R v Foster

[2001] NSWCCA 215

Reported Decision: (2001) 33 MVR 565

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Foster [2001] NSWCCA 215
FILE NUMBER(S):	CCA 60044/01
HEARING DATE(S):	17/05/01
JUDGMENT DATE:	28 May 2001
PARTIES :	Regina v Michael Wayne Foster
JUDGMENT OF:	Giles JA at 1; Greg James J at 2; Badgery-Parker AJ at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/31/0256
LOWER COURT JUDICIAL OFFICER :	Bellear J

COUNSEL :	G E Smith (Crown) M A Marty (Applicant)
SOLICITORS:	S E O'Connor (Crown) Cole and Butler (Applicant)
CATCHWORDS:	Dangerous driving occasioning death- Jurisic guidelines- "momentary reckless error of judgment"- gradations of culpability- suspended sentence not excessively lenient - :Crown appeal- discretion-Crown's attitude below- departure on appeal. - :Suspended sentence- two step procedure- reasons for - failure to follow may but does not necessarily reveal error in sentence.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Home Dentention Act 1996
CASES CITED:	R v Jurisic (1998) 45 NSWLR 209 R v Boswell (1984) 3 All ER 353 R v Davies (2000) NSWCCA 84 R v Pyritz (NSWCCA, unreported, 23 November 1998) R v Khatter (2000) NSWCCA 32 R v Howland (1999) 104 A Crim R 273 Everette v The Queen (1994) 181 CLR 295 R v Wilson (1981) 28 SASR 362 R v Tait (1979) 24 ALR 473 R v Thompson and Houlton (2000) 49 NSWLR 383 R v Percic (1975) TasSR 62 Stevens v Giersch (1976) 14 SASR 81 R v SP (1997) 18 WAR 196 Dinsdale v R (2000) 175 ALR 315 R v Blackman and Walters (2001) NSWCCA 121 Elliot v Harris (1976) 13 SASR 516 R v P (1992) 64 A Crim R 381 R v Carter (1997) 91 A Crim R 222 R v Gillan (1991) 54 A Crim R 475
DECISION:	Crown appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL

GILES JA
GREG JAMES J
BADGERY-PARKER AJ

28 May 2001

REGINA v Michael W FOSTER (60044/01)

JUDGMENT

1   GILES JA: I agree with Badgery-Parker AJ.

2   GREG JAMES J: I agree with Badgery-Parker AJ.

3   BADGERY PARKER AJ: This was a Crown appeal in respect of the sentence imposed on the respondent upon his plea of guilty to a charge of dangerous driving occasioning death. At the conclusion of the hearing we made an order that the appeal be dismissed, with our reasons to be delivered at a later date. These are my reasons for joining in the order. His Honour Judge Bellear sentenced the respondent to imprisonment for a term of 22 months, commencing 10 November 2000 and expiring 9 September 2002 and ordered that that sentence be suspended for 22 months upon the respondent entering a bond to be of good behaviour for the like period. The respondent was disqualified from driving for that period also.

4 The charge was laid under s 52A(1)(c) of the Crimes Act 1900 which prescribes a maximum penalty of imprisonment for 10 years.

5   A person is guilty of such an offence if the vehicle driven by the person is involved in an impact occasioning the death of another person, and the driver was, at the time of the impact, driving the vehicle (as now relevant) in a manner dangerous to another person or persons. For the purpose of the sentencing proceeding at the Moree District Court on 12 October 2000, the facts were agreed to be as follows:

On Tuesday 27 July 1999 at 7 pm the prisoner and a friend left the township of Collarenebri in the prisoner’s Toyota Hilux Four Wheel Drive Tray Bodied vehicle, registered number VNV 835 and drove to Mungindi. On reaching Mungindi they made their way first to the prisoner’s residence and then to the Two Mile Hotel across the Barwon River in Queensland. Prior arrangements had been made for the prisoner to take his passenger to meet several of her friends in Mungindi.
The prisoner upon arriving at the hotel spent his time socialising before at 9.45 pm leaving to drive two of his friends back to New South Wales side of Mungindi. He then returned to the Two mile Hotel to pick up the deceased (Amanda Mary Filetti) and Jeremy Davies. The prisoner drove his vehicle from the hotel towards the Barwon River Crossing at about 100 kilometres per hour in what was a 100 kilometre per hour speed zone. The prisoner then entered the Mungindi township on the Queensland side of the border where there is a 60 kilometre per hour speed restriction. As the prisoner approached the Barwon River Bridge the deceased said “Slow down Mick”.
The prisoner continued to travel in an easterly direction on to and across the bridge crossing well to the right side of the bridge. The vehicle left the bridge proper and shortly after the front off side portion sideswiped the Armco railing. The vehicle then travelled 40 metres before travelling on to the loosely gravelled southern shoulder of the road. The vehicle slid outwards in the gravel and the prisoner attempted to regain control. The vehicle steered left and then harshly back to the right, during which time the vehicle regained the bitumen surface of the road. Upon being steered to the right the vehicle began to rotate in a clockwise direction and slid sideways in an easterly direction along George Street, Mungindi, before it “tripped” and flipped through the air overturning two and a half times.
During the overturning the windscreen “popped” from the vehicle, and the deceased ejected. The prisoner too was flung from the vehicle. None of the occupants were wearing seatbelts. The prisoner and Jeremy Davies then attempted to assist the deceased. Witnesses contacted local police who attempted CPR until the arrival of an ambulance. The deceased was taken to Mungindi hospital where at 11.15pm life was pronounced extinct by Dr Whittaker.
The prisoner suffered serious injuries consisting of a shattered compound fracture of the skull, a fracture of the fifth vertebra (neck), a badly lacerated right ear, and bodily lacerations and abrasions. He was hospitalised before discharging himself on 3 August 1999, so as to attend the funeral of the deceased.
A police expert crash investigator, Senior Constable Peter Joseph Ryan, attended the scene and after due examination of the scene the vehicle and all other evidence concluded that at the time the vehicle first commenced to skid on the bitumen surface of George Street it was travelling at a speed of “not less than 77 kilometres per hour”. By the time the vehicle commenced to overturn he calculated it had decelerated to a speed of 15 kilometres per hour. Senior Constable Ryan was unable to estimate the vehicle’s speed at the time it sideswiped the Armco railing, other than to say, “the estimated speed of 77 kilometres per hour recorded near the western alignment of Mogul Street would be a considerably lower figure than the Toyata’s initial speed when it lost control upon the Mungindi Bridge”.
Jeremy Davies gave police an estimate of the vehicle’s speed as it crossed the bridge at 70 to 80 kilometres per hour”.

6   Having recited those facts, the Judge proceeded to make a number of specific findings relevant to his assessment of the objective seriousness of the offence. These included the following:

(1) That although the respondent admitted to having had several alcoholic drinks in the course of the evening, alcohol played no part in the incident.

(2) The speedometer in the appellant’s vehicle was not working at the time, but the other evidence enabled the Judge to make a finding “that the speed of the vehicle upon impact with the bridge was considerably faster than the precautionary speed of 60km per hour clearly signposted as the speed to cross that bridge.”

(3) That the excessive speed was the major factor.

(4) The appellant had travelled this strip of roadway and crossed the bridge on many occasions, and was very much aware of the variations in speed zones.

(5) That when the passenger, Amanda Filleti said to the appellant as they approached the bridge, “slow down Mick” , the appellant took his foot off the accelerator, but he did not apply the brakes at that stage, indeed not until after the impact had occurred.

(6) The roadway was sealed and in good condition, with one lane in each direction; at the time of the impact it was dark and the weather was fine and dry.

(7) Nothing occurred proximate to the impact to distract the appellant from his driving, but for a brief time he was not paying sufficient attention to the task.

7   In Regina v Jurisic (1998) 45 NSWLR 209 the Court of Criminal Appeal delivered a guideline judgment in respect of sentencing for offences against s 52A of the Crimes Act. The Chief Justice observed (page 230-231):

