R v BCC

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v. BCC [2006] NSWCCA 130

FILE NUMBER(S):
No. 2005/2041

HEARING DATE(S): Thursday 23 February 2006

DECISION DATE: 27/04/2006

PARTIES:
REGINA v. BCC

JUDGMENT OF: James J Simpson J Hall J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0470

LOWER COURT JUDICIAL OFFICER: Woods, DCJ.

COUNSEL:
Crown: Ms. V. Lydiard
Resp: Mr. S. Wilkinson

SOLICITORS:
Crown: S. Kavanagh
Resp: Lloyd Truman Sadiq

CATCHWORDS:
Criminal law - Crown appeal - supply of commercial quantity of ecstasy - whether sentence manifestly inadequate - assistance to law enforcement authorities - prior good character - remorse - good prospects of rehabilitation

LEGISLATION CITED:
Criminal Appeal Act 1912
Drug Misuse & Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/2041
JAMES, J.
SIMPSON, J.
HALL, J.
THURSDAY 27 APRIL 2006

REGINA v. BCC

Judgment

JAMES, J: I agree with Hall, J.
SIMPSON, J: I agree with Hall, J.
HALL, J: On 6 October 2005, the Director of Public Prosecutions, pursuant to s.5D of the Criminal Appeal Act 1912 appealed the sentences pronounced by the District Court of New South Wales, Sydney District, with respect to the respondent on 9 September 2005.
The respondent pleaded guilty to a charge of supplying a commercial quantity of a prohibited drug, namely, a commercial quantity of ecstasy, the offence having been committed on 26 October 2004.
The charge pursuant to s.25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) carried a maximum penalty for the offence of imprisonment for 20 years and/or a fine of 3,500 penalty units ($385,000).
The history of the proceedings is set out in the Crown’s written submissions which are reproduced below.
The respondent was committed for sentence to the District Court on 18 May 2005 from the Burwood Local Court.
On 3 June 2005, the respondent’s matter was mentioned before the Chief Judge, and the matter was fixed for sentence on 22 July 2005.
On 22 July 2005, evidence was given in closed court of assistance given by the respondent to police (an affidavit of assistance was tendered and marked as Exhibit SC). The respondent also gave evidence and submissions were made by the Crown and the defence and the matter was then stood over to 26 August 2005.
On 26 August 2005, the sentencing judge adjourned the sentencing hearing to 9 September 2005.
On 9 September 2005, the respondent was sentenced to a term of imprisonment for two years with a non-parole period of 18 months. However, the sentence was suspended pursuant to s.12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) conditionally upon the respondent entering into a bond on the following terms:-
“•To appear before the Court if called upon to do so at any time during the term of the bond;
•to be of good behaviour;
•to reside at a specified address and to advise the Clerk of the Court by pre-paid registered post of any change of residential address during the term of the bond;
•to be subject to the direction and supervision of the Probation & Parole Service during the term of the bond; and
•to report to the Officer-in-Charge of the Burwood Office of the Probation & Parole Service within three days.”
The respondent had been arrested on the date of the offence, 26 October 2004, and was held in custody for approximately four months before he was released to bail on 7 March 2005.
Statement of facts
The statement of facts as found by the sentencing judge in respect of the respondent are set out in the Crown’s written submissions and are as follows:-
(a)A taskforce in 2004 focused on drug supply, of which the respondent was not a target.
(b)On 26 October 2004, the respondent was parked in a motor vehicle at the McDonald’s Restaurant, Enfield carpark.
(c)The targets of police were the co-offenders Smith and He who were also parked in a motor vehicle at the McDonald’s Restaurant.
(d)The respondent approached Smith’s parked car, leaned into the car and carried back a plastic bag to his own vehicle.
(e)The respondent was seated with his girlfriend in his own vehicle.
(f)As police approached the car, the girl dropped the bag onto the ground.
(g)Police saw the respondent try to kick the bag underneath the car.
(h)The bag was recovered and contained five bundles of pink tablets that totalled 500 tablets (later analysed and found to contain ecstasy).
(i)The respondent was then arrested.

