accepted. The head sentence was within the range available to the Judge when regard is had to the appellant’s level of culpability and his role as the sergeant at arms of the Nomads and his personal circumstances generally. The complaints concerning the manner by which the Judge dealt with the psychological report by Ms Darmenia carry little weight. The Judge’s findings as to the appellant’s lack of genuine remorse and poor prospects for rehabilitation were well supported on the whole of the information available to his Honour.
The non-parole period is severe and more so than might first be apparent. When time served of one year, 11 months and 10 days is taken into account, the effective non-parole period of six years, four months and ten days is approximately 81 per cent of the total of the two State sentences (seven years and ten months). Further, when regard is had to the fact that the appellant is obliged to serve the full two year Commonwealth sentence before commencing the non-parole period, the severity increases. The total time the appellant will be required to serve before being eligible for parole becomes eight years, four months and ten days.[14] This can be compared with the total period of imprisonment of nine years and ten months,[15] giving a proportion of approximately 85 per cent.
[14] This is made up of one year, 11 months and ten days already served since arrest and prior to date of sentencing, two years (Commonwealth) from date of sentencing and then a further four years and five months non-parole period.
[15] This is made up of one year, 11 months and ten days already served since arrest and prior to sentencing, two years (Commonwealth) from date of sentencing, one month (State bond) cumulative and five years, nine months and 20 days (head sentence for counts 11 and 12) cumulative.

The non-parole period imposed by the Judge was manifestly excessive when regard is had to all of the circumstances including, as a personal circumstance, the fact that the appellant was obliged by law to serve the Commonwealth two year sentence before the non-parole period for the State offending would commence. In my view, a period that results in a proportion in the region of 75 per cent of all time to be served (consistent with the non-parole periods ordered for Mitchell and Johnston) is appropriate.[16] The total period of imprisonment imposed on Mackay (including time served and the Commonwealth sentence) was nine years and ten months. A non-parole period of 75 per cent of this total period would be approximately seven years and four months. After deducting the time served and the Commonwealth sentence, I would fix a non-parole period of three years, four months and 20 days. Accordingly, I would fix this as the non-parole period with respect to the head sentence for the State offending.[17]
[16] It has not been contended that Mackay should be treated as a serious repeat offender whether under the old Act or the new Act for the purpose of fixing a minimum 80 per cent non-parole period.
[17] When time served is taken into account, this results in an effective non-parole period for the State offending of five years and four months (three years, four months and 20 days plus time already served of one year, eleven months and ten days) as compared with a total period of imprisonment for the State offending of seven years and ten months (seven years and nine months for counts 11 and 12, including time served and one month for State bond). The proportion measured in this way is 68 per cent.
I would allow Mackay’s appeal to the extent only of setting a new non-parole period of three years, four months and 20 days to commence at the expiration of the Commonwealth sentence.
Conclusion
I would make the following orders with respect to each appeal.
Pishdari
1.Appeal allowed.
2.Set aside the sentences imposed.
3.The appellant is resentenced for counts 5 and 8 to one term of imprisonment for eight years, backdated to commence 27 May 2015.
4.The appellant is resentenced for counts 11 and 12 to one term of imprisonment for eight years, to be served cumulatively on the sentence imposed for counts 5 and 8.
5.A non-parole period of 12 years and ten months is fixed, commencing 27 May 2015.
Roberts
1.Permission to appeal granted on grounds 2 and 3.
2.Appeal dismissed.
Mitchell
1.Appeal dismissed.
Johnston
1.Appeal dismissed.
Reynolds
1.Permission to appeal granted on ground 3.
2.Appeal dismissed.
Mackay
1.Permission to appeal granted.
2.Appeal allowed to the extent only of fixing a new non-parole period of three years, four months and 20 days to commence at the expiration of the Commonwealth sentence.
BAMPTON J: In late 2014, the Nomads, an outlaw motorcycle gang (“OMCG”) which had a presence in other Australian states, established a chapter in South Australia. By the middle of 2016, following an investigation by the South Australian police (“SAPOL”), the Director of Public Prosecutions (“the Director”) had laid an Information alleging 12 counts against members and associates of the fledgling SA chapter.
