ROSSI & COMMISSIONER OF POLICE
[2011] FamCAFC 162
•11 August 2011
FAMILY COURT OF AUSTRALIA
| ROSSI & COMMISSIONER OF POLICE | [2011] FamCAFC 162 |
| FAMILY LAW - APPEAL – SENTENCING – Where the mother appeals against the severity of a sentence of imprisonment imposed on her after being found guilty of three counts of contempt pursuant to s 112AP of the Family Law Act 1975 (Cth) – Where the trial judge found that the mother had knowingly contravened three parenting orders and in so doing demonstrated a flagrant disregard for the orders of the court – Whether the trial judge erred in failing to consider the option of a partially suspended sentence of imprisonment or whether the trial judge erred in the exercise of her discretion by failing to impose a suspended sentence or a partially suspended sentence – No appealable error established FAMILY LAW - APPEAL – MISCARRIAGE OF JUSTICE – Where the mother was legally represented for the proceedings up until shortly before the final hearing – Where there was evidence that the mother had told her general practitioner that she had been told by her legal representatives to expect a custodial sentence – Whether there was a miscarriage of justice because the trial judge erred in failing to ensure that the mother was aware of the risk of imprisonment and given an opportunity to seek legal advice – No appealable error established |
| Family Law Act 1975 (Cth) |
| CDJ v VAJ (1998) 197 CLR 172 R v Gardner [2005] NSWCCA 383 Markarian v The Queen (2005) 228 CLR 357 R v McHugh (1985) 1 NSWLR 588 |
| APPELLANT: | Ms Rossi |
| RESPONDENT: | Commissioner of Police |
| FILE NUMBER: | PTW | 3417 | of | 2002 |
| APPEAL NUMBER: | WA | 18 | of | 2011 |
| DATE DELIVERED: | 11 August 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bryant CJ, Coleman & Ainslie-Wallace JJ |
| HEARING DATE: | 28 July 2011 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 9 June 2011 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Hedges |
| SOLICITOR FOR THE APPELLANT: | Law 24 |
| COUNSEL FOR THE RESPONDENT: | Mr O’Sullivan |
| SOLICITOR FOR THE RESPONDENT: | State Solicitor for Western Australia |
Orders
That the appeal against the orders made by the Honourable Justice Crisford on 9 June 2011 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Rossi & Commissioner of Police is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: WA 18 of 2011
File Number: PTW 3417 of 2002
| Ms Rossi |
Appellant
And
| Commissioner of Police |
Respondent
REASONS FOR JUDGMENT
The appellant, Ms Rossi (“the mother”) appeals against the severity of a sentence imposed on her by Crisford J on 9 June 2011 after being found guilty of three counts of contempt brought pursuant to s 112AP of the Family Law Act 1975 (Cth) (“the Act”). The respondent is the Commissioner of Police in Western Australia.
It is necessary to consider some of the background of this matter to give context to the appeal.
The mother and Mr Santoro (“the father”) were married in 1997 and are the parents of S (“the child”) who was born in September 2000. The mother and father divorced in 2003 and the father remarried in 2007.
It seems that litigation between the mother and father in relation to the child commenced in 2002. On 7 August 2008, the first day of a contested hearing involving the child, the mother and father agreed on consent orders which provided for shared care of the child with him to live with his father for nine days in each fortnight and with his mother for five days in each fortnight.
On 8 September 2008 the child did not attend school and on 9 September 2008 the court made an order for the recovery and return of the child to the father. On 15 September 2008 the court ordered that the child live with the father.
On 29 January 2009 the child was found in Melbourne with the mother and returned to the care of the father in Western Australia.
No charges were brought in relation to the mother’s actions in removing the child on this occasion.
On 9 February 2009 orders were made to the effect that only the father or his wife be permitted to remove the child from school. Further orders were made on 9 April 2009 which prevented the mother from approaching the child, his school or any place she knew the child would be without the consent of the father or an order of the court.
The mother had no contact with the child after he was returned to Western Australia until November 2009.
On 9 November 2009 the mother went to the child’s school at the morning break and took him away. He was later found with her in Adelaide. When police entered the premises where the mother and child were, the boy was found hiding in a shower recess. The mother had bleached his hair and her own which the trial judge found was an attempt to avoid being detected.
