Sullivan v The King
[2023] NZHC 2453
•4 September 2023
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CRI-2023-442-11
[2023] NZHC 2453
BETWEEN STEVEN PATRICK JOHN SULLIVAN
Appellant
AND
THE KING
Respondent
Hearing: 31 August 2023 Appearances:
P F Wicks KC for Appellant J M Webber for Respondent
Judgment:
4 September 2023
JUDGMENT OF GRICE J
Appeal against sentence
Introduction
[1]This is an appeal against sentence.
[2] On 25 July 2023, Judge Ruth sentenced the appellant,1 Mr Steven Sullivan, to 20 months’ imprisonment for attempting to pervert the course of justice.2 The maximum penalty for this offence is seven years’ imprisonment.
[3] The main issues in the appeal relate to the level of the discounts allowed by the Judge and whether the term of imprisonment should have been commuted to home detention.
1 R v Sullivan [2023] NZDC 15433 [decision on appeal].
2 Crimes Act 1961, s 177(e).
SULLIVAN v R [2023] NZHC 2453 [4 September 2023]
[4] The offending was related to a workplace incident at a company, Aimex Ltd (Aimex). The appellant was the managing director and holds one third of the shares. After the incident, the appellant became aware of the creation and destruction of a relevant damning incident report relating to a previous incident five days earlier. Aimex ultimately pleaded guilty to a charge under the Health and Safety at Work Act 2015 and Health and Safety at Work (Hazardous Substances) Regulations 2017. With the intention of reducing the level of fine that was imposed on Aimex, the appellant deliberately and successfully misled WorkSafe investigators and the Court sentencing Aimex, resulting in an undoubtedly smaller penalty being imposed.
[5] The appellant appeals his sentence on the basis it is manifestly excessive. The appellant says the Judge provided manifestly inadequate reductions to the starting point and erred in imposing a sentence of imprisonment rather than home detention. The Crown opposes the appeal. It says the sentence imposed was not manifestly excessive, that the discounts were within range and balanced by a low starting point. It says a sentence of imprisonment was the only appropriate response to the offending and was the appropriate outcome.
[6] The appellant initially sought leave to adduce fresh evidence on appeal from the other two directors of Aimex. However, due to a change in the appellant’s employment circumstances, that is no longer sought.
The offending
[7] The appellant was the managing director, founding member and one-third owner of Aimex Ltd, a marine and industrial engineering company.
[8] On 29 July 2019, the victim, an employee of Aimex, was cleaning an engine within the confines of a boat hull using a brake cleaning solvent when he was overcome with fumes from the brake cleaner. He passed out and remained in the boat hull until he was found. The victim suffered a hypoxic brain injury and continues to suffer the effects of that injury. It is suggested he may continue to do so for the rest of his life.
[9]WorkSafe investigated the workplace incident.
[10] Five days prior to the incident, another employee, employee X, had been directed to carry out the same task in the same boat in the same way as the victim. He had also been overcome with fumes from the brake cleaner, but to a lesser extent. Employee X had realised what was happening when he became lightheaded. He had removed himself from the boat hull and was told to go home. Before he did so, he made a note on his timesheet about the incident and completed an incident report for Mr William Sullivan, the appellant’s brother, who was the Health and Safety Officer of the company at the time. Mr William Sullivan recorded on that incident report that the potential consequences of the incident were “significant”.
[11] However, Aimex took no steps to remedy the situation, and five days later the victim was put into exactly the same position as employee X had been when he was overcome by fumes from the solvent and suffered a serious hypoxic brain injury.
[12] During their investigation, WorkSafe requested the provision of any documentation relating to any previous similar incidents to that of the victim. The employee X incident report was never disclosed to WorkSafe, and was destroyed by an employee of Aimex during the course of the investigation.
[13] On 10 October 2019, WorkSafe interviewed employee X, who informed WorkSafe about his own incident and the incident report. On 14 October 2019, WorkSafe specifically requested the provision of “all incident, accident, near miss, or similar reports” for the 12 months prior to the victim’s incident. Aimex, through its lawyers, denied the existence of the employee X incident report. Mr William Sullivan denied any knowledge of the employee X incident when asked about it during an interview with WorkSafe on 21 February 2020.
