R v Derek John McMann No. Sccrm-97-136 Judgment No. 6331 Number of Pages 23 Criminal Law

[1997] SASC 6331

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

COX, PERRY AND DEBELLE JJ

Criminal law - appeal and new trial and inquiry after conviction - appeal and new trial - appeal against sentence - appeal by attorney-general or other Crown Law officer - Crown appeal against sentences for two robberies - both offences against financial institutions - respondent pretended he had a concealed weapon - respondent has history of offences of this nature - gambling addiction - respondent given 'Griffiths' remands - at end of period of remands, given sentence of three years (non-parole period two years), suspended. Serious offences - deterrence must predominate. Sentence so low that Court's intervention justified - head sentence increased to five years, non-parole period to three years. Suspension an error, but revocation of suspension at this stage not justified - observations on use of 'Griffiths' remands. Mill v R (1988) 166 CLR 59, discussed.

ADELAIDE, 21 July 1997 (hearing), 29 August 1997 (decision)

#DATE 29:8:1997

#ADD 5:9:1997

Appearances :

Counsel for appellant: Ms W J Abraham

Solicitors for appellant: DPP (SA)

Counsel for respondent: Mr J F Kelly

Solicitors for respondent: Mr C J Roberts

Order: appeal allowed.

COX J

In February 1993 the respondent carried out an armed robbery on a building society in Melbourne and stole about $4 000. The following month he committed two robberies in Adelaide. The first victim was a bank teller from whom he stole $2 550 by pretending that he had a concealed weapon. The second offence was committed three days later when he committed a similar type of robbery and obtained $6 350. Afterwards the respondent went back to Melbourne where he was arrested for the February armed robbery. He volunteered his guilt of all three offences. In August 1993 he was sentenced in Melbourne to thirty-two months' imprisonment, with a two year non-parole period, for the Melbourne offence. He had been in custody since March. On 22 April 1995, after his release on parole, he committed a group of offences for which he was imprisoned for four months. He was on parole again in November 1995 when he committed a breach of his parole conditions and so had his parole cancelled. In May 1996 he was extradited to South Australia and charged with the two robbery offences here. He came before a Judge in the District Court for sentencing submissions on 27 September 1996 and thereafter he was given successive Griffiths remands until, on 16 May 1997, he was given a global sentence of three years' imprisonment, with a non-parole period of two years, the sentence being suspended upon his entering into a $500 good behaviour bond for three years. That is the sentence against which the Director of Public Prosecutions seeks to appeal.

The circumstances of the offences and the offender and the details of the sentence are set out in the reasons of Perry J.

These were serious offences. Although the respondent pretended to be armed he was not, so the risk of him physically harming someone deliberately or accidentally was removed. There was still the risk of someone else harming him, and the emotional impact on the tellers and other staff would have been much the same as for an armed robbery. The maximum sentence, of course, was fourteen years, not life.

This is the sort of crime for which considerations of deterrence must generally predominate, and as a matter of principle the two separate offences called for cumulative sentences or an effective equivalent. If there was to be a global sentence, it had to take into account the total wrongdoing. The respondent's criminal record as an adult included a robbery conviction in 1988, serious enough to merit a sentence of two years, and being armed with an offensive weapon in 1990. He was entitled to credit for his confession and his pleas of guilty and for the other matters urged in his favour. Evidently he is addicted to gambling, but unfortunately having an addiction is a common accompaniment to serious crime. A promise to reform could not have a great effect on the proper head sentence for someone with his record.

In my opinion the global sentence of three years for the two robberies was quite inadequate - so low, indeed, as to require the intervention of this Court in order to maintain proper sentencing standards. I agree with Perry J that, after making every allowance in accordance with Mill v The Queen (1988) 166 CLR 59 for the respondent's inability to have the 1993 Victorian and South Australian offences dealt with together by the one court at the one time, the minimum sentence that could fairly have been passed on the respondent for the offences was five years. The Crown's case for leave to appeal is made out.

A normal non-parole period in the circumstances would, I think, be of the order of three years or so. However, a sentencing court might be minded to stretch a point and reduce the period to, say, two years if it was satisfied that, despite the respondent's criminal record and poor parole history, the prospects of reformation were unusually good. Of course, if there was sufficient reason to suspend the sentence, there was no occasion to fix an abnormally low non-parole period for such serious offences as well.

