Criminal Law - Evidence - Judicial discretion to admit or exclude - Evidence unfair to admit or improperly obtained - Illegally obtained evidence - Particular cases - Information to obtain search warrant not given on oath - No error in the exercise of the discretion to admit the evidence. Police Offences Act 1935 (Tas), s59(2)(a). Bunning v Cross (1977 - [1978] HCA 22; 1978) 141 CLR 54.

Criminal Law - Judgment and punishment - Sentence - Factors to be taken into account - Factual basis for sentence - Sentence to be of and related to offence - Not to be punished for an offence of which the appellant has not been convicted. R v De Simoni (1980 - [1981] HCA 31; 1981) 147 CLR 383, applied.

2 Application for leave to appeal against sentence allowed.

3 Appeal against sentence allowed.

4 Sentence of five years' imprisonment quashed and in lieu

thereof, sentence of three years' imprisonment.

UNDERWOOD J All the material facts are set out in the judgment of Wright J and it is unnecessary for me to restate them. With respect to grounds 1 and 1A, which relate to the admission into evidence of the results of a search conducted at the appellant's home, I agree with the reasons for judgment of Wright J for concluding that these grounds are not made out. I only wish to add two things about grounds 1 and 1A.

2. The learned trial judge made a number of findings of fact upon which he exercised his discretion not to exclude the impugned evidence. The only challenge to the correctness of those findings of fact lies in ground 1A. Once that ground has been disposed of adversely to the appellant, appellate review of the exercise of the discretion proceeds upon the findings of fact made on the voir dire which include, of course, the finding that "no oath was administered" at the time the application for the warrant was made. In my respectful view, whether that finding was one that should have been made does not require consideration. The second matter to which I wish to make reference concerns a submission made on behalf of the appellant by Mr Porter QC that:

"It is salutary to examine the exercise and the reasons

therefor embarked upon by Slicer J in MacLeod at p 8 ((1991)

2 Tas R 144 at 157), 'for the future assistance to lay

justices and police officers'. This seems to have been

completely ignored."

3. It is true that in R v MacLeod (1991) 2 Tas R 144, after reviewing an impugned warrant, Slicer J did say at 157:

"But given the informal nature of the application and the

lack of training and legal knowledge of the justice, it may

be of some future assistance to lay justices and police

officers if I attempted (sic) to set out details of the

requirements."

4. However, I do not understand his Honour to be referring to the requirements necessary to obtain a valid search warrant other than pursuant to the provisions of the Poisons Act 1971, s90A. This must be so because at 154 of his reasons for judgment, Slicer J said: "In Tasmania it is not necessary for the information to be supplied on oath."

5. Of course, the contrary is the case if the application for a search warrant is made pursuant to the provisions of the Police Offences Act 1935, s59(1).

6. With respect to ground 2, I agree with the reasoning and conclusion of Wright J, although for myself, I would not have described the circumstantial Crown case as a very strong one. Counsel for the appellant at the trial opened the defence case to the jury by telling them in effect that the appellant did not take part in the armed robbery but was an accessory after the fact of the crimes charged in the indictment. As the evidence unfolded during the conduct of the defence case, there emerged facts which could have, and apparently did, satisfy the jury beyond reasonable doubt that the appellant committed an act for the purpose of aiding the principal offenders to commit the crimes charged. It follows that, by virtue of the Code, s3(1) the appellant was deemed a party to and guilty of those crimes. Counsel at the trial did not suggest that leaving the issue of accessorial liability to the jury was unfair to the accused or that the defence case would have been conducted any differently had he been aware that the case might be so left to the jury. However, on appeal, Mr Porter QC submitted that unfairness constituting a miscarriage of justice occurred because the incriminating evidence that the appellant knew that the principal offenders intended to commit the crimes charged when he handed over the scanner, came from the evidence of the principal offenders and this was not given until after the accused had given his evidence. The principal offenders said in effect, that they assembled the guns they used in the armed robbery and dressed in overalls and balaclavas at the appellant's house. In substance, the evidence they gave was that the appellant saw all this, expressed the view that they were mad but lent them the scanner nonetheless. Mr Porter QC submitted that the Crown should have foretold the nature of the defence from the cross-examination of Crown witnesses and interviewed the two principal witnesses for the defence before the accused gave evidence. This, Mr Porter QC submitted, would have resulted in Crown counsel learning what the principal offenders later said to the jury in their cross-examination and thus, it could have been put to the accused before he left the witness box. The learned trial judge correctly directed the jury that if they accepted the evidence of the two who claimed to be the principal offenders, they could draw therefrom the inference that the appellant handed over the scanner with the requisite knowledge and intention to make him guilty as an aider of the crimes charged.

7. Mr Porter QC's submission was that nothing was put to the accused about the principal offenders bringing guns to his house and getting dressed there. Accordingly, so the submission ran, the accused was denied the opportunity of answering the central issue in the case against him that was ultimately accepted by the jury and this constituted a miscarriage of justice.

8. In the first place it may be observed that even if Crown counsel had interviewed the two principal offenders prior to them giving evidence, it is most unlikely that either would have said anything at all. In the witness box both principal offenders initially declined to answer any question on the ground that the answer might tend to incriminate them. It is almost certain that they would have maintained this stance prior to trial had the Crown attempted to interview either of them. The privilege against self incrimination is well established. It applies in judicial proceedings and executive inquiries alike. See Pyneboard Pty Ltd v Trade Practice Commission (1982 - [1983] HCA 9; 1983) 152 CLR 328; Sorby v The Commonwealth (1982 - [1983] HCA 10; 1983) 152 CLR 281. The common law principle is enshrined in the Evidence Act 1910, s101. In this case, the witnesses could only lose the entitlement to the privilege in the circumstance provided by the Evidence Act, s87. Once the learned trial judge was satisfied that the interests of justice required compulsion to answer questions, he was obliged to tell each witness that he would give him the certificate if he gave his evidence in a satisfactory manner. Compulsion to answer was certainly in the interests of justice between the Crown and the appellant. The evidence from the witnesses was the central part of the defence case.

9. In the second place, the accused was pressed at length in cross-examination by Crown counsel with the proposition that he was well aware that the scanner was going to be used to aid the commission of the crimes charged. The appellant repeatedly denied this and finally only admitted to a suspicion that the scanner might be used for some illegal purpose. Although it was not put to the appellant at trial that the principal offenders assembled their weapons and got dressed at his house, the answers the appellant gave in cross-examination about his knowledge of what the principal offenders intended to do when he gave them the scanner, made it clear that had he been asked if he saw the principal offenders with guns before the robbery, he would have denied it.