The Supreme Court Information dated 17 June 2016
Following an order for severance, three jury trials were held. Counts 11 and 12 were tried before the first jury (“trial 1”), counts 8 and 9 before a second jury (“trial 2”), and counts 5 and 7 before a third jury (“trial 3”). Guilty pleas were entered in respect of count 10.
The Director entered a nolle prosequi in respect of counts 1, 2 and 3 on the Information. Honar Pishdari and Nathan Mackay were found not guilty of count 4. There was a directed acquittal in respect of count 6 charged against Idris Beedar.
Ultimately, Honar Pishdari was found guilty by jury verdicts of:
·aggravated kidnapping contrary to s 39(1) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) – count 11 (trial 1);
·aggravated blackmail contrary to s 172(1) of the CLCA – count 12 (trial 1); and
·two counts of participating in a criminal organisation contrary to s 83E of the CLCA – count 5 (trial 3) and count 8 (trial 2).
Mr Pishdari was sentenced to a head sentence of 20 years’ imprisonment and a non-parole period of 16 years was fixed.
Luke Johnston was found guilty by a jury verdict following trial 1 of:
·aggravated kidnapping contrary to s 39(1) of the CLCA – count 11; and
·aggravated blackmail contrary to s 172(1) of the CLCA – count 12;
and pleaded guilty to participating in a criminal organisation contrary to s 83E of the CLCA (count 7). Mr Johnston was sentenced to nine years and nine months’ imprisonment with a non-parole period of seven years and four months.
Darren Mitchell was found guilty by jury verdict following trial 1 of aggravated blackmail contrary to s 172(1) of the CLCA (count 12) and not guilty of aggravated kidnapping (count 11). Mr Mitchell was sentenced to five years’ imprisonment with a non-parole period of three years and 10 months.
Paul Reynolds pleaded guilty to participating in a criminal organisation contrary to s 83E of the CLCA (count 7) and was sentenced to four years and nine months’ imprisonment with a non-parole period of two years and 10 months.
Shannon Roberts pleaded guilty to:
·participating in a criminal organisation contrary to s 83E of the CLCA: count 7;
·participating in a criminal organisation contrary to s 83E of the CLCA: count 9; and
·aggravated theft contrary to s 134(1) of the CLCA: count 10.
Mr Roberts was sentenced to seven years and 10 months’ imprisonment with a non-parole period of four years and nine months.
Nathan Mackay was found guilty by jury verdict following trial 1 of:
·aggravated kidnapping contrary to s 39(1) of the CLCA: count 11; and
·aggravated blackmail contrary to s 172(1) of the CLCA: count 12.
Mr Mackay was sentenced to seven years, 10 months and 20 days’ imprisonment with a non-parole period of four years and five months.
The circumstances of aggravation
The circumstances of aggravation in respect of counts 11 and 12 were that each offence was:
·committed by Mr Pishdari, Mr Mackay, Mr Johnston, and Mr Mitchell in company with one another pursuant to s 5AA(1)(h) of the CLCA; and
·at the direction of, or in association with, a criminal organisation in pursuant to s 5AA(1)(ga) of the CLCA.
The circumstance of aggravation in respect of count 10 was that it was committed by Mr Roberts, Michael Kotz and Jason Fraser in company with one another pursuant to s 5AA(1)(h) of the CLCA.
The maximum penalties
The maximum penalty for the offence of participating in a criminal organisation contrary to s 83E of the CLCA is 15 years’ imprisonment.
The maximum penalty for aggravated kidnapping contrary to s 39(1) of the CLCA is 25 years’ imprisonment.
The maximum penalty for aggravated blackmail contrary to s 172(1) of the CLCA is 20 years’ imprisonment.
The maximum penalty for aggravated theft contrary to s 134(1) of the CLCA is 15 years’ imprisonment.