“The nature of the offence is not such that the court can devise a simple table in which indicative penalties are linked to a quantitative measure of the offence. English guideline judgments have been of that character in appropriate circumstances: theft, by value of property (R v Clark [1998] Crim LR 227); possession of various quantities of a particular drug ( R v Wijis [1998] Crim LR 587; fraudulent evasion of tax, by amount evaded ( R v Dosanjh [1998] Crim LR 593: importation of particular drugs, by quantity ( Aramah v The Queen (1982) 4 Cr App R (S) 407). What can be done, however, in case of an offence covering a wide range of conduct which varies qualitatively rather than quantitatively, is to indicate in a general way the kind of case which would usually require a particular kind or level of sentence, whilst acknowledging that there will always be exceptional cases.
The list of mitigating and aggravating factors, conveniently collected by Lord Lane CJ in R v Boswell and quoted above, are reflected in the judgments of this Court to which I have made reference. The presence or absence of these factors and their degree- will determine the appropriate penalty. A survey of the authorities indicates that the following factors arise:
(i) Extent and nature of injuries inflicted.
(ii) Number of people put to risk.
(iii) Degree of speed.
(iv) Degree of intoxication or of substance abuse.
(v) Erratic driving.
(vi) Competitive driving or showing off.
(vii) Length of the journey during which others were exposed to risk.
(viii) Ignoring warnings .
(ix) Escaping police pursuit.


A number of these factors are reflected in the definition of “circumstances of aggravation” in s52A(7), for purposes of the two higher offences.
Paragraph (I) and para (ii) focus on the occurrence, whereas pars (iii)-(ix) refer to the conduct of the offender. The presence of these latter factors may indicate that the offender has abandoned responsibility for his or her own conduct. When the presence of such a factor can be so described, then it can be said to be present to a material degree for purposes of determining an appropriate sentence”.

8   The concept of abandonment of responsibility of the driver for his or her own conduct, introduced by the Chief Justice in that passage, was reflected in the guidelines which his Honour then promulgated, which distinguish cases of abandonment of responsibility on the one hand, from, on the other hand, cases “involving momentary inattention or misjudgment”. The guidelines which his Honour formulated were as follows:

“(1) A non-custodial sentence for an offence against s 52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgment.
(2) With a plea of guilty wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (a minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional.”

9   Having set out the guidelines in that form, the Chief Justice made this observation which is particularly apt to our consideration of the present matter.

“I realise that the formulation I propose - does the relevant aggravating factor manifest, in the circumstances of the case, that the offender has abandoned responsibility for his or her own conduct - introduces an element of judgment on which reasonable minds may differ. Nevertheless the formulation of the issue in such a way will serve the objective of consistency of sentencing with respect to conduct that the community has indicated plainly that it wishes to deter and condemn.

10   His Honour commented further that,

“The period of three or two years, once the threshold of abandoning responsibility has been reached, is a starting point. The presence of additional aggravating factors or their increased intensity, will determine the actual sentence.”

11   Judge Bellear summarised his view of the case in the following passage (which appears, unfortunately, to have been somewhat garbled in transcription of it)-

“On all the material and evidence before me, and as strongly urged by the learned Crown, I am satisfied that there was a momentary reckless error of judgment on the part of the prisoner, as a result of my finding, and that the driving collision occurred due to his speeding, for the very short length of roadway from the 80kms per hour zone to the precautionary 60km per hour zone on the bridge… I am unable to conclude that there was a momentary inattention as urged by Ms Marty, learned counsel for the prisoner, as I am satisfied that it is a case of misjudgment”.

12   Earlier on the same page of his remarks on sentence, having made a finding that after the impact the prisoner did everything he possibly could to assist the deceased, his Honour said, “there was no sense of abandonment of responsibility”. If that was intended to be a reference to the Jurisic guidelines, then it suggests an unfortunate confusion in his Honour’s mind as to the precise nature of the sentencing task which, in the light of Jurisic, he was required to perform. However, I would not read the passage in that sense. It seems to me clear that at that point in his remarks his Honour was not concerned with the distinction drawn in Jurisic between an abandonment of responsibility and a case of momentary inattention or misjudgment. His Honour had been looking at Jurisic and those words may well have lodged in his mind, and appealed to him as an apt characterisation of the conduct of the appellant after the accident. It would, in my view, be wrong and unfair to treat them in any other way.

13   His Honour did, however, express himself elsewhere in a manner which does not make entirely clear how he saw this case in terms of the Jurisic guidelines. It appears from the manner in which he expressed himself at page 7 that he was “urged” (the word his Honour twice uses) by counsel for the appellant to find that this was a case of momentary inattention, the purpose of that submission clearly being to place the matter squarely within the boundaries of the first guideline. His Honour appears to have rejected that submission, finding, “as strongly urged by the learned Crown”, that there was “a momentary reckless error of judgment on the part of the prisoner”.

