AARON ELISA LLOYD v THE KING [2023] SASCA 19

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE PRESS) DCCRM- 20-916 Appellant: AARON ELISA LLOYD Counsel: MR D MOEN - Solicitor: EDGE LAW Respondent: THE KING Counsel: MR J SLOCOMBE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 10/10/2022 File No/s: SCCRM-22-125 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. LLOYD v THE KING [2023] SASCA 19 Judgment of the Court of Appeal (The Honourable Justice Bleby, the Honourable Justice David and the Honourable Auxiliary Justice Mazza) 2 March 2023 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - ASSAULT IN COMPANY CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - CIRCUMSTANCES OF OFFENCE CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO- OFFENDERS AND OTHER RELATED OFFENDERS CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE On 10 February 2022, following guilty pleas, the appellant and a co-accused were convicted and sentenced for one count of aggravated serious criminal trespass, contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) (Count 1), one count of aggravated assault, contrary to s 20(3) of the CLCA (Count 2), and one count of theft, contrary to s 134(1) of the CLCA (Count 3). Another co-accused, D, had been previously sentenced by a different judge for offences arising from the same incident. Counts 1 and 2 were aggravated by reason that the offences were committed in company. In relation to Count 2, initially a further aggravated circumstance alleged -- 1 of 28 -- that the appellant had used or threatened to use a firearm. This was subsequently withdrawn prior to the appellant pleading guilty to that offence. The sentencing Judge proceeded pursuant to s 26 of the Sentencing Act 2017 (SA) and adopted a starting point of five years imprisonment which was reduced by five per cent on account of the appellant’s guilty pleas, resulting in a head sentence of four years and nine months imprisonment. That sentence was further reduced to four years, seven months, and 23 days on account of time spent in custody. A non-parole period of two years and ten months was fixed. The sentence was backdated to 17 June 2020, being the date upon which the appellant was remanded in custody solely in relation to this matter. The appellant was also convicted of three counts of breaching a bail agreement, for which no further penalty was imposed. The appellant now appeals against the sentence on the following grounds: 1. the sentence was manifestly excessive (Ground 1); 2. the sentencing Judge infringed the principle enunciated in R v De Simoni (1981) 147 CLR 383 (‘De Simoni’) by sentencing the appellant on the basis that he was armed with an item that had the appearance of a sawn-off rifle at the time of the commission of the offence when an aggravating circumstance that the appellant ‘used or threatened to use a firearm’ had been withdrawn, and further, the appellant in entering his guilty plea did not accept that factual basis (Ground 2); and 3. the sentencing Judge erred by adopting the same starting point as D when determining a head sentence (Ground 3). Held, per the Court, granting an extension of time to lodge the appeal and permission to appeal on Grounds 1, 2 and 3 but dismissing the appeal: 1. The sentence imposed was not manifestly excessive. 2. The appellant did not instruct his solicitor to contest the factual circumstance that he was in possession of an item which appeared to be a firearm. The sentencing Judge’s finding that an item resembling a firearm was used to ensure the home invasion appeared genuine and did not meet resistance was permissible under s 5AA(6) of the CLCA. The sentencing Judge did not punish the appellant for a more serious uncharged offence, nor infringe the principle in De Simoni. 3. The sentencing Judge correctly found that the appellant was equally culpable for the offence as the co-accused, D. Having regard to the seriousness of the offences and the appellant’s personal circumstances, including his antecedents, the sentencing Judge did not err by adopting the same starting point of five years as adopted by a different judge for D. Criminal Law Consolidation Act 1935 (SA) ss 5AA, 5AA(6), 20(3)(b), 20(3)(c); Sentencing Act 2017 (SA) ss 10(1), 11, referred to. R v De Simoni (1981) 146 CLR 383, applied. Green v The Queen (2011) 244 CLR 462; Hili v The Queen (2010) 242 CLR 520; Lowe v The Queen (1984) 154 CLR 606; R v Humby [2004] SASC 358; R v Lindsay [2015] SASCFC 62; South Australia Police v Hill [2022] SASCA 22, discussed. Anderson v The Queen (1993) 177 CLR 520; Clavell v Police [2014] SASC 142; Dinsdale v The Queen (2000) 202 CLR 321; Feldman v Samuels [1956] SASR 55; Giordimania v The Queen [2020] SASCFC 28; Griffiths v The Queen (1977) 137 CLR 293; Hassan v The Queen [2022] SASCA 56; House v The King (1936) 55 CLR 499; Johnson v The Queen (2004) 78 ALJR 616; Kentwell v The Queen (2014) 252 CLR 601; Lees v The Queen [2022] SASCA 93; Markarian v The Queen (2005) 228 CLR 357; Ndreka v The Queen [2021] SASCA 11; R v Austin (1985) 121 LSJS 181; R v Bondarenko [2015] SASCFC 42; R v Bukvic (2010) 107 SASR 405; R v Burrows (1995) 79 A Crim R 154; R v Delphin (2001) 79 SASR 429; R v Gibson (1991) 56 A Crim R 1; R v Lane [2011] SASCFC 101; R v MacGowan (1986) 42 SASR 580; R v MacKay [2019] SASCFC 45; R v Matthews (1989) 151 LSJS 290; R v Morse (1979) 23 SASR 98; R v Newman (1995) 81 A Crim R 191; R v Olbrich (1999) 199 CLR 270; R v Place (2002) 81 SASR 395; R v Spong (2008) 100 SASR 55; R v -- 2 of 28 -- Teremoana (1990) 54 SASR 30; R v Traiconi (1990) 49 A Crim R 417; R v Tranter (No 2) (2014) 119 SASR 480; R v Ttikirou [2018] SASCFC 76, considered. -- 3 of 28 -- -- 4 of 28 -- LLOYD v THE KING [2023] SASCA 19 Court of Appeal – Criminal: Bleby and David JJA and Mazza AJA 1 THE COURT: The appellant and a co-accused, Shane Douglas Jarman (‘Jarman’), pleaded guilty to one count of aggravated serious criminal trespass, one count of aggravated assault, and one count of theft. Another co-accused, D, had previously been sentenced for offences arising from the same incident. 2 On 10 February 2022, the appellant was convicted and sentenced for the offending. The sentencing Judge adopted a starting point of five years imprisonment. A five per cent discount was applied for the appellant’s guilty pleas, resulting in a head sentence of four years and nine months imprisonment. That sentence was further reduced to four years, seven months, and 23 days on account of time spent in custody. A non-parole period of two years and ten months was fixed. The sentence was backdated to 17 June 2020, being the date upon which the appellant was remanded in custody solely in relation to this matter. That sentence is the subject of this appeal. 3 The appellant was also convicted of three counts of breaching a bail agreement, for which no further penalty was imposed. 4 Subsequently, on 1 November 2022, following a trial by judge alone, the appellant was convicted of one count of aggravated possessing a firearm without a licence. In relation to that matter, a different sentencing Judge imposed a head sentence of three years and six months to be served cumulatively upon the sentence imposed on 10 February 2022. The adjusted head sentence was therefore increased to a period of eight years, one month and 23 days imprisonment. A non-parole period of four years, 11 months and six days was fixed. The head sentence and non-parole period were backdated to commence on 17 June 2020. Grounds of appeal 5 The appellant complains that the sentence was manifestly excessive (Ground 1); that the sentencing Judge infringed the principle enunciated in R v De Simoni1 (‘De Simoni’) by sentencing the appellant on the basis that he was armed with an item that had the appearance of a sawn off rifle at the time of the commission of the offence when an aggravating circumstance that the appellant ‘used or threatened to use a firearm’ had been withdrawn, and further, the appellant did not accept that factual basis (Ground 2); and that the sentencing Judge erred in adopting the same starting point as D when determining a head sentence (Ground 3). 6 The appellant seeks an extension of time within which to bring this appeal. 