[14] On 2 March 2020, WorkSafe made a further request for the employee X incident report. On 5 March 2020, Aimex via its lawyers informed WorkSafe it had:
… reviewed its records and does not hold an incident or near miss report or similar paperwork referencing the incident which employee X included in his timesheet on the 24th of July 2019.
[15] On 22 April 2020, WorkSafe wrote again to Aimex requesting the employee X incident report, indicating it had been informed of the employee X incident and it had not been provided with any incident reports in relation to that matter. On 5 May 2020, Aimex via its lawyers informed WorkSafe:
Our client has now reviewed its records including toolbox meeting minutes, morning meeting minutes, copies of incident files, copies of take five’s, health and safety minutes diary, and cannot locate any reference to a similar incident in relation to employee X. Employee X has left the business sometime ago and now works for a competitor
[16] The statement of facts agreed between the parties records that the appellant learned about the previous similar incident with employee X and the creation of the incident report “several months after” the victim’s incident, while the WorkSafe investigation was in progress.
[17] On 27 July 2020 Aimex was charged. Due to a lack of corroboration, WorkSafe was not able to clearly establish the previous incident or establish that Aimex was aware of it from any incident report. Aimex subsequently pleaded guilty to a charge under the Health and Safety at Work Act and Health and Safety at Work (Hazardous Substances) Regulations of failing to comply with a duty and thereby exposing workers to risk of death or serious injury or serious illness.
[18] In January 2021, Aimex contracted Mr Byrne to conduct a review of the company and the appellant requested that Mr Byrne assist to prepare Aimex’s response to WorkSafe’s sentencing submissions. By then the appellant was aware of the employee X incident, the existence of the employee X incident report, and the fact it had been destroyed. Nevertheless, the appellant told Mr Byrne he had found no record that the incident involving employee X had ever occurred and claimed that employee X had a history of recording his timesheets late.
[19] In preparation for filing Aimex’s sentencing submissions, there were a number of face-to-face meetings between the appellant, Mr Byrne and Aimex’s solicitors. During those meetings the lawyers asked about WorkSafe’s claims of the previous similar incident. Despite by then knowing that employee X had filed an incident report
and that it had been destroyed by an employee of Aimex during the investigation, the appellant stated on several occasions that employee X had not filed a report.
[20] The agreed summary of facts records that the appellant did this so as to reduce the level of fine that was imposed on Aimex.
[21] At sentencing, Aimex in its submissions rejected the proposition that a previous similar incident had been reported to it in a manner that could reasonably have been followed up on. It submitted that it could not be concluded that Aimex “should have, or reasonably could have, known about the previous alleged incident by the time of [the victim’s] incident”. Aimex was granted a 10 per cent discount for previous good character by the Judge.
[22] In sentencing Aimex, the Judge placed Aimex in the medium culpability category, towards the higher end.3 In determining an appropriate fine, the Judge noted there was no real appreciation of the potential for serious harm or even death and that he was sure if there had been such an appreciation, the cleaning of the engine room would not have been undertaken in this way.4 The Judge considered the lack of training and effective supervision was probably the result of a lack of appreciation of the more senior members within the company of the risk and its potential consequences, and had there been that appreciation, he was sure those involved would not have allowed this to happen, because they certainly did not intend it to happen.5 The Judge noted it was easy with the benefit of hindsight to judge harshly, “because no-one has anticipated what happened here and of course that is the problem.”6
[23] After the sentencing, Mr Byrne was appointed the Chief Operating Officer for the company. He became aware of the existence of the incident report a short time later. He confronted the appellant about it, who said that as far as he was concerned, once the incident report was destroyed, it never existed. Mr Byrne consulted his lawyers, submitted a protected disclosure statement, and resigned from Aimex.
3 WorkSafe New Zealand v Aimex Ltd [2021] NZDC 14313 at [37].
4 At [25].
5 At [30].
6 At [31].
[24] Subsequently, in the course of executing a search warrant at the home address of the former general manager, police located a copy of the employee X incident report that had been saved. Police then executed a second search warrant at the address of Aimex. The appellant told police he had found no record of the employee X incident ever occurring and handed police three incident reports dated either side of 24 July 2019, saying those were the only records he could find around the date of the employee X incident.