Grounds of appeal

There is only one ground of appeal in the notice of appeal, namely, that the sentence was manifestly inadequate.
It has been submitted on behalf of the Crown that the objective seriousness of the offence was so great that the sentence handed down did not reflect that objective seriousness.
The Crown pointed to the fact that the offence carries a penalty of 20 years, the amount involved being not less than the commercial quantity, which is 0.125 kilograms, and the amount involved being 160 grams.
Whilst the Crown has observed that this Court has on occasions treated the drug, the subject of the charges in this appeal, as a mid-range drug (see Regina v. Bimahendali [1999] NSWCCA 409 at [14]), reliance was placed upon the observations of Wood CJ. at CL. in that case at [17]:-
“Ultimately, the best guide is that given by the legislature as to the available penalty, dependent upon whether the drug in question is more or less than the traffickable or commercial quantity prescribed …”
The Crown also referred to observations in Regina v. Peel (1971) 1 NSWLR 247 at 252 wherein it was stated:-
“In determining the proper penalty … the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the respondent’s conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug.”
Similarly, in Regina v. Dang [2005] NSWCCA 430, Howie, J., with whom Studdert, and Whealy, JJ. agreed, stated:-
“… this Court no longer approaches the evaluation of the seriousness of a particular supply offence by distinguishing between different types of drugs according to the perceived dangerousness of the drug being supplied. Rather, the Court has stressed that the appropriate consideration is the relevant statutory regime and the maximum penalty prescribed for the offence: Regina v. Nai Poon (2003) 56 NSWLR 284; Regina v. Neale (2004) 138 A. Crim. R. 493.”
The Crown also referred to Regina v. Harmouche [2005] NSWCCA 398 at [37]. The Crown submitted that the seriousness of the respondent’s offending, must not only be judged by the statutory criteria, but also by the other purposes which sentencing is intended to serve referring specifically to the provisions of s.3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The Crown contended that the sentencing judge failed to give sufficient weight to:-
(a)The elements of both specific and general deterrence;
(b)The legislative intention in relation to these types of offences; and
(c)The protection of the community.
It also contended that the sentencing judge gave undue weight to the respondent’s subjective features. The ultimate submission is that the sentencing judge erred in giving the respondent a sentence of two years with a non-parole period of 18 months and then suspending the whole sentence.
The remarks on sentence
In the remarks on sentence made on 9 September 2005, the sentencing judge referred specifically to the following:-
•The confidential affidavit evidence relevant to assistance provided by the respondent to police.
•Evidence and the Crown’s concession that in fact the assistance given by the respondent was more than indicated in Exhibit SC.
•Satisfaction on the evidence that it was the respondent’s intention to assist police to the best of his ability and that he made numerous and conscientious efforts to do so.
•The fact that the provisions of s.23(2)(c) were satisfied (“the truthfulness, completeness and reliability of any information or evidence provided by the offender …”).
•In terms of s.23(2)(d) of the Crimes (Sentencing Procedure) Act that the respondent had made an extensive effort (“… the nature and extent of the defendant’s assistance or promised assistance”).
•That, if the sentence were to be operative in its terms, then the matter set out in s.23(2)(g) of that Act (“whether the offender will suffer harsher custodial conditions as a consequence of, the assistance or undertaking to assist …”) would be, according to the sentencing judge, “a reality”.
•The fact that, in terms of s.23(2)(j), it was extremely unlikely that the respondent would commit further offences after release.
The sentencing judge, in addition to the matter of assistance, also referred to sentences imposed on the respondent’s co-offenders in the following terms (at p.3):-
“… I have had the opportunity, this matter having been adjourned, of seeing this case in context of the cases against the two other offenders, Smith and He. Smith has been sentenced and I bear in mind the need for such consistency as is possible.”
In terms of relevant aggravating factors under s.21A(2) of the Crimes (Sentencing Procedure) Act, the sentencing judge identified one such factor, being that the offence was organised “although at a very low level from his position” and then went on to acknowledge the seriousness of the offence in saying (at p.4):-