1 (1981) 147 CLR 383 (‘De Simoni’). -- 5 of 28 -- [2023] SASCA 19 The Court 2 7 The question of permission to appeal on Grounds 1, 2 and 3 was referred to this Court for consideration. Circumstances of the offending 8 In 2018, D was in a relationship with the complainant. That relationship was tumultuous and fraught with difficulties. There was a degree of animosity felt by D towards the complainant, and, in the weeks leading up to the offence, the complainant and D were estranged. By the time of the offence, D had commenced a relationship with Jarman; the complainant was unaware of this. Knowing that the complainant was, from time to time, in possession of large sums of cash, D suggested to Jarman that they steal money from his house. The plan involved D attending the complainant’s house to determine whether he had any large sums of cash at his disposal, contacting Jarman and the appellant to inform them if he did, and then arranging for access to the complainant’s house by unlocking the front door. 9 On the afternoon of 15 June 2018, upon ascertaining that the complainant had $10,000 in his possession, D sent a text message to Jarman suggesting that he and the appellant attend the premises in ten minutes time. She told him that she would unlock the front door for them to enter. At around 2:45pm, Jarman arrived at the property. He waited for the appellant at the front gate of the premises who, upon arrival, entered through the front door of the complainant’s home. Jarman remained at the front gate. Both men were wearing black balaclavas. 10 Upon entering the house, the appellant shoved the complainant with his hip and shoulder, causing him to fall to the ground. This forms the basis of the charge of aggravated assault (Count 1). The aggravating circumstance alleged is that he was in the company of another. The appellant then approached D and pointed what appeared to be a sawn-off rifle at her.2 He screamed at D, accusing her of being responsible for sending his cousin to gaol. This was a ruse, the purpose of which was to give the impression that the home invasion was genuine and to draw attention away from D. 11 The complainant fled the house in fear but was prevented from leaving by Jarman, who was holding the front gate closed. The appellant told Jarman to ensure the complainant did not escape, but the complainant was able to obtain a shovel from his vehicle, which he used to threaten Jarman until he allowed him to leave. The complainant then approached a neighbour and asked them to call the police. 12 In the meantime, the appellant and Jarman fled the property with $10,000 cash stolen from the complainant. They were observed by the complainant driving off in a car which was parked nearby. Upon returning to his house, where D remained, the complainant discovered that a bag containing $10,000 cash was 2 This point is in dispute; the appellant denies he was ever in possession of a firearm. The prosecution withdrew the aggravating circumstance that the appellant ‘used’ or ‘threatened to use’ a firearm in the course of the assault. -- 6 of 28 -- [2023] SASCA 19 The Court 3 missing. After telling D that he had informed police, she took the keys to his car and fled. Police were able to track D’s mobile phone to Jarman’s home. 13 Upon attendance at Jarman’s home, police found $3,750 cash in the front pocket of D’s jumper. A sum of $3,200 cash was located in Jarman’s bedroom. Police were also able to obtain a photo of the appellant showing a wad of cash tucked into his waistband alongside an object that resembled a firearm. 14 On 18 June 2018, the appellant was arrested in relation to a separate matter. He was not charged in relation to these offences until around September 2019. Personal circumstances 15 At the time of sentencing, the appellant was 33 years old. He was born and raised in Adelaide by his parents, who remained married until the death of his father in October 2020. The appellant is the oldest of three siblings; he has two brothers and a sister. At the time of sentencing, both of his brothers were serving terms of imprisonment. His sister, who has two children, helps care for his mother. 16 The appellant grew up in a relatively stable home, free from abuse, neglect, and trauma, although at the time the appellant was born his father was in custody and suffering from a heroin addiction. After his release from prison, when the appellant was about three years old, the appellant’s father was able to turn his life around. He encountered no further trouble with the law from that time until his death. The appellant described him as a hardworking man who, while tough at times, was extremely supportive. The appellant’s father was diagnosed with cancer in December 2019 and died in October 2020 while the appellant was remanded in custody. 17 The appellant has a close relationship with his mother, who tended to home duties throughout his childhood, occasionally working in supermarkets. She currently lives with her mother (the appellant’s grandmother) because she was unable to afford their family home after her husband’s death. She is of ill-health and suffers from chronic depression. The appellant has indicated that upon his release from custody he would like to find employment and return to a stable lifestyle in order to provide his mother with financial support. 18 The appellant left school in year nine due to bullying. He has since completed some certificates in welding at TAFE. 19 After leaving school at about age 15, the appellant obtained work at a local supermarket for approximately one year. In the nine years that followed, he was employed in different roles, including a five-year stint as a farmhand. The appellant was also focusing on his career as a professional football player, which required him to move around. However, he was forced to give up football due to an injury. He has been unemployed for the last eight years. -- 7 of 28 -- [2023] SASCA 19 The Court 4 20 The appellant has four biological children: three daughters, who live with their mother in Western Australia, and a son who lives with his mother in Victoria. He has had minimal contact with his daughters since being taken into custody but has been able to speak to his son every Sunday in more recent times. The appellant has expressed a desire to have shared custody of his son once he is released. He has been married to his current partner for three years. His wife does not use drugs and has been supportive of the appellant throughout his incarceration. He hopes to live with her upon his release. 21 The appellant’s abuse of illicit substances began at the age of 17, with his use of methylamphetamine beginning at the age of 19. Prior to being incarcerated, he would often consume methylamphetamine daily. He has also used it in prison. For a time, he abused over-the-counter pain medication to attempt to mitigate withdrawals from methylamphetamine. He started smoking heroin when he was about 24 years old but claims his use of the substance has only ever been occasional. 22 The appellant was best able to achieve abstinence when he engaged in Suboxone treatment, which helped him to maintain stability and reduced his drug use. He has placed a request to resume this treatment before he is released. Further, and to his credit, upon being released on home detention in December 2019, he took the opportunity to engage with drug counselling services, namely Drug and Alcohol Services South Australia (‘DASSA’). 23 The appellant would like to receive drug treatment in the future but has expressed frustration at the minimal rehabilitation options available to him in prison. Once released into the community, he believes treatment will be a key factor in preventing relapse. He says his mother and wife are his primary motivators to cease substance abuse and believes that random drug testing may be beneficial as it will help motivate him to abstain from substance abuse. 24 In a letter dated 25 August 2022, Alcohol and Other Drugs (‘AOD’) counsellor, Ms Julia Wright, confirmed that the appellant is eligible to receive 14 group counselling sessions. Ms Wright said the appellant has expressed motivation to remain abstinent from illicit substances and has been able to identify protective factors that will support his ongoing abstinence. While he remains in custody, Ms Wright said the appellant has consented to ongoing AOD phone support. Once he is released, he will have the opportunity to be referred to the Matrix Program for intensive treatment. 25 The appellant has an extensive criminal history, including offences of violence committed in 2010, 2012, 2015, 2018 and 2019, for which periods of imprisonment were imposed, albeit, some were suspended. Between 15 June 2018 (the date the offence was committed) and 17 June 2020 (the date the appellant was remanded in custody solely in relation to this matter), the appellant has spent time serving various sentences, and some time on remand for these offences. -- 8 of 28 -- [2023] SASCA 19 The Court 5 26 In December 2019, shortly after the appellant had been released on home detention bail in relation to a separate matter, his father was diagnosed with terminal cancer. The conditions of his home detention meant that he was unable to visit his father in hospital, which caused a degree of stress. Consequently, the appellant relapsed into drug abuse and cut off his home detention bracelet. Rather than attending court, he went to visit his father, thus breaching the conditions of his home detention. On 1 March 2020, the appellant was arrested for a separate firearms offence and was remanded in custody until sentence in relation to this matter on 10 February 2022, although during that time he served other sentences on other unrelated matters. 