10. In the third place, the evidence given by the principal witnesses, albeit in cross-examination, is likely to have been within the knowledge of the accused. These witnesses were called as part of a planned defence case and presumably had been briefed about all material relevant facts prior to giving evidence.

11. These circumstances disentitle the appellant from claiming that any miscarriage of justice arose from the learned trial judge leaving to the jury the issue of guilt on the basis that the appellant aided the principal offenders by lending them his scanner.

12. Upon the application for leave to appeal against sentence, I am indebted to Wright J for setting out with clarity the relevant principles and the leading authorities. To the passage his Honour cited from R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 at 389, I would like to add part of the preceding sentence but one in which Gibbs CJ said "... no one should be punished for an offence of which he has not been convicted." On behalf of the applicant it was submitted that this principle had been infringed. The crime of being an accessory after the fact was left for the jury's consideration as an alternative to each of the crimes charged. As the jury found the applicant guilty of both crimes charged, the alternative did not arise for consideration. However, the critical facts upon which the jury could have convicted the applicant of being an accessory after the fact were different from those which they must have accepted to convict him of the crimes charged. In almost every case where a crime is jointly committed by two or more persons, there is evidence of each committing the additional crime of being an accessory after the fact. In such cases, each joint offender almost invariably assists the other or others to get away from the scene of the crime or to hide the proceeds of the crime or the evidence of its commission. In such circumstances, the events that occur immediately after the commission of the crime are properly taken into account in the sentencing process even though technically those events constitute the commission of the crime of being an accessory after the fact. It is, as Cox J said in R v Teremoana (1990) 54 SASR 30 at 38, a matter of degree.

13. I find in this respect I regret that I am unable to agree with Wright J that no error occurred in the sentencing process when the learned sentencing judge took into account the applicant's conduct after the commission of the crime. This conduct, hiding the weapons after the crime had been committed, was an act quite distinct from and remote from the applicant's actus reus in the commission of the crimes for which he was convicted. Had the applicant been convicted on the basis he was a principal offender, his subsequent acts of hiding the guns of the co-offenders was clearly all part and parcel of the commission of the crime for the purpose of imposing sentence. However, the material fact upon which his conviction was founded was that he lent the principal offenders a radio scanner to aid them in the commission of the crime. In terms of degree, it seems to me that unplanned hiding of the guns used by the principal offenders after they committed the crime does not fall within the matrix of circumstances properly to be taken into account upon the imposition of sentence for the commission of the crimes charged.

14. In any event, I have come to the conclusion that a sentence of five years' imprisonment was manifestly excessive. The part the applicant played in the commission of the crime was a minor one. He did not carry a gun and he did not go to the scene of the crime. His convictions were based upon the fact found by the jury that he lent the principal offenders a radio scanner. I infer that his purpose in so doing was to enable the principal offenders to listen to police communications before and during the commission of the crimes in order to facilitate their commission. The jury must have been satisfied at the time the applicant lent the scanner to the principal offenders, he knew that it was going to be used in the commission of the crimes charged.

15. The applicant's conduct was serious criminal conduct. It assisted others in the commission of very serious crimes. The applicant has a long record of prior convictions. As the learned trial judge said, "there is little that can be said in mitigation." However, if the applicant had been convicted as a principal offender, a sentence of five years' imprisonment, although at the low end of the range of appropriate sentences, could not be described as manifestly inadequate. Giving consideration to the range of penalties applied by this Court to convictions for similar crimes by principal offenders and having regard to the criminality of the applicant's conduct, I find myself in agreement with Crawford J that the sentence of five years' imprisonment was manifestly excessive. In the circumstances established by the evidence, I, too, consider that a sentence of three years' imprisonment is an appropriate one.

16. I would dismiss the appeal against conviction but quash the order of imprisonment and substitute in lieu thereof a sentence of three years' imprisonment.

WRIGHT J The appellant was convicted of both offences in an indictment containing one count of aggravated burglary and one count of aggravated armed robbery. These crimes were allegedly committed at the premises of the Motor Yacht Club of Tasmania at Lindisfarne on 8 October 1994. The appellant was charged with actually committing each crime whilst in company with another person. The Criminal Code, s3 provides that criminal liability attaches to every person who participates in a crime by actually committing it or by aiding, abetting or instigating the offence. Section 3 also provides that any person who incurs accessorial liability may be charged with "actually committing" the relevant crime. Standing alone, this provision might be taken to permit the prosecution of an indictment in which no distinction is drawn between principal and accessorial offenders. However, the Code, s313 plainly requires that a sufficient distinction must be drawn in the relevant count, to indicate the character of the accused's alleged involvement.

2. This, in turn, suggests that in a case where the Crown may be unable to show the exact nature of the accused's participation, it may be appropriate to allege such alternative degrees of involvement as might be open on the evidence.

3. In the present case the indictment was in the following form:

"ANTHONY RONALD JACOBS Esquire Crown Law Officer on

behalf of Her Majesty charges DARRELL GLEN WALSH with -

1 STATEMENT OF CRIME

First Count

AGGRAVATED BURGLARY - Contrary to Section 245(a) of the

Criminal Code.

PARTICULARS

DARRELL GLEN WALSH at Lindisfarne in Tasmania on or about

the 8th day of October, 1994 entered as a trespasser the

premises of the Motor Yacht Club of Tasmania with intent to

commit the crime of Aggravated Armed Robbery or the crime of

Stealing therein and at that time had with him at least one

offensive weapon namely a shotgun or a rifle.

2 STATEMENT OF CRIME

Second Count

AGGRAVATED ARMED ROBBERY - Contrary to Section 240(4) of

the Criminal Code.

PARTICULARS

DARRELL GLEN WALSH at Lindisfarne in Tasmania on or about

the 8th day of October, 1994 whilst in company with another

person and whilst he and that other person were both armed

with firearms stole in excess of $4,000.00 in bank notes and

coins and a quantity of cheques the property of the Motor

Yacht Club of Tasmania and immediately before and at that

time both he and that other person used and threatened to

use violence to Ernest David Rawlings by firing a shotgun

into a door, smashing glass in a door, pointing two firearms

at him, ordering him to get money from a safe, ordering him

to lie face down on the floor, telling him that if he moved

he would be shot and by handcuffing him to the door of a

safe."