14   The Jurisic first guideline includes a case of “momentary … misjudgment” but nowhere in the guidelines did the Chief Justice refer to “a momentarily reckless error of judgment” ( a phrase used by Lord Lane in R v Boswell [1984] 3 All ER 353). Judge Bellear did not make clear whether he regarded the matter as within the second guideline, rather than the first. He came in due course, to impose a suspended sentence, a term of imprisonment of 22 months commencing 10 November 2000 and expiring 9 September 2002.

15   This was a case where, as his Honour found, the element of dangerousness consisted in the speed at which the appellant drove, excessive in the circumstances where he was to cross the bridge in a zone with a precautionary speed of 60km p/h displayed, and, also his ignoring of the warning given by one of the passengers. His Honour did not make a finding that any of the aggravating factors relating to the conduct of the offender was present to such a degree as to indicate that the offender had abandoned responsibility for his driving conduct.

16   There has been some division of opinion among members of this court as to whether Jurisic requires that every case be classified as falling within one or the other of the guidelines. In R v Davies (2000) NSWCCA 84 Hulme J ( with whom Sheller JA agreed) said not (p19); Dowd J at p38, contra, cited R v Pyritz (NSWCCA, unreported, 23 November 1998) per Simpson J with whom Kirby J agreed. With respect, I am not sure that her Honour intended to convey quite the meaning that Dowd J took from her judgment. Certainly, in R v Khatter (2000) NSWCCA 32, Simpson J (at p8) expressed a view in line with that later stated by Hulme J in Davies. It appears to me that in the following passage, her Honour stated the position accurately and, with respect, clearly-

“Offences under s52(A) are not divided into those of momentary inattention and those of abandonment of responsibility. Those are the two extremes. There are shades and gradations of moral culpability in different instances of the offence and it is proper for the courts to recognise a continuum, rather than a dichotomy, when assessing moral culpability”.

As her Honour pointed out, that was the approach taken by the Chief Justice in Regina v Howland (1999)104 A.Crim.R 273. The Chief Justice’s comments in Howland at (p279-280) upon the Jurisic guideline made it clear that there may well be cases appropriately described as involving more than mere momentary inattention or misjudgment, which yet do not display dangerous driving which involves an aggravating factor such as could be described as abandoning responsibility for his own conduct. Where the conduct of the offender is too serious to permit the exceptional non-custodial sentence, but yet falls short of conduct which can be described as involving abandonment of responsibility , the sentencing court (and on appeal, this court) must look at all of the circumstances of the case to reach an assessment of the objective gravity of the offence, and, synthesising with that assessment the court’s judgment of the significance of the appropriate custodial sentence. That is what his Honour did here, and this court is not justified in interfering merely because its own assessment of the proper level of sentence might exceed that at which his Honour arrived. This court interferes only in the case of error and absent an error of principle, only if, it appears that the sentence imposed below was manifestly too lenient.

17   It was, in my view, clearly open to his Honour to conclude that the conduct of the appellant, serious though it was, did not amount to an abandonment of responsibility.

18 What his Honour appears to have done is to conclude that, although he characterised the conduct of the offender as a momentary reckless error of judgment, that conduct should be regarded as more serious than could be properly made the subject of a non-custodial sentence, as contemplated (in an exceptional case) by the first guideline, except by way of a non custodial sentence rendered such by the suspension of a sentence of imprisonment under s12 of the Crimes (Sentencing Procedure) Act.

19   At the same time, his findings of fact did not elevate the matter to the level of seriousness which would attract (in terms of the second guideline) “a custodial sentence (minimum plus additional or fixed term) of less than three years”. Such a sentence becomes a starting point only when, as the Chief Justice explained, “the threshold of abandoning responsibility has been reached”.

20   I am satisfied that his Honour’s determination of an appropriate custodial sentence for this appellant as being a sentence of imprisonment for two years, while towards the bottom of the available range, did not fall below that range so as to warrant this court’s interference.

21   The Crown submitted that his Honour had overlooked significant aggravating factors which ought to have led his Honour to conclude that the case involved an abandonment of responsibility. He referred to the extent and nature of the injuries inflicted and the number of people put at risk, but those, whilst significant features of the case, are not features “involving the conduct of the offender” as that phrase was used by the Chief Justice in Jurisic, the presence of which “to a material degree” is what may bring a matter squarely within the second guideline.