27 On 21 October 2020, the appellant was released on bail for five hours to attend his father’s funeral under the supervision of his mother and in the presence of his daughter. However, the appellant breached bail when he embarked on a detour upon his return to the watch-house, resulting in him handing himself in 25 minutes late. 28 The appellant was diagnosed with bipolar disorder several years ago and has found treatment to be ineffective. He has also experienced bouts of anxiety and depression which were exacerbated by the death of his father and other relatives, including his paternal uncle and paternal grandmother. The appellant’s ability to properly grieve over the loss of his relatives has been made more difficult by his imprisonment. 29 The appellant has attempted suicide on more than one occasion, the most recent attempt occurring about three years ago while he was being held at the Adelaide Remand Centre following the loss of contact with his son after the breakdown of his relationship with his son’s mother. He has not experienced suicidal ideations or self-harmed since. 30 In a report dated 1 November 2021, clinical psychologist, Ms Susan Heinrich, said the appellant met the criteria for Borderline Personality Disorder and Adjustment Disorder, both of which are treatable with psychological therapy (though she considered it unlikely he would receive such treatment whilst in prison). 31 Ms Heinrich considered the appellant’s substance abuse has adversely impacted on his development and become a ‘maladaptive coping strategy to manage unpleasant emotional states’. She explained that he was most susceptible to relapse in times of acute stress and would be at chronic risk of relapse upon his release into the community. That being said, Ms Heinrich considered there to be a number of suitable therapeutic services available to the appellant that may assist in reducing the risk of recidivism. Procedural history 32 As noted above in relation to Ground 2, the appellant complains that he was sentenced on a factual basis which he did not accept when entering his guilty pleas. -- 9 of 28 -- [2023] SASCA 19 The Court 6 In considering that contention it is necessary to set out the procedural history of this matter. 33 The appellant was first charged on 18 September 2019 with the following offences: one count of aggravated serious criminal trespass; one count of aggravated robbery; and two counts of theft. He was charged approximately one year after the commission of the alleged offences, and at a time when he was serving a sentence on other matters and soon eligible for release. 34 On 11 September 2020, at his first arraignment, the appellant pleaded not guilty to those offences. He was remanded for trial to commence on 6 September 2021. 35 On 20 January 2021, a first directions hearing was held. A second directions hearing occurred on 6 August 2021 during which the appellant expressed frustration with his counsel given the length of time he had been remanded in custody. Towards the end of the proceedings, he told counsel to ‘[s]tand up and say something. … [g]et off your arse and fucking do something, mate’. His counsel subsequently withdrew from the matter. 36 On 31 August 2021, at a further directions hearing, the prosecution discontinued the charge of robbery and one count of theft relating to the complainant’s vehicle. The appellant’s solicitor confirmed that he would plead guilty to one count of aggravated serious criminal trespass, one count of theft in relation to the stolen money and one count of aggravated assault. 37 The appellant was arraigned for a second time on 7 September 2021, after a fresh Information containing the abovementioned charges had been laid. On that occasion, the appellant’s solicitor made clear that the prosecution case statement (‘the PCS’) formed the agreed factual basis for his guilty pleas to the aggravated assault. She said: In relation to the fresh information, there’s one count of aggravated serious criminal trespass, there’s one count of aggravated assault and there’s one count of theft. The agreed factual basis was set out in the prosecution factual summary, that is the resolution in terms of the charges. I understand the director will withdraw the old information and proceed on the new one. I understand, having spoken with my learned friend as well, that Mr Jarman and Mr Lloyd will enter guilty pleas to all three of the counts. There is only one issue and that is the aggravated assault. The aggravating feature has been particularised as one being in company, which we take no issue with, but it has also been particularised on the basis that the defendants used or threatened to use an offensive weapon, namely a firearm, to commit the assault. The agreed factual basis of the assault is as per the prosecution factual summary. In the factual summary it is said that these two accused enter the property, pushed the complainant and go further into the property where they meet what I’ll describe as the third accused who was sentenced separately. The defendants push him, they don’t communicate with him, they don’t threaten him directly, they push him. That is the basis on which the prosecution factual summary has been drafted and which we say we are guilty of an assault. -- 10 of 28 -- [2023] SASCA 19 The Court 7 38 The PCS states that ‘[t]he intruder was armed with what appeared to be a sawn-off rifle. The intruder approached [D]. He pointed the gun at her and yelled “you put my cousin in gaol cunt.”’ Further, the PCS states that the complainant described the gun as a sawn-off single barrel rifle about 40cm long, with a magazine in the middle that was short and wide, ‘like it would hold five or so bullets.’ The PCS also notes the complainant’s description of the wooded stock of the rifle as being ‘dark brown’ and the metal parts ‘like an old grey’; and that he thought the rifle ‘looked really old.’ 39 Before the appellant was arraigned, prosecuting counsel maintained that, at the time the appellant committed the assault, he was holding a firearm and that this formed the basis of one of the alleged aggravating features (the other being that he was in the company of another). The prosecutor said: The conduct that constitutes the assault is the hitting in the shoulder and knocking the complainant to the ground, as set out in the prosecution factual summary. We say that the accused Lloyd had in his hand a firearm at the time he committed that assault, he’s walked in holding the gun, the complainant describes seeing the gun and it’s subsequently used as part of his ploy with the other accused who has since been sentenced but the complainant describes seeing the gun in hand at the time that first intruder enters the premises. So that’s the basis upon which we maintain that aggravating feature. 40 The prosecutor went on: We maintain the factual allegation that when the intruder comes in he has a gun in hand, effectively, and that that’s seen by the complainant as the intruder’s entering and that gun is in hand at the time the assault is inflicted. If there’s no dispute about that factual circumstance and there’s no dispute that your Honour can take that factual circumstance into account, I’m happy to abandon the particular in the information of ‘used or threatened to use an offensive weapon’. 41 In response, the appellant’s solicitor confirmed that his guilty pleas were on the factual basis as set out in the PCS, which were not disputed. However, the appellant’s solicitor said that ‘[i]t’s not determined whether it was a real one or a fake one’ and restated the appellant’s position that he never threatened or used that firearm on the complainant. 42 A short adjournment was granted to allow the appellant’s solicitor to confirm the factual basis of the proposed guilty plea to the offence of aggravated assault. Following that adjournment the appellant’s solicitor informed the sentencing Judge that the matter had been resolved per the PCS and that the appellant would be entering a guilty plea to the offence of aggravated assault on the basis that the prosecution would not press the aggravating circumstance in relation to his ‘use’ or ‘threaten to use’ a weapon. The prosecution confirmed this position and withdrew that aggravating circumstance from Count 2. 