4. The Crown case was based upon a police search of the appellant's premises during which two sawn off weapons (a gun and a rifle) were disinterred from the back yard, and clothing allegedly used in the robbery, a radio scanner and a large quantity of coins which may well have come from the Motor Yacht Club, were discovered in the dwelling. There was ballistics evidence which would have been sufficient to prove that one of the recovered guns had been discharged at the crime scene. The appellant was interviewed by police but made no admissions implicating himself in the crimes. Club employees and a visitor to the Club, who were present when the robbery occurred, were unable to identify the accused as one of the two robbers who participated directly in the crime and who, according to the evidence, were wearing balaclava helmets as a disguise. The appellant was found to be in possession of $150 in notes when apprehended by the police and gave an account of his acquiring that money which, on the basis of evidence from his bank, appears to have been false.

5. The Crown case was entirely circumstantial but, as may be seen from the above brief description of the relevant facts, was such as would have entitled a reasonable jury to conclude that he was one of the two actual perpetrators of the crimes.

6. During the course of the trial, the accused gave evidence that he had not been one of the principal offenders, but that he had given assistance to the two robbers after the commission of their crime by concealing their weapons in his garden. In short, he said he was an accessory after the fact, but not a principal offender. He also said that he had lent the offenders a radio scanner before the crimes were committed, but he denied that he knew or had any inkling that the scanner was to be used for an unlawful purpose.

7. The appellant called as witnesses, two individuals, Davis and Eaton, who testified that they were the two men who actually committed the crimes. The learned trial judge granted each of these men an indemnity certificate under the provisions of the Evidence Act 1910, s87, thus enabling them to give evidence of their alleged criminal activity without risk of prosecution therefor as a result of their confessional evidence (see Woods v Smith (1976) WAR 13, especially Jackson CJ at 15 - 17).

8. During cross-examination, they each gave evidence from which the jury could have concluded, from their description of the circumstances in which they said they spoke to the appellant about borrowing the scanner, that the appellant would have been fully aware that they wanted to borrow it to tune into the police radio frequency and keep track of police movements whilst committing the robbery.

9. On the basis of this evidence, at the conclusion of the defence case, the Crown prosecutor asked the learned trial judge to leave the question of the appellant's guilt of the two offences charged both on the basis of his alleged involvement as a principal and, alternatively, on the basis that he had intentionally aided the commission of the crimes by lending his scanner to the alleged principal perpetrators. The Crown submission was not opposed by defence counsel and the learned trial judge summed up to the jury accordingly, leaving each alternative basis for conviction open to them. However, he requested the jury, that when delivering its verdicts, if they found the accused guilty on either or both counts, to indicate pursuant to the Code, s383, whether they did so on the basis that he was a principal or an accessory. When finding the appellant guilty the jury, as requested, indicated to the learned trial judge that it did so on the basis that he was an "aider". The appellant was sentenced to five years' imprisonment on the indictment.

10. He now appeals against both conviction and sentence upon the following grounds:

"Against conviction

1 That the Learned Trial Judge wrongly exercised his

discretion by failing to exclude evidence arising from a

warrant unlawfully obtained and allowed such evidence to be

received by the jury.

1A That the finding of the Trial Judge that Constable Batge

was side tracked by the Justice of the Peace's interest in

respect of his own burglaries was not reasonably open on the

evidence.

2 There was a miscarriage of justice in that the Trial Judge

left a case to the jury on the basis that the Appellant

could be convicted of aiding the crimes by supplying the

scanner with the intention to assist the perpetrators of the

crime, when that was not the basis upon which the Crown had

conducted its case and was first raised as an alternate

basis of criminal liability after the close of the

Appellant's case.

3 That the verdict (sic) of the jury is (sic) unsafe and

unsatisfactory in that it (sic) was based on a finding that

the Appellant aided the commission of the crimes by handing

over the scanner with the intention to assist the

perpetrators of the crimes, when that was not the basis upon

which the Crown had conducted its case and was raised as an

alternate basis of criminal liability after the close of the

Appellant's case.

As against sentence

4 The Learned Trial Judge erred in law in imposing a

sentence that was manifestly excessive.

5 (Abandoned)

6 The Learned Trial Judge erred in taking into account in

passing sentence circumstances which amounted to separate

crimes of being an accessory after the fact to the crimes

charged and of which crimes the Appellant had not been

convicted."

11. These grounds relate to a ruling given by the learned trial judge early in the trial following a voir dire inquiring into the circumstances surrounding the police entry upon and search of the appellant's premises on 13 October 1994. During the search, as already mentioned, two sawn off firearms, a scanner, a pair of overalls, a pair of gloves and a large quantity of coins, totalling in all about $500, were found. The search was carried out in purported reliance upon a search warrant issued to Detective Robert Ian Batge under the provisions of the Police Offences Act 1935, s59(2)(a). The search warrant and the complaint upon which it was issued were tendered in evidence during the voir dire as exhibit VD2. A copy of each document, although not contained in the appeal books, was handed up to members of the Court during the hearing of the appeal with the consent of both counsel. Photocopies of those documents are annexed to these reasons.

12. Counsel for the defence sought to invoke the trial judge's discretion to exclude evidence of the search and the items found in consequence of the search on the ground that the search was illegal and it would be contrary to public policy in the sense discussed in R v Ireland [1970] HCA 21; (1970) 126 CLR 321 and Bunning v Cross (1977 - [1978] HCA 22; 1978) 141 CLR 54 to allow such material to become part of the evidence in the trial.

13. The argument in support of the defence contention was based upon the proposition that it should be concluded from the evidence given by Detective Batge and Mr Deacon, the issuing justice, given during the voir dire proceedings, that Detective Batge's complaint to Mr Deacon had not been made on oath and, in any event, constituted insufficient material for the justice to consider issuing the warrant.

14. Surprisingly, despite the equivocal nature of the witnesses' answers to questions as to this particular issue, but perhaps even more surprisingly in view of the fact, (not adverted to by his Honour during his discussion of the evidence whilst giving his ruling) that on the face of the complaint it clearly indicates that it was "SWORN" before Mr Deacon, his Honour made a finding that no oath was administered by Mr Deacon because he was not sufficiently alive to his responsibilities to insist upon it. His Honour also found that Detective Batge was sidetracked by Mr Deacon's interest in discussing burglaries of his own premises which had taken place some time previously.

