R v Thompson
[2012] SASCFC 149
•21 December 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v THOMPSON
[2012] SASCFC 149
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Anderson)
21 December 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - OTHER MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
Appeal by the Director of Public Prosecutions against the decision of a Judge of the District Court to defer sentencing a defendant pursuant to section 19B of the Criminal Law (Sentencing) Act 1988 (SA) - the defendant was charged with aggravated assault on 11 February 2009 contrary to section 24 of the Criminal Law Consolidation Act 1935 (SA) - the defendant was also charged with the offence of aggravated causing harm with intent to cause harm on 8 November 2010 contrary to section 24(1) of the Criminal Law Consolidation Act - the defendant pleaded guilty to both offences - the proceedings were removed for hearing to the District Court to be heard at the same time - the Judge deferred sentencing the defendant in respect of all matters pursuant to section 19B of the Sentencing Act so that the defendant would have an opportunity to demonstrate that his desire to rehabilitate was ongoing and could be maintained - whether the sentencing Judge erred in ordering the deferral of the defendant’s sentencing - whether the circumstances of the offending were such that a suspended sentence was not appropriate.
Held per the Court: Appeal allowed - the gravity of the offending and the defendant’s offending history required the imposition of an immediate custodial sentence - section 19B should not have been invoked - proceeding remitted to the District Court for the defendant to be sentenced, other than by way of remand pursuant to section 19B.
Criminal Law (Sentencing) Act 1988 (SA) s 19B; Criminal Law Consolidation Act 1935 (SA) s 24, s 38 and s 39; Statutes Amendment (Intervention Programs and Sentencing Procedures) Act 2005 (SA), referred to.
Griffiths v The Queen (1977) 137 CLR 293; Germain v Police [2006] SASC 340; R v Palu (2002) 134 A Crim R 174; Radjevic v Police (1997) 67 SASR 478; Watson v Police (1998) 70 SASR 515; The Queen v Kear (1977) 75 LSJS 311; Veen v The Queen (No 2) (1988) 164 CLR 465; Muldrock v The Queen (2011) 244 CLR 120; Markarian v The Queen (2005) 228 CLR 357; R v Copeland (No 2) (2010) 108 SASR 398; R v Tindall (1994) 74 A Crim R 275; R v Trindall (2002) 133 A Crim R 119; R v Brown (2009) 193 A Crim R 574; R v Alameddine [2005] NSWCCA 68; Power v The Queen (1974) 131 CLR 623; Deakin v The Queen (1984) 11 A Crim R 88; Bugmy v The Queen (1990) 169 CLR 525; R v Morgan (1980) 7 A Crim R 146; Crump v New South Wales (2012) 86 ALJR 623; R v McMann (1997) 70 SASR 1; Hili v The Queen (2010) 242 CLR 520, considered.
R v THOMPSON
[2012] SASCFC 149Court of Criminal Appeal: Kourakis CJ, Gray and Anderson JJ
KOURAKIS CJ: I agree with the reasons of Gray J.
GRAY J.
This is an appeal by the Director of Public Prosecutions against the decision of a Judge of the District Court to defer sentencing a defendant pursuant to section 19B of the Criminal Law (Sentencing) Act 1988 (SA).
On 19 July 2012, following the hearing of the appeal, the Court ordered that the appeal be allowed and that the proceeding be remitted to the District Court for the defendant to be sentenced, other than by way of remand pursuant to section 19B. My reasons for joining in the order of the Court follow.
The defendant and respondent, Lindsey Thompson, was charged on Information in the Magistrates Court of South Australia with the offence of aggravated assault at Warradale on 11 February 2009 contrary to section 24 of the Criminal Law Consolidation Act 1935 (SA). It was alleged that the defendant intentionally applied force and thereby caused harm to a security guard. The circumstance of aggravation was that the offence was committed in the company of one or more other persons.
The defendant pleaded guilty to the offence as charged. The proceedings were removed to the District Court to be heard at the same time as the offending referred to in the following paragraph.
The defendant was also charged with the offence of aggravated causing harm with intent to cause harm at Glenelg on 8 November 2010 contrary to section 24(1) of the Criminal Law Consolidation Act. An offensive weapon, a metal pole, was used and the offence was committed in company of another. There were two circumstances of aggravation. The defendant pleaded guilty to this offence.