“… the offence is itself by definition a serious offence. It attracts a maximum penalty of 20 years imprisonment and where there is a matter where there has been a trial or a conviction by a jury, the indicative non-parole period of 10 years will apply. However, there is in this case a plea of guilty which, of course, is a mitigating factor.
The offence is one which, on its face, deserves a sentence of full-time imprisonment. Many young people in the community have the false idea that taking ecstasy tablets and similar sorts of illicit tablets will go unpunished – that is not the case.”
The sentencing judge then made a series of factual findings as follows:-
(a)The respondent had already spent four “very uncomfortable” months in prison which he described in evidence as “terrible”.
(b)He had been subjected to death threats (as to this, see below).
(c)If he returned to prison he would be at serious risk and would require to be in protective custody.
(d)He was a person of good character.
(e)He was unlikely to re-offend.
(f)He had shown remorse for the offence.
(g)He had good prospects of rehabilitation.
(i)He was old enough to know better.
(j)He did not have the mitigation of youth in his favour.
(k)He was not a principal target of police attention.
In relation to evidence on the question of reprisals, I consider that:-
(a)The evidence indicates that the people to be investigated were potentially dangerous but the evidence did not go any further than that. It also established that by reason thereof the respondent had legitimate fears.
(b)The respondent’s evidence as to his apprehension or fears was not shown to be based upon a clear direct threat to him but on certain information indirectly conveyed to him.
The sentencing judge then stated (at pp.4 to 5):-
“… those considerations of mitigation which I have referred to operate in this case. But for the assistance that he offered the police, the sentence would have been significantly harsher.
In the circumstances, it seems to me that it is appropriate, noting the assistance and noting the term already spent in prison, for me to sentence this man to a term of imprisonment of two years but to suspend it. Accordingly, I sentence as follows: the offender is convicted. He is sentenced to a term of imprisonment of two years. I set a non-parole period of 18 months. Under s.12 of the Crimes (Sentencing Procedure) Act 1999, I order that execution of the sentence be suspended.”
At the conclusion of his sentencing remarks, when asked, the sentencing judge indicated that he had applied a 50% discount for the plea of guilty and assistance (indicating that he otherwise would have imposed a sentence of four years).
The Crown has correctly emphasised that the subjective features of a particular offender must not be allowed to overshadow the objective seriousness of the offence under consideration: Regina v. Dodd (1991) 57 A. Crim. R. 349 at 354; Regina v. Rushby (1977) 1 NSWLR 594; Regina v. Myers (NSWCCA, unreported 13 February 1990).
The Crown submitted that in dealing with the supply of not less than the commercial quantity of a prohibited drug, not only is a full time custodial sentence required, but that a substantial full time custodial sentence should be imposed. The submission referred to the need for the courts, given the evils of the drug trade, to take a very firm stand against it, citing Regina v. Collins [2000] NSWCCA 236 at [15]; Regina v. O’Brien & Mammone (NSWCCA, unreported 23 August 1989); Regina v. Wong & Ng (1988) 39 A. Crim. R. 1 at 3.
Finally, in relation to the order suspending the sentence imposed, the Crown submitted as follows:-
“31.The Crown further submits that a suspended sentence like a sentence of periodic detention, contains a strong element of leniency, and is outwardly less severe in denunciation of criminality and is not normally appropriate in cases involving the supply of illegal drugs: Regina v. Day (1998) 100 A. Crim. R. 275; Regina v. Niga (NSWCCA, unreported 13 April 1984); Regina v. Hallacoglu (1992) 63 A. Crim. R. 287 at 294 and, in particular, it is not appropriate in a case involving the supply of not less than the commercial quantity.
32.With respect to the 50% discount, the Crown accepts that there is no fixed tariff for the discount to be applied for assistance to the authorities: see Cartwright (1989) 17 NSWLR 243, 255G; Regina v. Gallagher (1991) 23 NSWLR 220; Chu (NSWCCA, unreported 16 October 1998 at 6). In Chu, Spigelman, CJ. said at 6:-
‘On some occasions the 50% discount which was allowed in Cartwright itself has been treated as if it was a tariff … However it should not be so regarded. The discount is over a significant range, varying with the particular circumstances of the case and the assistance actually provided.’
33.The Crown submits, however, that the discount to be applied for the guilty plea and assistance is required to take into account the principle of proportionality in sentencing. The discounted sentence for assistance to the authorities should not be unreasonably disproportionate to the nature and circumstances of the offence: s.23(3) of the Crimes (Sentencing Procedure) Act 1999.”
