R v Yandle - [2024] SASCA 111

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v YANDLE
[2024] SASCA 111
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice David)
12 September 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
This is an application by the Director of Public Prosecutions for permission to appeal against sentence.
Following a plea of guilty, the respondent was sentenced for one count of assisting an offender, in contravention of s 241(1)(b) of the Criminal Law Consolidation Act 1935 (SA). The respondent was sentenced on the basis that, having witnessed his father, Mr Keith Yandle, murder Mr Steven Murphy, the respondent secreted items belonging to Mr Murphy, and later lied to police, intending to assist his father to escape apprehension.
From a starting point of imprisonment for two years, which was then reduced by 15 per cent for the respondent’s guilty plea, the sentencing judge imposed a sentence of imprisonment of one year, eight months and 13 days, with a non-parole period of one year and one month. The effect of this was that, at the date of sentencing, the respondent’s non-parole period had expired, and a balance of about five months of the head sentence remained to be served. The sentencing judge was satisfied that there was good reason to suspend the balance of the respondent’s head sentence, upon the respondent entering into a bond to be of good behaviour for a period of two years.
The Director contends that the sentencing judge erred in purporting to impose a partially suspended sentence pursuant to s 96(4) of the Sentencing Act 2017 (SA) (Ground 1) and in declining to view the CCTV footage of the murder by Mr Yandle (Ground 2). In Ground 3, the Director contends that the sentence was manifestly inadequate.
Held (per the Court), granting permission to appeal against sentence, allowing the appeal on Ground 1, setting aside the sentence imposed at first instance and resentencing the respondent:
1.The sentencing judge erred in purporting to partially suspend a sentence when not authorised by law to do so and in imposing a bond which may be vulnerable to challenge;
2.The sentencing judge did not err in failing to view the CCTV footage;
3.The sentence imposed was not manifestly inadequate;
4.In resentencing the appellant, the Court commences with a notional head sentence of imprisonment for two years and six months;
5.After reductions for the respondent’s guilty plea and time already served, the respondent is resentenced to imprisonment for 10 months and 19 days; and
6.The sentence is suspended upon the respondent entering into a bond to be of good behaviour for a period of two years, and otherwise in the terms contemplated by the sentencing judge.

Criminal Law Consolidation Act 1935 (SA) ss 241, 241(1)(b), 241(3), 340(a); Criminal Law (Sentencing) Act 1988 (SA) s 38(2a); Criminal Procedure Act 1921 (SA) ss 150(a), 157(1)(a)(iii); Joint Criminal Rules 2022 (SA) r 93.5(2); Sentencing Act 2017 (SA) ss 12(a), 12(b), 47(5)(a)(i), 96(1), 96(3), 96(4), 96(5), 96(6), referred to.
Cameron v Cole (1944) 68 CLR 571; Chatterton v Police (2020) 136 SASR 431; Commonwealth Director of Public Prosecutions (Cth) v Cole (2005) 91 SASR 480; Fischer v Chambers (1972) 4 SASR 105; George v Rockett (1990) 170 CLR 104; House v The King (1936) 55 CLR 499; Malvaso v The Queen (1989) 168 CLR 227; Mann v Yannacos (1977) 16 SASR 54; New South Wales v Kable (2013) 252 CLR 118; Re Macks; Ex parte Saint (2000) 204 CLR 158; R v Alderson (2016) 125 SASR 375; R v Bui (2016) 125 SASR 137; R v Bui (No 2) [2016] SASCFC 80; R v Buttigieg [2020] SASCFC 38; R v Deng [2015] SASCFC 176; R v Haydon [2006] SASC 238; R v Humby; Police v Humby [2004] SASC 358; R v Johnson [2014] NSWSC 1254; R v Kelly [2023] SASCA 22; R v McIntyre (2020) 138 SASR 17; R v Nemer (2003) 87 SASR 168 (2003) 87 SASR 168; R v Newman (2004) 145 A Crim R 361; R v Osenkowski (1982) 30 SASR 212; R v Ossitt [2011] SASCFC 23; R v Singh [2024] SASCA 81; R v Tsonis (2018) 131 SASR 416; R v Yaroslavceff [2022] SASCA 123; Trott-Dan v The King [2023] SASCA 2; TT v R [2014] NSWCCA 206, considered.

R v YANDLE
[2024] SASCA 111
Court of Appeal – Criminal: Livesey P, Doyle and David JJA

THE COURT: This is an application by the Director of Public Prosecutions for permission to appeal against sentence.
Following a plea of guilty, the respondent was sentenced for one count of assisting an offender, in contravention of s 241(1)(b) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for this offence is imprisonment for a term not exceeding 10 years.
The respondent was sentenced on the basis that, having witnessed his father, Mr Keith Yandle, murder Mr Steven Murphy by shooting him multiple times at close range, the respondent secreted items belonging to Mr Murphy, and later lied to police, intending to assist his father to escape apprehension.
From a starting point of imprisonment for two years, which was then reduced by 15 per cent for the respondent’s guilty plea, the sentencing judge imposed a sentence of imprisonment for one year, eight months and 13 days, with a non-parole period of one year and one month. The judge ordered that both the head sentence and non-parole period commence from the date of the respondent’s arrest, being 6 April 2023. The effect of this was that, by the date the respondent was sentenced, being 16 July 2024, the respondent’s non-parole period had expired, and a balance of about five months of the head sentence remained to be served.
The judge was not satisfied that there was good reason to wholly suspend the sentence imposed on the respondent. Her Honour indicated, however, that she was satisfied that there was good reason to suspend the balance of the respondent’s head sentence, upon the respondent entering into a bond to be of good behaviour for a period of two years. The bases upon which the judge found that there was good reason to suspend the balance of the sentence were that the respondent had already served his non-parole period, he was young, he had been assessed as having a low risk of re-offending, and he had demonstrated good prospects of complying with the terms of a bond.
The Director brings this appeal against sentence pursuant to the right of appeal vested in him under s 157(1)(a)(iii) of the Criminal Procedure Act 1921 (SA). His grounds of appeal allege three errors by the sentencing judge, namely that:
·the judge erred in purporting to impose a partially suspended sentence pursuant to s 96(4) of the Sentencing Act 2017 (SA) in circumstances where the period of the respondent’s imprisonment was more than 12 months;
·the judge erred in declining to view the CCTV footage of the murder by Mr Yandle which, by reason of his plea, the respondent admitted he had knowledge of, and hence which was relevant to the seriousness of his offending; and
·the sentence was manifestly inadequate, bearing in mind that the offending involved secreting evidence and telling lies to the police in circumstances where the respondent had witnessed, and hence knew, the gravity of the crime committed by Mr Yandle.
The Director requires permission to appeal. The principles governing the grant of permission on a prosecution appeal are well known, and need not be addressed at length. As this Court recently summarised in R v Singh:[1]
The principles governing an application for permission to appeal against sentence by the Director are well established. Where the Director’s complaint involves one of manifest inadequacy, there will only be a grant of permission in the ‘rare and exceptional case’ where principles of double jeopardy are outweighed by the need to determine a matter of principle, correct an error of principle, establish or maintain adequate standards of sentence, enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected or to correct a sentence which is so manifestly inadequate that it amounts to an error of principle.[2]
If a sentence falls so far below the appropriate standard that to allow it to stand would undermine public confidence in the administration of justice, or so low that the magnitude of the disparity itself reveals a misapplication of principle, it may also be appropriate to grant permission to appeal even though no general point of principle will be established by the case.[3]
[1]     R v Singh [2024] SASCA 81 at [30]-[31] (Livesey ACJ, Doyle and David JJA).
[2]     R v Osenkowski (1982) 30 SASR 212 at 212-213 per King CJ; House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.
[3]     R v Osenkowski (1982) 30 SASR 212 at 213 per King CJ; R v Nemer (2003) 87 SASR 168 at [24] per Doyle CJ.
The Director contends that, having regard to the three errors made by the sentencing judge, the sentence imposed was not only manifestly inadequate, but so far below what was appropriate that it calls for correction. He contends that to allow it to stand would erode the standards of sentencing for offences of this type, and undermine public confidence in the administration of justice. In so contending he argues that sentencing for assisting an offender is a matter of high public concern, involving offending which interferes with the work of investigative authorities and hence which strikes at the heart of the administration of justice.
Having regard to his complaint that the sentencing judge erred in partially suspending the respondent’s sentence under s 96(4) of the Sentencing Act, the Director also contends that there is a public interest in correcting a sentence which was not authorised by law, and which included a bond which may be vulnerable to challenge if it were sought to be enforced.
For the reasons which follow, we grant permission to appeal on Ground 1, and resentence the respondent.
Circumstances of the offending
The respondent did not dispute the factual basis set out in the prosecution summary provided to the sentencing judge. The following is taken from that summary.
The events of 19 February 2023
On the night of 19 February 2023, the respondent was at his home on a semi-rural property in Kudla with his father, Mr Yandle. They became aware that there may be an intruder in the shed at the rear of their property.
It was a large shed, with three roller doors. It contained a cannabis crop and associated hydroponics equipment, although it was not suggested that the respondent was aware that the shed contained these things.
The shed was equipped with CCTV cameras covering its exterior and interior. The detail of what occurred within the shed on the night in question was recorded on the CCTV cameras. The relevant footage was later obtained by the police when they seized the CCTV hard drives. The footage was tendered on the sentencing hearing, and a description of what it showed was included within the prosecution summary.
At about 10.00 pm, Mr Yandle went to the shed, armed with a rifle. As Mr Yandle opened one of the roller doors, Mr Murphy could be seen attempting to hide by crouching behind some of the equipment in the shed. After about two minutes, the respondent joined his father at the entrance to the shed, armed with a baseball bat and holding a torch.