In fact, the learned Judge did suspend the respondent's sentence. He did so as a culmination of the Griffiths remands. One must acknowledge that there is a place for this sentencing device, but the occasions for its use will be uncommon - the young person, say, with a pretty clear record who commits a serious crime that is quite out of character and shows every promise of rehabilitation, although most such cases, I should have thought, would be better dealt with in some other, more expeditious way that avoids the drawbacks that are unavoidable with a Griffiths remand. However, while making proper allowance for the learned sentencing Judge's discretion and his opportunity to see this man for himself, I cannot think that the Griffiths remand or the suspension was justifiable in the case of a man who committed two bank robberies in the face of a serious criminal record and with every opportunity to get his rehabilitation procedures under way well before this.

The difficult question is deciding what should be done about it now. Allowing a Crown appeal when it has the effect of denying a defendant an expected escape from serving a prison sentence is never easy, but sometimes it has to be done. The problem is greatly compounded, however, when the lenient sentence which requires correction has been either a virtual promise or an actuality for nearly a year.

I do not know how frequently the Griffiths remand is used in the Supreme Court or the District Court. There seem to have been very few cases in which it has had to be considered on an appeal. We are not faced with a rash of ill-advised orders calling for exemplary if harsh correction. I should be loathe to send the respondent to prison now. I think he should be permitted in all the circumstances to take advantage of what I respectfully regard as an error on the Court's part.

I would grant the Crown leave, and allow the appeal. In my opinion, the sentence of the District Court should be quashed and the respondent ordered to serve a single sentence of five years' imprisonment with a non-parole period of three years. The sentence should be suspended upon the respondent entering into a fresh bond in the sum of $500 to be of good behaviour for three years, with the same conditions as to gambling and other matters as appeared in the bond of 16 May 1997 which should now be cancelled.

PERRY J

This is an application by the Director of Public Prosecutions for leave to appeal against a sentence imposed in the District Court following the respondent's plea of guilty to two counts of robbery. In accordance with usual practice, the court heard submissions as to the merits at the same time as the hearing of the application for leave.

The first offence was committed on 2 March 1993 when the respondent robbed the Modbury branch of the Adelaide Bank of $2,550. On that occasion he entered the bank, approached a teller, handed her a plastic shopping bag and told her to give him money. The respondent had his right hand up his jumper. The teller thought that he might be concealing a gun. She handed over notes to the value which I have mentioned.

The second offence was committed three days later, on 5 March 1993. On that occasion the respondent robbed the Station Arcade branch of the SA Public Service Savings & Loans Society of $6,350. This offence was committed in similar circumstances. The respondent entered the premises, approached the teller and demanded that he fill with notes a plastic bag which the respondent handed over. He did so, and the respondent made off with the money.

At the time of the offending the appellant was aged 27 years. He has a criminal history dating back to offences for which he was punished in the Children's Court in 1986. He was then convicted of common assault and carrying an offensive weapon. He committed other offences of breaking and entering and larceny for which he was sentenced later in the same year.

In 1988 he was convicted in the Supreme Court of an offence described in his antecedents report as "rob or steal" from the person.

For that offence he was sentenced to two years imprisonment with a non-parole period of twelve months.

Following his release after serving that sentence, it does not appear that he was involved in any further serious offending until 1993. In February 1993, he robbed a building society in Melbourne of an amount of about $4,000. That was an armed robbery. After that he went to Perth, where he is said to have squandered the proceeds of that offence in the casino before coming back to Adelaide shortly before he committed the two offences which resulted in the penalty now under review.

After committing those two offences, he returned to Melbourne where, soon afterwards, in March 1993, he was arrested with respect to the earlier armed robbery which he had committed there. During the course of his interrogation by detectives in Melbourne with respect to that offence, he volunteered an admission of his involvement in the two robberies committed in Adelaide.

On 11 August 1993, in the Melbourne County Court, the respondent was sentenced to 32 months imprisonment with a 24 months non-parole period for the armed robbery. At the time when that sentence was imposed, he had been in custody on remand in Melbourne between March and August 1993.

It seems likely that the sentence was back-dated, as he was at large in April 1995.

On 22 April 1995, he committed offences described in the antecedents report as "... reckless conduct to endanger serious injury. Drive reckless/speed dangerous. Theft of motor vehicle." On 29 May 1995, he was sentenced to four months imprisonment for those offences.