The defendant’s criminal antecedents include the offences of aggravated serious criminal trespass in an occupied residence and two counts of assault occasioning actual bodily harm, committed on 17 August 2005. On 28 March 2008, the defendant was sentenced in respect of this offending to the one term of immediate imprisonment of two years and four months. A non-parole period of nine months was fixed. The District Court Judge, when sentencing, having outlined the serious nature of the offending, concluded by remarking:
Whatever the real situation as to general deterrence is, there is a need for personal deterrence, and the circumstances of your offending were very serious. The consequences of your actions were devastating. A family has suffered terribly by your callous conduct that evening. I have to have regard to that, and to what are said to be the primary policies of the criminal law.
The defendant admitted that his offending on 11 February 2009 breached the conditions of his parole when released from this sentence of imprisonment.
The defendant was before the District Court for sentencing on 6 September 2011 in respect of both the offending of 11 February 2009 and 8 November 2010. Following a number of adjournments, the defendant made application for a remand pursuant to section 19B of the Sentencing Act. On 15 May 2012, the District Court sentencing Judge, over the opposition of the prosecution, made a section 19B order, also known as a Griffith remand order, in respect of the offending of 11 February 2009 and 8 November 2010. The Judge acknowledged that the defendant’s offending in 2009 was very serious and ordinarily would warrant an immediate custodial sentence. The Judge also acknowledged the serious nature of the 2010 offending. However, the Judge, pursuant to section 19B, deferred sentencing the defendant in respect of all matters so that the defendant would have an opportunity to demonstrate that his desire to rehabilitate was ongoing and could be maintained.
The note of the order made in respect of all offending was in the following terms:
HH orders a s19B Griffith Remand
New Bail Agreement
HH revokes all existing bail agreements.
New supervised bail entered into.
HH grants bail as follows:
1. I will not leave the State for any reason without lawful permission under the Bail Act, 1985.
2. I will reside at ….
3. I will place myself under the supervision of a Community Corrections Officer, be of good behaviour and comply with the lawful directions of that Officer.
4. I will not consume alcohol or any other drug which is not medically prescribed or otherwise legally available and then only at the prescribed or recommended dosage and I will submit to any breath test or urine analysis as directed by a Community Corrections Officer and sign all required forms and comply with the requirements of the testing procedures.
5. I will continue to consult the clinical psychologist, Mr John Hare upon referral from my General Practitioner or any other psychologist as directed by my supervising officer.
6. If I need to consult a psychologist other than Mr Hare, I will attend my General Practitioner at the direction of my supervising officer and cooperate in the preparation of a mental health care plan and thereafter attend any other specialist psychological services made available to myself under that plan through Medicare.
7. I will attend forensic mental health services outpatient department at James Nash House as directed by my supervising officer and I will obtain an appropriate medical referral to that department.
8. I will attend any relapse management program to deal with relapses of drug use as directed by my supervising officer.
9. I will provide any psychologist or psychiatrist to whom I am referred a copy of Mr Balfour’s report dated 23 February 2012.
10. I will provide an authority to my supervising officer authorising my General Practitioner and any psychologist/ psychiatrist providing myself with counselling, to disclose to my supervising officer whether I am participating in counselling and what areas that counselling is focusing on, in order to determine whether I require any further referrals.
Defendant acknowledges and enters into bail agreement at Criminal Registry.
Registry faxed a copy of bail agreement to DPP, Noarlunga Community Corrections and James Nash House.
Rem/Further Submissions /Tuesday 17 July 2012 @9:30am
A Griffiths remand takes its name from the High Court decision of Griffiths.[1] It is an adjournment or deferral of sentencing to allow a defendant to demonstrate reform and to allow the sentencing court to assess what weight should truly be given rehabilitation.[2] As Barwick CJ observed in Griffiths:[3]
… Suffice it to say that the trial judge did not purport to compel the entry into a recognizance as a means of “preventive justice” or as itself a sentence, in the sense of a definitive disposal of the consequence of the proven offence. What he did, it seems to me, was to decide that he would remand the applicant for sentence. It cannot be doubted that that is a power available to the trial judge and, for that matter, regularly exercised. The judge can remand the prisoner in custody until brought before the court again to be dealt with at the end of the period of remand. But, also, it cannot be doubted that, instead of remanding the prisoner in custody, he may set him at large during the period of the remand. The prisoner may be set at large immediately and unconditionally or only upon his entry into a recognizance. It matters not whether the latter course is described as a grant of bail. The power to condition the setting at large during a period of remand upon entry into a recognizance of a stipulated kind is, in my opinion, beyond question.