It was submitted that, where the maximum penalty is 20 years and where the standard non-parole period is 10 years and the sentencing judge uses four years as a starting point and then discounts it by 50% for the plea and assistance and then imposes a suspended sentence, the sentencing judge has demonstrably fallen into error.
The respondent’s submissions
In the written submissions on behalf of the respondent, the well-known principles in relation to Crown appeals summarised by Wood, CJ. at CL. in Regina v. Wall [2002] NSWCCA 42 at [70] are set out.
The respondent also relied upon observations of Spigelman, CJ. in Regina v. Baker [2000] NSWCCA 85 at [11] and [19] in which the Chief Justice emphasised that questions of weight in the exercise of a discretion are matters for the sentencing judge and that the circumstances in which matters of weight will justify intervention by an appellate court are narrowly confined. The respondent also relied upon the Chief Justice’s observations in that case that Crown appeals should be rare, particularly so with respect to that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on the assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred.
It was also submitted on behalf of the respondent that the sentencing judge had regard to particular matters including:-
(a)The evidence of an investigating police officer who confirmed that the respondent was not a target of their investigation and had willingly provided information and actively assisted the police investigation.
(b)That police held legitimate fears for the safety of the respondent.
(c)The affidavit of assistance (Exhibit SC) which disclosed the nature and extent of the assistance and the many occasions on which the respondent met with investigating police.
(d)The respondent’s prior good character.
(e)The evidence of Reverend Thomas Oakley as to remorse.
(f)The respondent’s prospects of rehabilitation.
(g)The respondent’s plea of guilty.
In addition to the above factors, it was submitted on behalf of the respondent that the offence was an isolated event and that the sentencing judge found that it was organised although at a low level of organisation on the part of the respondent who, the sentencing judge also observed, was a person of prior good character and was unlikely to re-offend.
The submissions for the respondent also emphasised that, given the evidence as to death threats referred to above, the safety of the respondent in prison was a matter that the sentencing judge was entitled to take into account in determining what the sentence should be and whether it should be suspended. Reliance was placed upon observations made by the High Court in York v. The Queen [2005] 79 ALJR 1919, although in oral submissions counsel for the respondent conceded that the facts of the present case were not of the extreme nature as existed in York.
It was further submitted on behalf of the respondent that it was common sentencing practice to extend leniency, sometimes substantial leniency, to an offender who had assisted the authorities and, in doing so, to take into account any threat to the offender’s safety, the conditions under which the offender would have to serve a sentence in order to reduce the risk of reprisals and the steps that would be needed to be taken to protect the offender when released. Reliance was placed upon the principles as discussed in Regina v. Cartwright (1989) 17 NSWLR 243 and Regina v. Gallagher (1991) 23 NSWLR 220. See now Crimes (Sentencing Procedure) Act s.23(2)(g) and (h)
Assistance to the authorities
On the hearing of the appeal, the Crown’s written submissions dated 9 September 2005 before the sentencing judge were tendered and marked as Exhibit A in these proceedings. At p.8 of the transcript of 9 September 2005, the Crown indicated that it accepted “there was quite substantial assistance given”. On this appeal, however, the Crown submitted that there was no indication in the transcript that the Crown’s representative had seen the affidavit. The Crown’s abovementioned concession had apparently come after an earlier indication that the assistance was of a limited kind. Accordingly, there was a shifting of ground by the Crown at the sentencing hearing.
In the oral submissions on behalf of the Crown in this appeal, it was submitted that a reading of the confidential affidavit establishes that the assistance was in fact of a limited kind. The Crown further submitted that there were no “exceptional circumstances” in the case which would have justified the suspended sentence. The Crown submitted that the starting point of four years was itself manifestly inadequate.
The transcript of the evidence taken in closed court on 22 July 2005 confirms that, although the respondent was willing to assist police, the fact that he failed in tasks set for him, was not attributable to a lack of willingness on his part, but was due to other circumstances.

