New South Wales Court of Criminal Appeal CITATION : REGINA v. WEBSTER [1999] NSWCCA 313 FILE NUMBER(S) : CCA 60330 of 1999 HEARING DATE(S) : Monday 27 September 1999 JUDGMENT DATE : 27 September 1999 PARTIES : REGINA v. WEBSTER, Patrick John JUDGMENT OF : Grove J at 55; Sully J at 57; Greg James J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0172 LOWER COURT JUDICIAL OFFICER : Moore, DCJ. COUNSEL : Crown: M.M. Cunneen Resp: S. Odgers SOLICITORS : Crown: S.E. O'Connor Resp: Trevor Nyman & Co. CATCHWORDS : Armed robbery - Crown appeal against inadequacy of sentence - minimum term disproportionately short - rehabilitation to be weighed with objective considerations including personal and general deterrence - minimum term to reflect period in custody objective circumstances require be served - effect of guideline judgment in Henry & Ors - necessity for sentencing judges to accept and apply principles. ACTS CITED : Justices Act Community Welfare Services Act (Vic) Henry & Ors [1999] NSWCCA 111 Atonio [1999] NSWCCA 266 Vu (CCA, unreported 11 September 1993) Bugmy (1990) 169 CLR 525 Power (1974) 131 CLR 623 Deakin (1984) 58 ALJR 367 Paivinen (1985) 158 CLR 489 CASES CITED: Watt (1988) 165 CLR 474 Attorney-General at Law v. Morgan & Morgan (1980) 7 A. Crim. R. 146 Henry & Barber [1999] NSWCCA 107 Morrissey (CCA, unreported 15 July 1994) McDonald (CCA, unreported 12 October 1998) Govinden [1999] NSWCCA 118 Lattouf (CCA, unreported 12 December 1996) Osenkowski (1982) 25 A. Cr. 3794 Shrestha (1991) 173 CLR 48 DECISION : Appeal allowed IN THE COURT OF CRIMINAL APPEAL No. 60330 of 1999 CORAM: GROVE, J. SULLY, J. GREG JAMES, J. MONDAY 27 SEPTEMBER 1999 REGINA v. PATRICK JOHN WEBSTER JUDGMENT 1 GREG JAMES, J: This is an appeal by the Director of Public Prosecutions against the inadequacy of the sentence imposed on the respondent in the District Court of New South Wales. The sentence was imposed by His Honour Judge Moore at the Campbelltown District Court on 10 June 1999 in respect of one charge of armed robbery to which the respondent pleaded guilty. His Honour imposed a sentence of four years penal servitude comprising a minimum term of six months with an additional term of three and a half years. That sentence was to date from 8 January 1999. 2 There is one ground of appeal that the said sentence is inadequate; that ground is not particularised. 3 Written submissions have been filed by the Crown and by the respondent in respect of the appeal. In those submissions and orally before this court counsel for the Crown has indicated that the thrust of her submission is in respect of the minimum term and particularly in respect of the difference between what might be expected as the norm for a minimum fixed term imposed in respect of a total sentence of four years and that here imposed. Whilst the availability of the finding of special circumstances is not challenged, the result of the exercise of discretion as a consequence of that finding is. Reference was made to the guideline judgment of this Court in the Regina v. Henry & Ors [1999] NSWCCA 111 and, in particular, to what was said by the Chief Justice a commencing at paragraph 126. For the respondent, it is submitted the total sentence and the minimum term are within range or should not be disturbed. 4 In addition, the Crown submits there have been of various errors into which his Honour fell. In my view it is not necessary to deal with each of the specific errors which it is said occurred. Some specific criticisms of the way in which his Honour came to his conclusions might well be merited but I need not stay to deal with them as I have come to the conclusion that when one examines the totality of the circumstances of the case the minimum term imposed by his Honour is so inadequate that I must conclude that his Honour fell into error, particularly since I accept the submission that there is no justification in his Honour's findings for a minimum term so low when one has regard to his conclusion as to the total sentence. 5 Shortly, his Honour found the facts in his remarks on sentence to be that the prisoner robbed Simon Rohan of $410 and a packet of tobacco, the weapon used being a syringe containing red fluid. The premises on which the robbery was committed was a convenience store. The prisoner entered the premises at the early hour of that day, 12.38 am, a Tuesday, in company with the co-offender - and I continue reading from his Honour's remarks on sentence:- "The prisoner was carrying a syringe filled with a red coloured substance. ... I accept that in this case, as in almost every case, the person who was the victim of the armed robbery was terrified. It is an aggravating feature of this matter that it was committed in the early hours of the morning on a vulnerable victim. The prisoner grabbed money from the tills and his co-offender - there were two of them, two tills - the co-offender came in and also grabbed money and it was he who took the packet of tobacco. The two of them left. A few seconds later the prisoner returned and demanded more money. He took (sic) for some more money but was unsuccessful and then left the store. He was recorded on a security video. Some of the police officers at Maroubra Police Station identified him on the video, although the pictures before me - which are still pictures - indicate that he had a cap on his head and was also wearing sunglasses." 