R v Matthews

[2007] NSWCCA 294

New South Wales
Court of Criminal Appeal

CITATION:	R v Matthews [2007] NSWCCA 294 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	18 September 2007
JUDGMENT DATE:	18 October 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Barr J at 2; Bergin J at 3
DECISION:	The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW - Crown appeal on sentencing - Whether sentence manifestly inadequate - Periodic detention - Whether Court should intervene
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912
CASES CITED:	Mirza v R [2007] NSWCCA 248 Mulato v R [2006] NSWCCA 282 Pearce v The Queen (1994) 194 CLR 610 R v Barker; R v Gibson [2006] NSWCCA 20 R v Dang [2005] NSWCCA 430 R v Fernando [2002] NSWCCA 28 R v Henry (1999) 46 NSWLR 346 R v Hernando (2002) 136 A Crim R 451 R v Way (2004) 60 NSWLR 168
PARTIES:	Regina - appellant Michael James Matthews - respondent
FILE NUMBER(S):	CCA 2007/3284
COUNSEL:	N Adams - appellant P Strickland SC - respondent
SOLICITORS:	S Kavanagh, solicitor for DPP - appellant C Ridge, solicitor for Legal Aid Commission of NSW - respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/0334
LOWER COURT JUDICIAL OFFICER:	Flannery DCJ
LOWER COURT DATE OF DECISION:	8 June 2007

- 1 -

2007/3284

McCLELLAN CJ at CL
BARR J
BERGIN J

18 OCTOBER 2007

REGINA v MICHAEL JAMES MATTHEWS

Judgment

1 McCLELLAN CJ at CL: I agree with Bergin J.

2 BARR J: I agree with Bergin J.

3 BERGIN J: This is an appeal brought by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against a sentence imposed by her Honour Judge Flannery SC in the District Court of New South Wales on 8 June 2007 on the respondent, Michael James Matthews, in respect of a plea of guilty to one count of aggravated robbery (with corporal violence) contrary to s 95(1) of the Crimes Act 1900 and one count of aggravated assault with intent to take and drive a conveyance (in company) contrary to s 154C(2) of the Crimes Act 1900.

4 The maximum penalty for an offence contrary to s 95(1) of the Crimes Act 1900 is 20 years imprisonment. The maximum penalty for an offence contrary to s 154C(2) of the Crimes Act 1900 is 14 years with a standard non-parole period of 5 years.

5 In respect of the aggravated robbery offence (s 95(1)) her Honour sentenced the respondent to imprisonment for 21 ½ months consisting of a non-parole period of 12 months to commence on 15 June 2007 with the balance of the term to expire on 30 March 2009 to be served by way of periodic detention. In respect of the aggravated assault offence (s 154C(2)) her Honour sentenced the respondent to imprisonment for 27 ½ months consisting of a non-parole period of 12 months to commence on 15 June 2007 with the balance of the term to expire on 30 September 2009 to be served by way of periodic detention. Her Honour ordered the sentences to be served concurrently so that the respondent is to serve two concurrent non-parole periods of 12 months by way of periodic detention with the total balance of the term of 15 ½ months.

The facts

6 The offences occurred at about 1:30am on 16 April 2006 after the respondent had been drinking at a hotel in Dulwich Hill. The respondent and another male got into a taxi with the respondent sitting directly behind the taxi driver with the other person next to him. The respondent gave the taxi driver directions to Terrace Road and when the respondent asked the taxi driver to stop he asked for the fare. The respondent then leant forward and put his arms around the driver’s neck and held onto his throat saying “where’s the money? Give me the money, give me the money”. The driver said “take it easy, take it easy” and removed all the money he had in his top pocket (between $170-$200 in various denominations) and gave it to the respondent. The respondent then said, “give me more money, more money.” At this stage the respondent still had his arms around the driver’s throat who said, “It’s all I got. I didn’t do anything wrong with you, take it easy”.