Serious and organised crime offences
Participation in a criminal organisation contrary to s 83E (counts 5, 7, 8, and 9) is defined by s 5 of the CLCA as a “serious and organised crime offence” as it is an offence against Part 3B of the CLCA.
The fact that the aggravated kidnapping (count 11) and aggravated blackmail (count 12) offences were each committed at the direction of, or in association with, a criminal organisation brings each offence within the s 5 of the CLCA definition of a “serious and organised crime offence”.
The appeals against the sentences imposed on 17 May 2017
Mr Pishdari, Mr Johnston, and Mr Mitchell appeal their sentences with permission.
Mr Reynolds appeals with permission on three grounds and seeks permission with respect to another ground.
Mr Roberts appeals with permission regarding one ground and two other grounds have been referred to this Court for permission.
Mr Mackay seeks permission to appeal.[18]
[18] The Pishdari, Johnston, Mitchell, Reynolds Roberts appeals were heard on 23 August 2017. Mr Mackay’s notice of appeal was filed on 15 August 2017 and application for permission and appeal heard on 4 September 2017.
Mr Kotz and Mr Fraser, who each pleaded guilty to counts 9 and 10, have not appealed their sentences.
All appellants complain that their sentence is manifestly excessive. Complaint is made by those who entered guilty pleas that they only received a five percent reduction on the sentence that would have otherwise been imposed. A number complain that there is a disparity between the sentence they received and the sentences imposed on other co-offenders.
For the reasons that follow, I would allow all appeals and resentence each appellant.
Before discussing each appellant’s specific complaints, I set out the approach on appeal against sentence and the matters pertinent to sentencing for participation in a criminal organisation, kidnapping and blackmail. I also set out matters to be considered regarding complaints of manifest excess, discount for guilty plea, parity and the fixing of a non-parole period.
Circumstances in which this Court will intervene on appeal against sentence
This Court will only intervene with the exercise of the sentencing discretion if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen:[19]
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”.
The majority in Markarian also referred to the maximum penalties provided by Parliament as providing a sentencing yardstick:[20]
[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all other relevant factors, a yardstick.
[19] (2005) 228 CLR 357 at [25].
[20] (2005) 228 CLR 357 at [31] per Gleeson CJ, Gummow, Hayne and Callinan JJ.
In this Court, Kourakis CJ and Sulan J have said that:[21]
When determining if a sentence is manifestly excessive, this court considers a number of factors including the maximum penalty for the offence, the range of sentencing customarily observed for the type of offending, the seriousness of the offending and the personal circumstances of the offender.
[21] R v Scarpantoni (2013) 241 A Crim R 449 at [81].
If error is demonstrated in the sentencing process, the sentencing discretion is re-enlivened. It is not enough that this Court is of the view that it would have exercised its discretion differently and imposed a different sentence if it had been in the position of the sentencing Judge. In short, this Court will only interfere with a sentence if an error, either express or implied, can be demonstrated.[22]
[22] House v The King (1936) 55 CLR 499 at 504-5; R v Horstmann (2010) 269 LSJS 42.
Sentencing for participation in a criminal organisation
The offending charged against each of the appellants arose out of their membership association with the Nomads OMCG.
Section 83E(5) of the CLCA provides that the term of imprisonment to which a person is sentenced must be cumulative upon any other term of imprisonment that the person is liable to serve in respect of another offence (not being another offence against 83E).
The appellants’ association with the Nomads, and the fact that their offending has its genesis in that association, is a very significant matter to take into account in the sentencing process. The sentence imposed must provide security to the community. The objectives of sentencing:[23]
… are the punishment of the offender or retribution (to reflect society’s disapproval and rejection of the conduct in question); deterrence of the offender from further offending; deterrence of other persons from offending, and rehabilitation or reform (that is, encouraging the offender to reform and to behave in accordance with the law). Sometimes it is said that these were the means by which the court protects the community.
[23] R v Nemer (2003) 87 SASR 168 at [4]-[7] per Doyle CJ, with whose remarks both Prior J at [60] and Vanstone J at [78] agreed.