While the record thereafter is not entirely clear, it appears that after serving that sentence he was released on parole in November 1995, with strict conditions to refrain from gambling and abusing alcohol. Although there is no official record or report on file to confirm the position, a psychologist, Dr Balfour, who assessed him in August 1996, reported that he "quickly recommenced gambling and abusing alcohol". I assume that comment to have been made on the basis of the history given to him by the respondent. Consequently, his bail was revoked. He was imprisoned for a further six months.

Eventually, he was released in May 1996, whereupon he was extradited to South Australia and charged with the two robbery offences now in question.

Immediately after his extradition he was released on bail. On 9 September 1996, when he entered the pleas of guilty to the present charges, bail was revoked and he was remanded in custody pending sentence.

The learned sentencing Judge in the District Court then acceded to a somewhat unusual course. After hearing submissions, on 27 September 1996, instead of proceeding to sentence the respondent, he released him again on bail. In doing so, he yielded to the submission of counsel for the respondent that his client should be given a period of the order of six months to enable him to demonstrate that he had shaken free of his gambling addiction, and would be a good candidate for a suspended sentence.

To that end, bail was granted in the respondent's own recognisance in the sum of $500 with one guarantor, a young woman with whom he was living, in the same amount. The bail was subject to the condition that he reside at a stated address and was "not to attend at the Casino or any race track". He was thereupon remanded to 27 March 1997.

When he came before the court on that date, he was further remanded for submissions.

Following the further submissions, which were made on 16 May 1997, the learned sentencing Judge imposed a term of imprisonment for three years. He fixed a non-parole period of two years. That sentence was suspended upon the entry by the respondent into a bond in the sum of $500 to be of good behaviour for a period of three years. It was a condition of the bond that the respondent refrain from gambling, that he be under the supervision of a probation officer, and that he obey the probation officer's reasonable directions as to place of residence and any suggested treatment in respect of his gambling addiction.

It is against that sentence that the application for leave to appeal is brought.

The grounds upon which leave is sought, and upon which, if leave is given, the appeal will be advanced, are (I have paraphrased them somewhat):

1. Both the head sentence and non-parole period are manifestly inadequate "in that they fail to maintain an adequate standard of punishment for offending of this kind".

2. The sentence should not have been suspended.

3. The sentencing Judge erred in his decision to remand the respondent on bail and adjourn sentencing him for the period of 6 months.

It is convenient to deal with ground 3 first.

The learned sentencing Judge granted the six months remand on bail to see whether during that period the respondent was able to demonstrate that he was able to overcome his long-term pathological gambling addiction. A remand in such circumstances, in order to assess the offender's prospect of successful rehabilitation, has come to be known as a Griffiths remand, after Griffiths v R.

In Griffiths, the appellant was committed for sentence to the District Court at Sydney on breaking and entering offences. The sentencing Judge remanded him for sentence for one year, the remand being secured by a recognisance in the sum of $200. It was a condition of the recognisance that the appellant be of good behaviour and be under the supervision of a parole officer who was required to give reports to the sentencing Judge every three months.

The Judge said, at the time of imposing the order (137 CLR at 296):

"If you (the appellant) can satisfy me - I won't give you any promises - but if you can satisfy me at the end of that time that I should not send you to gaol, that you have made good, then I won't send you to gaol at all."

After Griffiths was set at large, the Attorney-General for the State of New South Wales appealed to the Court of Criminal Appeal. That court held that the course taken by the sentencing Judge was not a "permissible sentencing procedure". The Court of Criminal Appeal substituted a custodial term of imprisonment.

The High Court quashed the sentence of imprisonment. It held, unanimously, that Griffiths had not been "sentenced" by the sentencing Judge within the meaning of the relevant section of the Criminal Appeal Act. Accordingly the Attorney's appeal to the Court of Criminal of Appeal was incompetent.

It follows that dicta in the judgments of the High Court in that case as to the propriety of the order made by the sentencing Judge should strictly be regarded as obiter. They were, however, considered remarks and must be regarded as authoritative.

In the course of his judgment, Barwick CJ said (ibid 306):

"... in my opinion the interests of the community are not by any means necessarily disserved by a judge taking the course which the trial judge took in this case. It is a course which must be reserved for proper cases, cases in which the guilty person will accept the delay in the determination of the sentence and submit to the compulsion towards reformation which that delay and the terms of a recognizance may involve: and in which there is a real expectation founded upon solid ground and not on mere sentimentality that such reform is like to occur. It is a course which one would expect to be taken only by those who have had experience in this field and who have heard and evaluated the convicted person.