The respondent pointed his torch into the shed, and his father entered the shed and began searching, using the torch attached to his rifle to assist him. Less than a minute after he entered the shed, Mr Yandle fired his rifle in the general direction of where Mr Murphy was hiding.
Mr Yandle moved to a position where he was facing Mr Murphy, and pointing his rifle and torch at him. Mr Murphy was crouching with his head down. The respondent entered the shed, shining his torch towards Mr Murphy. As Mr Yandle began speaking to Mr Murphy, and gesturing with his rifle, Mr Murphy stood up and placed his hands in the air. He had a mobile phone in one of his hands. He turned out his pockets, making it plain that he was not armed. While Mr Yandle kept his rifle pointed at Mr Murphy, the two of them appeared to be speaking.
When Mr Yandle gestured towards a water container with his rifle, Mr Murphy moved forward and placed his phone and another item from one of his pockets on the water container, before backing away. The respondent picked up the phone and another item. He then walked over to his father, and appeared to begin looking through the phone. After a few moments, the respondent returned the phone to the water container and placed the other item in his pocket. Mr Murphy picked up his phone, and appeared to unlock it, before returning it to the water container and moving away again. The respondent once again picked up the phone and walked over to his father. The two of them looked through the phone for a minute or two, before the respondent returned it to the water container and moved away.
Mr Murphy approached his phone, with Mr Yandle and the respondent both continuing to shine their torches towards him. As Mr Murphy did so, with his hands across his body in a non-threatening manner, Mr Yandle fired a shot into Mr Murphy from a range of about two metres. This shot was fired at 10.11 pm, and so about 10 minutes after Mr Yandle had entered the shed. Mr Murphy fell to the ground, and the respondent pointed his torch towards Mr Murphy and moved slightly closer. Mr Murphy was in the foetal position on the ground and, only a few seconds after the first shot, Mr Yandle then shot Mr Murphy three further times in quick succession.
Mr Yandle appeared to motion to the respondent to leave the shed, which he did.
Mr Yandle continued to point his rifle at Mr Murphy as he lay on the ground. After a few minutes, he appeared to stop breathing. Mr Yandle picked up Mr Murphy’s phone from the water container, and appeared to turn it off before placing it back down. A few minutes later he picked the phone up again and put it in his pocket.
Shortly after 10.30 pm, and so about 20 minutes after he had left, the respondent re-entered the shed and stood near the roller door. He spoke with his father, and then, after shining his torch on Mr Murphy, he and his father continued their conversation outside the shed. The respondent left the vicinity of the shed. A few minutes later, he returned and had another conversation with his father outside the shed before leaving once again.
Shortly after 10.40 pm, Mr Yandle went back inside the shed and walked closer to Mr Murphy’s body, smoking a cigarette as he watched the body. At one point he stepped on Mr Murphy’s hand, as if to test whether he was alive, before walking out of the shed at about 10.50 pm.
About half an hour later, Mr Yandle returned to Mr Murphy’s body, and dragged his body to a different position, before obtaining a shovel. Over the course of that night and the following day, Mr Yandle buried Mr Murphy’s body in a pit that he dug in the shed.
The police investigation
Mr Murphy was last seen by his family on 15 February 2023, at a nearby address in Kudla. His last text message contact with them was on 19 February 2023. He was reported missing on 18 March 2023.
Police and State Emergency Services began doorknocking in the area, searching for Mr Murphy and seeking information to assist in locating him.
On 22 March 2023, police attended the Yandle property and spoke with the respondent’s mother, who said she did not know, and had not seen, Mr Murphy. On 27 March 2023, police attended the property again. They spoke with Mr Yandle, and searched the property. The shed on the property was locked, and was not searched.
On 2 April 2023, Mr Yandle’s brother attended the Gawler Police Station. When speaking to police, he reported that, several weeks earlier, there had been an altercation at the Yandle property between Mr Yandle and an unknown male, and that it had been followed shortly afterwards by gunshots.
As a result of this information, police returned to the Yandle property on 2 April 2023, just before 7.00 pm. Mr Yandle and the respondent were present. Police informed the respondent of the reason for their attendance, and he denied any knowledge of Mr Murphy having ever been at their property or of any firearms.
Upon searching the property, police located the cannabis plants growing hydroponically in the shed at the rear of the property, and the CCTV cameras inside and outside the shed. In the roof space of the Yandle home they located two CCTV hard drives and an unregistered Ruger .22 rifle (together with a significant amount of .22 ammunition, including loaded magazines).
Mr Yandle was arrested on drug and firearm charges, and remanded in custody. He was interviewed by police and made various admissions in relation to the rifle and ammunition.
Shortly after 8.30 pm on 2 April 2023, and so about an hour and a half after they had arrived at the Yandle property, police spoke again with the respondent. This time they did so more formally, and on video. They informed the respondent that they were investigating the disappearance and suspected murder of Mr Murphy. The respondent told police that he had never come across Mr Murphy, had no knowledge of a firearm being in the house, and denied any knowledge of gunshots in the area a few weeks earlier, suggesting instead that there were lots of panel beaters and cars being started up in the area. His statements denying any knowledge of Mr Murphy or gunshots were, of course, lies.
While searching the shed, police noticed a large pit in the shed which appeared to have been recently excavated. The pit was approximately 13 metres long and 9 metres wide, with the depth varying between 2 and 2.5 metres. When it was excavated the following day, police located the human remains of a male, who was later formally identified as Mr Murphy.
The CCTV hard drives seized by police were forensically examined, and were found to contain the footage from the shed summarised above.
The respondent’s arrest
On 6 April 2023, the respondent was arrested and, together with his father, charged with the murder of Mr Murphy. The respondent exercised his right to silence.
On 16 January 2024, the respondent pleaded guilty to assisting an offender, and the Director withdrew the charge of murder against him. The respondent remained in custody until he was sentenced, on 16 July 2024. By this time, the respondent had served a total of 15 months, one week and four days in custody.[4] For approximately nine of those months he had been facing a charge of murder.
[4] The sentencing remarks refer to a slightly different period of time served, although it would seem that was a slip.
The respondent ultimately admitted that, following the events of 19 February 2023, and having witnessed his father murder Mr Murphy, he secreted items that belonged to Mr Murphy (including a phone and flashlight), and told the lies to police mentioned above. He accepted that he did so with the intention of assisting his father to escape apprehension. To the extent that the respondent offered an explanation for his offending, it was addressed in the report provided by a psychologist, Dr Lim, summarised below.
Victim impact statements
Mr Murphy was 38 years of age when he was killed. He was not previously known to the respondent, but had, until a few weeks earlier, been living in a house only a short distance from the Yandle property. He had been living there with his partner and their two children. Mr Murphy had recently left his home, and did not have any accommodation. He had been sleeping rough in the area.

On the night of his death, Mr Murphy broke into the shed on the Yandle property. On the CCTV footage he could be seen rummaging through the shed shortly prior to the events described in more detail above. Upon the roller door being opened by Mr Yandle, Mr Murphy hid by crouching behind some of the equipment in the shed. There was no evidence before the sentencing judge as to what Mr Murphy’s intentions were, but it was accepted that he was not armed.
The sentencing judge received a number of victim impact statements from family and friends of Mr Murphy. They described the devasting consequences of his death for those who were close to him. As the sentencing judge said, they made it clear that Mr Murphy was a much loved partner, son, father, brother and friend. The senseless brutality of the circumstances of his death have caused his family and friends enduring anger, pain and anguish. The statements provided by Mr Murphy’s two sons told of the despair and loss that they have suffered, and will continue to suffer.
The respondent’s personal circumstances
The respondent was only 19 years of age at the time of his offending, and 20 years of age by the time he came to be sentenced. He had enjoyed a stable and supportive upbringing, living with his parents and younger sister. He described himself as a quiet, reserved and generally well-behaved child. While his father had been the disciplinarian when required, he had enjoyed a good relationship with both of his parents, and considered his father a good mentor. He did well at school, and in year 12 was vice captain of the college he attended. He had a particular interest in football, and was supported in this by his father.
After leaving school at the end of 2021, the respondent commenced studying mechanical engineering at university. He continued living at home with his parents and sister, but had worked in various hospitality jobs to provide himself with an income while studying. He had also been a volunteer football coach for juniors.
The respondent expressed a desire to return to his studies in the future. But in the shorter term, he planned to work in his family carpentry business to save some money and be able to support himself when he returns to university.
The respondent is single, and has no history of alcohol or substance abuse. He has no criminal history.
The respondent continues to be supported by his mother and sister. The sentencing judge also received a number of references from his friends, employers, school staff and the prison chaplain. All expressed their support for the respondent, and said that his offending was inconsistent with the behaviour they had seen from him throughout his life. They described him as kind, respectful, hardworking, helpful, responsible and a leader.
In a statement made in Court, the respondent apologised to Mr Murphy’s family, and expressed his contrition. The sentencing judge accepted that it would have been difficult for the respondent to face Mr Murphy’s family, and that this was an important step in him taking responsibility for his actions. The judge accepted that the respondent was contrite and remorseful.
In relation to this last matter, the sentencing judge also relied upon a report provided by Dr Lim.
Dr Lim commenced her report by describing the respondent as ‘an intelligent, resilient, and a mature young man relative to his age’. She said that he was articulate and generally candid with the information he gave, except in relation to his father’s alleged offending conduct. He had, initially at least, expressed his reservations about ‘saying too much about [this] because there’s going to be a trial for [his father’s] murder charge’.