Charges
The respondent brought three charges against the appellant arising out of her actions:
a. On 9 November 2009 at approximately 10.30am the Respondent removed the child, [S] born… September 2000 from [a primary school] situated… in the State of Western Australia being the school attended by the child contrary to the Order made by this Honourable Court on 9 February 2009;
b. AND FURTHER on 9 November 2009 at approximately 10:30am the Respondent did knowingly approach the child, [S] and the child’s school, being [a primary school] situated… in the State of Western Australia without the consent of the child’s father, [Mr Santoro] or order of this Court contrary to paragraph 3 of the Orders made by this Honourable Court on 9 April 2009;
c. AND FURTHER between 9 November 2009 and 23 November 2009 the Respondent removed the child, [S] from his school and thereafter travelled to and remained Adelaide [sic] in the State of South Australia so that the child was living with her contrary to the Orders made by this Honourable Court on 15 September 2008.
Another charge alleging a breach of the order prohibiting the mother from approaching the child’s school alleged to have been on 3 February 2011 was dismissed by the trial judge.
The charges were heard on 1 June 2011. When the mother was arraigned she conceded the conduct alleged in each charge but maintained that she had a reasonable excuse for her actions. Her Honour heard from the mother, found that she had not established reasonable excuse and proceeded to convict her on each charge.
The matters on which the mother relied as founding a reasonable excuse for her breach of the orders were also relevant to her Honour’s reasons on sentence.
The mother said that for some time she had been concerned that the child had been abused by the father and his wife. These concerns pre-dated the making of the consent orders in 2008. Her Honour accepted into evidence an affidavit sworn by the mother in the 2008 proceedings in which she claimed the child had been abused by his father.
The trial judge noted that the mother was legally represented in the period leading up to that trial and at the time that she entered into the consent orders.
The mother said that she breached the orders and removed the child because she had been concerned for some time that the child was being abused or inappropriately treated by the father. She claimed that, notwithstanding her consent to the orders for shared care of the child, she continued to have concerns.
The mother said that the child was unwell and overweight, both matters that she observed when she approached him at the school. She also said that when the child was with her, after she removed him from school, he told her that the father had put him in the boot of the car and threatened him. Her Honour noted that the first time this assertion was raised was during the cross-examination of the mother in the hearing of the charges.
The mother accepted that she had not seen the child or received any information about him since he was removed from her in Melbourne in January 2009 until she saw him in the school playground in November 2009.
In rejecting her defence of reasonable excuse, her Honour noted that the abuse allegations had been made by her in early 2008, investigated by the relevant authorities and no further action had been taken in relation to the asserted abuse. Her Honour also took into account that there was no new information available to the mother before she determined to breach the orders that would have provided further basis for her concerns and that she knew nothing of the asserted ill health or weight problems of the child until she was at the school.
Reasons for Sentence 9 June 2011
Her Honour found that the mother had knowingly contravened the three orders and in so doing demonstrated a flagrant disregard for the orders of the court. She observed that the breaches were very serious.
Her Honour identified that in sentencing for the breaches she must impose a sentence that operated to punish the mother for the offences and which preserved the position of the court to ensure that orders made are not disobeyed.
Her Honour acknowledged the wide sentencing discretion which, while mindful of the principles and philosophy of the Act, can reflect individual circumstances.
Her Honour turned to first consider any matters which might mitigate the sentence. She noted that although the mother asserted that she suffered from depression, there was no report or other evidence about any treatment or diagnosis. The mother gave evidence that three appointments had been made for her to attend a psychiatrist for evaluation and report and she had attended none of those appointments.
However, her Honour accepted that the mother does suffer from depression and accepted that from time to time she may take medication.
Her Honour also took into account the impact on the mother of not being able to see her child and reflected that this was probably “the worst punishment of all”.
Finally, her Honour accepted that all three offences arose out of the same set of facts and circumstances.
Her Honour then turned to consider factors going to aggravate the objective seriousness of the offences. She took into account that this was not the first occasion on which the mother had removed the child in breach of the orders, necessitating an order for the recovery of the child. In taking this matter into account, her Honour indicated that it was not to punish the mother for an uncharged offence but said that it demonstrated that she knew what she was doing and the potential consequences of her actions. In this context her Honour noted that the mother had the benefit of ongoing legal advice after the removal of the child in 2008 and in subsequent litigation.