I am unable to accept the view expressed by the Court of Criminal Appeal in their solicitude for the prisoner that it was unfair to leave him uncertain as to his fate. It is enough to dispose of that suggestion to say that the applicant under the terms of the bond into which he voluntarily entered could have ascertained at any time what his fate would be by terminating the period of remand. Indeed, he could have preferred to be dealt with and know his fate immediately by refusing to enter into the recognizance: but, evidently motivated by a desire to reform which his subsequent conduct appears to have confirmed, he chose to accept the opportunity made available to him by the trial judge."

Jacobs J, while not doubting the power to postpone sentence in such circumstances, which he regarded as analogous to the old procedure known as a "common law" bond, strongly criticised the decision in that case on the merits. He said (ibid 327):

"Though the circumstances when a release on a bond is appropriate are no doubt many and varied, the release on bond of a man who had a substantial record of previous convictions for similar offences, who had not desisted from his criminal courses over a substantial period of time, who was convicted of offences involving many thousands of dollars worth of property, much of which had not been recovered, who had committed one of the offences while on bail and whose accomplices had received substantial prison sentences was out of the question."

Stephen J agreed with Jacob J's criticism of the course followed by the sentencing Judge. Murphy J did not think that the sentencing Judge erred in what he did. Aickin J agreed with Jacobs J that there was "no essential legal difference" between a common law bond and the order of the sentencing Judge. He did not comment on the merits of the order.

The decision in Griffiths prompted an amendment to the Criminal Appeal Act1912 (NSW) so as to include within the definition of "sentence" for the purpose of an appeal against sentence, a decision to defer passing sentence. There is no such extension of the meaning of the word "sentence" in the appeal provisions in the Criminal Law Consolidation Act 1935. It follows that in this case, having regard to the decision in Griffiths, although the Crown opposed the release of the respondent on bail in September 1996, it was powerless to appeal at that stage.

That situation is most unsatisfactory and merits attention by the legislature. An amendment along the lines passed in New South Wales (see Criminal Appeal (Crimes) Amendment Act 1979 (NSW)) would surmount the problem.

As for the common law bond, although I am unaware of any attempt in recent times to utilise that procedure, there is a somewhat similar statutory procedure of comparatively long standing which now finds expression in s39 of the Criminal Law (Sentencing) Act 1988. That section provides:

"(1) Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond-

(a) to be of good behaviour and to comply with the other conditions (if any) of the bond; and

(b) if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.

(2) Where a defendant is discharged under this section-

(a) no fresh prosecution may be commenced in respect of the offence; and

(b) the defendant will only be liable to sentence, or conviction and sentence, if he or she fails to comply with a condition of the bond and the terms of the bond require the defendant to appear before the court for sentencing in that event."

The High Court has held with respect to an analogous provision in the Criminal Code (Qld) that an order of a trial Judge discharging a convicted person upon his or her entry into a recognisance was not a sentence for the purpose of the appeal provisions of the Code: see R v Robinson.

It does not appear that there have been very many instances of utilisation by the courts of this State of the so-called Griffiths remand. One reported instance, however, is in DPP v District Court and Ors where Matheson J sets out a most helpful analysis of the decision in Griffiths and refers to a number of subsequent authorities in which the procedure has been discussed.

There is nothing in the survey of authority conducted by Matheson J to raise any doubt about the availability in this State of the procedure for a Griffiths remand as a sentencing option. So that it must be accepted that the order made by the learned sentencing Judge in the present case in September 1996 was within jurisdiction.

But the appellant contends that, whatever the circumstances may be in which it might be thought proper to make such an order, they did not exist here. The Crown contends that the sentence eventually imposed, that is, both the prison term and the suspension of it, was manifestly inadequate.

The appellant accepts that the allowance of a Crown appeal against sentence is confined to cases which are "rare and exceptional" but he contends that this is such a case.

There are a number of problems associated with the Griffiths remand procedure. Not only does the process put a quite extraordinary strain on the defendant, but it could act to his or her detriment if, after the period of the remand, the indications are against successful rehabilitation. In such a case, the court would be justified in imposing a longer non-parole period than might have been imposed if the offender had been sentenced without the remand being granted. Furthermore, I hardly think that it will ever be the case that the conduct of the defendant during the period of any such remand would be a reliable indicator of the prospects of rehabilitation once the sentencing process was completed.