In R v Wooldridge, this Court stressed that:[24]
It is necessary to understand that the “punishment of the offender or retribution”, as one of the objectives of sentencing, is not used in the sense of retaliation for the consequences of the conduct in question, by or on behalf of surviving victims or a victim’s family or a section of the community, but in the sense of reflecting society’s disapproval of, and rejection of, the conduct in question. This is sometimes described as society’s denunciation of the conduct and can be seen as the punitive element in the process of sentencing.
[24] (2015) 123 SASR 422 at [28].
The general deterrence objective of sentencing assumes greater relative importance for offences of serious violence committed by offenders who are associated with outlaw gangs as it is necessary to counter the violent culture of such gangs.
Allegiance to a violent criminal organisation is highly significant in sentencing an offender who identifies with an OMCG as it is relevant to culpability, general and specific deterrence, punishment and rehabilitation. The gang culture of violence and adherence to criminal activities warrants significant weight being placed on general deterrence. Further, there can be no doubt that when a gang member who freely associates with this culture is sentenced, specific deterrence must be given significant weight.
The position or “office” held by an appellant in the Nomads is suggestive of how entrenched that person is in the OMCG culture.
As submitted by the Director, if an offender continues to subscribe to that gang culture, their prospects of rehabilitation must be guarded, so too expressions of contrition or remorse.
This Court has considered the application of s 83E in R v Le[25] in determining whether the sentence that had been imposed for the offence of participation in a criminal organisation was manifestly excessive. The appellant had been sentenced for an offence against s 83E and three counts of trafficking in a controlled drug, one count of trafficking in a large commercial quantity of a controlled drug, six counts of knowingly engaging in money laundering, and one count of dishonestly dealing with documents. Before applying a discount for the appellant’s guilty pleas, the Judge imposed a sentence of 10 years’ imprisonment for the substantive drug and money laundering and five years for the s 83E offence. That sentence was to be served cumulatively upon the expiration of the 10 years as required by s 83E(5). The Court found that the sentence imposed was well within the Judge’s discretion and dismissed the appeal.[26] The appellant in that matter was the main figure of a criminal organisation and was involved in the planning and purchase of large quantities of both heroin and methamphetamine, both locally and interstate.
[25] [2015] SASCFC 15.
[26] R v Le [2015] SASCFC 152 at [40] per Lovell J.
Sentencing for aggravated kidnapping
The offence of kidnapping “was always regarded, by reason of its nature, as a grave and (to use the language of an earlier age) heinous offence”.[27] In R v Sumner,[28] Kelly J noted that “There can be no doubt that offences of attempted kidnapping, even when the offender has no prior record, are to be treated as grave crimes”.
[27] R v D [1984] 1 AC 778 at 800 per Lord Brandon.
[28] [2016] SASCFC 59 at [45].
Sentencing for aggravated blackmail
There are at least three features of blackmail that affect its gravity. They are: the degree of distress caused, the nature of the plan, and the nature of the harm intended.[29] Deterrence is an important consideration in sentencing for blackmail. It is an offence that is difficult to detect as the “predator preys, or attempts to prey, on the fear that his or her conduct inspires”.[30] It is essential that those who have the courage to report the offence or to give evidence know that their efforts will not be wasted and the offenders will be appropriately punished.[31]
[29] R v Hollitt [2006] SASC 280 at [21]; R v Perzefi; R v Garubi; R v Tracey (2014) 118 SASR 431 at [21]; R v Young (2016) 126 SASR 41 at [240]-[248].
[30] R v Vo (Unreported, Victorian Court of Criminal Appeal, 14 May 1998).
[31] R v Vo (Unreported, Victorian Court of Criminal Appeal, 14 May 1998).
Discount for guilty plea
The three appellants who entered guilty pleas complain that they only received a five percent discount for their pleas, entered on the first day of trials 2 and 3. The Judge described each sentence being reduced “by about 5% for the very late plea of guilty”. Whilst identifying that the maximum reduction available under s 10C(2)(f) of the Criminal Law (Sentencing) Act 1988 (SA) (“the CLSA”) was 10 percent, the Judge did not provide further explanation for only allowing a reduction of “about 5%”.