The respondent accepted that he had lied to police and hidden some items belonging to Mr Murphy. He told Dr Lim that the main reason he did so was because he felt unable to betray his father; even though he knew that what he did was wrong. He said that he had been in shock and denial, and had just wanted it all to go away. Dr Lim explained:
I asked Mr Yandle jnr at this point to reflect on his emotional state in the immediate aftermath of the alleged “crime” that his father had committed. He stated, “immediately after what happened, I was in a state of shock. There was definitely denial straightaway, and over the next few days, it developed into disappointment and disgust over my father’s behaviour. (Can you elaborate on why you felt disappointment and disgust?). I was confused and disappointed in dad. All my life, my dad taught me to handle conflicts diplomatically. He never told me to be violent or a standover person. He taught me that no matter how bad a situation got, you could always talk things out or shake hands. That’s why this whole situation was such an out of character situation for my father that it just confused me and made me conflicted in so many ways that I didn’t know how to handle it”. He went on to state, “in the end, I had to make a choice. I know it wasn’t right in the eyes of everyone, but I couldn’t betray my father. I ended up choosing him. Because if I’d gone the other way, I thought that he might never speak to me or forgive me, or even my family would be angry at me, maybe because they might think that I’ve turned on him. And I was thinking that my sister would be without a father and my mum would be without a husband for a long time, and that was what was going on through my mind in terms of me making my decision”.
I asked Mr Yandle jnr if he “[regretted]” making the choices that he did in respect to his offending conduct. He stated, “I regret lying. I understand now that that had a big impact on the police investigation. When I lied, I thought that they were definitely going to find something to help with their investigation anyway. But thinking back now, if they hadn’t found anything to help them, then I would have done something really bad towards [Mr Murphy and his family]”.
Dr Lim went on to explain that the respondent said that his feelings towards his father had ‘definitely shifted slightly’, but that he did not resent or blame him entirely for the position the respondent found himself in. He said that he could forgive him because he was his father. He felt bad for the situation his father was in, and did not want to make things worse for him by being angry with him.
Dr Lim assessed the respondent as being a low risk of any re-offending of a general or violent nature, noting that he had numerous protective factors, at a personal and interpersonal level, which would likely assist him to avoid re-offending. Dr Lim concluded that the respondent’s psychological functioning prior to his offending was stable and generally unremarkable. Indeed, the respondent impressed Dr Lim as ‘an emotionally well-adjusted, resilient and relatively mature youth for his age’.
Dr Lim noted the respondent’s close relationship with his father, whom the respondent described as a rational, calm and supportive father who had raised him to resolve conflicts without aggression and in a non-confrontational manner. Dr Lim suggested that this was why the respondent was ‘so profoundly shocked and distressed’ by his father’s offending, and expressed the opinion that the respondent was likely to have developed an acute stress disorder in the immediate aftermath of his exposure to that offending.
After mentioning the respondent’s references to ‘disgust’ and ‘disappointment’ in relation to his father and his father’s actions, but being in denial and feeling unable to ‘betray’ his father and risk depriving his family of his father, Dr Lim provided the following summary of her views:
In my opinion, Mr Yandle jnr would have therefore been in a profound state of emotional conflict and pressure at the time of his attempts to hide the items belonging to the deceased as well as when he was questioned by the police in respect to Mr Yandle snr’s actions. He would have had to grapple with making the difficult choice of either maintaining his loyalty towards his father versus doing what was legally and morally right. It would be relatively easy for the average person to judge his decision and to take the moral high ground at this point, but I believe that it is important to note that he was only 19 years old at the time of his commission of the offending conduct. Notwithstanding the fact that Mr Yandle jnr appeared to have been a relatively level-headed and mature teenager for his age at the time, the circumstances that he had found himself in respect to the current offending were so unique that it is unlikely that the average person in their lifetime would ever encounter a similar situation, or find themselves in a position whereby they would have to make the decision/choices that Mr Yandle jnr had been pressured to make. It should also be noted that he had reportedly been raised in a functional home environment for most of his life and had never been exposed to significant trauma or adversity up until the time period leading up to his current offence. Consequently, he would have been significantly ill-prepared at an emotional level to understand and to process the events that had occurred effectively within a short space of time.
The judge’s sentencing remarks
After setting out some formal matters, the sentencing judge summarised the events that occurred in the shed on the Yandle property on 19 February 2023. Her Honour did so in a little less detail than is set out above, but to a similar general effect. Having done so, her Honour noted that the events had been recorded by the CCTV cameras operating in the shed, but added that she had not watched the recording ‘because the events in the shed are not directly the subject of the charges against you and they are described in the [prosecution] summary’.
The sentencing judge also described the respondent’s conduct in hiding items belonging to Mr Murphy, and in lying to the police.
Her Honour next reminded herself of two matters relevant to the sentencing task. The first was that the respondent was only to be sentenced for the charge to which he had pleaded guilty. The second was that he was to be sentenced upon the factual basis which had been agreed, and which the judge had accepted. The judge added that this meant that:
I am not sentencing you in respect of the action you took on the night of holding the torch when your father fired the gun or the failing to intervene or take any action at that point in time. I am sentencing you for hiding several of Mr Murphy’s possessions and the lies you told to police which together you intended to have the effect of assisting your father evade arrest.
The sentencing judge proceeded to summarise the victim impact statements provided by Mr Murphy’s family and friends, his personal circumstances and the key aspects of Dr Lim’s report, as set out above.
Turning to the sentence to be imposed, the sentencing judge commenced by noting that the primary objective was to protect the safety of the community. Her Honour added that the other objectives of the sentence to be imposed included to ensure that the respondent was punished for his offence, and held accountable to the community; to publicly denounce his conduct and recognise the harm done to Mr Murphy and those who loved him; to deter the respondent and others from committing offences; and to promote the respondent’s rehabilitation.
The sentencing judge reiterated the need to focus upon sentencing the respondent only for his charged offending; that is, his conduct in assisting his father to escape apprehension by hiding the items belonging to Mr Murphy, and by lying to the police. The judge explained that the circumstances giving rise to an offence of assisting an offender were many and varied, but inevitably serious where, as here, the offence involves conduct which was intended to interfere with a proper investigation of the circumstances of a person’s death. Her Honour said that it was important that general deterrence be given significant weight for this type of offending, because it was ‘those with knowledge of offending, who may have been present when it occurred or shortly thereafter, who can ensure that offenders are brought to justice.’
In elaborating upon the seriousness of the respondent’s offending, the sentencing judge said:
… your conduct does not represent the most serious example of its kind. Your actions were not planned, you were not the primary offender and it is not alleged that your actions contributed in any material way to Mr Murphy’s death. Mr Murphy’s remains were recovered within two days of the lies that you told to police about your knowledge of the circumstances of his death. The nature of the your relationship with your father and your youth meant that investigators were unlikely to place much weight upon your lies and the items you secreted were not necessary for their investigations. Your lies occurred in a formal interview, but they were made on your first interaction with police about the matter.
Her Honour considered that the need for personal deterrence was less than it might otherwise have been, given the manner in which the respondent’s ‘world turned upside down’ on 19 February 2023, and the consequences that had already followed. Bearing in mind the ‘significant deterrent’ effect of these matters, her Honour commenced with a notional head sentence of two years imprisonment. After allowing for the maximum available reduction for the respondent’s plea of guilty of 15 per cent, her Honour arrived at a head sentence of imprisonment for one year, eight months and 13 days.
In fixing a non-parole period of one year and one month, her Honour said:
I now turn to the non-parole period. The need for general deterrence, which is a significant factor in a head sentence for an offence of this nature, has a lesser role to play in relation to the appropriate non-parole period because of your circumstances, your personal history prior to the offence as detailed by your counsel, and by the references you have provided all indicate that this offence was not consistent with any behaviour that you had previously demonstrated. I am satisfied that the circumstance of wishing to protect your father from the consequences of his actions impelled you to behave in a way that you would have otherwise rejected. Your youth, as well as the nature of your relationship with the primary offender, reduced the culpability that attaches to the decisions that you made that night and in the days and weeks following. You have good prospects of rehabilitation because of the potential you have already shown and acted on, despite your youth, to make a positive contribution to the community and because of the insight into your offending that you have already revealed to Dr Lim.
Nevertheless, the non-parole period must demonstrate coherence in relation to the head sentence, expressed through the proportionality of the non-parole period to the head sentence. Taking into account the factors relevant to sentence, including the need to protect the community, personal and general deterrence, and your prospects of rehabilitation, a non-parole period of one year and one month is imposed.
As noted earlier, having been taken into custody on 6 April 2023, the respondent had served 15 months, one week and four days by the time he was sentenced on 16 July 2024. It followed that he was already eligible for parole.
The sentencing judge calculated that the balance of the respondent’s head sentence (being about five months) was due to expire in December 2024. Noting the prosecution submission that it would not be appropriate to suspend the respondent’s sentence in light of the seriousness of the offending, her Honour accepted that a wholly suspended sentence would not be appropriate. However, her Honour considered that there was, nevertheless, ‘good reason to suspend the balance of [the respondent’s] sentence on condition that [he] enter into a bond to be of good behaviour for two years in the amount of $500’. Her Honour also indicated that, in addition to the mandatory conditions, the respondent would be subject to the supervision of the Department of Correctional Services, and required to participate in any rehabilitation programs for which he was assessed as suitable and directed to attend.
In concluding that there was good reason to suspend the balance of the respondent’s sentence, the sentencing judge relied upon his personal circumstances generally, but, in particular, that he had served his non-parole period, his youth, the fact he had been assessed as presenting a low risk of re-offending, and that he had demonstrated good prospects of compliance with the terms of the bond to be imposed.
Partially suspended sentence
In Ground 1, the Director contends that the sentencing judge erred in purporting to impose a partially suspended sentence, pursuant to s 96(4) of the Sentencing Act, in circumstances where the period of the respondent’s imprisonment was more than 12 months. The Director contends that the sentence imposed was not authorised by law, and further that the bond entered into by the respondent was not only inconsistent in its terms with the sentence announced by the judge, but also vulnerable to challenge and potentially unenforceable.