Another factor which counts against the desirability of such a course in most cases is that it inevitably gives rise to the submission that, the defendant having been at large during the period of the remand on bail, it would then be unfair to impose a sentence of imprisonment, however much that might otherwise be indicated at that stage.

Any adjournment of the sentencing process for a substantial period of time, coupled with an order granting bail to the defendant, is apt to encourage the defendant to create, perhaps artificially, situations which might be thought to support a suspended sentence.

Furthermore, if any such procedure is ever contemplated, it would only be proper to permit it on the basis that an independent report is given to the court as to the outcome of the remand, in particular as to the conduct of the defendant during the course of the remand. Here, although there was the ability to place the respondent under supervision during the course of the remand and while on bail, no such supervision was ordered. This may be contrasted with the situation in Griffiths (supra) where three-monthly reports from a probation officer were ordered to be given. Here, the court was obliged to rely on the account given by the respondent as to his compliance with the conditions of bail. I do not regard that as satisfactory.

I note that a pre-sentence report given by a probation and parole officer dated 30 April 1997 was put before the trial Judge, but surprisingly it says nothing about the respondent's conduct while on bail during the remand period in question. It may be that the explanation is that the information upon which the report is based was obtained much earlier than the date of the report, and before the remand in question.

Be that as it may, in my opinion, recourse to the Griffiths remand procedure should only ever be countenanced when unusual factors in the case are thought to outweigh the negative features to which I have referred. Inevitably such cases will be extremely rare. In any event, I think that they would best be dealt with by an order under s39 of the Criminal Law(Sentencing) Act 1988.

In this case, the surrounding circumstances, including the circumstances peculiar to the respondent, were commonplace. They could not conceivably have justified the unusual course taken by the learned sentencing Judge in remanding the respondent as he did. An addiction to gambling or drugs is a common circumstance surrounding offences of this kind. Such an addiction could not be said to put the case into any unusual category. The suggestion that there were indications that, if given an opportunity to do so, the defendant would be able to surmount any such addiction is as common as the cases in which such an addiction is said to exist.

Turning to the head sentence of three years which was eventually imposed, in my opinion, that was manifestly inadequate. The respondent, who is aged 28 years, has a long history of prior offences to which I have already referred. The circumstances of the two robberies now in question exhibited a number of features commonly found in the case of armed robberies. The target of the robbery in each instance was a financial institution, and a substantial sum of money was taken by putting innocent employees in fear. None of the money has been recovered. The motive offered by the defendant, that he needed money to feed an addiction to gambling, has never been regarded as a weighty mitigating circumstance, any more than, for example, an addiction to drugs.

True it is that there is a substantial difference in the penalties for armed robbery as opposed to robbery. The former attracts a maximum penalty of life imprisonment whereas the latter a maximum term of fourteen years imprisonment. But for the reasons which I have given, in my opinion, the circumstances of the two robberies now in question should be regarded as at the upper end of the scale of seriousness applicable to that offence.

In those circumstances, in my opinion, the head sentence of three years, being a single sentence imposed pursuant to s18A of the Criminal Law(Sentencing) Act 1988 was manifestly inadequate. So much so, that this Court should interfere.

If it were not for the imposition of the separate sentence in Victoria for the armed robbery committed there, I would increase the sentence for the robberies now in question to six years imprisonment with a non-parole period of five years. But for reasons which I now come to, the fact that the sentence in question was imposed soon after the sentence served in Victoria, and both sentences relate to similar offences committed over a short period, requires the court to have regard to the totality of the sentences.

The question was dealt with by the High Court in Mill.

In that case, in their joint judgment, Wilson, Deane, Dawson, Toohey and Gaudron JJ referred in turn to the decision of the Court of Criminal Appeal of New South Wales in Todd. In Todd, the appellant was sentenced in Queensland in December 1974 to imprisonment for eight years with a non-parole period of three years for offences of armed robbery committed in January 1974. In May 1979 he was sentenced in the District Court of New South Wales to imprisonment for ten years for armed robbery and concurrent sentences in respect of certain other offences. The New South Wales offences were committed in January 1974, that is, the same month as the Queensland offences. In Todd, Street CJ, with whose reasons the other members of the court agreed, said:

"... `it would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences ...'."