…
I am quite unable to agree with the Court of Criminal Appeal in thinking that the power to remand pending sentence is limited to such period as is necessary to enable the judge to be better informed as to the physical or mental condition of the accused. Of course, that is usually the purpose of the remand for sentence, the period of the remand being at least in part determined by the time expected to be taken to obtain the desired information. But it is erroneous to conclude that therefore the power itself is limited to such occasions and to such periods. I can find no decided case which suggests that the power to remand for sentence is so limited. Further, the presence of s. 558 in the amended Crimes Act, like s. 19 of the Powers of Criminal Courts Act 1973 (U.K.), indicates that neither such a power nor its exercise is inconsistent with the due administration of criminal justice.
[1] Griffiths v The Queen (1977) 137 CLR 293.
[2] Germain v Police [2006] SASC 340, [49].
[3] Griffiths v The Queen (1977) 137 CLR 293, 305.
The Director sought permission to appeal against the decision of Bampton DCJ to defer sentencing. The grounds of appeal are that the sentencing Judge erred in ordering the deferral of the defendant’s sentencing pursuant to section 19B of the Sentencing Act without first being satisfied that, in the event that rehabilitation and reform are achieved, it would be appropriate to impose a non-custodial sentence.
It was contended that the circumstances of the offending were such that a suspended sentence was not appropriate as there was insufficient material upon which to find that there was a real expectation that rehabilitation would occur in the period of the delay. Finally, attention was drawn to the seriousness of the offending, the delay that had already occurred between the offence and the granting of the application, the need to give effect to general deterrence and the need to give effect to personal deterrence.
The Circumstances of the Offending
The defendant was born in Seattle, Washington. He moved to South Australia when aged three years. At the time of the offending discussed below, the defendant was aged in his early to mid twenties. He has engaged in part-time unskilled employment. He is in an estranged personal relationship. There is a daughter of that relationship. He has been a heavy cannabis user.
11 February 2009
At or about 2.00 am on 11 February 2009, a security guard was on duty at the Warradale Hotel. He observed the defendant and another man being rude to female patrons at the bar. When he requested both men to leave, they intimated that they wanted to fight. He escorted them off the premises. Once outside, the defendant’s companion threatened and then punched the security guard with a clenched fist. Another guard came to assist and he was attacked and punched by the defendant. Both men then repeatedly punched and kicked the security guard who had escorted them from the premises. This security guard suffered injuries to his head and face. Surgery was required to repair damage to a cheek bone. Metal plates were inserted to repair the damage.
At the time of this offending, the defendant, as mentioned above, was on parole in respect of his earlier offending involving personal violence committed in August 2005.
8 November 2010
On 8 November 2010, the victim was punched when he went to the assistance of a man being threatened by the defendant and his co-defendant. The victim fell to the ground where he was punched and kicked to the head and chest and struck five or six times with a metal pole by both the defendant and his co-defendant. The victim sustained facial bruising, a cut to his right eyebrow requiring stitches, a puncture wound to his left forearm requiring exploratory surgery and stitches, swelling and cuts to his right ear, numerous abrasions to his arms, hands and legs, two blacks eyes and a stiff and painful neck, lower back and abdomen. He continues to suffer psychologically and emotionally.
At the time of this offending, the defendant, as noted earlier, was on bail in respect of the offending of 11 February 2009. His conduct amounted to a serious breach of his bail agreement.
The defendant’s criminal antecedent history includes the serious offending involving violence in 2005, in respect of which the sentence of immediate imprisonment was imposed. As noted above, the District Court sentencing Judge, at that time, declined to suspend the sentence, emphasising the callousness of the defendant and the seriousness of his violent behaviour. The Judge noted that the sentence would need to address personal deterrence. The sentence imposed did not personally deter the defendant from further violent offending. The defendant’s violent offending on 11 February 2009 was in breach of his parole and bail.