6 His Honour noted that initially the prisoner had denied his involvement but subsequently had pleaded guilty at the Local Court level coming forward for sentence at the District Court under s.51A of the Justices Act. Although there is some obscurity as to the precise offence involved his Honour held there was an aggravating feature of the crime in that this offence was committed while the respondent was on bail for another offence not clearly identified, and thus on conditional liberty. 7 His Honour referred to the features of offences like these as identified in the guideline judgment to which I have referred and reminded himself of that judgment. He particularly took note of the respondent being a young man but a man who he held was somewhat older than others who come before the court charged with offences of this nature (he was at the time of sentence 26). 8 His Honour noted the prisoner's short criminal record, that record comprised one count of malicious damage and one count of shop lifting of the value of $2,000 in respect of both of which the prisoner had received the benefit of s.556A - one count of receiving stolen property for which the prisoner was fined $1,000; and offences of take and drive conveyance and having custody of a knife; in respect of which latter two matters the prisoner received sentences totalling one month's penal servitude which, as it happened, expired on 31 July 1999. 9 His Honour noted that the origins of the prisoner's criminal behaviour lay in drug abuse. He referred to that record as being stimulated by drug abuse and that the drug abuse only commenced recently in relative terms. He referred to the prisoner's prior history of long and hard work and responsible work until he became subject to his addiction although his Honour notes an earlier addiction to cannabis use. 10 His Honour made note of the objective seriousness of the matter but referred to the very strong subjective features which minded him to reduce the normal proportion between minimum and additional term radically. He referred to the long period of rehabilitation which in his view was necessary. He accepted the impressive evidence of family support the prisoner had available to him and that the circumstance that gave rise to the addiction included one that had caused a set back to the prisoner leading to a period of rebellion against responsible associates and his family. He referred to the history of attempts, albeit unsuccessful attempts, assisted by the family to achieve treatment for the prisoner's drug addiction and particularly to the Naltrexone treatment which then not having been approved in Australia was undertaken in Israel. That treatment was not accompanied by counselling and his Honour held as a result of that the prisoner returned once again to heroin use and that underlaid the offence for which he had come forward for sentence. 11 His Honour noted that the prisoner had been noticed in gaol to be well, having recuperated himself from both physical and psychological addiction and was intending to rehabilitate himself. He noted the evidence of Mr. Beadman, a life-long friend of the prisoner and his family, who had offered religious counselling to the prisoner and who held the prisoner and his family in highest esteem. Mr. Beadman had witnessed the heroin abuse and had attempted to assist the prisoner out of it. 12 His Honour noted that the prisoner wishes to enter into full-time rehabilitation. The prisoner had made his own enquiries which resulted in him being found suitable for a residential programme in Lyndon House, Canowindra. His Honour said:- "Lyndon House is well known as being an extremely strenuous and demanding course of rehabilitation. It requires complete restriction of liberty for up to a year on its inmates. And for many other people who admit themselves to Lyndon House who find themselves unable to cope with its stringency. The prisoner, on the evidence before me, is one of those who is likely to succeed." 13 Evidence tendered on this appeal without objection and accepted by us indicates that the programme is not of the degree of stringency to which his Honour referred. It is a three month drug and alcohol rehabilitation programme. 14 His Honour concluded that in his view although it was a case where there must be a substantial sentence of imprisonment, it was appropriate for the minimum term to be fixed at six months taking into the account the prisoner's intention to go into Lyndon House - assuming he is still acceptable there on his release. His Honour recommended to the Parole Board that a condition to that effect should be imposed on parole. 