Subsections 10C(2)(a) to (e) provided that “the sentencing court may reduce the sentence that it would otherwise have imposed” by the prescribed percentage which reduced the closer to trial the plea was entered. Subsection 10C(2)(f) applied to circumstances other than those referred to in s 10(2)(a) to (e) and confined the discretion to reduce the sentence that would otherwise have imposed by up to 10 percent, “if satisfied that there” were “good reason to do so”. The requirement that a sentencing judge needed to be satisfied that there were good reasons to reduce a sentence up to 10 percent applied to guilty pleas entered between five weeks before trial (pursuant to s 10C(2)(e)) and the commencement of the trial.
In this matter, each plea was entered on the morning of trial. The Court’s discretion to reduce a sentence in accordance with s10C could only be exercised up until the commencement of trial. The pleas entered on the morning of trial were entered at the very limit of the period within which the Court could exercise this discretion. As such, the Judge determined in his sentencing discretion that the pleas warranted a discount of five percent.
Parity
The parity principle in sentencing requires that like cases should be treated alike, with allowances to be made for relevant differences.[32] Co-offenders who are sentenced for the same offence should not have such a marked disparity between their sentences as to give rise to “a justifiable sense of grievance”.[33] An unjustifiable disparity enlivens a discretion, but not an obligation, to intervene.[34]
[32] Lowe v The Queen (1984) 154 CLR 606 at 609-611; Postiglione v The Queen (1997) 189 CLR 295 at 301.
[33] Ibid.
[34] Green v The Queen (2011) 244 CLR 462 at 476 per French CJ, Crennan and Kiefel JJ; R v Lagana [2012] SASCFC 135 at 11-14 [50]-[60] per White J.
Section 10(1)(j) of the CLSA required the Judge to have regard to the need to ensure that the appellants were adequately punished for their offending. It follows that in exercising the discretion enlivened by an unjustifiable disparity, the Court must ensure that the offending is adequately punished. As King CJ said in R v MacGowan:[35]
The lower sentence may be so inadequate that to establish parity may be felt to compound the error in a way which would be unacceptable to the public conscience. The sense of grievance experienced by the offender may have to be tolerated in the public interest.
[35] (1986) 42 SASR 580 at 583.

He told Mr C that if the money was not obtained, Mr C would be sleeping on the bathroom floor of his house with his dog. When Mr C retrieved $2,420 in cash from the shed and handed it to Mr Mackay, Mr Mackay brandished a knife and told Mr C that he had been wasting his time because he could have handed the money over much earlier. The Judge found the brandishing of the knife constituted a threat.
Mr Mackay told Mr C, when he found the keys to his vehicle, that he was to drive in front of Mr Mackay’s vehicle back to Mr Mackay’s house and that if he attempted to drive away, he would ram his vehicle into Mr C’s vehicle.
Mr Mackay was also responsible for making Mr C, who had suffered the humiliation of being demoted from full member to nominee, put on a Nomads nominee T-shirt and overseeing him being photographed while wearing the shirt and the photograph being uploaded to Facebook to shame and further intimidate Mr C.
Mr Mackay has been in custody since his arrest on 27 May 2015.
Mr Mackay’s sentence
Following Mr Mackay’s conviction for counts 11 and 12, he admitted that his offending breached the Commonwealth order and the State bond, both entered into on 6 March 2015.
The Commonwealth release order and the State bond
On 17 August 2010, Mr Mackay had entered into a two year good behaviour bond at the Elizabeth Magistrates Court for the offence of possessing a prescription drug not being a drug of dependence. A condition of the bond was that he would appear before the Court for sentence in the event of a breach of the bond.