Decision on appeal
[25] In sentencing the appellant, the Judge accepted that the appellant was not directly responsible for the victim’s injury.7 The Judge noted the appellant had denied the sentence indication he had been given, as was his right.8 The Judge stated that in his sentence indication that “while the Crown was on good ground suggesting three to three and a half years as a starting point”, he had adopted a starting point of two years and six months’ imprisonment “for the purpose of trying to incentivise resolution.”9
[26] The Judge distinguished the authorities cited by the appellant’s counsel said to support a starting point in the order of two years on the basis that “here there was not just an attempt to pervert the course of justice, it was a concluded perversion of the course of justice.”10 The Judge stated:
[42] Here what you did in relation to misleading the Court about information that you knew full well about had the effect of you achieving for your company a considerable financial saving that would not have been available to you had you told the truth in the first place. That was a completed perversion of the course of justice because it cannot now be retrieved, cannot be reversed, and so what I read out a moment ago as to what the cases in this area talk about, particularly the fact that this strikes against the heart of the administration of justice, applies in spades to what you did.
[27] In terms of a discount, the Judge acknowledged that the appellant was a first offender but considered that “if there is to be a discount for good previous works, then I am afraid it must be seriously diminished by your fall from grace”.11
7 Decision on appeal, above n 1, at [7].
8 At [28].
9 At [39].
10 At [40].
11 At [45].
[28] Despite the Crown’s submission that the rationale for the starting point given in the earlier sentencing indication did not apply, the Judge chose not to increase the starting point previously given, as it was “a starting point well within range”.12
[29] In recognition of the appellant’s guilty plea, the Judge granted the full discount of 25 per cent. He noted it was “a little out of step” with Hessell v R, the leading authority for guilty plea discounts,13 but he granted the appellant the same consideration as that of the co-offender, Mr William Sullivan, the appellant’s brother.
The Judge in fact rounded the discount up to eight months.14
[30] The Judge accepted that the appellant’s prior good character “need[ed] to be recognised to some extent” but considered that no more than five per cent was due, given everything he had already said in that regard. The Judge similarly rounded that up to two months.15
[31] Overall, the Judge applied discounts totalling 10 months to the starting point of two and a half years, resulting in an end sentence of 20 months’ imprisonment.16
[32]The Judge then stated:
[50] I have to undertake the exercise … to determine how [the appellant’s] case should be dealt with, given the overwhelming principle that I think is at the heart of this sentencing, that is deterrence not just of [the appellant] but of others who might decide to undertake the lies and sustained lies that [the appellant] told.
[51] I understand Mr Wicks wanting to rather euphemistically term your offending as a failure to tell the truth or a failure to put the record right, but they were lies. They were barefaced lies and they were not the actions that should be expected of a company director who has any integrity and any regard to his obligations in that role.
[52] In those circumstances although I accept home detention can be a sentence that meets the needs of sentencing, in my view it do not meet them sufficiently. I conclude that nothing short of a term of imprisonment is appropriate here. You will therefore be sentenced to imprisonment for 20 months. Your sentence will be subject to standard release conditions that will go on for six months beyond your sentence end date.
12 At [47].
13 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
14 Decision on appeal, above n 1, at [48].
15 At [49].
16 At [49].
Submissions
Appellant's submissions
[33] The appellant challenges the sentence on the basis that insufficient discounts were given for the appellant’s personal circumstances, and the Judge erred by imposing a sentence of imprisonment, rather than home detention.
[34] Mr Sullivan had originally sought leave to adduce fresh evidence relating to his position as managing director. However, that application was not pursued because Mr Sullivan is no longer employed in that position with the company and Mr Wicks KC indicated that he would not likely continue as a shareholder due to the reaction of customers and the company to the events giving rise to the offending.
[35] Leave is granted for the filing of an affidavit by Mrs Sullivan. The Crown did not oppose that evidence being adduced.
[36] Mrs Sullivan’s affidavit refers to the effect on both Mr Sullivan and his family, including their son, of the incidents. In particular, Mr Sullivan was initially held in Christchurch Men’s Prison. He was allowed limited exercise time and no opportunity for visits due to Corrections staffing constraints. He has now been transferred and it appears that the conditions in regard to exercise time and visits will be better. Mrs Sullivan outlined the significant effect on Mr Sullivan of that imprisonment and the effects on him of the loss of his employment and his interest in the company as well as his fall from grace in the eyes of the community.