15 His Honour also referred to the personal anguish the prisoner would suffer and to that being a particularly keen punishment on him as he would be unable to assist his wife in her pregnancy and in the delivery of their child she was expecting. (We have been informed that the baby was born some three months ago.) 16 His Honour took into account the arrangements that had been made for a job and that it would be a considerable punishment for the prisoner to be engaged in full-time rehabilitation at the time his children are born. 17 His Honour adverted to the form of rehabilitation assistance which he expects would be provided, as one which involves a deprivation of liberty and referred to the utility of lengthy supervision on release with the expectation the respondent would be a responsible, worthwhile member of the community. 18 The evidence before his Honour in the pre-sentence report indicated remorse, insight, intelligence and attention to his problems on the prisoner's part but those observations in the report were conditioned upon the prisoner first needing to come to terms with his drug issues. 19 These considerations are what led his Honour to impose the six months minimum term. Thus, his Honour appears to have accepted the necessity for a lengthy period of rehabilitation as a special circumstance and reduced the minimum term to accommodate that factor. 20 It has to be accepted that for a long time courts have been disturbed about the level of sentences imposed from time to time for offences of armed robbery in the District Court of New South Wales particularly in the context of an evaluation of subjective circumstances. That is what led to the guideline judgment in Henry & Ors (supra) 21 In Regina v. Atonio [1999] NSWCCA 266 the Chief Judge at Common Law and I both recently adverted to the level of sentence in the District Court for serious offences of armed robbery and referred to the court having on many occasions said that the range of sentences imposed should be much higher than those in fact imposed by sentencing judges, I referred to Regina v. Vu (CCA unreported 11 September 1993). I remarked:- "Armed robberies are offences of the gravest violence occasioning to the victims, not only the loss of their property but frequently permanent psychological damage of a serious nature. It has recently pointed out by the court in Regina v. Henry & Ors [1999] NSWCCA 111, that such offences require condign punishment. These sentences, albeit we have not had their merits debated in front of us in these proceedings, do not seem to reflect those principles which would require the objective gravity of crimes to be assessed in such a way as to produce, one would expect, sentences of much greater length". 22 The Chief Judge at Common Law similarly remarked on the necessity for sentencing judges to pay attention to the decisions of this court and particularly to the principles and policy set out in the guideline judgment. 23 It has been argued on behalf of the Crown that the sentence can be seen to be in error when it is appreciated that the minimum term needs to reflect the application of the relevant principles enunciated by the High Court in Regina v. Bugmy (1990) 169 CLR 525. In that case, albeit the court there was considering the Community Welfare Services Act of Victoria, since repealed, and a statutory regime not precisely the same as that here in question, the judgments adverted to the general principles applicable to a sentence including an order for release to conditional liberty. 24 In Bugmy (supra), in the passage in the joint judgment of Mason, CJ. and McHugh, J. (dissenting) commencing at 530, appears the following:- "But that does not mean that the sentencing judge in fixing the minimum term approaches the task on the footing that he or she is solely or primarily concerned with the prisoner's prospect of rehabilitation: Power v. The Queen (1974) 131 CLR 623 put paid to that notion." 25 Their Honours continued, pointing out the purpose of a non-parole period at 531 citing what had been said in Power v. The Queen (1974) 131 CLR 623 by Barwick, CJ., Menzies, Stephens and Mason, JJ. The joint judgment of the majority, Dawson, Toohey, and Gaudron, JJ., was to similar effect on this. All of their Honours accepted that the non-parole period is the minimum period of custody the sentencing judge considers the crime committed requires and that the object of a minimum term or non-parole period is to provide for mitigation of the punishment of the prisoner in favour of rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum term that the judge determined justice requires must be served, having regard to all of the circumstances of the offence, citing Deakin v. The Queen (1984) 58 ALJR 367; Regina v. Paivinen (1985) 158 CLR 489 and Regina v. Watt (1988) 165 CLR 474. Mason, CJ. at McHugh, J. said:- "Accordingly, although the fixing of a minimum term confers a benefit on the prisoner, it serves the interests of the community rather than those of the prisoner." 26 Their Honours cited the views of Jenkinson, J. in Attorney-General at Law v. Morgan & Morgan (1980) 7 A. Crim. R. 146 on the importance of the interests of the community which imprisonment is designed to serve as well as circumstances which would mitigate punishment. 