Within the two year period of that bond, Mr Mackay committed two Commonwealth importation offences. On 6 March 2015, Mr Mackay was sentenced in the District Court for importing a marketable quantity of a border controlled drug and importing tier 2 goods, namely a stun gun. Mr Mackay was sentenced to a single sentence for both Commonwealth offences of two years’ imprisonment. Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) (“the Crimes Act”), the District Court ordered that Mr Mackay be released upon entering into the Commonwealth release order in the sum of $1,000 to be of good behaviour for two years.
Mr Mackay was also sentenced on 6 March 2015 to one month’s imprisonment for the breach of the 17 August 2010 bond. This term of imprisonment was suspended upon his entering into the State bond, to be of good behaviour for two years.
Little more than two weeks after being sentenced by the District Court on 6 March 2015, Mr Mackay committed counts 11 and 12.
Revocation of the Commonwealth release order and the State bond
The Judge, pursuant to s 20A(5)(c)(i) of the Crimes Act, revoked the Commonwealth release order and ordered that Mr Mackay serve the sentence of two years’ imprisonment for the Commonwealth offences. The Judge also revoked the suspension of the one month sentence under the State bond and ordered that it be carried into effect, to be served cumulatively upon the sentence for the Commonwealth offences.
In sentencing Mr Mackay for counts 11 and 12, the Judge used s 18A of the CLSA to:
… impose one period of imprisonment which will allow for a measure of partial concurrency of counts 11 and 12 and which will also recognise that you will have to serve, from today, a period of two years and one month imprisonment before that sentence on counts 11 and 12 commences and two years only before your non-parole period commences to run.
With respect to counts 11 and 12, Mr Mackay was sentenced to a head sentence of five years, nine months and 20 days, reduced from seven years and nine months on account of time spent in custody of one year, 11 months and 10 days.
The Judge ordered that this sentence was to be served cumulatively upon the Commonwealth sentence of two years and the State sentence of one month, resulting in a total head sentence of seven years, 10 months and 20 days.
The Judge structured Mr Mackay’s sentence as follows:
1.Mr Mackay was ordered to serve the two year Commonwealth sentence underlying the Commonwealth release order, then serve the one month sentence underlying the breached State bond.
2.A head sentence of seven years and nine months was imposed for counts 11 and 12.
3.The head sentence of seven years and nine months was reduced by one year, 11 months and 10 days on account of time in custody to five years, nine months and 20 days (“the reduced head sentence”).
4.A non-parole period of four years and five months was fixed and ordered to commence at the expiration of the two year Commonwealth sentence and at the commencement of the one imprisonment for breach of the State bond.[56]
[56] The Court does not have the power under s 20A(5)(c) of the Crimes Act to shorten the length of the term of imprisonment which stands to be served if the Court revokes a recognisance release order. Section 32(1)(c) of the CLSA (now s 47 of the Sentencing Act) does not apply to a State sentence of imprisonment where that sentence is imposed in the same sitting as a Commonwealth sentence of imprisonment. A single non-parole period cannot be set where there is sentencing for State and Commonwealth offences, pursuant to s 19AJ of the Crimes Act. A non-parole period is only fixed in respect of a Commonwealth sentence longer than three years.
Arguments on appeal
Non-parole period
The primary error which the Judge is said to have made relates to the non‑parole period. As set out above, the Judge reduced the head sentence for counts 11 and 12 on account of time spent in custody and then fixed the non‑parole period based on the reduced head sentence.
Mr Mackay complains that, by failing to set a notional non-parole period before reducing the head sentence to take into account the one year, 11 months and 10 days he had already served in custody, the Judge fell into error. As a result, the non‑parole period of four years and five months is 76 percent of the length of the reduced head sentence. However, when the time already served in custody is added to the non-parole period of four years and five months, the effective non‑parole period which Mr Mackay will actually have served is six years, four months and 10 days. That equates to 82 percent of the head sentence of seven years and nine months, which is, in Mr Mackay’s submission, manifestly excessive.
The only other co-offender whose non-parole period is such a high percentage of his sentence is Mr Pishdari.
Rehabilitation
It is submitted that the sentencing Judge erred in failing to give adequate weight to Mr Mackay’s demonstrated rehabilitation and in finding that his prospects for rehabilitation were poor. Mr Mackay contends that the Judge consequently erred in setting such a high head sentence and, in particular, non‑parole period.