22   The Crown emphasised the degree of speed and the ignoring of the warning given by the passenger to slow down, but his Honour properly acknowledged those matters. The Crown also suggested that this was a case which involved erratic driving in that the appellant, not properly concentrating, did not brake but merely took his foot off the accelerator. It seems to be immaterial whether that be characterised as erratic driving or as simply ignoring the passenger’s warning, but whichever it is, it should be counted once only. The Crown also suggested that this was a case where the Judge overlooked the “length of the journey during which others were exposed to risk” because, although the period of time was short, it was a section of road which involved a number of changed traffic conditions. That submission ignores his Honour’s detailed examination of the facts. The Crown challenged the finding made by his Honour that alcohol played no part, but in fact there was no evidence before his Honour that the relatively small quantity of alcohol which the appellant had consumed was such as to have any significant effect upon his condition.

23   The Crown also put as aggravating factors: that the applicant continued to drive his van knowing that the speedometer was not working and had not been working for some months; his awareness that he was not able to concentrate; and the fact that he was not wearing a seat belt, and had failed to ensure that his passengers were wearing seat belts. There does not appear to be any suggestion in the evidence that the appellant was not aware of the speed at which he was travelling, so that the malfunctioning speedometer seems to be of no significance. Although he said, as his Honour noted, at the time of the impact “I just wasn’t thinking, I had too much on my mind…… “ and that he was not paying normal driving attention, that appears very much to be in the nature of a reconstruction or rationalisation, and affords no evidence that he was aware of an inability to concentrate at any moment prior to the impact. I would accept that his failure to ensure that his passengers were wearing seat belts might be regarded as an aggravating factor if the appellant was aware of it, but it is not clear to me that there was any evidence to that effect. Certainly the judge made no such finding.

24   One of the problems with the Crown submission is that it appears to represent a substantial departure before this court from the attitude adopted by the prosecutor in the District Court. His Honour said in his remarks on sentencing that he had been “strongly urged” by the Crown to find a “momentary reckless error of judgment” and there is nothing in the transcript to suggest that the Crown representative present when the sentencing judgment was delivered sought to challenge or correct that. It does not at all appear from his Honour’s remarks on sentence that the Crown had presented the matter to him as one which must be dealt with according to the second Jurisic guideline, as a case of abandonment of responsibility.

25   A Crown appeal to this court against a sentence imposed below involves discretionary considerations. One such area of discretionary judgment comes into play where it appears that the Crown in this court is urging a method of disposal of the case which was not submitted to the sentencing Judge. It is a problem which commonly arises where a non custodial sentence was imposed, and where it appears in this Court that that course was not opposed by the Crown in the court below. It has arisen from time to time where, without opposition from the Crown in the sentencing court, an order was made that a sentence of imprisonment be served by way of periodic detention, or by way of home detention, or where a sentence of imprisonment was suspended. In Everett v The Queen (1994) 181 CLR 295, McHugh J said at page 307:

“It is well established that, in the exercise of its discretion to grant leave to appeal against a sentence, a court of criminal appeal must take into account the attitude of the Crown in the sentencing court (22). Even when it appears that the sentencing judge has erred in a fundamental way that may affect the administration of justice, fairness to the sentenced person requires that the Crown’s concurrence with, or failure to object to , a proposed course of action by the sentencing judge must be weighed in the exercise of the discretion, This is particularly so when the convicted person has been given a non-custodial sentence. Private litigants who appeal against judgments and orders are not usually allowed to withdraw concessions made or concurrences expressed in the course of litigation. As a general rule, neither should the Crown be permitted to depart from a course of action that may have induced the sentencing judge to take the course that he or she did.”

In Everett (at p302) the High Court approved R v Wilson (1981) 28 SASR 362 where King CJ said at 367-368:

“ It is necessary to consider whether the prosecution should be allowed to raise on the appeal the contention that the sentence ought not to have been suspended when that contention was not put in the court below. The consequences of allowing the prosecution to do so are serious…. Generally speaking, if the submission is not made to the sentencing judge the prosecution should not be able to advance that contention successfully on an appeal by the attorney general”.