15. There was uncontradicted evidence from Constable Batge that he took a Bible with him to swear the complaint when he visited Mr Deacon at his chemist shop and Mr Deacon gave unchallenged evidence that he had a Bible of his own at the shop and that he was accustomed to issuing warrants to the police from time to time. However, neither witness could recall whether a Bible was used by Mr Deacon on this particular occasion. It is also fair to say that Mr Deacon exhibited a certain amount of confusion as to his responsibilities, although he plainly showed an awareness that he needed to be satisfied that a warrant was justified by the relevant police officer having sufficient grounds for suspecting the presence of stolen property upon the relevant premises. At one stage during his cross-examination Mr Deacon said "... the evidence is in the warrant, which I realised once I saw it. The actual conversation was more a general conversation and the actual evidence that (sic) why I should issue a warrant is actually written in the warrant."

16. From subsequent answers in that same passage of cross-examination, it is plain that Mr Deacon was referring to the complaint to ground the warrant, rather than the warrant itself. Shortly thereafter counsel for the defence asked Mr Deacon whether he swore "any of the police officers to give evidence before you in issuing the warrant". He did not direct Mr Deacon to his signature alongside the jurat clause in the complaint and he did not ask him whether Constable Batge had sworn the complaint before him. I think any witness, whether legally qualified or otherwise, would probably have turned his mind to a procedure akin to the oral examination or cross- examination of a witness in a witness box if confronted with a question of the kind put by defence counsel. I do not find Mr Deacon's apparent bewilderment surprising and, for my part, I would not see it, whether taken alone or in conjunction with the evidence given by Constable Batge and, in the absence of evidence positively leading to a contrary conclusion, as sufficient to create a reasonable doubt that the complaint was duly sworn, much less that on the balance of probabilities no oath was administered when the complaint was signed.

17. In addition to the finding discussed above, the learned trial judge also made the following findings:

(a) That Constable Batge had an adequate basis upon which to

ground the complaint and, had Mr Deacon properly applied his

mind to the information available and had he taken sworn

evidence, the warrant would have been fully justified.

Mr Porter QC, counsel for the appellant, submitted that as

there was no evidence of the nature of the informant or the

character of his information, such a conclusion was without

foundation.

He submitted, by reference to O'Garey v King (1972) Tas SR

136, that evidence of this kind would have been permissible.

Such a proposition does not advance the argument however;

the evidence in O'Garey's case was directed to an entirely

different issue from that which is presently before the

Court and, in my opinion, no sound basis for challenging

this finding by the learned trial judge has been

demonstrated.

(b) That Constable Batge did not deliberately refrain from

or avoid giving evidence on oath, but that Mr Deacon did not

properly apply his mind to the duties imposed on him.

Mr Porter QC did not specifically challenge this finding and

obviously the observations which I have already made in

respect of the finding that no oath was administered are

germane to this finding as well.

(c) That Constable Batge purported to act pursuant to the

warrant and did not notify the appellant that he claimed a

right to act under his general warrant nor did he

specifically bring that warrant to the appellant's

attention.

A word of explanation is needed as to this. Constable Batge

gave evidence that he possessed a general warrant to search

premises for stolen property. This warrant could have been

utilised by him, had he so desired, to gain entry to the

appellant's premises and conduct the search which he in fact

carried out. Constable Batge said he had that warrant with

him at the time he visited the appellant's premises, it was

on his clip board and it could have been seen by the

appellant when he was shown the warrant issued by Mr Deacon.

18. As the learned trial judge observed, "No doubt it was there to be seen but there is no reason to suppose the (appellant) was conscious of it."

19. This finding is unexceptionable and was not challenged by Mr Porter QC but I consider, as did the learned trial judge, that Constable Batge's possession of a general warrant and his undoubted capacity to utilise that power, rather than the power which he believed was conferred by Mr Deacon's warrant, was a factor of considerable relevance in deciding whether to exercise a discretion in the appellant's favour to exclude evidence of the results of the police search.

20. The learned trial judge expressed his conclusions in the following terms:

"In the circumstances the Defence asked me to exercise a

discretion to exclude the evidence on the basis of the rule

in Bunning v Cross (1977 - [1978] HCA 22; 1978) 141 CLR 54. I declined to

do so. This is a far cry from the situation encountered by

Mr Justice Slicer in MacLeod's Case, A61/1991. The material

discovered is highly relevant to the guilt of the accused.

It is a serious charge. The investigating authorities did

not deliberately flaunt, flout or ignore the law and the

defects in the process of issuing the specific warrant flow

from a lack of appreciation by the Justice of the Peace for

his responsibilities. In all these circumstances a proper

balancing of the interests of the community in the

prosecution of serious crime against its interest in

ensuring that citizens are not subject to searches which

have not been authorised with the degree of care and

formality which the law requires, nevertheless does not in

my view warrant the exclusion of the evidence."

21. Mr Porter QC submitted in accordance with ground 1A of the appeal that the learned trial judge was not justified in finding that Constable Batge failed to give evidence (ie, failed to swear the complaint) as the result of being sidetracked by Mr Deacon because Constable Batge had not asserted that he had failed to swear the complaint in consequence of his discussion with Mr Deacon but rather that such discussion was his reason for not being able to remember whether the oath was administered or not. I reject this because I think the inference drawn was open upon the evidence given but, in any event, I have some difficulty in seeing how acceptance of Mr Porter QC's submission could aid the appellant. It would tend to undermine or weaken the basis for the learned trial judge's finding that an oath was not administered and tend to strengthen the contrary view that it may well have been administered and the witness simply could not remember whether it was or not.

22. Mr Porter QC submitted that without a complaint on oath Mr Deacon would be liable to an action for trespass at the suit of anyone whose property was entered unlawfully as a consequence (George v Rocket [1990] HCA 26; (1990) 170 CLR 104), that both Constable Batge and Mr Deacon were recklessly indifferent to proper compliance with the Police Offences Act 1935, s59(2)(a) and that their unlawful conduct was equally as serious as the offence with which the appellant was charged. I feel constrained to say that I regard this as sheer hyperbole. Any damages recovered for a civil trespass in the circumstances of this case would be nominal only and Constable Batge's suspicion that the appellant was in possession of the cash proceeds of the Motor Yacht Club robbery was clearly borne out by the result of the police search.

23. In my opinion his conduct may be regarded as fair and conscientious, particularly in view of the fact that he decided not to rely on his general warrant and took along a Bible with which to be sworn by Mr Deacon. Whilst McArthur v Williams (1936) 55 CLR 324, which was relied on by Mr Porter QC, is authority for the proposition that a justice of the peace called upon to issue a warrant should not do so lightly and may call upon the applicant to provide sworn evidence to satisfy him of the existence of circumstances justifying such a course, this does not advance the present appellant's contention that the omissions of either Mr Deacon or Constable Batge were of such gravity as to exclude the challenged evidence. I am of the opinion that the approach of the learned trial judge on the basis of the findings which he made was not only appropriate but was indeed correct. In my opinion grounds 1 and 1A cannot succeed.