Section 96 of the Sentencing Act relevantly provides:
96—Suspension of imprisonment on defendant entering into bond
(1) Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a)     to be of good behaviour; and
(b)     to comply with the conditions of the bond referred to in subsection (2); and
(c)     to comply with any other conditions of the bond as the court thinks appropriate and specifies in the bond.
…
(4) Despite subsection (3)(a), if the period of imprisonment to which a defendant is liable under 1 or more sentences is more than 3 months but less than 12 months, the sentencing court may, by order—
(a)     direct that the defendant serve a specified period (being not less than 1 month) of the imprisonment in prison; and
(b)     suspend the remainder of the sentence on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant's release from prison.
Although not specifically referred to in the sentencing remarks, it is apparent from those remarks that the judge was utilising s 96(4) of the Sentencing Act when finding that, although a wholly suspended sentence would not have been appropriate, there was nevertheless good reason to suspend the balance of the sentence.
This interpretation of the sentencing remarks is supported by the description of the sentence in the record of outcome. In that document, signed by the judge, reference is made to the judge imposing a head sentence of one year, eight months and 13 days, with her Honour suspending ‘the remainder of the sentence on condition the respondent enter a good behaviour bond of $500 with conditions’. The record of outcome later contains a heading ‘Split Sentence Bond 96(4) or (5)’, and then states that the respondent ‘is to serve 0 days of the sentence of imprisonment in custody and the remainder is to be suspended’ on the respondent entering into a bond on the conditions set out.
The bond itself refers to a total sentence of imprisonment for one year, eight months and 13 days and then states that the Court ordered that ‘this sentence’ be suspended if the respondent enters into the bond. The bond is dated 16 July 2024 and makes no reference to the earlier starting date for the sentence, or the time that had already been served. Indeed, it makes reference to non-compliance having the consequence that the respondent will have to serve ‘the sentence of imprisonment’, as opposed to the remainder of that sentence.
It is plain from the wording of s 96 of the Sentencing Act that a precondition to utilising s 96(4) is that the period of imprisonment ‘to which [the] defendant is liable’ be more than three months but less than 12 months. It is only if this precondition is met that a sentencing judge may partially suspend the sentence.

Here, the period of imprisonment which the respondent was liable to serve was the head sentence of one year, eight months and 13 days imposed by the judge. The backdating of the commencement of that term of imprisonment meant that the respondent had already served about 15 months as at the date of sentence. However, that is not to the point; the sentence the respondent was ‘liable’ to serve was one year, eight months and 13 days imprisonment. Accordingly, the sentence imposed by her Honour, and recorded in the court record, exceeded the 12 month period specified in s 96(4). The judge was not authorised by law to suspend the portion of that sentence that had not yet been served.
The Director adds that the terms of s 96(4) evince an intention on the part of Parliament to confine the availability of partial suspension to offences that sit towards the lower end of the scale of seriousness, as indicated by their attracting a head sentence of less than 12 months imprisonment. The subsection indicates a judgment, or policy decision, by the legislature that where offending is serious enough to warrant a term of imprisonment of more than 12 months, ‘the inherent leniency of partial suspension is inappropriate’. On the Director’s argument, the sentence imposed was thus not authorised by law, and contrary to the intention of Parliament underpinning s 96(4).
The respondent accepts that the sentencing judge purported to impose a suspended sentence, and that this was not authorised by law.[5] The respondent also acknowledges the inconsistency between the judge’s sentencing remarks and the terms of the orders in the record of outcome.
[5] R v Humby; Police v Humby [2004] SASC 358 at [25]-[27] (Perry J), [106]-[107] (Gray J).
We accept that the sentencing judge fell into error in imposing the sentence she did. It was not a sentence authorised by law, and was also described in confusing, if not inaccurate, terms in the record of outcome and bond.
However, there are further matters relevant to whether this Court should intervene on a prosecution appeal to correct the error made. These include the respondent’s submission to the effect that the sentencing judge could have imposed a sentence with the same practical effect by structuring it differently; and the Director’s submission that, even if that be so, it would not be appropriate to leave in place a sentence which includes a bond that may face difficulties in its enforcement.
Addressing the first of these matters, the respondent argues that even though the form or structure of the sentence imposed was not authorised by law, the intention of the sentencing judge was clear, and could have been given effect validly by utilising s 96(1) of the Sentencing Act. In particular, instead of imposing the ‘full’ head sentence of one year, eight months and 13 days imprisonment and then backdating it to the date the respondent was taken into custody, her Honour could have imposed a ‘shorter’ head sentence of approximately five months (being one year, eight months and 13 days, reduced by time served of one year, three months and 11 days), and then fully suspended that shorter sentence. The good reason to suspend that sentence could have been found in the matters identified by her Honour, including the fact that the respondent had already served over 15 months in custody.
It might be suggested that to simply restructure the sentence to achieve the same practical effect as partial suspension, in circumstances where partial suspension was not available, would be to circumvent the legislative intention and judgment inherent in s 96(4) of the Sentencing Act. It would be to depart from the usual and preferable approach of backdating a sentence for time served, so as to utilise a sentencing option, and impose a sentence, which would not otherwise be available.
The respondent, however, contested the Director’s submission as to the legislative intention or purpose underlying s 96(4) of the Sentencing Act. On the respondent’s argument, the rationale underpinning s 96(4) is no more than that, just as offenders who are sentenced to imprisonment for a period exceeding 12 months will almost invariably have a non-parole period set, and often be released before the end of their head sentence, so a regime should exist so that the sentencing court can facilitate the release of a person sentenced to a head sentence of less than 12 months before the end of the sentence. The respondent rejects any underlying intention or judgment by the legislature that partial suspension not be available for serious offending by reason of its inherent leniency.
The respondent’s articulation of the intention underpinning s 96(4) derives some support from the second reading speech of the then Attorney-General upon the introduction in 1998 of a suite of amendments to the sentencing legislation then in force (the Criminal Law (Sentencing) Act 1988 (SA)), including the s 38(2a) predecessor to s 96(4) of the current Sentencing Act. After explaining that the amendments were intended to provide new sentencing options, with a view to enhancing the operation and flexibility of sentencing laws, the Attorney-General explained that s 38(2a) introduced partial suspension as a sentencing option where the sentence of imprisonment was more than three months but less than one year. He said that where an offender was sentenced to a term of imprisonment for a period of one year or more, then the sentencing court was required to impose a non-parole period. He added that ‘[w]here an offender is sentenced to a lengthy term of imprisonment it is appropriate that the Parole Board should be the body to set any conditions on which the offender should be released from prison as it will have the benefit of observing the offender’s behaviour in prison.’[6]
[6] South Australia, Parliamentary Debates, Legislative Council, 18 November 1998, 208 (KT Griffin, Attorney-General).
Whilst the respondent’s articulation of the intention underpinning s 96(4) derives some support from this linkage between the availability of partial suspension and the fixing of a non-parole period, it is not clear that the intention is confined in the way contended by the respondent. It seems to us that when s 96 is read as a whole (and so including not only ss 96(1) and (4), but also ss 96(3), (5) and (6)), it provides at least some support for the view that it reflects a legislative intention or judgment as to the offences, or types of offences, which are too serious for partial suspension to be an appropriate sentencing option, and in respect of which the sentence of imprisonment should be fully served.
All of that said, it is not necessary to resolve the competing submissions about the legislative judgment or policy underpinning s 96(4) of the Sentencing Act. Whilst challenging the adequacy of the sentence more generally,[7] the Director accepts that, if the sentence had otherwise been appropriate, it would have been open to the sentencing judge to structure the sentence in the way suggested by counsel for the respondent. In particular, the Director accepts that, rather than imposing the ‘full’ head sentence and backdating it to commence when the respondent was taken into custody, it would have been open to her Honour to reduce the notional head sentence by the time already spent in custody, and then impose this ‘shorter’ head sentence from the date of sentence. It would then have been open to her Honour to suspend that sentence on grounds including the fact that the respondent had already served a significant period of custody. The time served would be a personal circumstance of the respondent which would have already achieved a significant measure of deterrence and rehabilitation, and hence reduced the need for additional attention to these sentencing objectives when imposing sentence.
[7] See Grounds 2 and 3 below.
We observe in passing that the usual and preferable approach, at least in cases where there has been a continuous period of custody preceding the imposition of sentence, is to impose the ‘full’ head sentence and backdate it to the commencement of that period of custody to ensure that the offender receives credit for the time served.[8] This is the preferable approach because it promotes transparency, and ensures that the court record clearly and accurately reflects the extent of the punishment in fact imposed.[9] However, the Director accepts, in accordance with established sentencing practice in this State, that the alternative approach contended for by the respondent remains available in an appropriate case, and may be appropriate in a case such as the present.
[8] R v Deng [2015] SASCFC 176 at [12]-[14] (Blue J); R v Tsonis (2018) 131 SASR 416 at [67]-[70] (Lovell, Doyle and Hinton JJ); Trott-Dan v The King [2023] SASCA 2 at [64] (Lovell, Doyle and David JJA).
[9] That is, without having to go back to the sentencing remarks to see what credit has been given for time served.