In oral submissions on behalf of the respondent, it was submitted that the assistance given by the respondent was, in fact, substantial and reliance was placed upon the concession in this respect made by the Crown at the sentencing hearing following evidence given by the investigating police officer.
Although the Crown ultimately conceded at the sentencing hearing that the assistance given was substantial, in fact, the police evidence was to the effect that the assistance was only of limited use. Furthermore, whilst in Cartwright (supra) Hunt and Badgery-Parker, JJ. stated that the reward for providing assistance should be granted if the offender has genuinely co-operated with the authorities whether or not the information supplied objectively turns out, in fact, to have been effective. The law has changed since that decision was given. Their Honours in that case (at p.253) stated that the information given by an offender must be such as could significantly assist the authorities, emphasising that the information must, of course, be true. What was relevant was the potential of the information to assist the authorities as comprehended by the offender himself.
The law as stated in Cartwright (supra) has been Affected by s.23 of the Crimes (Sentencing Procedure) Act. Whilst s.23(2)(b) requires the Court to have regard to the “significance and usefulness” of the assistance given or offered, it is not the case that simply because the assistance is of no value to the authorities that it must be disregarded: Regina v. Tooth [2001] NSWCCA 407 per Howie, J. at [20] (Grove, J. agreeing) citing Regina v. Yenice (1994) 72 A. Crim. R. 234 at 239, Regina v. Ward (NSWCCA, unreported 29 May 1995).
However, the provisions of s.23(2)(b) require that in deciding whether to impose a lesser sentence for an offence and the nature and extent of the penalty it imposes, a court must consider, inter alia, the significance and usefulness of the offender’s assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered; see also s.23(2)(c), (d) and (e).
Counsel for the respondent indicated on this matter that the limited use to which the respondent’s assistance was put was “… brought about by circumstances which were out of the control of this respondent, notwithstanding his endeavours …” (p.10) and emphasising the extent of his co-operation with the authorities.
In relation to the respondent’s criminality, it was submitted on behalf of the respondent:-
(a)The case was distinguishable on its facts from Harmouche (supra).
(b)The respondent’s involvement “was nothing more than a repository for the drugs, and then delivered immediately to this person Eric” (transcript, p.11).
(c)The offence was, to an extent, opportunistic in nature and from his point of view it was not a profit-making venture.
(d)The evidence indicated that the respondent previously had had an “unblemished lifestyle based on scholastic achievement”, he having tertiary qualifications.
(e)It was his girlfriend who introduced him to the nightclub scene and it was through that social setting that he compromised his own standard of acceptable behaviour and commenced experimenting with the drug ecstasy and did so in order to maintain social acceptability with the people with whom he was then associating.
The respondent also relied upon the evidence of Reverend Oakley which indicated that the respondent was now an active practising Christian who attended church on a regular basis and maintained contact with those holding religious beliefs as well as changing his social network.
Finally, it was submitted on behalf of the respondent that whilst the facts were not as extreme as those in York (supra), it was open to the sentencing judge to have regard to the evidence of possible reprisals in the exercise of his discretion. In this respect, however, I consider that the evidence as to reprisals was of the limited nature I have discussed earlier in this judgment.
Assistance provided to law enforcement authorities - relevant principles
In Braithwaite v. Regina [2005] NSWCCA 451 (in which the applicant had been charged under s.25(1) of the Drug Misuse and Trafficking Act 1985), Hodgson, JA., with whom McClellan, CJ. at CL. and I agreed, stated, at [29], in relation to the question as to whether the sentences in that case should be suspended under s.12 of the Crimes (Sentencing Procedure) Act 1999:-
“… Although, as I have said, I do not accept that the sentences cannot be suspended unless the offences fall towards the lower end of the scale or unless there are exceptional circumstances, I do consider that, in cases such as this of supply of drugs, a strong case needs to be made out to justify suspending the sentence.”