24. Mr Porter QC conceded that the claim contained in ground 3 that the verdicts of the jury were unsafe and unsatisfactory a ground which has become fashionable in recent years and seems to be included in nearly every criminal appeal against conviction these days really adds nothing to ground 2 which contains the substance of the appellant's complaint. In the course of debate ground 3 was abandoned. Mr Porter QC's argument under ground 2 was that the Crown had sought to change horses in midstream and as a consequence had caused an unfair disadvantage to the defence. Reliance was placed upon King v R [1986] HCA 59; (1986) 161 CLR 423. There are some significant differences between that case and this. The change of direction which the prosecution undertook in King's case occurred after final addresses had been made to the jury, a factor which weighed very heavily with the High Court in concluding, as it did, that there had been a miscarriage of justice. More importantly however, the possibility that the murder of King's wife had been carried out by someone other than his co-accused, Matthews, should have been apparent to the Crown before the trial commenced and the alternative basis for conviction which the prosecutor induced the trial judge to leave to the jury, was, as Dawson J pointed out, "concealed until the last moment" and, as Deane J said at 425:

"In fact, by its conduct of the trial, the Crown made it

clear that it sought to prove that the applicant was guilty

of murder only on the basis that he was an accessory before

the fact to the killing of his (the applicant's) wife by his

co-accused, Matthews. It was on that basis that both the

prosecution and defence cases at the trial were presented

and conducted during the course of evidence."

25. By contrast in the present case it was the defence witnesses who provided the material upon which Mr Jacobs sought a conviction on the alternative basis that the appellant aided those whom he claimed to have been the principal offenders.

26. The appellant made no admissions to the police and provided no information to them from which it could be suspected or inferred that Davis and Eaton were the principal offenders. The Crown case was presented as a circumstantial one and, on the face of it, a very strong one indeed. I simply do not see how there can be any unfairness or miscarriage of justice if an accused person, seeking to avoid the clear inference of guilt which his possession of the proceeds of an armed robbery and the weapons and equipment used in furtherance of that crime must entail, fails to escape conviction by showing that he played a lesser role than might otherwise have been concluded. Unlike King's case, there was no "procedural prejudice" to the appellant (see King (1985) 17 A Crime R 184, per Street CJ at 188).

27. In Grundy v R A68/1994 (unreported, available on SCALE), Underwood J, after reviewing King's case and a number of other authorities which were referred to again by Mr Porter QC in the present appeal, said at 4:

"It can be distilled from those cases that unfairness

amounting to a miscarriage of justice arises not from the

way in which the Crown conducts its case per se, but from

the consequences such conduct has upon an accused on the

conduct of his or her own case. Such a consequence may be

detrimental to an accused in that the conduct of the Crown

case led him or her into conducting his or her case in a way

different from that in which he or she would have conducted

it had the Crown not acted as it did."

28. In the same case Slicer J said at 4 of his judgment:

"The question raised by the jury arose out of the defence

case. The version given by the appellant had not formed

part of the Crown case since it flowed from factual material

solely within the province of the appellant. It is wrong to

assert that he had no opportunity to answer the material nor

to adduce evidence to rebut it. It was his case. The legal

ramifications may not have been considered by either the

Crown or the defence but that is a different proposition.

Further it is wrong to assert that the jury finding was

dependent 'on a version of facts and/or basis which basis

first arose during the deliberations of the jury'. The

facts relied on were those which had been placed in evidence

before the conclusion of the defence case.

The position differs from a situation where a different

factual hypothesis is put forward by the Crown during the

course of summing up, such factual hypothesis being

contradictory to the basis relied on throughout the trial

(see King v R (1985) 17 A Crim R 184 and Anderson v R (1991)

53 A Crim R 421)."

29. Both of these passages correctly identify the basis for the decision in King, in my respectful opinion, and highlight the considerations which are pertinent in a case such as the present. In my opinion they lend no support to the contentions advanced by the appellant in the present appeal.

30. The Criminal Code, ChXXXIX, makes provision for the conviction of an accused person for alternative crimes in the event that the evidence given at the trial permits the jury to conclude that the crime charged in the indictment has not been proved but that a related crime has. This chapter deals not only with related substantive offences, but also with different degrees of accessorial liability (see ss340 and 342A) and liability for attempt (s342).

31. Liability to conviction for a different offence is not confined to offences of a lesser magnitude than that actually charged in the indictment, eg, on a charge of aggravated sexual assault, the alternative conviction of rape is available (s337A) and, on a charge of robbery, the alternative of aggravated armed robbery is available.

32. As I have already pointed out, where a person is charged on the basis of accessorial participation under the Code, s3, he may be charged with actually committing the offence, so a special provision in ChXXXIX to deal with the possibility of the person charged being convicted as an accessory, rather than a principal, seems not to be required.

33. These considerations lead me to observe that there is nothing intrinsically unfair in an accused person being exposed to various alternative bases of liability depending upon the evidence given at the trial. Conviction of an alternative provided by the Code itself could rarely, if ever, provide grounds for claiming a miscarriage unless the prosecution had very clearly and specifically disclaimed any right to or prospect of such an alternative prior to or during the course of the trial. In my view ground 2 does not succeed.

34. In support of ground 4 it was contended that the sentence given was too long as the appellant's participation was as an accessory only. It was submitted that he was remote from the actual commission of the crimes and his involvement was not premeditated in that it came about as a result of an unexpected visit from the two perpetrators. It was also submitted that although his scanner was used by the principal offenders, there was no evidence that it played a significant part in their successful execution of the crimes.

35. Armed robbery is a prevalent offence in the Tasmanian community at the present time. Not so many years ago it was quite rare. Many judicial warnings have been given that severe punishment is appropriate, particularly in cases where firearms are used and a number of offenders take part in the crime. The evidence suggests that the accused was well aware that the alleged principal offenders were intending to use firearms in the robbery on the present occasion. As the learned trial judge correctly observed at the time he passed sentence:

"The use of such weapons is calculated to reduce the

resistance of the most stout-hearted and the likelihood (of)

any ordinary person being confronted in this way suffering a

traumatic shock must be obvious to the most obtuse. The

cowardly intrusion of masked men brandishing sawn off

weapons is likely to have a severe impact on the victim; and

anyone knowing that such a venture was planned must realise

the risk that it entails. Offences of this kind are clearly

on the increase and the behaviour must be roundly condemned

by the courts and any offenders, or potential offenders,

must anticipate a substantial sentence of imprisonment for

engaging in, encouraging or assisting others to engage in

such activities."