We turn now to the second of the foreshadowed matters relevant to this Court’s intervention. Accepting that the sentence imposed by the sentencing judge was not authorised by law, and that the record of outcome and terms of the bond do not accurately reflect the sentence announced by her Honour, this presents a dilemma for this Court. It may be accepted that, as an order of a superior court, the sentence of imprisonment remains valid and enforceable unless and until set aside on appeal, regardless of whether it was authorised by law, or within power.[10] However, it would seem that the bond is in a different position, and may nevertheless be vulnerable to challenge in any enforcement proceedings.[11]
[10] Cameron v Cole (1944) 68 CLR 571 at 590-591 (Rich J), 606-607 (Williams J); Re Macks; Ex parte Saint (2000) 204 CLR 158 at [19]-[23] (Gleeson CJ), [46]-[57] (Gaudron J), [216] (Gummow J), [328]-[329] (Hayne and Callinan JJ); New South Wales v Kable (2013) 252 CLR 118 at [32] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); cf R v Humby; Police v Humby [2004] SASC 358 at [25]-[27] (Perry J), [106]-[108] (Gray J), describing the suspended sentence imposed in that case as a ‘nullity’.
[11] Mann v Yannacos (1977) 16 SASR 54 at 63-64 (Bray CJ) (noting that a bond may be invalid, even if the orders supporting it are not); Director of Public Prosecutions (Cth) v Cole (2005) 91 SASR 480 at [18] (Gray, Sulan and Layton JJ).
The bond is a contractual agreement between the respondent and the Crown, and may be void or voidable for reasons similar to those relevant to a deed or contract.[12] In Chatterton v Police,[13] Parker J surveyed the authorities in this state in relation to the potential for an error or irregularity in a suspended sentence bond to invalidate the bond, and hence render it unenforceable. His Honour explained that the authorities established that, although not every misstatement in the terms of a bond will affect its validity, it was important that a bond accurately reflect the order of the sentencing court, and accurately describe the rights of the parties to it.[14] It followed that a bond may be invalid, and unenforceable, by reason of it including an obligation that has not been imposed by the sentencing court, or by reason of it misstating the rights of a party to the bond.[15] It has also been said that a bond may be vulnerable to challenge on the ground that it was entered into consequent upon, and under the compulsion of, an order which the court was not empowered to make.[16]
[12] Fischer v Chambers (1972) 4 SASR 105 at 110-111 (Bray CJ); Commonwealth Director of Public Prosecutions v Cole (2005) 91 SASR 480 at [14] (Gray, Sulan and Layton JJ); Chatterton v Police (2020) 136 SASR 431 at [49] (Parker J); Trott-Dan v The King [2023] SASCA 2 at [92] (Lovell, Doyle and David JJA).
[13] Chatterton v Police (2020) 136 SASR 431 at [49]-[91] (Parker J).
[14] Chatterton v Police (2020) 136 SASR 431 at [59].
[15] Chatterton v Police (2020) 136 SASR 431 at [72], [75], [80] (Parker J); Trott-Dan v The King [2023] SASCA 2 at [94] (Lovell, Doyle and David JJA).
[16] Fischer v Chambers (1972) 4 SASR 105 at 110-111 (Bray CJ); quoted with approval in Commonwealth Director of Public Prosecutions v Cole (2005) 91 SASR 480 at [14] (Gray, Sulan and Layton JJ).
Here, the description of the bond in the record of outcome refers to the respondent being released from custody after zero days imprisonment, but records the term of imprisonment that was suspended as the ‘full’ sentence of one year, eight months and 13 days imprisonment (as opposed to about five months imprisonment, which was the period that her Honour considered there was good reason to suspend). The bond itself repeats the reference to the ‘full’ sentence being suspended. It may thus be said that the record of outcome and bond misdescribe both the sentence announced by the sentencing judge, and the rights of the parties. At the very least there is room for confusion.
It is not ultimately necessary for this Court to reach a conclusion as to whether these anomalies in the terms of the orders and bond mean that the bond is invalid and unenforceable. It is sufficient to observe that, in addition to the sentence imposed being one not authorised by law, the terms of the orders and bond contain anomalies which mean that the bond may be vulnerable to challenge were it sought to be enforced. As elaborated upon later in these reasons, it is undesirable from the perspective of the administration of justice that this Court leave in place a sentence that is not authorised by law and potentially unenforceable.
The gravity of the respondent’s offending
The Director contends that a proper assessment of the seriousness of the respondent’s offending requires consideration of not only the nature and extent of the assistance he provided, and the fact that he did so intending to assist his father to escape apprehension for the offence of murder, but also the fact that the respondent did so knowing that his father had committed this offence and, indeed, having witnessed first-hand the particular heinous circumstances in which his father did so. It was, to be plain, a shockingly brutal and callous execution-style murder of a defenceless Mr Murphy. On the Director’s argument, the sentencing judge failed to appreciate the significance of what the respondent had seen, and hence knew, when undertaking a proper assessment of the culpability and criminality involved in his offending.
This contention is the foundation for the Director’s submissions in support of Ground 2 (which focuses on the contended importance of the sentencing judge viewing the CCTV footage) and Ground 3 (which focuses upon the contended manifest inadequacy of the sentence imposed). It is convenient to make some general observations about this aspect of the Director’s argument before turning to address these grounds of appeal more directly.
The starting point in considering the Director’s contention is the terms of the offence provision. Section 241 of the Criminal Law Consolidation Act1935 (SA) relevantly provides:
241—Impeding investigation of offences or assisting offenders
(1) Subject to subsection (2), a person (the accessory) who, knowing or believing that another person (the principal offender) has committed an offence, does an act with the intention of—
(a)     impeding investigation of the offence; or
(b)     assisting the principal offender to escape apprehension or prosecution or to dispose of proceeds of the offence,
is guilty of an offence.
(2)     An accessory is not guilty of an offence against subsection (1)—
(a)     unless it is established that the principal offender committed—
(i) the offence that the accessory knew or believed the principal offender to have committed; or
(ii) some other offence committed in the same, or partly in the same, circumstances; or
(b)     if there is lawful authority or a reasonable excuse for the accessory's action.
(3)     Subject to subsection (4), the penalty for an offence against subsection (1) is—
(a)     where the maximum penalty for the offence established as having been committed by the principal offender is imprisonment for life—imprisonment for a term not exceeding 10 years;
(b)     where the maximum penalty for that offence is imprisonment for a term of 10 years or more (but not for life)—imprisonment for a term not exceeding 7 years;
(c)     where the maximum penalty for that offence is imprisonment for a term of 7 years or more but less than 10 years—imprisonment for a term not exceeding 4 years;
(d)     in any other case—imprisonment for a term not exceeding 2 years or a maximum penalty the same as the maximum penalty for that offence, whichever is the lesser.
The respondent was charged with assisting the principal offender, his father, to escape apprehension for the offence of murder, under s 241(1)(b). While the charge was particularised in terms that the respondent provided assistance ‘knowing or believing’ that his father had murdered Mr Murphy, the prosecution case, and factual basis for sentencing, was that the respondent acted with the intention of assisting his father to escape apprehension knowing that he had murdered Mr Murphy and indeed, by reason of his being in the shed and seeing it happen, knowing the precise detail of the circumstances in which his father had committed that offence.
In examining more closely the culpability and criminality involved in the respondent’s offending, the Director emphasised that the s 241(1)(b) offence had one physical element and two mental elements. The physical element was that the defendant, the accessory, did an act or acts; here, secreting items belonging to Mr Murphy and lying to the police. The first mental element was that the accessory did these acts ‘knowing or believing’ that the principal offender had committed an offence; here, knowing that his father had murdered Mr Murphy. The second mental element was that the accessory did the acts ‘with the intention of assisting the principal offender to escape apprehension’.
In relation to this first mental element, knowledge and belief are different states of mind. As the High Court explained in George v Rockett,[17] when distinguishing between suspicion and belief in the context of issuing a search warrant, belief is ‘an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture’. Knowledge connotes something different from, and more than, belief. It connotes certainty; or being without doubt about the relevant facts and circumstances.
[17] George v Rockett (1990) 170 CLR 104 at 116 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).
Acknowledging this distinction between knowledge and belief, it may be accepted that an accessory who knows that the principal offender has committed an offence will generally, and all other things be equal, be more culpable than an accessory who merely believes that to be so.
Further, when considering an offence under s 241(1)(b), the seriousness of the accessory’s offending is also connected to the seriousness of the offence committed by the principal offender.[18] The ‘knowledge or belief’ required by the offence is knowledge or belief of the offence committed by the principal offender. The intention to assist the principal offender to escape apprehension is also tied to the offence committed by the principal offender; it is an intention to assist the principal offender to escape apprehension for the offence committed. And, under s 241(3), the maximum penalty for the offence of assisting an offender is determined by reference to the maximum penalty for the offence committed by the principal offender. In particular, it increases as the maximum penalty for the principal’s offence increases, with the highest maximum penalty (10 years imprisonment) reserved for cases, such as the present, involving a principal offence attracting a maximum penalty of life imprisonment. The maximum penalties in s 241(3) thus indicate a legislative intention that there be a relationship between the penalty for the principal offence and the penalty for the offence of assisting an offender.[19]
[18] R v Haydon [2006] SASC 238 at [52] (Doyle CJ).
[19] R v Bui (2016) 125 SASR 137 at [40] (Kelly, Blue and Nicholson JJ).

Bearing the above in mind, we accept the Director’s submission that a proper assessment of the seriousness of an offence under s 241(1)(b) of the Criminal Law Consolidation Act requires consideration of both the seriousness of the offence committed by the principal offender, and what the accessory knew or believed about that offending. This is not intended to suggest that the nature and circumstances of the assistance provided are not also relevant to the seriousness of the accessory’s offending. To the contrary, as the Court said in R v Bui,[20] ‘[t]he seriousness of assisting offender offences varies largely as to the nature, extent, premeditation and effect of the assistance’. It is intended merely to emphasise that, in addition to the nature and circumstances of the assistance provided, the nature and circumstances of the principal’s offending, and the extent of the accessory’s knowledge or belief about that offending, will also be relevant to the seriousness of the accessory’s offending. They are not matters of mere background or peripheral relevance. Rather, they directly inform the seriousness of the accessory’s offending.