Hodgson, JA. concluded, on the facts of that case, (the first charge related to the supply of methylamphetamine with a mixed powder involving a total weight of 20.89 grams, and a second charge involved MDMA or ecstasy, involving a total weight of 17.78 grams, the indictable quantity being 1.25 grams), that, taking into account all circumstances, it was not appropriate to suspend the sentences for what were termed “serious drug offences”.
The salutary nature of a suspended sentence, was, however, recognised by Howie, J. (with whom Hodgson, JA. and Levine, J. agreed) in his review of the sentencing options under the Crimes (Sentencing Procedure) Act 1999 in Regina v. Zamagias [2002] NSWCCA 17 at 22. In that case at [31] his Honour stated:-
“A sentencing court, therefore, must recognise that a sentence of imprisonment can be a significant and effective punishment even where the execution of that sentence is suspended … That is why, in the hierarchy of sentencing alternatives, a suspended sentence is considered as more severe than a community service order, even though it may appear on its face to be less punitive.”
In this appeal, the focus of criticism was not upon the 50% discount allowed for the early plea and assistance. The focus was on whether the sentence was manifestly inadequate in failing to give due consideration to the seriousness of the offence and upon the fact that the sentence imposed was suspended: see Regina v. JCE (2000) 120 A. Crim. R. 18 at [25] and Regina v. Foster [2001] NSWCCA 215 at [36]
In evaluating these issues, the Court must, of course, recognise the limitations upon it arising from the principles that govern the determination of a Crown appeal against sentence and the exercise of the discretion vested in this Court. In particular, as observed by Howie, J. in Zamagias (supra) at [20], the Court must have regard to the width of the discretionary judgment of the sentencing court and the limitations upon the power to review that judgment. As his Honour emphasised, the Court can interfere only if it is necessary to correct error and then only in an appropriate case, bearing in mind that a Crown appeal should be rarely successful where no particular error can be identified.
The determination of the term of imprisonment to be imposed was one to be made without regard to whether the sentence would be immediately served or the manner in which it is to be served: Zamagias at [26]. In determining the availability of an alternative to full time custody, the court exercises a discretion but the discretion must be exercised according to established sentencing principles: Zamagias at [29].
In determining whether the sentence was manifestly inadequate by reason of the order suspending it, the relevant principles, as I understand them, include the following:-
(a)The statutory power to suspend the operation of a sentence of imprisonment in provisions such as s.12 of the Crimes (Sentencing Procedure) Act 1999 confers a discretion expressed in very wide language.
(b)In determining what is an appropriate case to afford suspended imprisonment as an option raises the question as to what factors will determine whether such an option is legally and factually justified.
(c)The power to suspend under a provision such as s.12 is not confined by reference wholly, mainly or specially to the effect the suspension would have on the rehabilitation of the particular offender: Dinsdale v. The Queen (2000) 202 CLR 321 at 330, paragraph [26], per Gaudron and Gummow, JJ., agreeing with Kirby, J. at pp.344-346, paragraphs [74] to [89].
(d)In determining whether a sentence will be immediately served or the manner in which it is to be served (as a separate step to the antecedent question of the term of the sentence), the court is not confined to the circumstances that are personal to the offender but it may look again at all the matters relevant to the circumstances of the offence: Dinsdale (supra) per Kirby, J. at 348, paragraph [85] (in relation to a similar statutory scheme under the Sentencing Act 1995 (WA)).
(e)Accordingly, circumstances such as the nature of the particular offence, the low likelihood of the respondent’s re-offending, and the impact which a prison sentence immediately served would have on the respondent are amongst considerations that may be considered to be available and proper to the decision of whether or not to suspend a term of imprisonment: Dinsdale (supra) per Kirby, J. at 349, paragraph [88]; see also Gleeson, CJ. and Hayne, J. at 329, paragraph [18], in which such factors which were taken into account by the trial judge in that case were there said to be “relevant matters”.