Mr Mackay submits that he chose to leave the Nomads, and acted upon that decision three months prior to his arrest for this offending. It is Mr Mackay’s contention that leaving the Nomads reflected his desire to rehabilitate.
Mr Mackay complains about the manner in which the sentencing Judge construed the report of the psychologist, Ms Darmenia. The Judge said the appellant had “not accepted that [he had] done anything wrong”. Mr Mackay contends that the Judge misconstrued Ms Darmenia’s report. Ms Darmenia stated:
Mr Mackay told me that his arrest in relation to the current offences occurred approximately three months after he had separated from the Nomads. He said he was angry at (sic) time of arrest and did not know at first what the offence related to, adding “I was three months out of the club and I had done nothing wrong”.
Mr Mackay says that this passage should be interpreted as meaning that he was shocked at being arrested, the arrest having occurred some three months after he had parted ways with the Nomads. It should not be read as Mr Mackay contending that he had not done anything wrong previously.
The Judge accepted that there was no suggestion of Mr Mackay having any further involvement with any OMCGs since his departure from the Nomads. However, he found that little had been put forward by way of mitigation or any positive material indicating rehabilitation was in progress. Ms Darmenia noted that Mr Mackay’s self-report suggested he had “a great deal of regret about involving himself with the outlaw motorcycle club” but “without any expression of specific remorse around the offence itself”. Mr Mackay submits that the fact he did not address the specific offending, but instead regretted his overall decision to join the Nomads in the first place, is not indicative of a lack of remorse. He is said to have expressed remorse about “his whole involvement in the organisation”.
Additionally, Mr Mackay submits that the Judge unfairly treated a passage from Ms Darmenia’s report as demonstrating that Mr Mackay was “unfortunately well-suited” to the position of sergeant-at-arms. Ms Darmenia stated:
A recurring theme for Mr Mackay was a fear of being alone. His report suggested he had resided much of his adult life with his parents, restricting his experience of independent living and coping. His personality style indicated he was highly reactive, impulsive and inclined to violent or aggressive responses with a very labile effect and being quick to anger. His previous contact with hospital services indicated Mr Mackay was prone to using threats and aggression to express distress, or have his needs met. In those regards, Mr Mackay was likely to have proven to be a person very attractive to an outlaw motorcycle club, being very responsive to overtures of friendship and seeking a sense of belonging, likely to largely comply with the rules and norms of the group, and without evidence of any compunction to use violence as a means to have needs met or serve the requirements of the group.
Mr Mackay says that this passage indicates that, because of his nature, he was susceptible to the “overtures of friendship”, rather than indicating that he actively sought them. It was not, in Mr Mackay’s submission, a matter that aggravated the offending.
The Director’s submissions
The Director submits that the sentence imposed for counts 11 and 12 adequately reflected Mr Mackay’s role in the Nomads as sergeant-at-arms and his level of involvement in the offending. His sentence was less than the nine year sentence imposed on Mr Pishdari for the same offending, which accurately reflected Mr Pishdari’s role as president and ongoing association with the Comancheros, but more than Mr Johnston’s five year sentence, which accurately reflected Mr Johnston’s lesser role in the offending and position within the club.
It is further submitted that the sentence is not manifestly excessive in light of Mr Mackay’s personal circumstances, mental health history, his criminal history and, the need for general deterrence. The Director points out that Mr Mackay has numerous convictions from the Children’s Court through to the District Court. Mr Mackay’s history of breaching good behaviour bonds, coupled with the fact that he breached the Commonwealth order and State bond within 17 days of entering them by committing counts 11 and 12, in the Director’s submission, reflect poorly on his prospects for rehabilitation.
The issue of general deterrence was, in the Director’s submission, rightly given significant weight due to the need to deter others from becoming involved in the culture of violence and antisocial behaviour that pervades OMCGs.
The Director submits that Mr Mackay broke ties with the Nomads because of a dispute with Mr Pishdari, not because he had seen the error in his involvement with an OMCG.