43 The appellant was re-arraigned and entered guilty pleas to all offences. -- 11 of 28 -- [2023] SASCA 19 The Court 8 44 On 15 December 2021, submissions on sentence were made before the sentencing Judge. After outlining the facts of the case, the prosecution again confirmed that the aggravating feature regarding ‘use of’ or ‘threaten to use’ a firearm had been withdrawn. Nevertheless, prosecuting counsel said: [B]ut it’s accepted that Mr Lloyd had in his hand an item that the prosecution say is the firearm, and the facts as set out in the prosecution case statement are accepted, and your Honour can have regard to that under s 5AA of the Criminal Law Consolidation Act. 45 The prosecution’s reference to s 5AA of the Criminal Law Consolidation Act 1935 (SA) (the ‘CLCA’) is in fact to s 5AA(6), which allows a sentencing court to take into account ‘the circumstances of and surrounding the commission of an offence for the purposes of determining sentence.’ 46 On 27 January 2022, final submissions on sentence were heard. At the conclusion of those submissions, the appellant interrupted proceedings by telling the Court to ‘[j]ust wrap it up, I don’t really care, just wrap this shit up. It’s been dragging on for too long, way too long’. 47 On 10 February 2022, the appellant was sentenced to the term of imprisonment as set out above. Sentencing remarks 48 The sentencing Judge outlined the offending and the appellant’s personal circumstances in similar terms to above. His Honour sentenced the appellant on the basis that his involvement in the offending was the result of ‘a combination of drug use, and a desire to obtain easy money’. 49 His Honour acknowledged the appellant’s meaningful engagement with drug counselling services upon his release on home detention bail in December 2019 and the role that DASSA had in providing him with support. His Honour also acknowledged the appellant’s positive response to the Suboxone treatment program. 50 The sentencing Judge accepted the appellant’s general frustration with the prison system and acknowledged the prolonged period he had spent in custody. His Honour considered that the appellant’s inability to visit his sick father in hospital while on home detention was a factor that led to his breach of home detention bail in 2019, and emphasised the adverse impact imprisonment had on his ability to grieve over the death of his father. His Honour also acknowledged that restrictions in place due to the COVID-19 pandemic had interfered with his rehabilitative efforts in prison which meant there was less likelihood of his release on parole. 51 The sentencing Judge accepted the appellant’s genuine desire to support his mother after his release but could not say with any certainty whether his anger and frustration with the prison system would undermine those good intentions. -- 12 of 28 -- [2023] SASCA 19 The Court 9 52 When turning to sentence, his Honour proceeded pursuant to s 26 of the Sentencing Act 2017 (SA) (‘the Sentencing Act’) and adopted the same five-year starting point as was adopted by a different sentencing judge for the co-accused, D. His Honour explained his reasoning for doing so and emphasised that while D was the ‘catalyst for the offence’, both the appellant and Jarman played significant roles in the commission of the offences. His Honour considered that while each offender had a different role in the offending, he did not consider any person’s role was less significant or less culpable than the others. Further, his Honour referred to the fact that D had pleaded guilty to the offence of aggravated robbery (as opposed to aggravated assault and theft) but considered this did not warrant a lesser notional starting point for the appellant’s sentence. 53 The sentencing Judge noted that D’s antecedents were not as extensive as the antecedents of the appellant (or Jarman). His Honour expressed concern that the appellant had committed the offences shortly after his release from prison and then committed a subsequent offence of violence in October 2018. Accordingly, while acknowledging the amount of time the appellant had served in custody since this offending, his Honour considered that, given their juxtaposing antecedents, the need for personal deterrence was greater for the appellant than it was for D. 54 The sentencing Judge proceeded to impose the sentence referred to earlier. It is to be noted that there is no specific complaint as to the length of the non-parole period or its proportion of the head sentence, that being about 64 per cent. Extension of time 55 The appellant seeks an extension of time to file the notice of appeal. Having regard to the reasons for the delay, including the need to transfer conduct of this matter from the appellant’s previous solicitors to his current solicitors, we would grant an extension of time. Grounds of appeal 56 The appellant alleges process errors in Grounds 2 and 3. However the appellant’s complaints which underpin those appeal grounds, namely that he was sentenced on an erroneous factual basis and in breach of the De Simoni principle (Ground 2), and as to parity (Ground 3) are also, in effect, particulars of the complaint of manifest excess (Ground 1). For that reason, it is convenient to first deal with Grounds 2 and 3 of appeal before turning to consider the complaint of manifest excess. Ground 2 57 There are two limbs to this ground of appeal: first, that the appellant was sentenced on a factual basis which he did not accept; and second, that in sentencing the appellant on the factual basis that he was armed with an item which had the appearance of a firearm, the sentencing Judge infringed the De Simoni principle. -- 13 of 28 -- [2023] SASCA 19 The Court 10 58 Both the appellant and his former solicitor, Ms Stacey Carter, gave evidence at the appeal hearing as to the basis upon which he entered his guilty plea to the offence of aggravated assault. It is necessary to first consider their evidence. Appellant’s evidence 59 The appellant denied ever advising Ms Carter that he was in possession of a firearm (or an item resembling a firearm) at the time of committing the offence. He said that in his discussions with Ms Carter he always maintained that there was no firearm present. 60 The appellant agreed that Ms Carter attended the Yatala Labour Prison on 6 October 2019 to discuss the charges, and he told her that he would plead guilty to everything to ‘progress’ the case. It was the appellant’s evidence that he said this because he was frustrated with the legal system and felt he was being ignored. During this visit he did not recall Ms Carter showing, or reading to him, the facts of charge. The appellant also agreed that, on a separate occasion, he told Ms Carter to ‘plead to it all and just get it out of the way or whatever’ but denied that this was an acceptance that he was in possession of a firearm at the time of the offence. However, he also denied telling Ms Carter that he wanted to ‘plead to it all’ during a telephone conversation on 12 August 2021. 61 Contrary to Ms Carter’s telephone attendance notes from around December 2019, the appellant denied ever telling Ms Carter that he had a gun but only used it to threaten D (not the complainant). 62 The appellant agreed that he had been shown the photograph of himself with money, and a firearm strapped in his pants, but denied discussing it in detail. He also said that Ms Carter never went through all the evidence with him. 63 When referred to a letter from Ms Carter to the prosecution dated 6 September 2021, which states ‘at no point is it ever alleged that our client pointed a firearm or used a firearm towards the complainant and therefore that part of the aggravating feature on the fresh Information is in fact disputed’, he agreed that this was his position and that his instructions were, as was set out in that letter, to plead guilty to one count of aggravated assault on the basis that he was in company with another. He said this was his understanding of the aggravating circumstance. The appellant did not recall Ms Carter showing him the prosecution’s response which expressly stated that ‘we maintain that the firearm was present’. 64 The appellant said that during a brief phone call with Ms Carter before the hearing on 7 September 2021, he expressly told her that he did not want to agree to the allegation that he was in possession of a firearm and that he would be willing to go to trial. He said that at no point during that phone call was he made aware that his guilty pleas would be premised on the facts as set out in the PCS. 65 The appellant was referred to Ms Carter’s telephone attendance notes dated 7 September 2021 which state ‘Lloyd pointed it at [D]. He accepts that.’ He denied -- 14 of 28 -- [2023] SASCA 19 The Court 11 ever ‘accepting’ that factual allegation and reiterated that he maintained his instructions throughout that there was no firearm involved. 