Respondent's submissions
[37] The respondent opposes the appeal on the basis the end sentence was not manifestly excessive. The respondent says that the discounts totalling 30 per cent were within range, with the full 25 per cent discount for guilty plea being generous, and if there was any shortfall in the discounts provided, it was balanced by the selection of a starting point that was too low. The respondent submits a sentence of imprisonment was the only appropriate response to the offending and was the appropriate outcome.
Approach to appeal
[38] An appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.17 The Court must dismiss the appeal in any other case.18
[39] In an appeal against sentence, an appellate court will not intervene unless a sentence was outside the range available to the sentencing Judge.19 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.20 An appellate court must therefore exercise an appropriate degree of restraint and will intervene only where the sentence imposed is “manifestly excessive” on the basis of some material error so that a different sentence should be imposed.21
Analysis
Inadequate deductions to the starting point
[40] The Judge granted the appellant a five per cent discount for his previous good character and a 25 per cent discount for his guilty plea.
[41] At sentencing, the Crown accepted that credits were probably due for prior good character and contribution to the community and accepted there was evidence of both before the Court. However, the Crown submitted that the 25 per cent discount contended for by the appellant was too great. Ultimately the Judge granted a discount of five per cent based on the appellant’s prior good character.
[42] It is accepted this was modest. However, the Judge had explained that “if there [was] to be a discount for good previous works … it must be seriously diminished by [the appellant’s] fall from grace”.22 The appellant submits the Judge erred in reducing
17 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
18 Criminal Procedure Act 2011, s 250(3).
19 Tutakangahau, above n 17, at [36].
20 Ripia v R [2011] NZCA 101 at [15]; and Tutakangahau, above n 17, at [36].
21 Kumar v R [2015] NZCA 460 at [81]; and Tutakangahau, above n 17, at [32].
22 At [45].
the discount on this basis, as a fall from grace has been recognised as a punishment in and of itself.23 As the Court of Appeal said in Taylor v R:24
… The essential rationale for a good character discount is a dual one. First, a defendant without prior convictions (and otherwise generally of good character) deserves some leniency for an offence that represents an isolated lapse from grace. Indeed, that singular fall is a punishment in itself …
[43] This comment is clearly in reference to a “singular fall” or “isolated lapse”. Although this offending represents the appellant’s first offending, the various lies were parts of a global and ongoing attempt to cover up the previous incident and as such the appellant’s wrongdoing. The nature of the lies and deception, which continued over a substantial period of time, many months, weighs against this being the sort of singular event that warrants “lenient” recognition in terms of a good character discount. The appellant had many opportunities to tell the truth about the incident once he learned of it, but continued with the lie to the very end, to the extent of giving police false information after the police had become aware of the deception and were investigating it.
[44] The appellant also suggests the Judge erred in reducing the credit available to him on the basis that he held the appellant responsible for the victim’s injury. The appellant relies on one passage in particular, where the Judge suggested the appellant reflect on how the victim’s injury compares with a fall from grace or some damage to the appellant’s reputation. I do not consider that in saying this the Judge held the appellant responsible for the victim’s injury or reduced the credit for personal circumstances accordingly. I note that the Judge had stated explicitly in the preceding paragraph that he accepted the appellant was not responsible.
[45] The material as to the appellant’s contribution to the community, including the letters presented on the appellant’s behalf, were before the Judge at sentencing. I do not believe the Judge failed to take these into account in reaching the discount he ultimately arrived at. As the Crown points out, most of the appellant’s contribution to the community was framed in terms of the success of Aimex and the ways in which
23 R v Findlay [2007] NZCA 553 at [89]–[91], cited with approval in Taylor v R [2017] NZCA 574 at [24].
24 Taylor v R, above n 23, at [24].
that had enabled Aimex to contribute to the local community as an employer and sponsor. While I accept the appellant played a significant part in this, I also consider there was an element of tension inherent in this given that the motivation behind the offending was to enhance the financial success and reputation of Aimex by reducing its apparent culpability and thereby the financial penalty. Nevertheless, the appellant’s contributions to the community were noteworthy.
[46] I accept that the discrete discount given for the appellant’s personal circumstances was modest. However, that discount must be seen in the context of the generous guilty plea the Judge allowed. This did not result in a sentence that was manifestly excessive.