The serious nature of the offending both in 2009 and 2010 would, given the defendant’s criminal antecedents, almost inevitably lead to orders for immediate imprisonment. These matters would suggest that this was a wholly unsuitable case for a section 19B remand.
Section 19B of the Sentencing Act
Section 19B was introduced into the Sentencing Act by the Statutes Amendment (Intervention Programs and Sentencing Procedures) Act 2005 (SA) and came into operation on 19 December 2005. The then Attorney-General described the intent of the provision as follows:[4]
… This clause allows a court to adjourn proceedings after finding a person guilty and release the defendant on bail before determining sentence. The purpose is to assess the defendant’s prospects for rehabilitation, allow the defendant to demonstrate that rehabilitation has taken place or arrange for the defendant to be assessed for, or undertake, an intervention program. This kind of procedure is known as a Griffiths remand and is used routinely in the Drug Court. …
[4] South Australia, Parliamentary Debates, House of Assembly, 22 September 2005, 3557 (the Hon. M Atkinson).
The question arises as to when is it appropriate to defer sentence under section 19B of the Sentencing Act. The starting point in answering this question is the acknowledgement that the deferment of sentence is an exception to the rule that once a person is found guilty or pleads guilty, a court proceeds to sentence immediately and disposes of the matter with all dispatch. The deferment of sentence, other than in the truly appropriate case, delays further healing for victims of crime, leaves the prisoner in the unenviable position of not knowing their fate and undermines confidence in the judiciary. Delay produces unfairness, exacerbates suffering and promotes injustice.[5] Further, in Griffiths, Jacobs J, with Stephen J agreeing, made the following pertinent remarks:[6]
The deterrent to an increased volume of serious crime is not so much heavier sentences as the impression on the minds of those who are persisting in a course of crime that detection is likely and punishment will be certain. The first of these factors is not within the control of the courts; the second is. Consistency and certainty of sentence must be the aim. I entirely agree with the statement at p. 6 of the [Report of the Twentieth Century Fund Task Force on Criminal Sentencing entitled “Fair and Certain Punishment” (1976)] to which I have already referred that where equal treatment (i.e. consistency in sentencing) is not the rule a potential offender is encouraged to play the odds, believing that he will be among those who escape serious sanction. Certainty of punishment is more important than increasingly heavy punishment. …
[5] R v Palu (2002) 134 A Crim R 174, [30].
[6] Griffiths v The Queen (1977) 137 CLR 293, 327.
It follows that the deferment of sentence under section 19B is to be reserved for the exceptional case, otherwise delay is not justified. It is only when deferment will elicit information that the court needs and does not have that deferment should be contemplated. Even then, as observed by Barwick CJ in Griffiths:[7]
… [i]t 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 likely 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.
This assessment must be evidence based. There should be little risk of the offender being set up to fail. For this reason the defendant’s agreement to the course proposed is normally also required.[8]
[7] Griffiths v The Queen (1977) 137 CLR 293, 306; see also Radjevic v Police (1997) 67 SASR 478, 483.
[8] Watson v Police (1998) 70 SASR 515, 522.
There are further matters to be kept firmly in mind. Rehabilitation is but one of the purposes of sentencing. As Wells J observed in Kear:[9]
But the principal question which a judge must for ever pose for himself is, “What should be the purpose or purposes of any order that I make, having regard to all the circumstances of the case?”
In the span of centuries during which judges have been sentencing, the possible purposes that have, again and again, presented themselves to judicial minds, and that jostle one another in their endeavours to gain paramountcy are (1) to deter; (2) to prevent; (3) to reform, or, in modern parlance, to rehabilitate; (4) to exact retribution.
It is not possible in any one case to give full rein to any one of those purposes. To adopt one to the exclusion of the rest is likely to produce results that are absurd, unjust, and ineffectual.