66 The appellant’s evidence as to the PCS was contradictory. During examination-in-chief he denied ever being provided with a copy of it and said that Ms Carter never spoke to him about the PCS at all. However, after being shown a letter addressed to him from Ms Carter dated 9 September 2021, attaching a copy of the PCS, he agreed that this document was in fact sent to him and therefore in his possession from 9 September 2021. He also agreed that he received a letter of the same date containing an outline of the factual basis for his pleas of guilty but said that he never read those documents. Nonetheless, he said that while he may have been informed of the factual basis of his plea, he did not agree to it. Evidence of Ms Stacey Carter 67 It was Ms Carter’s evidence at the appeal hearing that she had numerous discussions with the appellant regarding the allegation that he was in possession of a firearm at the time of the commission of the offences. She said she went through the PCS with him multiple times, and she was confident that he understood the factual basis of his guilty plea to the offence of aggravated assault as outlined in the PCS; and the matter would proceed to a trial on the more serious charge of aggravated robbery if he disputed those facts. 68 More specifically, Ms Carter recalled a conversation that occurred around December 2019 during which the appellant told her that he had a gun but did not threaten the complainant with it, only the co-accused, D. Although she could not recall the exact date on which that conversation took place, she had a handwritten note of it. She disagreed that the appellant had never said this, and that her note was simply recording an aspect of the prosecution case as set out in the declarations. 69 It was Ms Carter’s evidence that negotiations with the prosecution to resolve the matter commenced in August 2021. She explained that during those negotiations, an agreement was reached: the prosecution would remove the aggravating circumstance relating to the appellant’s ‘use’ of the firearm but he would plead guilty on the basis of the PCS, namely that he had an item which the complainant believed to be, and described as, a firearm at the time of the commission of the offence. 70 Relevantly, in an email to a solicitor from the Director of Public Prosecutions (SA) (‘DPP’) dated 25 August 2021, Ms Carter offered to resolve the matter on the basis that the appellant pleaded guilty to the offences of aggravated serious criminal trespass, aggravated assault (as opposed to aggravated robbery) and one count of theft of the cash. 71 On 27 August 2021, a solicitor from the DPP emailed Ms Carter confirming that it would be prepared to accept the appellant’s guilty pleas to the offences set out in the paragraph above, on the factual basis set out in the PCS. -- 15 of 28 -- [2023] SASCA 19 The Court 12 72 Ms Carter said she spoke to the appellant on 31 August 2021 via telephone to advise him of the prosecution’s offer and explained to him the factual basis of that offer, as set out in the PCS. Ms Carter said that during that discussion she read the PCS to him. However, she was unable to say with certainty whether she read the full statement to him, or just parts of it. In her attendance notes from that phone conversation, Ms Carter wrote:  ‘Definitely wants to plead to agg SCT file’  ‘Can they drop gun in agg SCT?’  ‘Any gun allegations affect parole application’  ‘Unlikely. Victim sees gun. Photo of gun Doesn’t matter if fake. (read PCS). 73 In a letter to the prosecution dated 6 September 2021, Ms Carter wrote: We note that at no point is it ever alleged that our client pointed a firearm or used a firearm towards the complainant and therefore that part of the aggravating feature on the fresh information is in fact disputed. At no point does the complainant state that he was ever threatened with the firearm as he in fact leaves the premises, but we do accept that our client assaulted him by way of a push, and he was in company. We ask that the particulars of the assault be considered so that we can resolve the matter as originally proposed. 74 Ms Carter said that she sent the email on 6 September 2021 because the appellant instructed her to ‘see whether the [D]irector would agree not to allege the firearm as part of the aggravating feature’ as he was concerned about its impact upon any future application for parole. 75 In response to that letter, Ms Carter received an email from a DPP solicitor on 6 September 2021 expressly stating that the prosecution maintained its position in relation to the firearm; that is, that the appellant had a firearm in his possession at the time of the offence. In evidence, Ms Carter agreed that this had been the prosecution’s position all along and she had made that clear to the appellant. 76 Ms Carter said she spoke to the appellant prior to his appearance at court on 7 September 2021, and, during that discussion, emphasised to him that the prosecution’s offer to resolve the matter was on the basis of the facts alleged in the PCS. She said she made it clear to the appellant that the prosecution ‘wouldn’t budge’ and that if he did not accept the allegation regarding the firearm, the matter would have to go to trial. It was Ms Carter’s evidence that the appellant instructed her to accept the resolution. 77 In evidence, Ms Carter was referred to her telephone attendance notes dated 7 September 2021 where she wrote ‘Lloyd pointed it at [D]. He accepts that (not pointed at [the complainant]).’ When asked to explain that note, Ms Carter said that the appellant told her that he never pointed a firearm at the complainant but accepted the resolution that there was ‘an item’ that was pointed towards D. -- 16 of 28 -- [2023] SASCA 19 The Court 13 Ms Carter denied that the appellant never instructed her that he would accept that he was in possession of a firearm (or any item) for the purposes of a resolution. 78 In those same notes, Ms Carter writes ‘PCS (28/7/2020) – SC read to defendant’. When questioned about this, Ms Carter agreed it was unlikely that she would have read the entire statement to the appellant prior to the hearing on 7 September 2021, but said that she would have read to him those parts relevant to allegations involving the firearm. 79 Ms Carter explained that the appellant was present for the entirety of the hearing on 7 September 2021, during which the factual basis of the resolution was clearly outlined. From the transcript of those proceedings, it is evident that Ms Carter raised the appellant’s concern as to the offence of aggravated assault and the aggravating circumstance alleging the ‘use’ of a firearm but acknowledged that the agreed factual basis was as provided by the PCS. She said: The agreed factual basis was set out in the prosecution factual summary, that is the resolution in terms of the charges … There is only one issue and that is the aggravated assault. The aggravating feature has been particularised as one being in company, which we take no issue with, but it has also been particularised on the basis that the defendants used or threatened to use an offensive weapon, namely a firearm, to commit the assault. The agreed factual basis of the assault is as per the prosecution factual summary. 80 After the aggravating circumstance involving the firearm was withdrawn, the appellant entered his guilty pleas to all charges. 81 Subsequently, in a letter to the appellant dated 9 September 2021, Ms Carter wrote: Importantly, we do write to confirm that you entered your guilty pleas and Ms Carter explained to the court that the factual basis was as agreed previously in that the circumstances were outlined in the prosecution factual summary. We hereby enclose a copy of the fresh information and the prosecution factual summary which does in fact outline the charges and the facts of the matter. 82 Ms Carter denied that the appellant told her at any time that he did not agree with the PCS. She said that she spoke with him numerous times between 7 September 2021 and 15 December 2021. She said that when she appeared before the sentencing Judge on 15 December 2021 to make submissions, and in the presence of the appellant, she outlined the factual basis as per the PCS and clarified the appellant’s position in relation to the firearm. 83 When asked whether there could have been a disputed facts hearing (as opposed to a trial) in relation to the allegation that he was in possession of a firearm, given that he accepted the aggravating circumstance that he was in company with another, Ms Carter said that it was not a viable option because the prosecution had made clear that any resolution to the lesser charges was premised on the factual basis set out in PCS and if that was not accepted the DPP would -- 17 of 28 -- [2023] SASCA 19 The Court 14 proceed on the more serious charges. Ms Carter had no note or correspondence to that effect. 