(f)In the exercise of the sentencing discretion to suspend a sentence, it is not necessary that the offence in question falls towards the lower end of the scale or for there to be exceptional circumstances.
(g)Where, however, as in this case, the offence involves the supply of prohibited drugs, the evidence needs to establish a strong case on the particular facts in order to justify an order suspending the sentence.
(h)Wherever the execution of a sentence is to be immediately suspended, the sentence may on that account be considered a lenient one.
(i)Each case is to be determined on its own facts, having particular regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender: Zamagias (supra) at [32].
(j)In a particular case, the community may be appropriately protected where the sentence is designed to assist in the rehabilitation of the offender.
(k)In determining whether a suspended sentence is an adequate form of punishment and is one which sufficiently reflects specific and general deterrence, it is necessary to have regard to the sentencing judge’s reasons for suspending the sentence and, in particular, whether the reasons given were sufficient to activate the sentencing discretion in that respect.
The sentencing judge dealt with the question of assistance at p.2 of the remarks on sentence and there had regard to the provisions of s.23 of the Crimes (Sentencing Procedure) Act 1999. Whilst specific emphasis was given to certain provisions of s.23(2), there was no reference in particular to s.23(2)(b) (the significance and usefulness of the offender’s assistance to the authorities). However, it is clear that the sentencing judge gave consideration to matters which were relevant thereto. Appropriate regard was also given to both the police evidence and to the evidence of Reverend Thomas Oakley. At p.4 of the remarks on sentence, the sentencing judge stated he was satisfied that the respondent had been the subject of death threats and that if he went back to prison “… he will be at serious risk and will be required to be in custody in close protection …” (p.4).
Whilst the remarks on sentence do not, in terms, explicitly identify all of the particular reasons for the decision to suspend the sentence, one may discern from them that it was the assistance provided to the authorities and the time spent in custody which were the influencing factors (at p.5):-
“In the circumstances, it seems to me that it is appropriate, noting the assistance and noting the term already spent in prison, for me to sentence this man to a term of imprisonment of two years but to suspend it …”
The “circumstances” referred to here I consider is sufficient to indicate that the sentencing judge also had in mind the matters referred to by him in the immediately preceding paragraph at the foot of p.4 of the remarks on sentence, namely:-
•the respondent’s prior good character;
•the unlikelihood of him re-offending;
•the respondent’s remorse and good prospects of rehabilitation.
Although the sentencing judge had a very broad discretion as to sentencing alternatives and there was evidence of a number of factors that could provide a factual justification for an order suspending the sentence imposed, I, nonetheless, consider that, having regard to the objective seriousness of the offence, the term of the sentence was manifestly inadequate and more so by reason of the fact that the sentence was suspended.
However, the Court has a discretion as to whether, notwithstanding that conclusion, it ought to intervene. The respondent was released from custody on 8 March 2005. If this Court were to re-sentence him so that he was required to serve a term of imprisonment, he would, by reason of matters referred to above, be required to serve it in protective custody. I note that the respondent was in custody from the date of his arrest (26 October 2004) to 8 March 2005 (134 days), or approximately four and a half months in custody. By reason of the considerable hardship that would result from the respondent being returned to custody (and the type of custody that would apply to him), I am of the view that the Court should exercise the discretion vested in it under s.5D(1) of the Criminal Appeal Act 1912 not to intervene.
Accordingly, I would propose that the Crown’s appeal be dismissed.

**********

LAST UPDATED: 27/04/2006

[2006] NSWCCA 130

27 April 2006