Although her Honour was provided with Victim Impact Statements she said that even without them, she had no doubt that the actions of the mother were traumatic to the child and his family. She found that the removal of the boy caused disruption to his life and schooling.
When considering the objective seriousness of the offences, her Honour observed that the mother abducted the child not only from his school which she said should be a place of calm for a child, but also from the state in which he lived with his father. She found that there was a degree of planning and subterfuge because the mother attempted to change her and the child’s appearance.
Her Honour noted that in evidence on the sentencing hearing the mother said that she was sorry for her actions. Her Honour, while taking that expression of contrition into account, observed that, if the mother genuinely had concerns for the welfare of the child, there were other avenues of action she could have taken which, although may have been more difficult for her, would have perhaps achieved a better result. On balance, her Honour found that the mother was not wholly contrite.
Her Honour found that the offences of which the mother had been found guilty were “of the most serious end of the scale”. Her Honour had reflected on the purpose of the orders that the mother had breached, that they had been formulated by the court as being in the best interests of the child in light of her earlier abduction of him.
After considering all of the available sentencing options, her Honour came to the view that nothing short of a sentence of full time custody was warranted in light of her findings on the matter. In coming to that view, her Honour observed that personal deterrence was particularly important given that the mother had breached orders in substantially the same way in 2008 and the orders of which she was in contempt had been modified after the child had been found and returned.
Her Honour considered whether it was appropriate to suspend any sentence of imprisonment. She concluded that it was not because of the need for the court to satisfy the community that orders made in the best interests of children will be upheld and the flagrant disregard by the mother of those orders made because she herself had previously abducted the child in breach of orders.
Having found that all three offences arose out of the same factual matrix, her Honour determined that the sentences should be served concurrently.
On the charge of removing the child from his school in breach of the order of February 2009, her Honour imposed a sentence of four months imprisonment; on the charge of approaching the child at school, a sentence of four months imprisonment; and on the charge of removing the child from the state, a sentence of six months imprisonment.
The sentence was expressed to operate immediately and the mother was taken into custody on 9 June 2011. Her Honour refused to stay the operation of the sentence.
Appeal
Three grounds of appeal were asserted:
1. The learned trial judge made an error of law in failing to consider the option of a partially suspended sentence of imprisonment.
2. The learned trial judge erred in the exercise of her discretion by failing to impose a suspended sentence.
3.Alternatively, the learned trial judge erred in the exercise of her discretion by failing to impose a partially suspended sentence…
A further ground of appeal was added by leave:
4. There was a miscarriage of justice because the learned sentencing judge was in error in failing to ensure that the appellant was aware of the risk of imprisonment that she was facing, and against that background, given an opportunity to seek legal advice or given an adjournment to do so when before the Court on 9 June 2011.
The appellant also sought to adduce further evidence: a letter from her solicitors about the circumstances of their ceasing to act and medical records from her general practitioner. The application in relation to the medical records was not pressed by the appellant but the respondent sought to have them admitted. It was conceded that the medical records contained an observation of relevance to this appeal. That portion was then read onto the record without the need to admit the whole of the document. The relevant portion was as follows:
27 August 2010… Due in court next week – has been told by lawyer to expect custodial sentence.
Ground 4
The written submissions on Ground 4 expanded the ambit of the ground somewhat. It was argued that it was incumbent on the trial judge to ensure that the mother was aware of the risk that she may be imprisoned and that she be given the opportunity of obtaining legal representation or applying for an adjournment.
It was further argued that because the mother was unrepresented, she was deprived of the opportunity of making a cogent plea or to put relevant matters before the trial judge.