7 The respondent then told the driver to get out of the taxi, pushing him out the door and climbed over the driver’s seat. He then drove off in the taxi and the driver called the police. At 5:20am the respondent was stopped for a random breath test, testing positive and was later issued with a Field Court Attendance Notice for traffic matters and released. At 2:15pm that day the respondent was arrested at his home in relation to the subject offences and took part in an electronically recorded interview with the police. The police located the taxi the following day in a damaged state.

Previous offences

8 On 8 February 2006 the respondent was sentenced in respect of an offence of common assault. He was given a good behaviour bond for a period of 18 months with supervision. He was on this bond when he committed the subject offences. The respondent completed an anger management program on 4 July 2006, but apparently failed to respond appropriately to further supervision.

9 On 11 July 2006 the respondent was sentenced for driving whilst disqualified and having a midrange prescribed concentration of alcohol (PCA). In respect of these offences he received two community service orders but failed to comply with them or maintain contact with the supervision service in respect of his good behaviour bond.

Proceedings on sentence

10 When the subject offences were listed in Court on 12 September 2006, the respondent failed to appear. He was arrested on 29 March 2007 and was in custody until released to commence his periodic detention. He pleaded guilty to the subject offences on 19 April 2007. The Pre-Sentence Report of Ms Ellen dated 30 May 2007 referred to the fact that the respondent was born in New Zealand on 28 January 1983 and was 23 years of age at the time of these offences. It included the following:

One of six children, the offender described a ‘tough’ childhood. He explained that he received harsh physical treatment at the hands of his mother and father, who reportedly, consumed alcohol to excess. His father died suddenly when the offender was 13 years of age and subsequently, he said, family life became even ‘tougher’. He has maintained a close relationship with his siblings, who have remained supportive of him. He said that his relationship with his mother has improved.

Contact with the offender’s sister and his partner revealed that the offender has unresolved grief and loss issues associated with his father’s death, and he would benefit from counselling in this area.

Born in New Zealand, the offender came to Australia in 2004. He has been in a relationship for nine months. His partner is pregnant with his child. When released from custody Mr Matthews intends to reside with his partner. When contacted by this Officer, the offender’s partner stated that she remains supportive of him; however, will not tolerate his past behaviour of abusing alcohol. They have discussed this issue and the offender has agreed to abstain from alcohol.

11 The respondent claimed to have been a daily cannabis smoker from the age of 13 to 21 and to have been a binge drinker since he was a teenager. He claimed to have gambled regularly on poker machines and that this “addiction” went hand-in-hand with his excessive drinking.

12 The respondent’s uncle, Matthew Tohavaka, provided a reference to the sentencing judge in which he sought to reassure the Court that he would take a closer role in the respondent’s life “as a positive male role model” and to regulate the respondent’s alcohol consumption. That reference referred to the respondent’s father’s death in a road accident, and his siblings’ “uphill struggle to find a positive male role model”.

13 The respondent gave evidence before the sentencing Judge in which he confirmed the matters referred to in the Pre-Sentence Report. He explained that the reason he stopped attending supervision was that he “pretty much had nothing” and he just buried his head in the sand. It was about September 2006 that he moved to Western Sydney and started living with his uncle and met his partner, Sarah Irene Ramsay. He said at this stage his life improved and he started to “settle down”. He started working and had “everything to live for” and had “goals” in his life again. He said he was “disappointed” by the prospect of going to gaol but that he wanted to learn from it, carry on with his life and be a better person. He was working whilst in gaol sewing curtains and pyjamas and various other items, a job that he got the day after he arrived at the Centre. He was also doing a computer course.

14 The respondent had lied to the police in his record of interview in which he denied having committed the offences and claimed that the taxi driver had asked him to drive him around the city in exchange for money and drugs. In his evidence before her Honour he said that that the reason he lied in his Record of Interview was because he was intimidated; that he was not in his right frame of mind and that he was still intoxicated. He said that he was “really sorry” that he lied but that he was really scared and could not believe that he had “just done what I’d just done”. He said that the reason he committed the offences was that he was “just stupid” and “just drunk” and that he was “just depressed”; he had lost his job and had nowhere to live. He recognised that it must have been “pretty scary” for the taxi driver and that if he was in Court that day he just wanted to let him know that he was sorry.