84 For the following reasons, we are satisfied that the appellant entered his guilty plea to the offence of aggravated assault on the factual basis as set out in the PCS, namely that he was in possession of an item resembling a firearm. Those reasons are: (a) Ms Carter made contemporaneous notes of several of her disputed communications with the appellant. Around December 2019, she noted that the appellant said that he had a gun but did not threaten the complainant with it, only the co-accused, D. On 31 August 2021, she recorded having read the PCS to him, and on 7 September 2021, she noted that the appellant told her, he ‘pointed it at [D]. He accepts that’ and that she again read the PCS to him. While there were no signed instructions to that effect, Ms Carter explained this was because of the restrictions imposed due to COVID-19 and the difficulties in seeing her client in custody during that time. (b) The appellant was present during the court hearing on 7 September 2021 when the factual basis for the guilty plea was discussed, and indeed entered his guilty pleas after the DPP made clear that it maintained its position that he was in possession of a firearm at the time of the offence. (c) As set out above, the appellant conceded in his evidence that on 9 September 2021 he was sent a copy of the PCS and a written letter from Ms Carter confirming the factual basis of the resolution. There were numerous court appearances following his receipt of that material during which he did not seek to agitate the issue or withdraw his guilty plea. (d) While the appellant instructed Ms Carter to negotiate with the DPP to withdraw the allegation that he was in possession of a firearm, as set out in the email correspondence on 6 September 2021, that was before the discussions were had during the court hearing on 7 September 2021, for which the appellant was present. 85 For those reasons, we are satisfied that the appellant did not instruct his solicitor to contest the factual circumstance that he was in possession of an item which appeared to be a firearm. 86 Further, there was an evidentiary basis for the sentencing Judge to make that finding. It is to be accepted that where an aggravating factual circumstance is contested, the onus lies on the prosecution to establish it beyond reasonable doubt.3 3 Anderson v R (1993) 177 CLR 520 at 536 per Deane, Toohey and Gaudron JJ. -- 18 of 28 -- [2023] SASCA 19 The Court 15 Before stating that he was ‘satisfied’ that the appellant was armed with an item that had the appearance of a sawn-off rifle, his Honour expressly referred to the complainant’s affidavit, which makes reference to a firearm (or an item that appeared to be a firearm), and the photograph depicting the appellant with a large amount of money and ‘what appears to be a firearm’. It was having regard to this evidence, not the uncontested PCS alone, that the sentencing Judge drew his factual conclusion in relation to the firearm. 87 We now turn to consider the second limb of this ground of appeal, and the appellant’s complaint that the sentencing Judge breached the fundamental principle of sentencing explained by Gibbs CJ in De Simoni as follows:4 … [T]he sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. … The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence. 88 This principle, which is known as the De Simoni principle, is now embodied in s 10(1)(d) of the Sentencing Act. In relation to the offence of aggravated assault, as discussed above, the aggravating circumstances originally alleged were that the appellant: (a) used or threatened to use a firearm during the commission of the offence; and (b) committed the offence in company. 89 However, on 7 September 2021, the aggravating feature relating to the firearm was withdrawn, but the prosecution maintained that the appellant was in possession of an item resembling a firearm during the commission of the offence and that he pointed it at D as part of a ruse to distract attention away from her. The appellant was sentenced on that basis. The appellant contends this was in breach of the rule in De Simoni. 90 The principle in De Simoni prohibits a sentencing judge from taking into account an uncharged aggravating circumstance which would render the offence different or more serious.5 91 Notwithstanding the De Simoni principle, s 5AA(6) of the CLCA provides: 4 De Simoni (1981) 147 CLR 383 at 389 per Gibbs CJ. 5 De Simoni (1981) 147 CLR 383 at 389 per Gibbs CJ; See also Feldman v Samuels [1956] SASR 55; R v Traiconi (1990) 49 A Crim R 417; R v Burrows (1995) 79 A Crim R 154. -- 19 of 28 -- [2023] SASCA 19 The Court 16 (6) This section does not prevent a court from taking into account, in the usual way, the circumstances of and surrounding the commission of an offence for the purpose of determining sentence. Examples— 1. A person is charged with a basic offence and the court finds the offence was committed in circumstances that would have justified a charge of the offence in its aggravated form. In this case, the court may, in sentencing, take into account the circumstances of aggravation for the purpose of determining penalty but must (of course) fix a penalty within the limits appropriate to the basic offence. … 92 It is necessary to distinguish an aggravating circumstance that has been pleaded on the Information pursuant to s 5AA of the CLCA, and an aggravating circumstance not pleaded, but relied upon as a circumstance or feature of the offending, to be taken into account on sentence. The latter refers to an aspect of the commission of an offence which may make the criminal conduct more serious but does not affect the maximum penalty imposed. It is a detail that may be found as an objective fact by a sentencing judge if proved beyond reasonable doubt.6 The former refers to a circumstance surrounding the commission of an offence which, if pleaded, and proved beyond reasonable doubt, makes the accused liable on conviction to a greater maximum penalty.7 93 Justices Lovell and Livesey, and Blue AJA considered the operation of s 5AA(6) of the CLCA in South Australia Police v Hill.8 Their Honours remarked:9 Subsection 5AA(6) identifies the relationship between the maximum penalty that can be imposed and the actual penalty imposed by reference to all of the relevant circumstances. On the one hand, the maximum penalty will be dictated by the relevant substantive provision and, in a case where the substantive provision provides for a higher penalty for the offence in its aggravated form, will be higher if a relevant aggravating circumstance is charged and found proved. On the other hand, when sentencing, under section 11 of the Sentencing Act 2017 (SA) and common law principles, the court has regard to both mitigating and aggravating circumstances that tend to reduce or increase respectively the appropriate sentence. In the absence of subsection 5AA(6), it might well be argued that a court could not in sentencing take into account an aggravating circumstance if it were defined in section 5AA as an aggravating circumstance but not included in the instrument of charge or found proved at trial. Subsection 5AA(6) ensures that a court can take into account an aggravating circumstance when determining the appropriate sentence (constrained of course by the maximum penalty) in the traditional way. 94 Section 5AA(6) of the CLCA allows for the sentencing Judge to have regard to an aggravating circumstance where it is not pleaded. The De Simoni principle 6 R v Olbrich (1999) 199 CLR 270. 7 De Simoni (1981) 147 CLR 383; R v Spong (2008) 100 SASR 55 at [46] per Gray J. 8 [2022] SASCA 22. 9 South Australia Police v Hill [2022] SASCA 22 at [102]-[103] per Lovell, Livesey JJA and Blue AJA. -- 20 of 28 -- [2023] SASCA 19 The Court 17 does not prohibit a court from having regard to an aggravating circumstance in accordance with s 11 of the Sentencing Act and common law principles in determining the appropriate sentence, although it is of course constrained by the maximum penalty.10 95 However, where a circumstance of aggravation amounts in itself to another crime with which the defendant has not been charged, s 5AA(6) does not diminish the degree of caution a court must exercise so as to prevent the imposition of a more severe penalty appropriate for an offence other than that charged. A defendant is not to be punished for an offence of which he has not been convicted.11 96 In the present case, the sentencing Judge makes express reference to the maximum penalty for an offence of aggravated assault being imprisonment for three years; this is the maximum penalty for an offence of aggravated assault where the aggravating circumstance is that the offender was in company with another.12 For an offence aggravated by the use of, or threat to use, an offensive weapon, the maximum penalty is imprisonment for four years.13 It is doubtful that his Honour would make express reference to the applicable maximum penalty where the aggravating feature is that the offender was in company with another, and yet proceed to sentence the appellant on the basis that the offence was aggravated by a separate provision which had been withdrawn, and for which the maximum penalty is four years imprisonment. Indeed, his Honour said: I am satisfied you were armed with an item that had the appearance of a sawn-off rifle. In light of the deletion of the aggravating circumstance you will not be sentenced on the basis that you used, or threatened to use a firearm in the course of the assault, and I accept that the circumstances I have just recounted do not involve the use of that item during the assault. 