Before any judicial sentence can be imposed, or justly appraised, it is essential to apprehend the truth of what I have just said. There are some who, for example, would treat rehabilitation as the sole or dominant purpose of a sentence. It is obviously true that if there are good grounds for supposing that rehabilitation will succeed, and there are no overriding considerations that imperatively require a different kind of order, the community can, in the long run, best be protected by an order designed to rehabilitate. But an attempt to rehabilitate where the chances of success are not encouraging will generally do a great deal more harm than good. Moreover, if rehabilitation is regarded as the sole or paramount object of sentencing, one is driven to the conclusion that a man who is beyond the reach of reformative influence should not be sentenced at all.
[9] The Queen v Kear (1977) 75 LSJS 311, 313-14; see also Veen v The Queen(No 2) (1988) 164 CLR 465, 476-7; Muldrock v The Queen (2011) 244 CLR 120, [20].
Sentencing is a process of synthesis.[10] The subjective nature of rehabilitation means that often it will be subordinate to the more general community interests in deterrence and retribution.[11]
[10] Markarian v The Queen (2005) 228 CLR 357, [37]-[39]; R v Copeland (No 2) (2010) 108 SASR 398, [29].
[11] R v Tindall (1994) 74 A Crim R 275, 277.
Rehabilitation may be pursued in a number of settings – in the prison environment itself, as part of a longer than normal non-parole period, as part of a partially suspended sentence,[12] through a suspended sentence[13] and by the imposition of a bond without penalty.[14]
[12] See Criminal Law (Sentencing) Act 1988 (SA) section 38.
[13] See Criminal Law (Sentencing) Act 1988 (SA) section 38.
[14] See Criminal Law (Sentencing) Act 1988 (SA) section 39.
The purposes contemplated by section 19B of the Sentencing Act are to be pursued in the community. The discretion conferred by section 19B of the Sentencing Act is most obviously engaged when the court is contemplating the imposition of a penalty to be served in the community.
Section 19B of the Sentencing Act envisages the judiciary assuming a role in fostering rehabilitation which overlaps with the responsibilities of the executive government. This itself is exceptional. This suggests that section 19B of the Sentencing Act is an option to be invoked where the appropriate penalty, on the assumption that the offender has the capacity to reform and demonstrates such capacity and commitment, is a bond or a suspended sentence. It is not an alternative to these sentencing options.[15] It is intended to assist in determining which option is appropriate.[16] If there is no reasonable prospect of learning anything further of significance by deferring sentence, the court should not do so.[17]
[15] Watson v Police (1998) 70 SASR 515, 523.
[16] R v Tindall (1994) 74 A Crim R 277, 276; cf R v Trindall (2002) 133 A Crim R 119, [41]-[64]; R v Brown (2009) 193 A Crim R 574, [22].
[17] R v Alameddine [2005] NSWCCA 68, [15].
In practice, section 19B of the Sentencing Act is more likely to be engaged when there is a finely balanced question whether to suspend all, or part, of the sentence. Nonetheless, on its terms, the power conferred by section 19B of the Sentencing Act extends to cases in which a sentence of immediate imprisonment must be imposed but a question remains as to the length of the sentence and the non-parole period.
However, for the following four reasons, the discretion to defer sentencing will rarely be exercised for that purpose. First, the protection of the community is the cardinal sentencing objective. One of the purposes served by imprisonment is the prevention of recidivism. A delay in imposing an inevitable sentence of imprisonment for no other reason than to consider the appropriate non-parole period exposes the community to the very risk from which imprisonment is expected to protect the public.
Secondly, even though imprisonment may be inevitable, because of the seriousness of the offence and the need for general deterrence, a deferral of sentence may engender a false expectation of a non-custodial penalty against which the Court must stand obdurate.[18]
[18] Griffiths v The Queen (1977) 137 CLR 293, 306; R v Tindall (1994) 74 A Crim R 277, 276, 283; cf R v Trindall (2002) 133 A Crim R 119, [62].
Thirdly, seldom will there be much utility in embarking on a rehabilitation program which will be interrupted by imprisonment.