37. His Honour also observe that the appellant was "no youthful offender but a man of 27 who has a long history of offences of dishonesty." He continued:

"You have already served several sentences of imprisonment,

including one quite lengthy one. Furthermore, you offended

while on bail for another serious charge."

38. Five years' imprisonment was plainly a severe sentence and there is no doubt that the learned trial judge intended it to be. Elements of general and personal deterrence were obviously at the forefront of the learned judge's thoughts. No argument based upon disparity between sentences imposed upon co-offenders arose in this case. There is no principle of law that an accessory to a crime should be treated more tenderly than a principal offender, although frequently, differing degrees of participation will be taken into account in assessing the overall penalty. I am unable to regard the sentence imposed in this case as manifestly excessive.

39. His Honour's comments on passing sentence included the following:

"You must have realised that you were involving yourself

with hardened criminals in a professional job. Not content

with lending them the scanner to aid the commission of the

crime, a surrounding circumstance is that you aided them

after the event by hiding the weapons and you received a

substantial reward of over $500 for your assistance to them

in acquiring a haul of over $4,000."

40. The appellant claims that to take account of his activities in concealing the firearms was to infringe the principles restated in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 where Gibbs CJ said (at 389) 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" (see also Lovegrove v

R [1961] TASStRp 13; (1961) Tas SR 106 and R v Causby 30/1984).

41. Mr Porter QC argued that to take account of the appellant's concealment of his criminal colleagues' weapons was to take account of his involvement as an accessory after the fact, an offence with which he was not charged. In my opinion this argument, whilst interesting, does not succeed. Being an accessory after the fact is not a more serious crime than that for which the appellant was convicted, indeed, it was the lesser crime of which his counsel contended he should have been convicted at the commencement of the trial.

42. In R v Teremoana (1990) 54 SASR 30 at 38, Cox J, after referring to a number of decisions, including De Simoni (supra) and Lovegrove (supra), made the following observations which appear to me to be very relevant in the circumstances of the present case.

"However, it is certainly not a universal rule that the

judge, when sentencing for the offence specifically charged

in the information, may never have regard to relevant

actions of the defendant that, strictly speaking,

constituted separate offences. If they were offences of

lesser gravity than the offence of which the defendant has

been convicted, then it will be a matter of degree and

fairness whether they may properly be taken into account as

a part of the circumstances surrounding the offence charged.

If a burglar is disturbed in the course of ransacking a

house, and seriously assaults the victim, the assault should

be separately charged and not regarded as a mere matter of

aggravation of the burglary. R v Parsell (1980) 28 SASR

369. On the other hand, relatively minor indecencies that

are directly associated with an act of rape, though serious

enough in themselves, are often not separately charged but

are nevertheless taken into account by the sentencing judge

as circumstances of aggravation. In R v Sharp (1983) 36

SASR 215 the defendant was convicted of misprision of

felony. He helped to remove the body of a murder victim

from the house where the murder had been committed and to

bury it in a lonely spot many kilometres away. It was held

that the defendant could not be sentenced on the footing

that he was an accessory after the fact to murder a more

serious offence than the passive crime of misprision but it

was not suggested that his participation in the removal and

burial was not a relevant circumstance of aggravation, and I

do not think that the position would have been any different

had it transpired, say, that burying a person on a roadside

was contrary to some health regulation. As the Chief

Justice said in R v Austin, it is a matter of degree."

43. The judgment of the Chief Justice of South Australia in the 1985 unreported decision of Austin referred to by Cox J in Teremoana (supra), contained the following passage:

"Just what surrounding circumstances are properly to be

taken into account in a particular case is a matter of

degree. The courts have to be particularly cautious when

the circumstances relied upon themselves may constitute

crimes. Often the circumstances amount to crimes of a

similar character to that charged and can more readily be

taken into account as circumstances of aggravation.

Likewise where the criminality of the aggravating

circumstances is clearly subsidiary to as well as related to

the criminality involved in the conduct constituting the

crime charged. Special care, however, is required when the

circumstances relied upon as circumstances of aggravation

themselves constitute crimes or may constitute crimes of a

different character or crimes against different victims.

If a person is to be punished for conduct which is said to

be criminal, generally speaking justice requires that he be

charged with it and have the opportunity of defending

himself. If he is not charged with it, generally speaking

it should not be relied upon as a circumstance of

aggravation of some other crime. This, of course, is not a

hard and fast rule; everything must depend upon the

particular circumstances and, as I have said, it is very

much a matter of degree."

44. The present case is certainly close to the line. On the one hand it may be said that the jury regarded the appellant as an aider only and, had the Crown wished to charge him with being an accessory after the fact, it could have charged him with that offence. On the other hand, when the indictment was presented there was little or no reason for the Crown to consider such a charge as its case was that the appellant was one of the principals and, as such, could not be guilty of being an accessory after the fact to his own criminal conduct.

45. In my opinion this was a case in which it was proper for the learned sentencing judge to take account of the appellant's behaviour in concealing his criminal colleagues' weapons in the way that he said he did but, if I am in error in so deciding, I should say that I would apply the Code, s402(2) and not interfere with the sentence actually imposed which, in the circumstances apart from those now in question, were sufficient to justify the punishment inflicted.

46. In my opinion, both the appeal against conviction and the application for leave to appeal against sentence should be dismissed.

CRAWFORD J I have had the advantage of reading in draft the reasons for judgment of Wright J. Subject to what I say concerning ground 2, I respectfully agree with his Honour's reasons for concluding that the appeal against conviction should be dismissed.

2. Until evidence was given by witnesses for the appellant it was always the Crown case that he was a principal offender. There was strong circumstantial evidence that he was. It was only during the defence case that it was made to appear that possibly he was guilty of the crime charged as an aider instead of as a principal. Ground 2 asserts that a miscarriage of justice occurred as a result of the decision of the learned trial judge to leave for the consideration of the jury guilt as an aider as an alternative to guilt as a principal. A miscarriage of justice has not been established by the appellant however. Merely because the jury were invited, at a late stage of the trial, to consider guilt as an aider in addition to guilt as a principal does not establish that. In this regard it is informative to consider what took place.