97 His Honour then goes on: The fact you held an item which appeared to be a firearm was, however, clearly intended to ensure the home invasion appeared genuine and that it did not meet any resistance. 98 At the appeal hearing it was also contended that it would be an infringement of the De Simoni principle if the sentencing Judge drew a factual conclusion that the purpose of the appellant’s possession of the firearm was to ensure that the complainant did not resist the attack. 99 Contrary to that submission, when read in its proper context, the sentencing Judge was in fact saying that the appellant’s purpose in carrying a firearm was to 10 Austin v R (1985) 121 LSJS 181; R v Teremoana (1990) 54 SASR 30; R v Newman (1995) 81 A Crim R 191; R v Lane [2011] SASCFC 101; R v Tranter (No 2) (2014) 119 SASR 480; R v Ttikirou [2018] SASCFC 76. 11 See, the discussion in Hansen v The Queen [2022] SASCA 56 at [65]-[68] per Doyle JA; and Lees v The Queen [2022] SASCA 93 at [50]-[52]. 12 Criminal Law Consolidation Act 1935 (SA) s 20(3)(b). 13 Criminal Law Consolidation Act 1935 (SA) s 20(3)(c). -- 21 of 28 -- [2023] SASCA 19 The Court 18 ensure that in carrying out a ruse whereby the appellant would threaten D to distract attention from her involvement he ‘did not meet any resistance’. That factual circumstance underscored the premeditated nature of the offending. Further, beyond finding that the firearm was used to ensure the home invasion appeared genuine and did not meet any resistance, the sentencing Judge made no express findings as to the use of the firearm against the complainant or in the commission of the assault itself. 100 For those reasons, we are satisfied the sentencing Judge he did not punish the appellant for a more serious uncharged offence, nor infringe the De Simoni principle14 and the impugned factual finding was permissible under s 5AA(6) of the CLCA. 101 We would dismiss this ground of appeal. Ground 3 – Parity of sentencing 102 The appellant complains that in determining the head sentence, the sentencing Judge erroneously adopted the same starting point as the co-offender, D. The appellant contends that his involvement in the offending was less culpable than D and, therefore, his Honour erred in adopting the same starting point. That is, this case called for some disparity between the appellant’s sentence and that imposed for the co-offender, D. 103 D was charged with one count of aggravated serious criminal trespass and one count of aggravated robbery, and, after pleading to those charges, was convicted, and sentenced in the District Court on 9 October 2019. A head sentence of five years was imposed which was reduced by 20 per cent on account of her guilty pleas. This resulted in a head sentence of four years imprisonment which was ordered to be served concurrently with another sentence for unrelated offences. That sentence was further reduced by eight months to three years and four months imprisonment on account of time spent in custody. A non-parole period of 12 months was fixed. His Honour declined to order that the sentence be suspended or served on home detention. 104 The principle of parity generally requires that sentences for similar offences be consistent and there should be no unjustified discrepancy.15 The relevant principles applicable to cases where co-offenders are sentenced in respect of one incident, or course of conduct, are well established.16 In Lowe v The Queen,17 Brennan J remarked:18 14 Clavell v Police [2014] SASC 152 at [34] per Gray J; R v Ttikirou [2018] SASCFC 76; R v MacKay [2019] SASCFC 45. 15 Griffiths v The Queen (1977) 137 CLR 293 at 326 per Jacobs J. 16 R v MacGowan (1986) 42 SASR 580. 17 (1984) 154 CLR 606. 18 (1984) 154 CLR 606 at 617 per Brennan J. -- 22 of 28 -- [2023] SASCA 19 The Court 19 The sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case. 105 Sentences that are imposed by different judges on co-offenders should be proportionate to their respective degrees of culpability and their individual circumstances.19 A sentencing judge should ascertain the punishment which has been imposed upon any co-offender previously sentenced, and impose a sentence which fairly reflects any relevant distinctions.20 If the sentence imposed for each offender is within the range of sentences properly open on the facts of the case, this Court is not bound to intervene notwithstanding some disparity between the sentences. Generally, this Court will only interfere where it is necessary to eliminate marked disparities which cannot be justified in the circumstances.21 106 In Green v R,22 the High Court held that the principle of parity applies to cases where offenders face different charges arising out of the same crime.23 The majority said:24 Consistency in the punishment of offences against the criminal law is “a reflection of the notion of equal justice” and “is a fundamental element in any rational and fair system of criminal justice”. It finds expression in the “parity principle” which requires that like offenders should be treated in a like manner. As with the norm of “equal justice”, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances. General concepts of “systematic fairness” and “reasonable consistency” in sentencing, as an aspect of the administration of federal criminal justice, were discussed in Hili v The Queen. They apply to persons charged with similar offences arising out of unrelated events. The consistency they require is “consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence”. That kind of general consistency is maintained by the decisions of intermediate courts of appeal. The consistency required by the parity principle is focused on the particular case. It applies to the punishment of “co-offenders”, albeit the limits of that term have not been defined with precision. In Lowe v The Queen and in Postiglione v The Queen, this court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen, there can be significant 19 R v MacGowan (1986) 42 SASR 580 at 582-3 per King CJ. 20 R v MacGowan (1986) 42 SASR 580 at 582-3 per King CJ. 21 Lowe v The Queen (1984) 154 CLR 606; R v Matthews (1989) 151 LSJS 290; R v Gibson (1991) 56 A Crim R 1; R v Bukvic (2010) 107 SASR 405. 22 (2011) 244 CLR 462. 23 (2011) 244 CLR 462 at [28]-[30] per French CJ, Crennan and Kiefel. 24 (2011) 244 CLR 462 at [28]-[30] per French CJ, Crennan and Kiefel. -- 23 of 28 -- [2023] SASCA 19 The Court 20 practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged. (citations omitted) 107 In this case, while the appellant ultimately fell to be sentenced for different charges to D, he was sentenced on the same factual matrix as D. 108 The sentencing Judge when adopting the same five-year starting point as for D explained that whilst each offender had a different role, he did not consider any offender's role was less significant or less culpable than the others. His Honour noted that while D was ‘the catalyst for the offence’, the appellant (and Jarman) physically carried it out and benefited from the crime to the same degree. With respect, his Honour was correct in so finding. 109 The sentencing Judge also noted that the appellant’s antecedents, were in effect, less favourable than D, and further, D had undertaken significant efforts to rehabilitate so that by the time of sentence, principles of personal deterrence were less significant a consideration for D than for the appellant. 110 We are satisfied that a starting point of five years properly reflected the seriousness of the offence (for the reasons discussed in more detail in relation to the complaint of manifest excess) and the appellant’s own personal circumstances including his extensive antecedents, and that the offences were committed only months after he completed a term of imprisonment. 111 As the respondent correctly points out, and as the sentencing Judge stated in his remarks, it could be argued that the appellant’s extensive criminal history in comparison to D, justified a greater sentence being imposed for the appellant. Indeed, adopting the same notional head sentence as D was in fact lenient given D’s limited criminal history, rehabilitative efforts, and cooperation with authorities. It was favourable to the appellant. 