In Jenkyns, an unreported decision of the Court of Criminal Appeal of Queensland, the court applied the principle identified in Todd but limited its application to the fixation of a non-parole period rather than a fixation of the head sentence.

In Mill, after referring to both Todd and Jenkyns, Wilson, Deane, Dawson, Toohey and Gaudron JJ said:

"This, then, is the background against which the applicant's submission falls to be evaluated. In our opinion, the reasoning expounded in Todd is correct and reflects a just and principled approach to the problem of sentencing when an offender comes to be sentenced many years after the commission of an offence because during the intervening period he has been serving a sentence imposed in another State in respect of an offence of the same nature and committed at about the same time. But, with respect, we think that the exposition of principle in Todd has been misunderstood by the Court of Criminal Appeal in Jenkyns and in the present case. The principle is not confined in its operation to the fixing of a non-parole period. It applies also to the fixing of a head sentence which, when considered in association with the head sentence imposed by the first sentencing court, must be seen to be appropriate in all the circumstances. In the absence of statutory provisions enabling the new sentence to be backdated to a time when the offender was in custody serving the earlier sentence in the other State, it is not correct for the second sentencing court to determine the head sentence by reference to the normal tariff applicable to the offence for which he is then being sentenced, leaving the fixing of a non-parole period alone to reflect the principles laid down in Todd. The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raise considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence. The intervention of a State boundary denies to an offender the opportunity of having the series of offences dealt with together by a sentencing court which can avail itself of the flexibility in sentencing provided by concurrent sentences."

While the sentence for the South Australian robberies was not imposed "many years" after the sentence imposed in Victoria, in my opinion, those considerations nonetheless still apply. It follows that in the fixation of both the head sentence and the non-parole period for the two robberies now in question, regard must be had to the sentence imposed in Victoria for the armed robbery committed in that State a few weeks beforehand.

But the sentence imposed in the County Court of Melbourne on the armed robbery committed in that State seems to me to be a very moderate sentence, substantially below what would ordinarily be imposed in this State for an armed robbery offence against a financial institution involving such a substantial sum of money.

I have already indicated that, considered discretely, a sentence of six years imprisonment with a non-parole period of five years would be appropriate for the offence now in question. But after giving appropriate weight to the fact that the respondent was given a sentence in Victoria of 32 months imprisonment for the armed robbery committed there, I would impose a sentence for the offences committed here of five years imprisonment, with a non-parole period of four years.

The final question is as to the suspension of the sentence.

In my opinion, it was wholly inappropriate to suspend the sentence in this case. The offences were simply far too serious and the respondent's history of prior offending so extensive that it was not a case in which that course should have been followed.

But the respondent advances the argument that even if the decision to suspend the sentence was erroneous, as he has been at large for so long, a period of ten months (including the time spent during the Griffiths remand), it would be unfair to imprison him now.

In the circumstances of this case, that is a weighty argument.

I note in passing that Dr Balfour, the psychologist, in his report given in August 1996 stated that the respondent:

"... is realistic about the possibility of going to jail and believes that it is only a matter of how much time he will spend."

Of course, to recognise that to have been indicative of the respondent's state of mind at that stage does not operate to remove the unfairness said to arise if imprisonment was to be contemplated now, given the events which have occurred in the meantime.

But the fact that the defendant has been at large on a bond (or in this case, on a combination of a Griffiths remand and a bond) for a period of time is not to be regarded as determinative of the question whether or not it is necessarily unfair to impose a custodial sentence on appeal. The need to recognise and give due weight to the deterrent aspect of sentencing for offences of this kind looms large. The weight which can be given to personal circumstances, even circumstances arising by reason of a miscarriage of the sentencing process, diminishes in an inverse relationship with the seriousness of the offending and any other aggravating circumstances.

In this particular case, in my opinion, the perceived unfairness to the respondent in revoking the suspended sentence at this stage is outweighed by the countervailing factors.

I would give leave to appeal and allow the appeal. I would quash the sentence imposed by the learned sentencing Judge and the order that it be suspended.

I would substitute a sentence of imprisonment of five years with a non-parole period of four years, both to commence from the date upon which the respondent is taken into custody.

DEBELLE J

I agree with the reasons of Cox J and with the orders he proposes.