[20] R v Bui (2016) 125 SASR 137 at [42] (Kelly, Blue and Nicholson JJ).
To put it plainly, the more serious the principal’s offence, and the greater the accessory’s knowledge of that offence, the more serious the interference with the work of the investigative authorities and the administration of justice, and the greater the accessory’s culpability and criminality.
In his submissions in support of Grounds 2 and 3, the Director does not contend that the sentencing judge had no regard to the nature of Mr Yandle’s offending, or to the respondent’s knowledge of that offending. Rather, he contends that it is apparent from the sentencing remarks, and the sentence ultimately imposed, that her Honour did not appreciate the true significance of these matters when evaluating the seriousness of the respondent’s offending.
In relation to Mr Yandle’s offending, the judge summarised what occurred in the shed, but did so at a fairly general level, and without some of the detail set out earlier in these reasons. And in declining to watch the CCTV footage that had been tendered on the sentencing hearing, the judge said that she had not watched the recording ‘because the events in the shed are not directly the subject of the charges against [the respondent] and they are described in the summary of proposed factual basis for sentencing’.
Further, after correctly explaining that the respondent was only to be sentenced for the offence of assisting offending, and hence not punished for his actions in the shed (for example, in holding a torch and in not intervening), the judge then said that the respondent fell to be sentenced for ‘hiding several of Mr Murphy’s possessions and the lies you told to police which together you intended to have the effect of assisting your father evade arrest’. The sentencing judge did not mention the relevance of what the respondent saw and knew of his father’s offending; that is, that the respondent had provided assistance, despite having full knowledge of the circumstances in which his father had brutally and senselessly murdered a defenceless man and, indeed, provided assistance intending that he escape apprehension for that murder.
It is true that the nature of Mr Yandle’s offending, and the fact that the respondent had witnessed it, were readily apparent from the sentencing remarks. However, it is also true that her Honour never clearly or expressly linked these matters to the seriousness of the respondent’s offending. Whilst conscious of the need to encourage brevity in sentencing remarks, and to avoid reading them in too literal or pedantic a manner, there is some force in the Director’s contention that the sentencing remarks suggest a failure to appreciate the full significance of these matters to the seriousness of the respondent’s offending.
With this in mind, it is necessary to address Grounds 2 and 3 of the Director’s proposed appeal more directly.
The CCTV footage
As mentioned, the sentencing judge was provided with a document containing the prosecution summary of the factual basis upon which the respondent fell to be sentenced. There was no challenge to the detail contained in that document.
The prosecution summary included a fairly detailed summary of what occurred in the shed on the Yandle property, by reference to what could be seen on the CCTV footage obtained from the hard drives seized by police. Most of that detail has been recounted earlier in these reasons.
In addition to the prosecution summary, the prosecutor provided the sentencing judge with a USB stick containing the relevant section of the CCTV footage and requested that her Honour view that footage so as to obtain a better appreciation of the full gravity of the murder carried out by Mr Yandle, and witnessed by the respondent. Although her Honour received the footage, she did not view it. As mentioned, she explained in her sentencing remarks that she had not watched the recording ‘because the events in the shed are not directly the subject of the charges against [the respondent] and they are described in the summary of proposed factual basis for sentencing’.
The Director acknowledges that the sentencing judge was not bound by the rules of evidence,[21] and was entitled to inform herself as she thought fit.[22] It was also relevant that there was no dispute in this case as to the factual basis for sentence, which was set out in some detail in the prosecution summary.
[21] Sentencing Act, s 12(a).
[22] Sentencing Act, s 12(b).
However, the Director makes several observations in support of his contention on appeal that the sentencing judge erred in declining to watch the recording.
The first is that, although the prosecution summary contained a summary of the key factual findings contended for by the prosecution, it was a style of document required to be filed whenever a matter is committed for sentence,[23] and is not ordinarily intended to take the place of statements and other evidence filed by the prosecution. Further, the absence of any dispute as to the facts ought not, without good reason, constrain the prosecution from referring the sentencing judge to the evidence in support of those facts where it assists in understanding the true colour or significance of those facts.
[23] Joint Criminal Rules 2022 (SA), r 93.5(2).
The second is that, although a sentencing judge is to be afforded appropriate latitude in the manner in which he or she determines the factual basis upon which a defendant is sentenced, it remains the obligation of the judge to make his or her own independent assessment of the submissions and evidence, and to make the findings necessary to determine an appropriate sentence. As Doyle CJ said in R v Nemer:[24]
In sentencing an offender the court must act according to law. The court must reach its own conclusion on the factual basis on which sentence is to be passed, and must exercise its own judgment and discretion in arriving at the appropriate sentence. As has been said, the court exercises its power and makes its decision in the public interest: Malvaso v The Queen (1989) 168 CLR 227 at 233 (Malvaso). The Director of Public Prosecutions has a duty to assist the court in the sentencing process. In the discharge of that duty the Director puts submissions to the court, but those submissions are merely matters to be considered by the court, to be given such weight as they deserve. The court is not bound in any way by the submissions of the Director, nor is the Director’s attitude to a given case a matter that should influence the court: R v Malvaso (1989) 50 SASR 503 at 509-10 per King CJ. The court must make its own decision, acting according to law and in the public interest. In particular, the court is not bound by any agreement or arrangement reached between counsel for the offender and the Director in the course of the sentencing process.
[24] R v Nemer (2003) 87 SASR 168 at [28] (Doyle CJ), being comments with which Prior and Vanstone JJ agreed, notwithstanding that his Honour was ultimately in dissent.
As his Honour went on to explain in that case, although the sentencing judge is not bound by any concessions made by the prosecution during sentencing submissions, the way the prosecution has conducted itself may nevertheless be relevant to whether the Director should be granted permission to appeal.[25] However, the present matter is readily distinguishable from R v Nemer in this respect. The Director is not seeking to depart from the manner in which the prosecutor approached the hearing below, let alone some agreed factual basis. To the contrary, rather than acquiescing in the sentencing judge relying solely upon the prosecution summary, the prosecutor expressly resisted that course during the course of her submissions on sentence.
[25] R v Nemer (2003) 87 SASR 168 at [30] (Doyle CJ), citing Malvaso v The Queen (1989) 168 CLR 227 at 233 (Mason CJ, Brennan and Gaudron JJ).
All of that said, and mindful of the flexibility to be afforded to a sentencing judge in determining the factual basis for sentencing, it is relevant to consider what might have been gained, or how the judge might have been assisted, by viewing the CCTV footage, as opposed to relying upon the summary of that footage contained in the prosecution summary.
At a general level, the Director’s submission in this respect was that it was necessary to view the CCTV footage in order to have a proper appreciation of the true or full gravity of Mr Yandle’s offending, and hence what the respondent had witnessed, and so knew, at the time he assisted his father to escape apprehension. For the reasons set out above, this was relevant to the seriousness of the respondent’s offending.
In an attempt to be more specific as to the ways in which the CCTV footage would have assisted the sentencing judge beyond what could be ascertained from the prosecution summary, the Director advanced the following matters:
·Mr Murphy’s vulnerability. Upon being discovered in the shed, Mr Murphy cowered in a corner for several minutes with his head down. He remained passive and compliant throughout his interactions with Mr Yandle and the respondent. Indeed, he appeared to be frightened, and it was apparent that he was unarmed and defenceless. Whilst Mr Murphy’s demeanour and circumstances were described in the prosecution summary, the Director argues that these can only be properly appreciated upon viewing the footage.
·The extent of Mr Murphy’s compliance. The Director emphasises that, for a period of about 10 minutes between 10.01 pm and 10.11 pm, Mr Murphy was compliant with the directions he was apparently receiving from Mr Yandle; he held his arms up, emptied his pockets, demonstrated that he was unarmed, handed over his mobile phone and, indeed, appeared to cooperate in unlocking it. The Director argues that viewing the footage is necessary for a full appreciation of Mr Murphy’s compliance, and the considered and callous nature of Mr Yandle’s conduct in murdering Mr Murphy.
·The unequivocally non-threatening way that Mr Murphy was walking towards his mobile phone when Mr Yandle fired the first shot into his body.
·The utterly defenceless position Mr Murphy was in when Mr Yandle fired the next three shots into his body as he lay in the foetal position on the floor.
In summary, the Director contends that viewing the footage was the only way, or at least the best way, of the sentencing judge obtaining a full appreciation of what the respondent had seen, and hence knew, when he assisted his father to escape apprehension for the offence he had committed. As already explained, it was necessary for the sentencing judge to have that full appreciation in order to properly assess the extent of the respondent’s culpability in then taking steps intended to assist his father to escape apprehension. On the Director’s argument, the sentencing judge erred in not having regard to ‘the best evidence’ of this aspect of the matters relevant to the sentence to be imposed upon the respondent.
In our view, the preferable course would have been for the sentencing judge to view the footage. It may be accepted that the judge had an agreed, and relatively detailed, summary of what the CCTV footage showed. However, given the relevance of what the respondent saw and knew, and in the face of a submission from the prosecutor that a full appreciation of these matters required viewing the footage, there was good reason to view the footage. And there does not seem to have been any good reason not to view it. Viewing the footage would not have been an unduly onerous task; the portion of the footage relevant to what the respondent had seen and knew was only about 10 minutes in duration. It was to be expected that the footage would be confronting given the senseless and brutal nature of the execution-style killing that it showed. But this was not a reason not to view it if there was good reason to do so. Indeed, its confronting nature was the very reason why it was a relevant consideration in sentencing the respondent.