The Director further submits that the Judge had sufficient regard to Mr Mackay’s mental health problems, and found that they were not mitigating.
Mr Mackay’s personal circumstances
Mr Mackay was aged 39 at the time of sentencing. He has a supportive mother and three children aged 21, 17 and 16 at the time of sentence.
Mr Mackay’s history of offending commences with convictions imposed by the Children’s Court, followed by numerous Magistrates Court convictions for driving and summary offending. Mr Mackay was sentenced to 30 months’ imprisonment with a non-parole period of 12 months by the Magistrates Court in 1997 for breaking and entering and larceny. He was again sentenced to imprisonment by the Magistrates Court in 2003 for offending including larceny and non-aggravated serious trespass. The sentence was suspended upon Mr Mackay entering into a suspended sentence bond. He was first sentenced by the District Court in 2009 to a suspended sentence of three months’ imprisonment for two counts of firearm possession without a licence. He was then sentenced by the District Court for the offending underlying the Commonwealth release order and State bond in 2015.
In her report following her assessment of Mr Mackay, Ms Darmenia refers to Mr Mackay’s report of suffering from chronic depression and auditory hallucinations that reduced with he was using drugs. He was diagnosed during an admission to Glenside in 2014 as having drug induced psychosis and a personality disorder. He was discharged on a medication regime of mood stabilisers and antipsychotics and with a recommendation that he undergo drug rehabilitation for cannabis dependence. Mr Mackay told Ms Darmenia that his drug use escalated with methylamphetamine use prior to his arrest for this offending. At the time of Ms Darmenia’s report, Mr Mackay had been in protective custody and under the care of the prison psychiatrist. Ms Darmenia is of the opinion that Mr Mackay suffers complex mental health issues, impulsivity and poor judgement, a history of substance abuse and poor compliance with mental health supports. Ms Darmenia concluded he is at significant risk of “re‑offending without substantial efforts towards his mental health care, psychoeducation and rehabilitation”.
Conclusion
In my view, taking into account Mr Mackay’s culpability in this offending, the sentences imposed on his co-offenders, his criminal history, his personal circumstances and the need for specific and general deterrence the head sentence and non-parole period are manifestly excessive.
I would grant permission to appeal, allow the appeal and set aside the sentence imposed on 8 May 2017. I would not interfere with the orders revoking the Commonwealth release order and the State bond.
In resentencing, I would use s 18A of the CLSA and impose a single penalty for counts 11 and 12 of six years’ imprisonment. Had I imposed separate sentences, I would have ordered that they be partially concurrent.
In fixing a non-parole period, I take into account Mr Mackay’s complex mental health issues as described by Ms Darmenia. It is clear that Mr Mackay would benefit from structured rehabilitation programs once he is released on parole. I would fix a non-parole period of three years and seven months.
I would reduce the head sentence and non-parole period by the time spent in custody of one year, 11 months and 10 days.
The resulting sentence for counts 11 and 12 is four years and 20 days and a non-parole period of one year, seven months and 20 days.
Mr Mackay must serve the sentence underlying the Commonwealth order of two years and the one month sentence for breach of the State bond.
I would order that Mr Mackay serve the three cumulative sentences as follows.
He first serves two years’ imprisonment for breach of the Commonwealth release order from 8 May 2017.
He next serves one month’s imprisonment for the breach of the State bond. He then serves the head sentence for counts 11 and 12.
The non-parole of one year, seven months and 20 days commences at the expiration of the sentence of two years’ imprisonment for the breach of the Commonwealth bond and at the commencement of the sentence of one month’s imprisonment for the breach of the State bond.
In summary, the sentence I consider would provide for the protection of the community, would ensure Mr Mackay is punished and held accountable, denounce his conduct, recognise the harm done, provide personal and general deterrence, and promote his rehabilitation is a head sentence of six years, one month and 20 days, backdated to 8 May 2017, and a non-parole period of one year, seven months and 20 days, commencing 8 May 2019.