3. At the conclusion of the evidence called by the appellant, counsel for the Crown applied to the learned trial judge to leave guilt as an aider for the jury's consideration. His Honour was clearly concerned whether some miscarriage of justice might arise because of prejudice to the accused and he expressed this by saying that his main concern was the lateness of the application. However when responding to the Crown's application counsel for the appellant raised no objection based on prejudice or any other manner of miscarriage of justice. The only submission made by the appellant's counsel was that the evidence of the appellant's witnesses was insufficient to justify a finding of guilt as an aider, a submission which plainly had no merit and which was rejected by the learned judge. It might reasonably have been expected that if prejudice because of surprise had arisen, or some other basis for a miscarriage of justice, counsel for the appellant would have complained at the time, but he did not. Nor was there a complaint of it in the grounds of appeal in the original notice of appeal. Ground 2 in its present form was added at the hearing of the appeal and although it asserts a miscarriage of justice no evidence to support that was put before this Court. Counsel for the appellant, who was not counsel at the trial, submitted that the trial, and particularly the defence case, "might" have been run on a completely different basis if it had been known that liability as an aider would be left to the jury. What counsel submitted was not evidence and on the material before this Court a conclusion of a miscarriage of justice was not reasonably open.

4. The Court's attention was drawn by counsel to the contrasting case of R v Howlett, in which as trial judge I ruled on 2 March 1990, after the close of the defence case, that I would not leave to the jury in the alternative guilt as an aider because of likely prejudice as claimed by the accused's counsel. The possibility of guilt as an aider had arisen during cross-examination of the accused by counsel for the Crown. He was the first witness called for the defence and at that time counsel for the Crown was called upon to say whether liability as an aider was being suggested. Counsel disavowed that. Thereafter counsel for the accused conducted his case on that basis and avoided asking witnesses questions relevant to that issue. Obviously a miscarriage of justice would have arisen if I had acceded to the Crown's application. This is a different case. No prejudice was raised at the trial and all there is before this Court is an assertion of a possibility that a miscarriage of justice may have occurred, without evidence that it did. Having particular regard to the fact that the evidence of guilt as an aider came from the appellant and his witnesses no miscarriage of justice has been established and the ground of appeal plainly must fail.

5. Ground 4 complains that the sentence of five years' imprisonment was manifestly excessive. The jury informed the learned trial judge that the basis of the verdicts of guilty was that the appellant was an aider. That could only have meant that the jury were satisfied that Davis and Eaton were the principal offenders and at their request the appellant lent them his radio scanner, knowing of their intention to commit the crimes and intending to help them do so successfully. It follows that the jury's verdict must have been based largely on the evidence of the appellant and of Davis and Eaton. The versions of those three were consistent that Davis and Eaton thought up and planned the crimes without the participation of the appellant. With the firearms, balaclavas, gloves, overalls and other paraphernalia for the commission of the crimes they called at his home and asked if they could borrow his scanner. It was used in the course of the armed robbery and the evidence of Davis was that it was essential for the robbery. The evidence of all three showed that the appellant did not want to lend it, but was eventually persuaded to do so by Eaton. It also showed that initially he expressed disapproval of the presence of their firearms in his home. The principal offenders got ready for the crimes there, donning their balaclavas and other clothes, putting the firearms together and performing other acts of preparation, following which they left the appellant and set off to commit the crimes. The Crown's preferred case of course was that the appellant was a principal offender, but having regard to the finding of guilt on the basis that he was only an aider, the only findings reasonably open on the evidence concerning the appellant's participation, consistent with the jury's determination, included what I have just expressed .

6. In the course of sentencing the learned judge said:

"Aggravated burglary, that is the burgling of premises while

armed and aggravated armed robbery, that is the robbing of

another person by more than a single offender and

accompanied by the use of offensive weapons, are extremely

serious offences. The use of such weapons is calculated to

reduce the resistance of the most stout-hearted and the

likelihood that any ordinary person being confronted in this

way suffering a traumatic shock must be obvious to the most

obtuse. The cowardly intrusion of masked men brandishing

sawn off weapons is likely to have a severe impact on the

victim; and anyone knowing that such a venture was planned

must realise the risk that it entails.

Offences of this kind are clearly on the increase and the

behaviour must be roundly condemned by the courts and any

offenders, or potential offenders, must anticipate a

substantial sentence of imprisonment for engaging in,

encouraging or assisting others to engage in such

activities. While it is true you were not to know what

precise form the actual offenders' violence was to take, it

must have been abundantly obvious to you that they would

conceal their identities in their balaclavas and use the

weapons to subdue resistance. You were prepared to assist

them in their venture by lending them a scanner to aid the

commission of the crime and their safe getaway. You must

have realised that you were involving yourself with hardened

criminals in a professional job. Not content with lending

them the scanner to aid the commission of the crime, a

surrounding circumstance is that you aided them after the

event by hiding the weapons and you received a substantial

reward of over $500 for your assistance to them in acquiring

a haul of over $4,000. When confronted by police on their

finding the weapons, you lied about your knowledge of them

and tried to brazen it out.

There is little that can be said in mitigation. You are no

youthful offender but a man of 27 who has a long history of

offences of dishonesty. You have already served several

sentences of imprisonment, including one quite lengthy one.

Furthermore, you offended while on bail for another serious

charge.

Offences of aggravated burglary and aggravated armed robbery

are very serious offences indeed and deserving of heavy

penalty. Those who willingly involve themselves in such

crimes by aiding their commission deserve condign punishment

as well."

7. At the time of the crime the appellant was aged 26 years. He had many prior convictions including convictions for burglary (14), stealing (27), motor vehicle stealing (2) and trespass (12), his last appearance in Court for a crime of dishonesty being in July 1990 when he was sentenced to imprisonment for 21 months for six counts of burglary, six counts of stealing and one of receiving. He was released on parole in July 1991 and committed these crimes on 8 October 1994, over three years later. He had no record for any form of robbery and had committed one offence of violence, being an assault in 1989 for which a community service order was imposed.

8. While I agree with virtually everything said by the learned judge when passing sentence, I consider that five years' imprisonment was manifestly excessive having regard to the extremely low level of participation by the appellant in the crimes. Five years' imprisonment was consistent with punishments commonly imposed with respect to principal offenders for such crimes. If the appellant had been convicted as a principal then he certainly could not have complained of a sentence of five years' imprisonment, or even six years' imprisonment. Having regard however to his low level of participation, extending only to the provision of the scanner and then only after urging, the sentence imposed was manifestly excessive. The seriousness of his criminal conduct was at a relatively low level and he deserved a sentence of imprisonment at a relatively low level, although at the same time regard ought to have been had to the seriousness of the criminal activity which he aided. In my view ground 4 succeeds.