Legal Advice
As her Honour’s careful and detailed judgment makes clear, the mother had been legally represented for most of the proceedings generally and certainly for the contempt proceedings. As her Honour observed the contempt proceedings had been adjourned on a number of occasions to afford the mother an opportunity of obtaining advice and representation. Pertinently, after the hearing of 1 June 2011 had been fixed, a readiness hearing was conducted at which the mother was represented by a solicitor from the firm who had the conduct of her litigation for some time and who apparently indicated to her Honour that senior counsel had been briefed to appear for the mother. On 5 May 2011 the mother’s solicitors filed a notice of ceasing to act and on 31 May 2011 the mother applied to vacate the trial date. Her Honour dealt with this application on the morning of 1 June 2011 and refused to adjourn the matter. She said:
The mother accepted there had been a number of adjournments over the past year to enable her to secure appropriate legal representation at trial. She offered no precise explanation for not proceeding with her existing legal representation. She said she had not attended all her psychologist’s appointments as requested by her lawyers because she had chronic fatigue. She said that she wanted the matter dealt with and accepted it was unlikely to be adjourned. She accepted she had previously had legal advice about the charges.
In the circumstances, her Honour determined that it was appropriate to proceed with the hearing.
It was not suggested by counsel appearing for the mother that she did not have an opportunity to seek legal representation before 1 June 2011.
However it was asserted that:
15. It is submitted that on 1 June 2011 the learned trial judge should have warned the appellant that, if she was found guilty of the charges, she might receive an immediate sentence of imprisonment and that she should take the opportunity to obtain legal advice and representation on the judgment day.
16. It is submitted that a similar warning should have been given to the appellant on 9 June 2011 with an opportunity for her to obtain representation prior to sentencing.
Although the observation in the medical records makes it clear that the mother had been told to “expect [a] custodial sentence” it was argued that nevertheless, because the mother was unrepresented, her Honour was obliged to tell her she would probably go to prison. It was argued that even though the mother had received that advice in August 2010, she would not necessarily have expected that outcome in June 2011. We reject that argument. The mother was legally represented for the proceedings up until shortly before the final hearing, and apart from the obvious inference that her lawyers would have informed her of that possible outcome, we had before us her statement to the general practitioner. Counsel for the mother could not point to any factor that may have caused her to believe that she may not receive a custodial sentence. We find there is ample material to suggest that the mother was alive to the risks she was facing in the proceedings for contempt and required no warning from her Honour.
We note that at the conclusion of the hearing on the charges on 1 June 2011, her Honour told the mother that she proposed to consider the matter and indicated the range of possible outcomes and said that if she did find one or all of the charges proved she would then proceed to impose punishment. Her Honour invited the mother to consider obtaining some legal advice.
Mental Health and Rehabilitation
Paragraph 17 of the appellant’s written submissions argues:
17. It is submitted that the consequence of the appellant appearing in person was that she was deprived of the opportunity to make a cogent plea in mitigation or to place before the sentencing judge matters that would either call for further investigation, such as the mental health of the appellant at the relevant times, opportunities for rehabilitation and reformation, details of time already spent in custody and details of the effect of the order for security for costs upon her ability, both real and perceived, to obtain orders to spend time with her child.
Counsel for the mother submitted at length on matters that, he asserted, were properly in mitigation of the offence but which because the mother was unrepresented, were not put to the court. He said that because the mother misunderstood the effect of an order requiring her to lodge security for costs she believed that she could not seek orders to see the child and, in desperation, took the child in order to spend time with him.
As we observed to counsel, not only was there no evidence before the trial judge of these matters, there was none before us, and counsel’s submissions amounted to no more than speculation. Indeed there is not a scintilla of evidence from the mother before the trial judge to support the barest inference that she was desperate to see the child.
It is to be recalled that after the child was found with the mother in Adelaide on 29 January 2009 and returned to his father’s care in Western Australia, she had no contact with the child and had received no information about his well being. Further the mother’s evidence to the trial judge was that she breached the orders not to see her child but because she said she was concerned that he was being abused by the father.
When the mother commenced to give evidence the trial judge said to her:
Today in the court you’ve accepted that the matters set out in the amended application for contempt have been made out, that you removed your child from the school on the day in question and that you took him to South Australia. What you have said to the court is that you are of the view you have a reason for doing that? --- Yes.
And the court should listen to what the reason is, and you’re seeking to persuade the court of [sic] the balance of probabilities that on the basis of your excuse you should not be sentenced or punished for what you’ve done. Is the [sic] correct? --- Yes.
…So I’m going to let you say what you want…
The mother said: “I believe that my son was being abused and that’s why I came and I contravened the order”.