15 In cross-examination the respondent accepted that he had “some big problems” and that he wanted to help himself. He was asked what promise he would make to the Court and he said:

The promise that I make to this court is – when I get out I just want to start again, resolve all the issues that I have with the help that I’m going to get, to help myself be a better person and a role model to my newborn child that I’ll have. Yeah, I just want to get my life back together and get back on track.

16 The respondent accepted that he had committed “very, very serious” offences and that he also understood that the combined maximum penalty for these offences was 34 years. He claimed that being in gaol for two months had made him want to change.

Remarks on sentence

17 The sentencing judge set out the maximum penalty for each of the offences and referred to the Crown’s concession that the pleas of guilty were “early”. Her Honour said (ROS 1-2):

I propose to reduce the sentence I would have imposed by twenty-five per cent to reflect the utilitarian value of those pleas. I also intend to reflect the offender’s remorse, which I find to be present, in the sentences I impose.

18 After setting out the facts her Honour referred to the standard non-parole period of five years in relation to the aggravated assault charge (ROS 4) and said (ROS 4-5):

Here, the offender has argued that as the facts of the case do not fall within the middle of the range of objective seriousness and as there has been a plea of guilty, the standard non-parole period does not apply. I agree that the facts of the matter do not fall into the mid range of objective seriousness, rather, they are more towards the bottom of the range of objective seriousness for the following reasons.

I find that the offence was not planned, there was nothing that the offender or his colleague did that was over and above the conduct involved in the commission of the offence. There were no threats, there was a minimum degree of violence. The taxi driver said in his statement that he was not hurt or injured in anyway, but he was scared. The period over which the vehicle was used was for at least a number of hours but not days. The damage to the vehicle, it is submitted and I accept, was not extensive. The area where the offence took place was not an isolated area but the offence did take place at night. There is no doubt the taxi driver is in a class of vulnerable people. Given the condition of the offender, that is that shortly after the commission of the offence, he had a blood alcohol concentration of .141 and the evidence he gave about his desperate frame of mind, I accept that he was not as culpable as he might have been in different circumstances. And so, for those reasons, I find that the offence is more towards the bottom of the range of objective seriousness. In those circumstances, the standard non-parole period does not apply but it remains of relevance as a reference point benchmark sounding board, or guidepost.

19 Her Honour referred to the aggravating features in respect of both charges being that the respondent was in company; that he was on a good behaviour bond at the time, and that the taxi driver was vulnerable. Her Honour held that the respondent’s criminal history did not aggravate the objective seriousness of the offences but disentitled the respondent from “much leniency” (ROS 5).

20 Her Honour took a number of mitigating features into account: that the injury, emotional harm, loss or damage caused by the offences were not substantial; the offences were not part of planned or organised criminal activity; the respondent did not have any record or significant record of previous convictions; and that the respondent was unlikely to re-offend and had good prospects of rehabilitation if he dealt with his alcohol problem and underlying grief issues (ROS 6).

21 Her Honour said that having heard from the respondent in evidence she accepted that he wanted to get his life back together and help himself; that he realised he had big problems for which he was determined to get help; and that he had enormous support from his family (ROS 6). After referring to the respondent’s personal background and social factors, his good behaviour since being incarcerated and to the contents of the Pre Sentence Report and the respondent’s work history her Honour said (ROS 10):

There is no doubt that a period of imprisonment is required and, in my view, in relation to the aggravated assault with intent to take and drive conveyance, that period is one of two and a half years. In relation to the aggravated robbery offence, a necessary term of imprisonment is two years. Those periods need to be reduced to accommodate the offender’s pre-sentence custody. That translates in relation to the first matter to an approximate sentence of twenty-seven and a half months; in relation to the second, twenty-one and a half months. I am prepared to order that those sentences be served by way of periodic detention. As the offences were committed at the same time, I propose that each of them be served concurrently.