[47] In Elliott v R the Court of Appeal observed that while a full discount for guilty plea was “not out of the ordinary” in the District Court, it was nevertheless “generous when compared to the guidance provided in R v Hessell.”25 In this case, the appellant pleaded not guilty, elected trial and sought a sentence indication when he was at the callover stage. I accept the Crown’s submission that the full 25 per cent discount was generous in the circumstances.
[48] The Judge in fact granted the appellant a guilty plea discount higher than the maximum suggested in Hessell, as the Judge rounded the discount up from seven and a half to eight months, a discount of 26.66 per cent. Rounding up the discount at this stage specifically in relation to the discount for guilty plea is generous and might be criticised but taking the sentence in the round I consider the end result was appropriate.
[49] Finally, I consider that the starting point the Judge adopted was generous to the appellant. The Judge had indicated a starting point of two and a half years in his sentence indication. Despite the appellant rejecting that indication, and so the Judge not being bound by it, the Judge nevertheless declined to increase the starting point, noting that the starting point had been intended to incentivise resolution. Having regard to the authorities cited by counsel, I consider the Judge would have been entitled to adopt a starting point in the region of three to three and a half years, and the starting point of two and a half years was at the low end for the offending in this case.
25 Elliot v R [2018] NZCA 526 at [13].
Mr Wicks submitted that the Judge was not entitled to treat the sentence in retrospect as one which was lower than might be to incentivise resolution. That comment, he says, should have been made at the indication stage so that the defendant was aware of the Judge’s view in that regard.
[50] The sentence indication was not accepted in this case. The Judge’s observation at a subsequent sentencing that the indication was such as to be designed to resolve the matter is a view he was entitled to take of the starting point, at the subsequent sentencing. That is not an error.
[51] Mr Wicks also submitted that it may not be appropriate to consider the starting point when looking at the sentence, but rather the discounts should be considered discretely. I accept an examination of the discounts was appropriate. Nevertheless, it is well-established that on appeal this court must stand back and look at the sentence as a whole and will only intervene where the sentence is manifestly excessive. The Crown cited Te Ao v R as a recent confirmation of that.26 That case involved an appeal against a sentence directed at the discrete discount for time spent on EM bail. The Court of Appeal said:
Discussion
[16] Both appeals miss the point of an appeal against sentence. It is the end sentence which must be shown to be manifestly excessive. It is the end sentence which will be the Court’s focus. Where one component of a sentence is criticised, the Court’s inquiry, if the criticism is found justified, will be whether the end sentence is nevertheless within the range available to the sentencing Judge.27
[17] We use the term “range” advisedly. Determining a sentence is not a mathematical exercise. It is a judicial evaluation. Different judges could quite properly weigh factors relevant to a sentence differently.
[18] A sentence might lie in a range from lenient to stern and be unimpeachable.
[19] For a sentence to be manifestly excessive it must be beyond the upper end of the range available to the sentencing Judge. In other words, it will be significantly more severe than it ought to have been having regard to the seriousness of the offence and the culpability of the defendant.
26 Te Ao v R [2023] NZCA 327.
27 Tutakangahau v R, above n 17, at [39], citing Green v Police [2014] NZHC 444 at [21].
[52]These comments are equally applicable to this case.
[53] In conclusion, I consider that the starting point adopted by the Judge was low in the circumstances. The total discount granted was for 30 per cent (or in fact, after rounding, 33.33 per cent). I do not consider this discount overall was inadequate. The discount at that level did not result in an end sentence that was manifestly excessive.
[54]The appeal is unsuccessful under this head.
Sentence of 20 months’ imprisonment or home detention
[55] The second ground of appeal is that the Judge erred in failing to commute the sentence to one of home detention.
[56] The appellant submits the Judge fell into error by overemphasising denunciation and deterrence, while failing to consider other relevant considerations as directed by s 16 of the Sentencing Act.
[57] Section 16(1) provides that when considering the imposition of a sentence of imprisonment for any particular offence, the Court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.
[58] Section 16(2) provides that the court must not impose a sentence of imprisonment unless it is satisfied that the listed purposes of sentencing, which include holding the offender accountable for the harm done, providing for the interests of the victim of the offence, and denouncing the conduct in which the offender was involved, could not be achieved by a sentence other than imprisonment, and no other sentence would be consistent with the application of the principles of sentencing of the particular case.