Be that as it may, we are not ultimately persuaded that the sentencing judge fell into error in deciding not to view the footage. Given the flexibility which it is appropriate to afford judges in the sentencing process, the judge was entitled to proceed on the basis that she had sufficient material before her as to the gravity of what had transpired in the shed, and so was not required to view the footage.
On appeal, the parties were agreed that it was appropriate for the members of this Court to view the footage for the purposes of determining the appeal, and in undertaking any resentencing that might be appropriate. Having now done so, it reinforces our view that the sentencing judge’s decision not to view the footage is not, of itself, a basis to vitiate the sentencing process. Viewing the footage would have added something to the fact-finding process, but the benefit would have been marginal. Whilst it showed the execution-style murder of a defenceless Mr Murphy, it did not add much to the gravity that was already apparent from the detail contained in the prosecution summary.
Manifest inadequacy
In Ground 3 the Director contends that the sentence imposed was manifestly inadequate. In particular, he submits that a starting point of two years imprisonment was manifestly inadequate in light of the seriousness of the respondent’s offending. He also submits that the judge’s decision to suspend the portion of the sentence left to serve was so lenient that it failed to maintain adequate standards of punishment for offending of this kind.
The principles governing manifest inadequacy are not in dispute. They were conveniently summarised by Lovell JA in R v Kelly:[26]
Manifest inadequacy is a conclusion. In determining whether a sentence is or is not plainly inadequate, an appellate court must essentially repeat the sentencing task undertaken by the sentencing judge and in doing so, determine whether the sentence imposed fell outside the permissible range such that it must be plainly inadequate. A sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result. To succeed on this ground, absent identifying a process error, the appellant must establish that the sentence imposed was unreasonable or unjust.[27]
[26] R v Kelly [2023] SASCA 22 at [36] (Lovell JA).
[27] R v Buttigieg [2020] SASCFC 38; R v McIntyre (2020) 138 SASR 17; R v Yaroslavceff [2022] SASCA 123.
Before turning to the circumstances relevant to the penalty to be imposed in the present case for the respondent’s conduct in assisting an offender in contravention of s 241(1)(b) of the Criminal Law Consolidation Act, it is instructive to consider the approach taken to sentencing for this offence in R v Bui.[28] The respondent in that case assisted her partner to escape apprehension for murder by making false statements to the police, giving her partner a false alibi. Indeed, she lied to police on four separate occasions over a seven day period, including in a signed statement. The sentencing judge had entered a conviction without further penalty, taking into account the time spent in custody and on home detention bail. In allowing a prosecution appeal against sentence, the Court made several observations about the seriousness of the offending. After noting the relationship between the maximum penalty for the assisting an offender offence and the principal’s offence, and that the maximum penalty in that case was imprisonment for 10 years, their Honours described the seriousness of the offending in the following terms:[29]
The seriousness of assisting offender offences varies largely as to the nature, extent, premeditation and effect of the assistance. For this reason, like manslaughter and unlike armed robbery, there is no indicative range of an appropriate penalty and reference to penalties imposed in other cases is of limited assistance.
As to the nature of the assistance, the respondent gave to police an alibi for Le which went to the heart of the only live issue in the police investigation into the murder of Asrawe being the identity of the assailant. The respondent’s assistance was premeditated in that she was not called on to give an account of Le’s movements on the night in question until 36 hours later. Her assistance was prolonged over the period from 10 to 16 August 2013. Her assistance involved not only answering questions by the police over the six-day period but formally signing a written statement on 16 August 2013 providing a false account to assist Le. Although not part of the charge itself, this assistance was provided in a context in which, contrary to the statements she was providing to the police at the time, the respondent had accompanied Le in his vehicle to Paralowie in the early hours of 9 August 2013 before the murder, was in regular phone and personal contact with him over the next seven days, was aware of the injury to his right hand and accompanied him to the Elizabeth medical clinic on the evening of 10 August 2013 for treatment of that injury.
All of these circumstances result in this being a serious instance of the offence of assisting an offender. The only mitigating factor in the circumstances of the offence was the fact that, contrary to the respondent’s intent and best endeavours, the police were not misled or were not misled for long, and arrested Le when they located him on 18 August 2013.
[28] R v Bui (2016) 125 SASR 137.
[29] R v Bui (2016) 125 SASR 137 at [42]-[44] (Kelly, Blue and Nicholson JJ).
The Court allowed the appeal and, in resentencing the respondent, commenced with a notional head sentence of imprisonment for 15 months, but reduced this to 13 months and 15 days after making a reduction for her guilty plea.[30]
[30] R v Bui (No 2) [2016] SASCFC 80 at [21] (Kelly, Blue and Nicholson JJ).
As Doyle CJ observed in R v Haydon:[31]
The seriousness of a particular offence of assisting will depend on the conduct of the [accessory] and the seriousness of the offence in relation to which assistance is given (the secondary offence). When … the secondary offence is murder, the offence of assisting an offender has to be viewed most seriously.
[31] R v Haydon [2006] SASC 238 at [52] (Doyle CJ).
Adapting the list endorsed by the New South Wales Court of Appeal in TT v R,[32] the considerations relevant to an assessment of the seriousness of an offence of assisting an offender to escape apprehension for murder will include:
[32] TT v R [2014] NSWCCA 206 at [15] (Hamill J, Macfarlan JA and Fullerton J agreeing), applying R v Johnson [2014] NSWSC 1254 at [13] (Hamill J); see also R v Struik [2023] NSWSC 1548 at [24] (Yehia J).
1.     the circumstances of the murder itself;
2.     the extent of the accessory’s knowledge of those circumstances;
3.     the precise act, or acts, which constitute the assisting offence;
4.the length of time over which the accessory assisted the principal to escape justice;
5.the extent to which the acts of the accessory successfully delayed, or thwarted, the investigation and prosecution of the principal offender;
6.the motivation, and extent of deliberation, on the part of the accessory in committing the assisting offence;
7.whether the accessory’s conduct was motivated by a misguided loyalty or emotional attachment to the principal offender, particularly where it is of a familial nature; and
8.whether the assistance involves the particularly serious conduct of disposing of, or destroying, a corpse.

Returning to the present case, because the respondent’s offending related to a principal offence of murder, the maximum penalty was imprisonment for 10 years. The assistance provided by the respondent consisted of hiding two items belonging to Mr Murphy, and lying to the police by denying any knowledge of Mr Murphy and suggesting that any report of gunshots in the area might have been a result of a panel beater or car starting. The lies were told in the relatively formal setting of a police interview, in circumstances where their potential to interfere with the police investigation of his father for murder was obvious.
While accepting that the murder of Mr Murphy was sudden and unexpected from the respondent’s perspective, he had had at least some opportunity to reflect before hiding the items belonging to Mr Murphy, and over a month to reflect before lying to the police. In other words, he made a deliberate and considered decision to provide the assistance he did. Certainly the lies were not told in the spur of the moment, or in the immediate aftermath of a shocking or troubling event.
The importance of witnesses dealing truthfully with investigative authorities was a matter emphasised by Blue J in R v Alderson:[33]
It is a cornerstone of the justice system that witnesses deal truthfully with authorities investigating the potential commission of criminal offences and not deliberately mislead investigating authorities for the purpose of avoiding a person being investigated and prosecuted for a crime. It must be clear that, if a member of the community deliberately lies to an investigative authority for such a purpose, she or he commits a serious offence.
[33] R v Alderson (2016) 125 SASR 375 at [42] (Blue J, Kourakis CJ and Stanley J agreeing).
On the other hand, it is fair to say that the practical effect of the respondent’s assistance was limited. While his assistance had the potential to interfere with the police investigation, the items he hid were not essential to the police investigation. Further, the police investigation was at a relatively advanced stage by the time they interviewed the respondent and, because of his relationship to his father, it was unlikely that police would have attached much weight to his answers. Indeed, as events transpired, by the time police interviewed the respondent, they had already seized the rifle and CCTV hard drives from the roof space above the Yandle home; and by the following day they had discovered Mr Murphy’s body.
As explained earlier in these reasons, what made the respondent’s offending a serious instance of the assisting an offender offence was his detailed knowledge of the full gravity of his father’s offending. He was physically present, and witnessed first-hand, his father’s execution-style murder of the defenceless Mr Murphy. The extraordinarily brutal and senseless nature of his father’s conduct ought to have been shocking for the respondent; and his moral and legal responsibility to the victim’s family and friends, and to the administration of justice more generally, ought to have been clear.
It may be accepted that the respondent found himself in a position of conflict, given his understandable sense of loyalty to his father. This was a matter emphasised in the report provided by Dr Lim, summarised earlier in these reasons. As Dr Lim explained, the respondent would have been in a ‘profound state of emotional conflict and pressure’ at the time he hid the items belonging to Mr Murphy and lied to police, and would have had to ‘grapple with making the difficult choice of either maintaining his loyalty towards his father [or] doing what was legally and morally right’. Dr Lim also mentioned the respondent’s concern that if he were to ‘betray’ his father, he would risk not only his own relationship with his father, but also risk his sister being without her father and his mother being without her husband for a long time.
Although the extremely serious nature of his father’s conduct ought to have been sufficient to make it clear to the respondent that what he did was morally and legally wrong, and to have led him to refuse to provide any assistance at all to his father, Dr Lim emphasised the respondent’s young age and the unique and unexpected situation in which he found himself. As the respondent said, he was in shock and denial.
There are aspects of the report provided by Dr Lim that suggest the respondent has not been as clear and strong in his condemnation of his father’s conduct as he should have been. However, it is to be acknowledged that the respondent has ultimately expressed ‘disappointment’ and ‘disgust’ in relation to his father’s conduct. He has also expressed regret about his own conduct, and acknowledged that he made the wrong choice in choosing his loyalty to his father over doing what he knew was legally and morally right.