112 For those reasons, there was no error by the sentencing Judge, and we would dismiss this ground of appeal. Ground 1 - Manifest excess 113 The appellant complains the sentence imposed was manifestly excessive having regard to:  the appellant’s role in the commission of the offence; -- 24 of 28 -- [2023] SASCA 19 The Court 21  the period of time that has lapsed since the commission of the offence;  the prolonged period of time the appellant has spent in custody since the commission of the offence;  the impact of the COVID-19 pandemic to the appellant;  the appellant’s age and personal circumstances, and the steps that he has taken towards rehabilitation;  the agreed position that a firearm was not used in the commission of the offence; and  the sentence imposed as against the co-offender, D. 114 There is no suggestion that the sentencing Judge failed to take into account any of these matters. Indeed, he expressly referred to each topic. Rather, the appellant contends that the ultimate sentence imposed was manifestly excessive. 115 The principles governing a complaint of manifest excess are well-established.25 The Court must be satisfied that the sentence imposed by the sentencing Judge was ‘unreasonable or plainly unjust’;26 that is, ‘outside the permissible range of sentences for the offender and the offence.’27 116 To demonstrate an error of manifest excess, it is not sufficient for the Court to merely conclude that it would have come to an alternative decision from that reached by the sentencing Judge, or that the sentence imposed is markedly different from the sentences imposed in other cases.28 As the High Court explained in Hili v The Queen:29 As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the 25 House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ; R v Morse (1979) 23 SASR 98 at 99 per King CJ (with whom White and Mohr JJ agreed); Dinsdale v The Queen (2000) 202 CLR 321 at [6] per Gleeson CJ and Hayne J; Hili v The Queen (2010) 242 CLR 520 at [59]-[60] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; Ndreka v The Queen [2021] SASCA 11 at [28] per Doyle JA. 26 House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ; Markarian v The Queen (2005) 228 CLR 357 at [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ. 27 Kentwell v The Queen (2014) 252 CLR 601 at [35] per French CJ, Hayne, Bell and Keane JJ. See also Hili v The Queen (2010) 242 CLR 520 at [60] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. 28 Hili v The Queen (2010) 242 CLR 520 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. 29 (2010) 242 CLR 520 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. -- 25 of 28 -- [2023] SASCA 19 The Court 22 circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. (citations omitted) 117 In assessing whether a sentence is manifestly excessive, it is necessary to consider all matters relevant to the determination of a sentence, including the maximum penalty for the relevant offending, where the objective circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. Ultimately, however, manifest excess or inadequacy is a conclusion and may not permit of ‘lengthy exposition.’30 118 In applying this approach, it needs to be borne in mind that there is no single correct sentence, and sentencing judges should be allowed ‘as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.’31 119 In relation to the nature and seriousness of the offences, there were aspects of this case which rendered the offending particularly grave. These included the level of premeditation and planning that preceded the offending; the knowledge that the complainant would be present at the time they broke into his premises; the number of offenders involved in the incident; the amount of money stolen; and that the appellant used a degree of force upon entering the premises and proceeded to assault the complainant. 120 The observations of this Court in R v Delphin32 regarding the determination of the seriousness of offences of a serious criminal trespass are apposite:33 Leaving aside factors personal to the offender, three factors would appear to be relevant. One is the nature of the entry and whether gained by force, threat or deception, the amount of damage caused to the premises, the extent of necessary planning and other like factors relating to the nature of the trespass. Another factor would appear to relate to the intention upon entry, and that opens up a range of possibilities from simple assault to homicide, a range of possible sexual offences as well as larceny and damage to property. However, where the serious criminal trespass is constituted by entry, it is the intention that is relevant, and not some change of intention which occurs later whilst the defendant is on the premises. (emphasis added) 121 The objective seriousness of the offending is increased where it is followed by an assault.34 For example, in R v Humby,35 the defendant, who was in company 30 Hili v The Queen (2010) 242 CLR 520 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. 31 Markarian v The Queen (2005) 228 CLR 357 at [27] per Gleeson CJ, Gummow, Hayne and Callinan JJ citing Johnson v The Queen (2004) 78 ALJR 616 at [5] per Gleeson CJ, [26] per Gummow, Callinan and Heydon JJ. 32 (2001) 79 SASR 429. 33 R v Delphin (2001) 79 SASR 429 at [42] per Debelle, Bleby and Wicks JJ. 34 Giordimania v The Queen [2020] SASCFC 28 at [50] per Doyle J; See also R v Delphin (2001) 79 SASR 429; R v Place (2002) 81 SASR 395. 35 [2004] SASC 358. -- 26 of 28 -- [2023] SASCA 19 The Court 23 with another man, broke into a residential property where two elderly occupants were both asleep. Both intruders were armed with wrenches. The complainants were tied up, threatened, and detained for two and half hours whilst approximately $5,000 worth of items were taken from the premises. The defendant, who had a significant history of offending, pleaded guilty to aggravated serious criminal trespass in company. On a prosecution appeal, he was resentenced to nine years and four months imprisonment with a non-parole period fixed at seven years.36 122 In R v Lindsay,37 this Court emphasised the objective seriousness of home invasions committed by a defendant in company with another and involving further offences against householders, and considered that such offences require sentences which adequately reflect the extent and degree of criminality involved.38 123 In the present matter, as discussed above, the appellant fell to be sentenced as having an equally significant role as the co-offenders. He was involved in the planning and premeditation of the offence in the preceding weeks. Upon entering the house, he assaulted the complainant by shoving him with his hip and shoulder, which caused him to fall to the ground. With the help of the co-accused, he then proceeded to steal $10,000 cash from the complainant. 124 Principles of personal deterrence also needed to be emphasised in the sentence. The appellant has a significant criminal history, including prior convictions for offences of violence in 2010, 2012, 2015, 2018 and 2019. He also committed this offending within months of being released from prison. He then subsequently committed another offence of violence in October 2018. 125 It is to be accepted that there was some basis for guarded optimism as to the appellant’s prospects of rehabilitation given his efforts to engage in drug counselling services upon his release on home detention bail in December 2019; the support he received from DASSA; and his engagement whilst in custody in the Suboxone treatment program. However, those matters need to be seen in the context of the appellant’s entrenched drug addiction and long criminal history, and the fact he had not been deterred from re-offending by having served previous terms of imprisonment. 126 It is also to be acknowledged that the appellant has been in custody while there were tight restrictions in place due to COVID-19, and suffered hardship because of his father’s death, his mother’s ill-health, and his inability to see his young son. 127 However, notwithstanding those matters personal to the appellant, we do not consider the head sentence was disproportionate to the criminality of his offending 36 R v Humby [2004] SASC 358 at [101] per Perry J (with whom Nyland J agreed), [123]-[126] per Gray J (with whom Nyland J agreed). 37 [2015] SASCFC 62. 38 R v Lindsay [2015] SASCFC 62 at [19]-[21] per Vanstone J (with whom Blue and Lovell JJ agreed) citing R v Bondarenko [2015] SASCFC 42. -- 27 of 28 -- [2023] SASCA 19 The Court 24 and his personal circumstances including his rehabilitation. Condign punishment, and principles of both general and personal deterrence called for a significant penalty. The offending, looked at in its entirety, was grave. The appellant had prior convictions for offences of violence. There could only be guarded optimism as to his prospects of rehabilitation. In those circumstances, we do not consider the head sentence to be unjust or outside the permissible range of sentences for the offender and the offence; indeed, it was moderate. There was no suggestion that the non-parole period of itself, was manifestly excessive, nor could any such contention be maintained. 128 We would dismiss this ground of appeal. Orders 1. Permission to appeal is granted on Grounds 1, 2 and 3 but the appeal is dismissed. -- 28 of 28 --