22 Her Honour said that she was satisfied of the matters mentioned in s 66(1) and s 66(2) of the Crimes (Sentencing Procedure) Act 1999 and imposed the sentences referred to above. The respondent was ordered to report to the Metropolitan Periodic Detention Centre on 16 June 2007 at 8:30am to commence serving his sentence.

Grounds of appeal

23 The appellant claims that the sentences imposed were manifestly inadequate and failed to reflect the respondent’s objective criminality.

24 The appellant made a number of complaints in relation to the way in which her Honour approached the sentencing process some of which overlap, and which are claimed to be indicia of a failure by her Honour in sentencing the respondent in respect of the aggravated assault contrary to s 154C(2) of the Crimes Act 1900, to have regard to the prescribed standard non-parole period as a reference point or a guidepost.

25 It was submitted that her Honour fell into error in finding that the offence was towards the bottom end of the range of objective seriousness (ROS 4-5). In R v Barker; R v Gibson [2006] NSWCCA 20 Howie J, with whom Basten JA and Hall J agreed, referred non-exhaustively to factors relevant for consideration in the assessment of objective seriousness of an offence as follows:

63 It seems to me that for an aggravated offence involving the offender being in company the following factors may be relevant to an assessment of the objective seriousness of the offence: whether the offence was planned; the number of persons involved in committing the offence and their conduct; the type of threats made; the degree of violence displayed; the number of persons in the vehicle at the time of the offence; the degree of fear instilled in the victim; the period over which the vehicle is used; damage to the vehicle (if not giving rise to a separate charge); the place and time the offence is committed (for example whether at night or in an isolated area); the special vulnerability of the victim; and the motive for the commission of the offence. The list is not intended to be exhaustive. Although counsel referred to the value of the vehicle, I doubt that is a relevant consideration where there is no intention to permanently deprive the owner of the vehicle.

26 Although her Honour did not expressly refer to this passage in Barker & Gibson, it is accepted that in sentencing the respondent her Honour had regard to these factors (ROS 4-5). The appellant submitted that although her Honour concluded that the taxi driver was vulnerable such finding was not reflected in her Honour’s conclusion that the offence was towards the bottom of the range of objective seriousness. It was submitted that this feature aggravated the offence so that it would be in the mid-range of objective seriousness.

27 The vulnerability of taxi drivers is a significant concern not only for taxi drivers and their families, but also for the general community. They provide what has become an essential service to the public and their protection from the consequences of criminal behaviour is a significant factor to be considered in the sentencing process particularly with a view to deterrence from and denunciation of such behaviour: s 3A Crimes (Sentencing Procedure) Act 1999. However the fact of vulnerability, simpliciter, does not mean that any offence involving a taxi driver is to be categorised in the middle of the range of objective seriousness. It will depend on all the circumstances of the case.

28 I do not agree that the factor of vulnerability alone would convert the classification of the objective seriousness of this offence to the middle of the range of objective seriousness. However when it is combined with the fact that the taxi driver was grabbed from behind around the neck and his throat was held whilst demands were made for money with the co-offender also leaning forward, there is more force to the submission. However, the appellant must establish that her Honour’s finding that the offence was “towards the bottom of the range of objective seriousness” was not open in all the circumstances of the case: R v Dang [2005] NSWCCA 430 at [22]; Mulato v R [2006] NSWCCA 282 at [37]; Mirza v R [2007] NSWCCA 248 at [16].

29 This taxi did not have a protective barrier between the driver and passengers. The photographic evidence before the sentencing judge recorded the times at which the photographs were taken. The time frame between when the respondent put his arms around the driver’s neck and when he pushed the driver out of the vehicle and took his place in the driver’s seat is between “01:16:50” and “01:18 54”. Taking into account the time needed to move into the driver’s seat, it is apparent that the respondent had his arms around the driver’s neck for a period slightly less than two minutes. No doubt, two minutes or even one minute, during which the driver was restrained from behind with the respondent’s apparently strong arms around his throat might have seemed interminable, particularly when there was another person present leaning forward with his arms around the front passenger seat. However the question to be answered is whether in all the circumstances her Honour’s conclusion was not open.