Her Honour said:
Okay. You say you believed your son was being abused. So these matters took place on 9 November 2009 and later on 23 November 2009. Can you just explain to the court the basis of your belief that at or around that time your son was being abused? --- I believed he was being abused before. The first time when I left with my son – his father – he’d reported to me that his father had hit him.
The mother told her Honour that she had made these claims in an affidavit which her Honour found in the court file and permitted the mother to tender in her case.
The mother added that when she went to the school she observed her son to have eczema and ulcers in his mouth and had put on excessive weight.
When the mother was cross-examined, she agreed that the basis of her belief about her son being abused was “historical” in the sense that she had no new material on which to base the belief and agreed that she had not seen her son between January and November 2009.
The mother said:
You knew after the first occasion in Melbourne that that wasn’t the right thing to do to take [S] away, didn’t you? --- It says here in these orders that if I believe the child is being abused or at risk of abuse, then I have good reason to contravene the orders, the court orders, which is why I did what I did.
…
And you knew that you weren’t allowed to take him, didn’t you? --- No, I was allowed if my son was being abused. I’m allowed to contravene the orders with good reason, and child abuse is good reason.
Rehabilitation
Part of the submission on this ground included a claim that because she was unrepresented, the mother was deprived of an opportunity of putting to the trial judge matters relevant to “rehabilitation and reformation”. It was also argued in relation to Grounds 1, 2 and 3 that her Honour ought to have obtained a pre-sentence report to consider matters of rehabilitation.
In the written argument on Grounds 1, 2 and 3, counsel for the appellant argued:
23. Rehabilitation is usually the main factor to be considered in favour of the offender when considering the option of a suspended sentence.
24. In 2008 the appellant and her former husband agreed upon current orders for the shared care of [S].
25. Prior to that agreement, the mother had been the primary caregiver since [S’s] birth.
26. The actions of the appellant since then have not been explained at any time.
27. It is in [S’s] best interest that he maintains a relationship with his mother, and it appears to be common ground that psychiatric or psychological explanation and treatment is called for in order to make sense of the actions and determine what steps are necessary to allow [S] to spend time with his mother in circumstances where his father, stepmother and their families can have confidence that he will not be exposed to inappropriate behaviour or abduction.
28. It is submitted that, in order to properly assess whether a suspended sentence or partially suspended sentence could be of assistance in the process of rehabilitation and restoration, it was necessary to have evidence about these matters.
29. It is submitted that the issue of rehabilitation was not raised by any party or the learned sentencing judge, despite the expressed concerns that: “legal advice was to attend a psychiatrist or a psychologist in order to provide the court with some assistance in this matter”…
30. It is submitted that, had the matter been heard under the Sentencing Act of any of the States, it would have been imperative for a pre-sentence report to be obtained to allow consideration of rehabilitation factors as part of the sentencing process.
31. It is submitted that there was no reason why the matter could not have been adjourned to allow consideration of these matters and suitable orders could have been framed to compel compliance.
When asked what particularly would have been the focus of any consideration of rehabilitation, counsel for the mother indicated that her actions were plainly irrational, perhaps warranting investigation of her mental health.
With respect this submission ignores the mother’s clear evidence to the trial judge.
It is not accurate to say that her actions were “unexplained” nor does it appear to us that there was any need to “make sense of” her actions.
At all times she cogently explained that she breached the orders because she believed that her son was being abused. That her actions might have been ill advised does not speak of mental disturbance.
The mother said and her Honour accepted her assertion that she suffered from depression. Her Honour was also mindful that the mother conceded that she had failed to comply with her lawyer’s requests to attend three appointments with a psychologist for assessment.
The matter before her Honour had been adjourned a number of times at the mother’s request to enable her to obtain advice and to change her legal advisors. It was clear that for whatever reason, the mother did not accept the advice and attend for assessment. It was well open to her Honour to conclude that the mother had had ample opportunity to be assessed and obtain evidence about her mental health should she have wished and had not. In our view there was no opportunity lost because the mother was unrepresented.
Time Spent in Custody
Counsel for the appellant said that after being found in Melbourne, the mother was taken into custody and spent time in prison before being released to bail. He said that she had spent about three weeks in custody and that this time was not taken into account by her Honour. The respondent said that the time spent in custody appeared to be a matter of two or three days. In any event, neither the appellant nor the respondent had any evidence of how long the mother had spent in custody. Leave was given to the appellant to provide that information as an agreed fact to the court within seven days of the hearing.