9. By ground 6 it is said that the learned trial judge erred, when passing sentence, by taking into account circumstances which amounted to separate crimes of being an accessory after the fact to the crimes of which he was convicted. The ground is directed to the passage in his Honour's comments that "a surrounding circumstance is that you aided them after the event by hiding the weapons".

10. The appellant was charged with committing the crimes of aggravated burglary and aggravated armed robbery. If the jury had found him not guilty of those crimes then, by virtue of the Criminal Code, ss332(2) and 340, he could instead have been found guilty of being an accessory after the fact to those crimes. Indeed his case was that he was guilty of being an accessory after the fact to those crimes, but not guilty of those crimes. However, because the jury found him guilty of them, albeit only as an aider, he could not lawfully have been convicted at the trial of being an accessory after the fact to those crimes.

11. It also followed, of course, that because he was not convicted of being an accessory after the fact he could not be sentenced for that crime nor could a more severe punishment be imposed because he committed it. The Court of Criminal Appeal made that clear in Rowbottom v R unreported 24 March 1960, at 5 and 6:

"It may be that at a trial evidence has been led which would

justifiably lead the trial judge to the conclusion that the

prisoner was guilty of other offences not charged and upon

which there has therefore been no verdict. The prisoner,

however, must be sentenced only for the specific crime with

which he was charged and for which he was convicted. Other

charges or a more serious charge which would have been

justified by the evidence but which are not included in the

indictment cannot be taken into account for the purpose of

determining the appropriate punishment for the crime of

which the prisoner has been convicted, except pursuant to

some regular procedure for taking other charges into

consideration."

12. The Court cited R v Bright (1916) 2KB 441 where at 444 Darling J, in delivering the judgment of the Court of Criminal Appeal, said that a sentencing judge "must not attribute to the prisoner that he is guilty of an offence with which he has not been charged".

13. In Lovegrove v R [1961] TASStRp 13; (1961) Tas SR 106 at 107 Burbury CJ misquoted the above passage from Rowbottom so that the words I have placed in italics were incorrectly cited as: "Other charges of a more serious nature ...". However earlier his Honour said:

"But for the very reason the court does have that flexible

discretion under our Code in imposing punishment, the court

must ever be on its guard to make sure, when it is

considering for itself the circumstances relating to the

commission of the crime, that it only sentences the

convicted man in respect of the actual crime of which he is

convicted."

14. That principle was further explained in R v Causby [1984] TASRp 9; (1984) Tas R 54 when Green CJ at 57 and 58 referred to:

" ... the fundamental principle recently restated by the

High Court in Reg v De Simoni [1981] HCA 31; (1981) 35 ALR 265, 147 CLR

383, that a person may only be sentenced for the offence of

which he has been convicted and that circumstances of

aggravation may 'not be relied upon for purpose(s) of

sentence if those circumstances could have been made the

subject of a distinct charge', per Gibbs CJ at p269 (ALR),

p389 (CLR). ... The conclusion I have reached does not

represent a departure from the rule that a court which is

imposing sentence is entitled to take into account all the

surrounding circumstances of the offence. But that rule is

subject to the limitation that the circumstances which taken

(sic) into account must relate to one of the ingredients of

the crime. ... However, it is appropriate for a court which

is imposing sentence upon a person to have regard to the

surrounding circumstances of the offence notwithstanding

that they might have been the subject of a distinct charge,

provided that those circumstances form part of, or are

directly related to one of the ingredients of the charge for

which he is being sentenced."

15. In R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 at 389 Gibbs CJ referred to "the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence" but said that it "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." Wilson J dissented on other grounds but at 396 also emphasised that, although the judge is not only entitled but bound to take into consideration the circumstances surrounding the offence of which the prisoner has been convicted, "he must not punish the prisoner for additional offences with which he has not been charged: R v Reiner (1974) 8 SASR 102, R v Huchison (1972) 1 WLR 398". In De Simoni (see Gibbs CJ at 389) and also in Lovegrove a consideration which particularly arose on the facts was whether the sentencing judge was entitled to have regard to the fact that the accused had committed a more serious offence than the one of which he was convicted, and much of the discussion concerned that aspect. In Lovegrove, as I have pointed out, Burbury CJ misquoted Rowbottom v R and by doing so, it might be thought, when the passage is read in isolation, gave reason for thinking that it is only more serious offences which must be excluded from consideration. It is however important to emphasise that the general principle to which I have been referring is not so confined.

16. It is difficult to determine from the brief comment of the learned judge that a surrounding circumstance included aiding the principal offenders by hiding the weapons, just what use of that his Honour made. If it directly induced the imposition of a more severe punishment then with respect I would hold that his Honour was in error and a miscarriage of justice resulted. It would not however have been contrary to principle to refer to the assistance given by the accused after the commission of their crimes (assistance to which he admitted) for the purpose of explaining or interpreting his conduct, state of mind or general culpability at the time he aided them by providing the scanner. For example, in a case in which the facts might be similar to those in this case, a mitigatory claim by an accused that he was reticent about aiding the commission of the crimes by lending his scanner might deserve less respect for its weight and cogency having regard to circumstances that he subsequently received payment for his services from the fruits of the crimes and helped to protect the principals by concealing their weapons. In this regard I respectfully adopt what was said by Green CJ in R v Causby (supra) at 58 that "it is appropriate for a court which is imposing sentence upon a person to have regard to the surrounding circumstances of the offence notwithstanding that they might have been the subject of a distinct charge, provided that those circumstances form part of, or are directly related to one of the ingredients of the charge for which he is being sentenced." That view explains why, for example, when sentencing for rape, courts will usually take into account acts of violence inflicted on the victim to overwhelm resistance to sexual intercourse notwithstanding those acts of violence are not separately charged. The commission of such offences of violence nevertheless "may properly be taken into account as a part of the circumstances surrounding the offence charged." R v Teremoana (1990) 54 SASR 30 at 38.

17. Because I have reached the conclusion that the sentence in this case was manifestly excessive it is unnecessary for me to determine whether the learned trial judge erred for doing what is asserted in ground 6 of the notice of appeal. I confess to difficulty in understanding what his Honour meant by his remark.

18. The conclusion I have come to is that the application for leave to appeal against sentence ought to be granted and that appeal allowed. I would quash the sentence of imprisonment imposed by the learned trial judge and in substitution would impose a sentence of three years' imprisonment to take effect from 13 October 1994, the day on which the appellant was taken into custody. I consider that three years imprisonment is appropriate, having regard to his criminal record, the magnitude of the crimes he assisted and the level of his assistance. I would dismiss the appeal against conviction.