Fourthly, the non-parole is the minimum period that the judge considers that the crime committed warrants.[19] Importantly, questions of when and whether an offender should be released on parole do not form part of the judiciary’s task. That is the role of the legislature in the case of automatic parole, and the executive in the case of discretionary parole. Accordingly, although the fixing of a minimum period to be spent in custody confers a benefit on the prisoner, it serves the interests of the community rather than those of the prisoner.[20] Considerations relevant to the interests of the community which the imprisonment of offenders is designed to serve, as well as circumstances which mitigate punishment, will be taken into account in determining the head sentence and, again, in fixing the minimum term.[21] At that stage, the various interests of the community “will be balanced against the advantages to the community which release on parole is thought likely in the particular circumstances to confer, and against whatever degree of mitigation mercy to the offender may claim without injustice”.[22]
[19] Power v The Queen (1974) 131 CLR 623, 628, 629 (Barwick CJ, Menzies, Stephen and Mason JJ); Deakin v The Queen (1984) 11 A Crim R 88; Bugmy v The Queen (1990) 169 CLR 525, 531, 536.
[20] R v Morgan (1980) 7 A Crim R 146.
[21] See R v Morgan (1980) 7 A Crim R 146, 155.
[22] Bugmy v The Queen (1990) 169 CLR 525, 531 referring to R v Morgan (1980) 7 A Crim R 146, 155; Muldrock v The Queen (2011) 85 ALJR 1154, [57]; Crump v New South Wales (2012) 86 ALJR 623, [28].
It follows that the approach to be adopted in determining whether or not to defer sentence will, as a general rule, be to ask:
-whether the appropriate penalty, on the assumption that the defendant has the capacity to reform and demonstrates such capacity and commitment and taking into account all other relevant factors, is a bond or a suspended sentence; and
-if it is, whether there is a real expectation founded upon solid grounds and not mere sentimentality that such reform is likely to occur; and
-whether a deferred sentence would afford the defendant the opportunity to pursue the possibility of reform, so as to provide the court with evidence of capacity and prospects for reform that will then allow the court to fashion an order that will best protect the community and serve the purposes of punishment where it otherwise is not in a position to do so.
The requirement that there be a real expectation founded upon solid grounds and not mere sentimentality that such reform is likely to occur cannot be over emphasised. The prospect of failure and subsequent imprisonment has the very real potential to leave an offender with a justifiable sense of grievance, an outcome to be avoided.[23] There is also the prospect of a sentence ultimately being imposed after failure to demonstrate a capacity to reform, and reform resulting in the imposition of a greater penalty than may otherwise have been the case.[24] Further, there is the very real need for the victim and the community to understand the exceptional course that the court proposes to take.
[23] Watson v Police (1998) 70 SASR 515, 522-3; R v McMann (1997) 70 SASR 1, 9; R v Tindall (1994) 74 A Crim R 277, 276-7, 293.
[24] Watson v Police (1998) 70 SASR 515, 523; R v McMann (1997) 70 SASR 1, 9.
The Present Proceeding
The sentencing Judge’s report suggests that she proceeded pursuant to section 19B of the Sentencing Act as a consequence of the way in which the co-defendant had conducted himself since being charged. That, in turn, was a reflection of a greater support network and greater personal resources that were available to the co-defendant. The sentencing Judge’s reference to disparity in her report to this Court is, with respect, misconceived. By implication, it suggests that a section 19B order was necessary to allow the defendant to be afforded by the Court the same opportunity as his co-defendant.
The fact is, the defendant was afforded, and always had, that opportunity. The salient difference was to be found in the personal resources of each man, their background, the support they enjoyed in the community and their motivation. There were also the differences in offending history. Disparity was to be avoided by the application of legal principles.[25]
[25] Hili v The Queen (2010) 242 CLR 520, [48]-[49].
A Merciful Approach
In the within proceeding it would appear that the sentencing Judge’s sympathies may have been excited in relation to the defendant. However minded of the defendant’s offending history, the question remained whether or not principle permitted any inevitable period of imprisonment to be suspended, or, the imposition of a lower than normal non-parole period. The former required an assessment of the defendant’s response to leniency and intervention in the past with a view to determining whether or not he should be given a further chance. The latter required a determination of whether a lower than normal non-parole period would serve the purposes of sentencing in this case. All the information necessary for making such decisions was before the sentencing Judge.
The gravity of the offending and the defendant’s offending history required the imposition of an immediate custodial sentence. Section 19B should not have been invoked.
ANDERSON J. I agree that s 19B of the Criminal Law (Sentencing) Act 1988 (SA) should not have been invoked in this case for the reasons given by Gray J.
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