In R v Tait (1979) 24 ALR 473 at 476-477 a full bench of the Federal Court said:

“It would be unjust to a defendant to expose him to double jeopardy because of an error affecting his sentence, if the Crown’s presentation of the case either contributed to the error or led the defendant to refrain from dealing with some aspect of the case which might have rebutted the suggested error. The Crown has been said not to be concerned with sentence…, but when a statutory right of appeal is conferred upon the Crown, that proposition must be more precisely defined. It remains true that the Crown is required to make its submissions as to sentence fairly and in an even-handed manner, and that the Crown does not, as an adversary, press the sentencing court for a heavy sentence. The Crown has a duty to the court to assist it in the appropriate reference to any special principles of sentencing which might reasonably be thought to be relevant to the case in hand, and by a fair testing of the defendant’s case so far as it appears to require it. If the proposition that the Crown is not concerned with sentence was ever construed as absolving the Crown from this duty, it cannot be so construed when a Crown right of appeal against sentence is conferred. The Crown is under a duty to assist the court to avoid appealable error. The performance of that duty to the court ensures that the defendant knows the nature and extent of the case against him, and thus has a fair opportunity of meeting it. A failure by the Crown to discharge that duty may not only contribute to appealable error affecting the sentence, but may tend to deprive the defendant of a fair opportunity of meeting a case which might ultimately be made on appeal. It would be unjust to a defendant, whose freedom is in jeopardy for the second time, to consider on appeal a case make against him on a new basis- a basis which he might have successfully challenged had the case against him been fully presented before the sentencing court. As McClemens CJ at CL said in R v Jacombe delivering the judgment of the New South Wales of Criminal Appeal 19 December 1974 (unreported): “…we would not be seen to encourage any system which meant that cases were brought here under s5(D) of the Criminal Appeal Act on basis which were not argued before the judge below”.

26   In my view this court should not allow the Crown so far to depart from the way in which the case was argued below as to suggest now that this was a case in which his Honour was bound to apply the second Jurisic guideline. The matters argued by the Crown in support of the appeal remain, of course, relevant to an evaluation of the objective gravity of the offence; but, as I have indicated earlier, I am not persuaded that his Honour overlooked such of them as were supported by evidence. It is true that his Honour did not expressly refer to general deterrence, but it seems to me that his selection of a custodial sentencing suggests that his Honour did not overlook that consideration which after all plays a part in every sentencing.

27   His Honour reviewed at length the very significant subjective circumstances disclosed by the evidence before him. He noted that the appellant was an experienced and skilled driver with only one blemish on his record, an offence in 1988 of not wearing a seat belt . His Honour expressly set that aside as irrelevant and in my judgment he was entitled to do so. He noted that the appellant had no prior criminal history and he accepted that he was a person of good character. He took into account, as he was entitled to do, the fact that in consequence of the accident the appellant has lost a person who was very dear to him. He noted a relatively early plea of guilty and expressed himself satisfied that that plea, together with other evidence, demonstrated genuine remorse and contrition. His Honour applied Regina v Thompson and Houlton (2000) 49 NSWLR 383 and expressly allowed a discount in the order of fifteen percent in respect of all aspects of the plea of guilty. He noted the prisoner’s family and employment circumstances, all of which were extremely favourable. He expressed himself satisfied that the prisoner would not again commit an offence of a like nature.

28   In the light of all of those circumstances, in my view it cannot be said that a custodial sentence of two years was manifestly lenient. Such element of leniency as enters this case does so by virtue of his Honour’s decision to suspend the sentence.

29 Section 12 of the Crimes((Sentencing Procedure) 1999 provides as follows:

12 (1) A court that imposes a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an order:
(a) suspending execution of the sentence for such period (not exceeding the term of the sentence) as the court may specify in the order, and
(b) directing that the offender be released from custody on condition that the offender enters into a good behaviour bond for a term not exceeding the term of the sentence.
(2) An order under this section may not be made in relation to a sentence of imprisonment if the offender is subject to some other sentence of imprisonment that is not the subject of such an order.
(3) Subject to section 99(1), Part 4 does not apply to a sentence of imprisonment the subject of an order under this section except to the extent to which it deals with setting the term of the sentence.
(4) An order under this section may be made after a court has decided not to make a home detention order in relation to the sentence of imprisonment. In that case, any non-parole period set for the sentence ceases to have effect when the order under this section is made.