30 Section 54A(2) fixes the standard non-parole period for an offence listed in the Table in the middle of the range for objective seriousness. It is 5 years for such an offence under s 154(C)(2). The objective seriousness of an offence is to be ascertained by looking at the actual events that occurred during and surrounding the commission of the offence: R v Way (2004) 60 NSWLR 168

31 If a sentencing judge concludes, as her Honour did in this case, that the offence is less than the middle of the range of objective seriousness, with the consequence that the standard non-parole period does not apply, the sentencing judge is still required to take into account the fact that the offender was on conditional liberty when the offence was committed for the purpose of assessing the appropriate non-parole period to be imposed.

32 Her Honour did not take into account the fact that the respondent was on conditional liberty at the time he committed the offence for the purposes of ascertaining the objective seriousness of the offence. That approach is endorsed in R v Way. Her Honour considered the relevant factors referred to above (ROS 4-5) in reaching her conclusion that the objective seriousness of the offence was towards the bottom of the range of seriousness. It is a less serious offence than one involving restraining the driver for a longer period of time; or one involving threats of serious injury or one involving the infliction of injury. In using the language, "towards" the bottom of the range, her Honour conveyed that it was a serious offence but that it was below the "middle of the range" of objective seriousness. I am satisfied that such a finding in the circumstances outlined by her Honour was open to her.

33 Committing offences whilst on conditional liberty is a very serious matter. In R v Fernando [2002] NSWCCA 28 Spigelman CJ said at [41] – [42]:

[41] This position was reiterated in this Court in R v Readman (1990) 47 A CrimR 181 at 184, per Maxwell J, with whom Gleeson CJ and Samuels JA agreed, when his Honour said:
“This Court has repeatedly stated that the commission of an offence by an offender who is in the community on conditional liberty, whether that be on bail, on a recognisance, or on a parole, will be considered as a matter that aggravates the offence”.
(see also R v Jerrard (1991) 56 A Crim R 297 at 380-1)
[42] The policy behind this approach of the courts is, in part, stated by Lee J, with whom Gleeson CJ and Abadee J agreed in R v Vranic (NSWCCA, 7 May 1991, unreported) when his Honour said at p4:

“The commission of offences on parole demonstrates that the expectation of rehabilitation of the prisoner has not been realised and that through his own conduct the substantial mechanism designed for rehabilitation, i.e. parole has failed to achieve its purpose. The Court in such circumstances cannot proceed on the same expectation of rehabilitation that is open in other circumstances.”

34 It is obvious that her Honour was impressed by the respondent when he gave evidence. It is also obvious that she accepted, it appears unreservedly, his desire to make himself into a better person. The respondent had been given the leniency of being placed on a good behaviour bond but two months before the commission of this offence. Although her Honour referred to the fact that it was an aggravating circumstance nothing further was said about it in her Remarks on Sentence. I am satisfied that her Honour gave undue weight to the subjective features of the respondent which caused her to give less than appropriate weight to the very serious aggravating fact that the respondent was on a good behaviour bond at the time of the commission of the offence. I am satisfied that, although her Honour referred to the standard non-parole period as being of relevance as a guidepost, her Honour's over weighting of the respondent's subjective features and the fact that the sentence was 1/5 of the “guidepost” standard non-parole period demonstrates that her Honour failed to have appropriate regard to the standard non-parole period for this offence.

35 Although her Honour held that the respondent's criminal history disentitled him from "much leniency", the sentence imposed did not reflect such finding. A 12 month non-parole period in the circumstances of this case was lenient. To order that the non-parole periods for each offence be served concurrently was leniency upon leniency. To then allow the respondent to serve the concurrent non-parole periods by way of periodic detention was totally inconsistent with her Honour’s finding that he was not entitled to "much leniency". This demonstrates not only that her Honour failed to appropriately apply the principles in Pearce v The Queen (1994) 194 CLR 610, but also that there was a failure to have proper regard to the “signpost” standard non-parole period.