[59] I accept that an assessment that focuses solely on one purpose to the exclusion of all others amounts to an error of law.28 The appellant submits that is what happened in this case, with the Judge focusing only on deterrence. I do not accept that was the case. The Judge referred explicitly to both denunciation and deterrence, and in addition he described them as the “overriding” principles, which is not the same as describing them as the only applicable principles. The Judge was not required to list every principle. The Judge made a “considered and principled choice between the two forms of sentence”.29 His Honour clearly turned his mind to whether home detention was sufficient to meet the needs of sentencing, acknowledging the place of home detention and that it could meet the needs of sentencing, but did not in that case sufficiently meet them.30
[60] The Court of Appeal has reiterated on a number of occasions that offending of this kind “strikes at the heart of the administration of justice” and requires a “condign and deterrent sentence”.31 In Glassie v R, for instance, in imposing cumulative sentences for offending “striking at the administration of justice”, the Court of Appeal stated “deterrent sentences are appropriate where a real attempt is made to pervert the course of justice in a serious way, as happened in this case.”32 As Mr Wicks submitted, upon the spectrum of “perversion of justice” this is not at the most serious end. He made the distinction between the charges being faced by the company in this case, and charges which might attract imprisonment which was avoided due to a defendant’s actions amounting to perversion of the course of justice. While I agree this is not the most significant case of perversion of the course of justice, nevertheless it is not significantly diminished because of the fact that, because it was a company that was involved in the offending, what was at issue at the sentencing of the company was a fine, rather than imprisonment. The outcome was that the actions of the appellant, motivated it seems by indirect financial gain, resulted in the court being misled. In addition, the actions giving rise to the perversion charge continued over a period of time, including when the matter was put to him by the police. It is clear that the
28 Fairbrother v R [2013] NZCA 340 at [30]; Manikpersadh v R [18]–[19]; Brittin v Police [2017] NZHC 2410, [2018] 2 NZLR 147; McLean v Police [2018] NZHC 102; Ruru v Police [2018] NZHC 114; and Smith v Police [2020] NZHC 25.
29 Fairbrother v R, above n 28, at [30].
30 Decision on appeal, above n 1, at [52].
31 Williams v R [2021] NZCA 54 at [23].
32 Glassie v R [2022] NZCA 556 at [41].
appellant intended to mislead and did mislead the police. I do not accept the fact that he told the police there were no “records” of the event mitigates his deliberate intent to mislead the police about the existence of the previous incident.
[61] I consider that any emphasis on deterrence and denunciation was in accordance with authority. I do not accept there is any indication the Judge focused on those principles to the exclusion of the rest, and in so doing committed an error of law.
[62] In concluding that nothing short of a term of imprisonment was appropriate in this case, the Judge stated “although I accept home detention can be a sentence that meets the needs of sentencing, in my view it do[es] not meet them sufficiently.” The Judge was clearly referring to the case at hand. It seems that in saying this, the Judge had s 16 in mind. The Judge clearly turned his mind to determining the appropriate sentencing outcome in this case. The Judge explained that the appellant’s offending involved “barefaced lies” and the appellant’s actions “were not the actions that should be expected of a company director who has any integrity and any regard to his obligations in that role.”33 Although it appears the appellant has now been removed as a director of Aimex, if a sentence of home detention were imposed, there would have been nothing to prevent the appellant from continuing to act as a company director.
[63] The availability of home detention does not mean that a short term of imprisonment is not a sentencing option. An analysis of the circumstances of the particular case is required. In Fairbrother v R the Court of Appeal stated:34
… the judge must make a considered and principled choice between the two forms of sentence [a short sentence of imprisonment and home detention], recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
[64] In this case I am satisfied the Judge took the various purposes and principles of sentencing into account in determining that home detention was not sufficient to meet the needs of sentencing and a sentence of imprisonment was required. In the
33 At [51].
34 Fairbrother v R, above n 28, at [30].
circumstances, a short sentence of imprisonment was the least restrictive outcome available.
Conclusion
[65] The discounts provided by the Judge were adequate and resulted in a sentence that was not manifestly excessive.
[66] The Judge did not err in imposing a sentence of imprisonment, rather than home detention. I am satisfied the short sentence of imprisonment imposed in this case was the least restrictive outcome available in the circumstances, taking into account the principles and purposes of sentencing as required under s 16.
[67]The appeal is dismissed.
Grice J
Solicitor:
O’Donoghue Webber, Nelson
0
13
0