The section is located in Division 3 of Part 2 of the Act, entitled “Non-Custodial Alternatives” (ie, to full-time detention).

30 It is clear from the structure of the section that its operation depends upon the sentencing judge having first reached a conclusion that the case is one appropriate to be dealt with by way of full time imprisonment. If the case is such, the Judge is required to consider what term of imprisonment is appropriate in all of the circumstances. Once a Judge has decided that a term of imprisonment is appropriate the Act opens up various sentencing options. If the sentence imposed does not exceed three years, the Court may make a periodic detention order, directing that the sentence be served by way of periodic detention (section 6); if the appropriate term of imprisonment does not exceed 18 months, the Court may make a home detention order, directing that the sentence be served by way of home detention (section 7); and if the appropriate sentence to be imposed does not exceed two years, the Court may make an order under section 12 suspending execution of the sentence. The process clearly involves two stages.

31   That has long been recognised by Courts in other States - see for example Regina v Percic (1975) TasSR 62 at 73; Stevens v Giersch (1976) 14 SASR 81 at 82; Regina v GP (1997) 18WAR 196. In Dimsdale v The Queen (2000) 175 ALR 315, Kirby J said in a passage relating to analogous legislation in Western Australia but equally applicable to the New South Wales statute:

“The starting point … is the need to recognise that two distinct steps are involved. The first is the primary determination that a sentence of imprisonment and not some lesser sentence is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the Court. The two steps should not be elided. Unless the first is taken, the second does not arise.”

32 It is by no means clear from the sentencing judge’s remarks that he proceeded in that fashion. Having set out the agreed statement of facts and made the specific findings of fact about the circumstances of the accident to which I have referred earlier expressed , his conclusion that:“ there was a momentary reckless error of judgment on the part of the prisoner”, and reviewed the subjective matter which I have briefly summarised his Honour noted that in such circumstances as those which were before him “it is most unusual not to impose a custodial sentence”. He then proceeded to impose the sentence of imprisonment for 22 months commencing 10 November 2000 and expiring 9 September 2002, and immediately went on to say- “pursuant to s12 of the Crimes Sentencing Procedure Act I order the execution of the sentence by suspended for the term of the sentence” and he made appropriate consequential orders. At no stage did he in terms explain why he deemed it appropriate that the execution of the sentence which he imposed should be suspended and the transcript does not disclose whether in the course of Counsel’s submissions on penalty any reference was made to the possibility that the sentence might be suspended although one would assume that the submissions put on behalf of the appellant, whether or not referring particularly to s12, were directed to the proposition that a custodial sentence should not be imposed.

33   It does not, I think, follow that every failure to advert to the two stage procedure requires a conclusion that this court must set the sentence aside and proceed to re-sentence. Failure to adopt the two stage procedure may be productive of error, and because it entails that risk, sentencing judges should be at pains, to proceed in the manner which the statute requires, and will derive much assistance from the observations of Sully J in Jurisic as to the proper procedural approach in relation to the provisions of the Home Detention Act 1996 (now subsumed in s7 of the Crimes (Sentencing Procedure) Act 1999 to which I have earlier referred).

34   In Regina v Blackman and Walters (2001) NSWCCA 121 the situation was similar in that the Judge did not expressly go through a two step process. Wood CJ at CL said,

“It was submitted that, had he done so, he would have reached a conclusion in the first step that sentences in excess of two years were warranted. Upon such a finding, their suspension would not have been possible, since s12(1) of the Crimes ( Sentencing Procedure) Act 1999 only permits suspension where the sentence is for a term of not more than two years. So it was submitted error had been shown.

“The vice to which the observations in Dinsdale were directed appears to me to be that which can arise where in, a state of uncertainty as to the proper sentencing order, a judge selects a suspended sentence as a ‘soft option’.

This submission does, however, need to be considered in the light of section 5(1) of the Act which provides:

“A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives that no penalty other than imprisonment is involved.
“I am not persuaded that his Honour as a very experienced trial judge was unaware of the requirements of the law in determining an appropriate sentence, or that being in doubt, he looked for a soft option and then chose the maximum sentence for which suspension was permissible. Had that been his approach then error would have been demonstrated.”