36 This was an assault with corporal violence of a vulnerable person at 1:30 am in company whilst on conditional liberty. The leniency upon leniency, upon leniency, resulted in a sentence that was manifestly inadequate.

37 The appellant submitted that in sentencing the respondent for the aggravated robbery offence contrary to s 95(1) of the Crimes Act 1900 her Honour failed to have regard to the guidance in respect of such sentencing process in R v Henry (1999) 46 NSWLR 346. The appellants submitted that although her Honour’s attention was drawn to the guideline judgment in Henry no reference was made to it in the Remarks on Sentence. This was a guideline for armed robberies and although there are some features present in this case that may be found in that case, her Honour was not obliged to apply Henry. This was recognized at the sentencing proceedings by the appellant's advocate who submitted merely that it may be of some assistance. I am not satisfied that her Honour fell into error in failing to “apply” Henry.

Discretion

38 The appellant submitted that the Court should intervene to re-sentence the respondent by reason of the manifest inadequacy of the sentences. The respondent submitted that even if this Court is of the view that the sentences are manifestly inadequate it should exercise its discretion to dismiss the appeal. In this regard the respondent relied upon the evidence in this Court from the respondent, Ms Ramsay and the references from his employer and his uncle.

39 The respondent relied on his affidavit sworn on 12 September 2007 in which he said that he attended for counselling on four occasions and had been fitting the counselling around his work. He claims that the counselling has been helping him to sort out a number of issues and he wants to continue with it. He claims not to have had any alcohol since being arrested on 29 March 2007 and that he also gave up cigarettes on that day. He claims to have only gambled once ($5.00) since he was sentenced and that his girlfriend was present. The respondent claims to have changed his routine in that he is not generally going to places where he might drink or gamble and that he is doing more things socially with his girlfriend including sporting activities. He said that he might have a drink on a special occasion such as Christmas but that he did not intend ever “to go out and get drunk and behave badly again”. The respondent claims that his relationship with his girlfriend, Sarah Irene Ramsay, is good and that they are living with a family friend who has two children and that this is “working well”.

40 The respondent has been working since June this year and in August he started a new job with a company, PMA Solutions, as a forklift driver. He claimed to have been advised that his work is good and that he believes he will be offered permanent employment. The employer knows that he goes to periodic detention on Fridays and allows him to leave on time to attend. He said that he has missed one weekend and is awaiting the outcome of his application for leave of absence. The respondent and Ms Ramsay are saving money with an aim to getting their own place and to that end they have started buying furniture and other things. Unfortunately Ms Ramsay suffered a miscarriage in July and at the moment is looking for work other than in the childcare centre at which she was previously employed.

41 The respondent apologised for his offences and claimed that he is determined to improve himself, to get his life back on track and to be a better person.

42 There is also evidence by way of reference from the respondent’s employer in which Martin Carcamo, Team Leader, claims that the respondent is a valued employee, a punctual worker with good work ethics and an essential part of the warehouse team. That reference also refers to the respondent’s ability to work autonomously, with commitment and dedication and that he interacts well with other employees. The drug and alcohol counsellor has also provided an attendance report for the four sessions of counselling to which the respondent referred in his affidavit.

43 The respondent’s uncle Mr Tohavoka also provided a reference in which he referred to his fortnightly meetings with the respondent to “make sure he is doing the right thing and staying out of trouble”. Mr Tohavoka claims that he felt the respondent was making positive steps to be a law abiding and contributing member of society and that he has noticed a dramatic and positive improvement in the respondent’s attitude.

44 Ms Ramsay gave evidence by way of affidavit sworn 12 September 2007 in which she confirmed that the respondent is now socialising in a different way, going to films, going out to dinner and taking part in sporting activities. Ms Ramsay referred to her discussions with the respondent about finishing his trade, carpentry. Ms Ramsay said that she sees his future with the respondent and that rather than turning to alcohol when he is troubled, they are now talking more and communicating better. Ms Ramsay claimed that the respondent now had more direction in his life and that together they were “trying to focus on he good points”. She claimed “It is like stepping stones. Like any relationship it takes two and we are trying to work on our problems together”.