Given Dr Lim’s report, and the apology and expression of contrition by the respondent in his statement in Court, it was appropriate for the judge to accept that the respondent was contrite and remorseful.
There were also some aspects of the respondent’s personal circumstances that were favourable. In addition to being young, and having no criminal history, he was assessed as having a low risk of re-offending. His education and work history, together with the ongoing support of his mother and sister, justify a conclusion that he has good prospects of successful rehabilitation.
Coming to the head sentence to be imposed, we have earlier in these reasons set out the sentencing judge’s explanation of the relevant sentencing objectives, and her summary of the seriousness of the respondent’s offending. We adopt that explanation and summary, save that we would, for the reasons explained earlier, add reference and emphasis to the significance of the respondent’s knowledge of the particularly grave nature of his father’s offending at the time he assisted his father, intending that he escape apprehension.
Having reflected carefully on all of the above, we are not persuaded that a starting point of two years was manifestly inadequate. We accept that the sentencing judge appears not to have appreciated the full significance of the matter we have just mentioned and that, perhaps as a consequence of this, the starting point is relatively low. However, we are not persuaded that it has led to a head sentence which was outside the range that might reasonably have been imposed. While lenient, the head sentence was not manifestly inadequate.
Turning to the issue of suspension, the seriousness of the respondent’s sentence required that he serve a period of imprisonment. The issue is whether it was permissible, and appropriate, for some part of the sentence to be suspended.
The sentencing judge decided to suspend the portion of the respondent’s backdated head sentence (just short of five months) that remained to be served as at the date of sentencing. As explained earlier, her Honour was not permitted by s 96(4) of the Sentencing Act to partially suspend the sentence that she imposed. In that sense, she erred in suspending the balance of the head sentence that she imposed.
However, as has also been explained earlier, it would have been permissible for her Honour to structure the sentence she imposed differently. Rather than backdating the sentence so as to give credit for the time served, she could have reduced the head sentence by the time served, and then exercised her discretion under s 96(1) of the Sentencing Act to wholly suspend that reduced sentence (upon satisfaction that there was good reason to do so). Whilst the considerations bearing upon the exercise of that discretion would have been the same as those relied upon by her Honour in purporting to partially suspend the respondent’s sentence, her Honour did not exercise this discretion. There is therefore no need to address its exercise in the context of Ground 3. It is a matter that will arise for direct consideration only in the event that this Court allows the appeal and proceeds to resentence the respondent.
Permission to appeal
Having determined that there is merit in Ground 1 of the appeal (on the basis that the sentencing judge erred in purporting to partially suspend a sentence when not authorised by law to do so, and in imposing a bond which may be vulnerable to challenge), it is necessary to consider whether it is appropriate for this Court to grant permission to appeal.
The general principles governing permission to appeal on a prosecution appeal are well known, and conveniently summarised in the passage from R v Singh[34] set out earlier in these reasons.
[34] R v Singh [2024] SASCA 81 at [30]-[31] (Livesey ACJ, Doyle and David JJA).
The circumstance that the sentence imposed was not authorised by law, and included a bond which may be vulnerable to challenge and unenforceable, weighs heavily in favour of intervention. Whilst the requirement for permission to appeal presupposes that it may not be inconsistent with the administration of justice to leave in place a sentence which is manifestly inadequate, or otherwise infected by some process error, there is something more fundamental about an error which goes to the authority of the Court to impose, and the potential enforceability of, the impugned sentence. The public interest in favour of intervention is stronger in the case of an error of this nature. As White J said when granting permission to appeal in R v Ossitt:[35]
The imposition of a sentence which is not authorised by law is an affront to the administration of justice. Sentencing courts must act according to law. To allow a sentence not authorised by law to stand would not achieve the purposes of the criminal law and would undermine public confidence in the courts.
[35] R v Ossitt [2011] SASCFC 23 at [23] (White J, Kelly and Peek JJ agreeing).
However, even in the case of an error of this nature, the public interest in favour of intervention must be weighed against the hardship that may be associated with the double jeopardy to which the respondent will be exposed.
Unlike R v Ossitt,[36] this is not a case where the Court would grant leave, but with a clear understanding that any intervention on appeal would be confined to resentencing so as to cure a formal defect in the sentence, but without any practical difference in the sentence to be imposed. To the contrary, the Director in this case positively contends that the sentence imposed below was not only unauthorised and vulnerable to challenge, but also too low.
[36] R v Ossitt [2011] SASCFC 23 at [22] (White J, Kelly and Peek JJ agreeing), noting that the Director sought permission only with a view to the Court imposing an enforceable sentence of similar severity to that imposed by the sentencing judge.
Even though we have indicated that we are not persuaded of the merits of Ground 3 (that the sentence was manifestly inadequate), if the Court were to allow the appeal on Ground 1, it would be required to resentence the respondent and ‘impose the sentence that should have been imposed in the first instance’.[37] The Court would be precluded from taking into account the principle of double jeopardy when resentencing, including by imposing a sentence which was at the lower end of the range of available sentences for the offence in question.[38]
[37] Criminal Procedure Act 1921 (SA), s 150(a).
[38] R v Ossitt [2011] SASCFC 23 at [26]-[27] (White J, Kelly and Peek JJ agreeing), in the context of s 340(a) of the Criminal Law Consolidation Act, being the identically worded predecessor to s 150(a) of the Criminal Procedure Act.
It follows that if this Court were to grant permission to appeal, the respondent would face a risk of being resentenced on a basis which involves the imposition of a heavier sentence, and a sentence which, if not suspended, would require that he be returned to prison. The potential hardship to the respondent is thus obvious and significant.
Although conscious of this potential hardship to the respondent, it is difficult to justify this Court leaving in place a sentence which was not authorised by law, and which includes a bond which may not be enforceable. With some reluctance we have concluded that it is appropriate that the Court grant permission to appeal.
Having decided to grant permission to appeal, the appeal must be allowed on Ground 1. The respondent must be resentenced. Whilst Grounds 2 and 3 have not been made out, this Court must nevertheless impose the sentence that should have been imposed in the first instance.
Resentencing
In resentencing the respondent, there is no need to repeat the matters relevant to the seriousness of his offending or his personal circumstances. They have already been canvassed at length.
Bearing in mind the matters emphasised by the Director on appeal, this was a serious instance of the assisting an offender offence. The respondent was placed in a difficult position given his loyalty to his father. However, the heinous nature of the murder that he saw his father commit ought to have made clear his moral and legal responsibility to Mr Murphy’s family and friends, and to the administration of justice more generally. While his personal circumstances were favourable, a significant period of imprisonment was required.
In resentencing the respondent, we would impose a longer head sentence than the sentencing judge. We would commence with a notional head sentence of imprisonment for two years and six months. After a reduction of approximately 15 per cent for his plea of guilty, the head sentence would be imprisonment for two years and two months.
However, it is also necessary to take account of the time already served by the respondent. The respondent served 15 months, one week and four days prior to his release on 16 July 2024. In the ordinary course, it would have been preferable to give credit for the time served by backdating the respondent’s head sentence. However, because the respondent has not been in custody since 16 July 2024, it is appropriate to give him credit for time served by reducing his sentence by the time served.[39] That will result in a head sentence of imprisonment for 10 months and 19 days. Because the sentence to be imposed is less than 12 months, there is no occasion to set a non-parole period.[40]
[39] cf R v Newman (2004) 145 A Crim R 361 at [26]-[30] (Howie J); R v Johnson [2014] NSWSC 1254 at [55]-[56] (Hamill J), suggesting that the preferable course may still be to backdate the sentence even though it creates ‘something of a fiction’.
[40] Sentencing Act, s 47(5)(a)(i).
Whether there is good reason to wholly suspend this sentence under s 96(1) of the Sentencing Act is finely balanced. There is force in the Director’s submission that a proper appreciation of the seriousness of the offending weighs against suspension. Whilst it was relevant that the respondent was unexpectedly placed in a position of conflict given his loyalty to his father, the gravity of what he had witnessed made his decision to prefer that loyalty by assisting his father to escape apprehension a serious instance of the s 241(1)(b) offence. On the other hand, the considerations relied upon by the sentencing judge are significant factors in favour of suspension. He is a young man, with personal attributes which mean he is unlikely to reoffend, and has good prospects of successful rehabilitation. As the sentencing judge emphasised, the respondent has already served a significant period of imprisonment (about 15 months). It is also of some relevance that, for a significant portion of this time, the respondent was facing a charge of murder.[41]
[41] R v Bui (No 2) [2016] SASCFC 80 at [20] (Kelly, Blue and Nicholson JJ).
We are conscious of the fact that, in resentencing the respondent, we must put to one side any concern with double jeopardy, or with the hardship associated with any decision to return the respondent to prison. We must impose the sentence that should have been imposed at first instance. At the same time, we consider it would be inappropriate to ignore the reality that the respondent has not only served a significant period of imprisonment, but has also been released from prison and embarked upon his post-release rehabilitation. When resentencing, these are relevant aspects of the respondent’s personal circumstances.
In the ultimate analysis, we are satisfied that there is good reason to suspend the sentence of imprisonment that we would impose. We would do so upon the respondent entering into a bond to be of good behaviour for a period of two years, and otherwise in the terms contemplated by the sentencing judge.
Orders
For the reasons given, we grant permission to appeal, and allow the appeal on Ground 1. We set aside the sentence imposed at first instance, and resentence the respondent.
From a starting point of imprisonment for two years and six months, but after reductions for the respondent’s guilty plea and time already served, we sentence the respondent to imprisonment for 10 months and 19 days.
We suspend this sentence upon the respondent entering into a bond to be of good behaviour for a period of two years, and otherwise in the terms contemplated by the sentencing judge.