35   Where, as here, it appears that the judge has not proceeded in the appropriate fashion but, as Kirby J expressed it, “elided” the two steps, it is appropriate that this court consider carefully the findings which the judge did make about relevant circumstances, in order to determine whether the sentence is erroneous, because the judge has failed to take account of all relevant matters, or has taken irrelevant matters into consideration, an error which would more readily be revealed had the strict two-step procedure been followed. The judgment of Kirby J in Dinsdale (supra) helpfully reviews the considerations relevant to a decision to suspend a term of imprisonment. His Honour remarked upon a difference of opinion, not only but particularly in Western Australia, as to whether the primary purpose of a suspended sentence was as an aid to rehabilitation, other considerations being irrelevant or of little significance. Kirby J said at p336:

“In my view, to limit the exercise of the discretion to suspend a sentence of imprisonment by reference wholly, mainly or specially, to the effect which suspension would have on rehabilitation of the offender would constitute an error. There is nothing in the grant of the power, as expressed in the applicable legislation, to justify confining its availability in such a way. Had the legislature intended to limit the discretion to suspend by reference to such a consideration, it could have done so…
“…the scheme of the legislation, and the two steps which s 76(1) and (2) of the Act requires, suggest, as a matter of construction, that the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term. This means that it is necessary to think again about all the matters relevant to the circumstances of the offence as well as those personal to the offender. It would be surprising if the legislation were to warrant, at the second step, concentration of attention only on matters relevant to the offender, such as issues of the offender’s rehabilitation and the court’s mercy. On the contrary, the structure and language of s 76(2) of the Act support the view that what is required by a proposal that a term of imprisonment should be suspended is reconsideration of “all the circumstances”. This necessitates the attribution of “double weight” to all of the factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment.
Adopting this approach, then, permits attention to be given not only to the circumstances personal to the offender but also to the objective features of the offence. These may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. They may require that the prison sentence be immediately served, despite mitigating personal considerations. This approach is consonant with the recognition in jurisdictions other than Western Australia of the “complete discretion” which, subject to the statute, the primary judge has in suspending a sentence of imprisonment. In other States, it has been considered undesirable to attempt to circumscribe the language of the statute by reference to supposed formulae, particular considerations or any other gloss”.

36   Obviously, the imposition of a sentence of imprisonment which is then suspended for the whole of its term is a significantly more lenient sentencing order than the imposition of the like sentence not so suspended. Nevertheless, Australian courts have rejected the idea that a suspended sentence is really no punishment at all. In Elliot v Harris (1976) 13 SASR 516 at 527, Bray CJ commented upon that view -

“ It reveals an entirely mistaken and wrong headed approach to the question of suspended sentences. So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such as sentence involved on the defendant’s record and his future, and it is one which can be called dramatically into effect on the slightest breach of the terms of the bond during it currency”.

Those remarks were cited with approval by a full bench of the Federal Court in Regina v P (1992) 64 A.Crim. R 381; by Winneke P in Regina v Carter (1997) 91 A.Crim.R 222 at 229; and again by a full bench of the Federal Court in Regina v Gillan (1991) 54 A.Crim.R 475 at 480.

37   A reconsideration by the sentencing judge of all of the matters which he took into account in determining the length of the term of the imprisonment, undertaken for the purposes of determining whether the sentence should be suspended, as Kirby J indicated should have occurred, could justifiably lead his Honour to a conclusion that it was proper to suspend the sentence as in fact he did. Indeed, were I considering the matter for myself I would have come to the like conclusion.

38   The necessary deterrent effect of the sentence is conveyed by the duration of the term imposed, which is not of itself unduly lenient but gives appropriate weight to the subjective circumstances as well as to the objective gravity of the crime. The same considerations, but added thereto particularly the offender’s prior good record, the conclusion that his Honour justifiably came to that the defendant was not likely to commit a similar crime in the future, the desirability in the public interest as well as in the interest of the offender himself that his re-establishment in the very satisfactory life style which he had pursued up to the date of the accident should be facilitated (rather than that he be taken out of that satisfactory lifestyle to serve a term of imprisonment) justify the conclusion that it was entirely proper that the sentence of imprisonment imposed be suspended.

39   Other than the procedural failure to which reference has already been made, I am of the opinion that the material before us discloses no error on the part of the sentencing judge, either in determining the level of sentence to be imposed or in coming to the conclusion that it was proper to suspend that sentence.