45 The respondent also referred to the fact that he had served 2.5 months of full-time custody and part of his periodic detention. Emphasis was placed upon his young age, now 24 years, and his responsible plans for his future including attending counselling, working hard and taking positive steps to reform his life.

46 The matters raised by the respondent's counsel are very powerful matters in respect of the exercise of this court’s discretion. The following observations made in R v Hernando (2002) 136 A Crim R 451 at 459-460 by Heydon JA, with whom Levine and Carruthers JJ agreed, were relied upon by the respondent:

Sentences which are so lenient that on their face they reveal appellable error are not only intrinsically undesirable, but carry the further disadvantage of having a cruel impact on the respondents who are beneficiaries of a legally flawed generosity. … Even where particular appellate courts decide against a further term of imprisonment, the impact on the respondents of the uncertainty in the period between when the Crown gives notice of its desire to appeal and the time when the appeal is decided must be agonising. Those respondents may deserve greater punishment than they received at the sentencing stage, but not that type of punishment. In the context of civil cases Lord Griffith famously spoke of the "strain" imposed on personal litigants, the "anxieties" occasioned by facing new issues, and "the raising of false hopes”: Ketterman v Hansel Properties Ltd [1987] AC 189 at 220. These factors obviously press down even more heavily on accused persons facing Crown appeals occasioned by erroneous sentencing.

47 In this case the respondent was sentenced on 8 June 2007. Notice was given of the desire to appeal on 13 June 2007. The respondent gave affidavit evidence that when he received the notice he was "pretty scared and shaken up" because he thought his court case was over on 8 June 2007. The appeal was heard on 18 September 2007. It is accepted that the respondent has been subjected to anxiety and strain by reason of the "legally flawed generosity" provided to him by the sentencing judge.

48 I accept the evidence of the respondent that he has started to turn his life around. That is a significant step to have taken, particularly at this age, and it is obvious that it has only been possible with the assistance of his girlfriend, Ms Ramsay and his uncle. I also accept that the two and a half months that he spent in goal was indeed a salutary lesson to him and assisted him to reach the conclusion that his lifestyle had to change. The evidence from his employer is also powerful but it is of concern that he has missed one weekend of the periodic detention. That should not have happened and there should have been a better explanation given in his affidavit as to why it occurred. However the Court was informed that the respondent was ill and that he did not obtain leave of absence which means that he will have to serve that weekend that he missed. The appellant takes no issue in respect of this matter.

49 Having regard to the circumstances of this case and taking into account the need to denounce the respondent’s conduct and deter others from committing such offences I am satisfied that there should have been some accumulation of the non-parole periods and the principles of totality would have required a sentence of longer than three years thus disentitling this respondent to serve his sentence by way of periodic detention. To adjust the present sentence by a proportion of accumulation on the non-parole periods in the light of the way the sentences are presently structured would in my view simply amount to a tinkering with a sentence that is manifestly inadequate. Should this Court exercise its discretion to re-sentence this respondent it is in my view inevitable that he would serve a full-time custodial sentence. I am satisfied that to now impose a full-time custodial sentence when this particular respondent has been released from full-time incarceration; is now remorseful for his conduct; is serving his sentence by way of periodic detention; is making every effort to attend and is attending counselling; has given up alcohol; has his gambling under reasonable control; is holding down a responsible job and impressing his employers; and appears to be well on the way to rehabilitation, would be inappropriate. The purposes of sentencing are best served by exercising this Court’s discretion to dismiss the appeal notwithstanding the manifest inadequacy of the sentences.

50 The order that I propose is that the appeal should be dismissed.

Order

51 The appeal is dismissed.

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23/10/2007 - typographical errors in quotations - Paragraph(s) 18 and 33