We note that the mother made no mention of having been in custody at the hearing before the trial judge. That might be explicable, in the sense that she may not have been aware that it could be relevant to her Honour.
It is open to a sentencing judge to take a period of pre-sentence custody into account (See R v McHugh (1985) 1 NSWLR 588 at 590-599). No further information was provided to this court by either the appellant or the respondent and we do not therefore propose to consider this issue further.
Grounds 1, 2 and 3
Counsel for the mother argued these three grounds together and we shall consider them in the same way.
The written submissions accept that her Honour considered whether to impose a suspended sentence but argued that her Honour did not consider whether to partially suspend any sentence of imprisonment.
On 9 June 2011, during submissions on sentence, counsel for the respondent said to the trial judge: “So, your Honour… the Commissioner recommends that the appropriate disposition of this matter is a form of imprisonment, but within your discretion as to whether it’s wholly or partly suspended”.
Her Honour in passing sentence said:
Having decided that a term of imprisonment is appropriate, I do [sic] to consider whether there are grounds to suspend such a term of imprisonment, and in that regard it is necessary for me to revisit all the considerations that I have outlined this morning…
Her Honour concluded that there were no grounds for suspending the sentence.
We do not accept the argument as put by counsel for the mother that because her Honour did not specifically say that she also found no basis to partially suspend the sentence she fell into error. We are of the view that her Honour squarely considered the option of suspending the sentence which in our view would clearly include a consideration of whether to order that part of the sentence be suspended.
Counsel for the mother argued that to suspend the sentence, even partially, would have resulted in a “win-win” situation for the mother, the child and the father because the suspension would be on terms that she see the child under close supervision thus enabling the relationship with the child to continue. There is nothing in the mother’s evidence before her Honour that would compel a finding that she was interested in having an ongoing relationship with the child but it is not necessary for us to consider that issue.
The decision as to what sentence to impose is complex and her Honour carefully analysed the many factors necessary to a proper consideration of sentence. She was particularly mindful of the need for her sentence to speak to both general and specific deterrence and said:
…It is my view that the mother must be deterred from any temptation to reoffend. This is addressed to the mother personally, but it is also addressed to the community at large and people who may consider acting in this same manner. The orders of this Court are orders which affect children. They are orders that are made with the best interests of children in mind. The consent orders were changed after the mother removed the child on the first occasion.
There is no doubt that the orders made by the Court and which have been breached here were made by the Court on the basis that it was best for the child due to the circumstances of the earlier abduction that the child live with the mother [sic] and that the mother not be presented with any other opportunity to remove the child. Those orders, as I have said, were made by this Court in the best interests of the child and that is something the community expects from this Court and it is something that this Court must uphold.
It falls to the appellant to satisfy this court that her Honour’s sentencing discretion fell into error. In Markarian v The Queen (2005) 228 CLR 357 Gleeson CJ, Gummow, Hayne and Callinan JJ said at paragraph 25 (citations omitted):
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
In R v Gardner [2005] NSWCCA 383 McClellan CJ with whom Hislop J agreed said (citations omitted):
12. Sentencing involves a discretionary judgment. There is no single correct sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies – Markarian v The Queen…
13. Whilst it will often be in the best interests of society if emphasis is put on rehabilitation – R v Molina - rehabilitation is not to take precedence to the exclusion of deterrence, retribution and punishment. All must be balanced in the overall synthesising of the sentence – R v MA…
14. The determination of whether the applicant should serve a sentence of imprisonment or should receive a suspended sentence was a matter which fell wholly within the sentencing Judge’s discretion. His Honour concluded that the appropriate sentence was one of imprisonment. The sentence which he imposed, in my opinion, was not excessive having regard to the circumstances.
The determination of the appropriate sentence in this case was a discretionary one and no error has been demonstrated that would impugn it.
The appeal will be dismissed.
Costs
As is customary, at the conclusion of the appeal hearing we sought submissions on costs. In the event that the appeal was unsuccessful, the respondent did not seek an order for costs and none will be ordered.
I certify that the preceding eighty three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 11 August 2011.
Legal Associate:
Date: 10 August 2011
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