27 Their Honours continued that the weight to be attached to various factors may be different as those factors are relevant to the different purposes behind the functions of the head sentence and the minimum term. They deal further with the prospects of rehabilitation and the particular damage which may be occasioned by requiring a minimum term of imprisonment to those prospects, but nevertheless they conclude the minimum term as part of the sentence must remain to some extent proportionate to the gravity of the crime and the circumstances of the offender. Although there was a difference between the minority and majority judgments on the importance to be given to rehabilitation prospects, the views of the majority on this last proposition were to similar effect. 28 In Regina v. Henry & Barber [1999] NSWCCA 107, her Honour Justice Simpson, in consequence of what had been said in the guideline judgment to which I have already referred, examined the sentences for armed robbery imposed in the individual cases of two of the respondents to the guideline judgment. At p.76 commences her examination of the minimum terms in the light of the contention such were manifestly inadequate. She said:- "A sentencing judge, having found special circumstances, has a good deal of room to move in the structure of the sentence to be imposed. However the discretion conferred by s.5(2) should always be exercised with one eye on the relevant minimum term, which must be such as properly to reflect the objective gravity of the crime for which it is imposed, taking into account the subjective features." 29 Her Honour cited Power (supra); Regina v. Morrissey (CCA, unreported 15 July 1994) and Regina v. McDonald (CCA, unreported 12 October 1998). She continued:- "A sentencing judge who varies the statutory proportions in favour of a lengthier additional term needs to take care to ensure that the minimum term is no lower than that commensurate with the objective gravity of the crime". 30 In Regina v. Govinden [1999] NSWCCA 118, a Crown appeal in respect of armed robbery in company, was dismissed. His Honour Justice Dunford delivered a judgment, with which Smart, AJ. and I agreed. He referred to the seriousness with which this court regards the offence of armed robbery and the authoritative restatement of the law in Henry (the guideline judgment, supra). In Govinden (supra), as in here, there was the aggravating feature of the offence being committed while on conditional liberty and his Honour referred to a deterrent sentence as appropriate in those circumstances citing Regina v. Richard (1991) 2 NSWLR 464. His Honour referred also to the prospect of rehabilitation and the judgment of Mahoney, ACJ. in Regina v. Lattouf (CCA, unreported 12 December 1996) and, in particular, the passage in which his Honour referred to the value to the community of rehabilitation which appears at pp.6-8 of that judgment. I extract from the portion of that decision cited by his Honour the following:- "But, in addition, a sentencing process must be capable of discriminating between cases. There is, as I have said, a public interest in punishment. But if the desire to punish results in a person who would otherwise not become a confirmed criminal becoming such, that sentencing process is inconsistent with the public interest. It is to be recognised imprisonment may convert a person who will not be a persistent criminal into one who is. Particularly is this so where the person to be sentenced is a first offender of comparatively young age whose family circumstances are such that he may, with assistance, not become a criminal. It would be wrong to the individual and costly to the community not to attempt the rehabilitation of such a person." 31 The Crown appeal was dismissed in Govinden (supra) but the basis for dismissal was an argument on a parity basis not available here. Those last observations of Mahoney, ACJ, cited by Dunford, J. are observations of general significance but are not in my view to be taken as in any way inconsistent with the observations of Simpson, J. to which I have earlier referred and, in particular, they are not inconsistent with the significance of her Honour's views on the necessity of retaining a proportionality in the minimum term reflecting as appropriate in the light of Bugmy (supra), the special considerations applicable to it, including those arising from a consideration of the objective circumstances of the crime and the other values of sentencing which include punishment and deterrent. 32 It has been argued here by counsel on behalf of the respondent that the trial judge did not fall into error and the sentence fell within the sufficient range available to him in the particular circumstances of this case so that the imposition of the six months minimum term was not outside the legally permitted ambit of appropriate sentences. I am unable to accept that argument. 33 In my view the minimum term, even taking into account the prospects of rehabilitation, falls so far below what is appropriate as to indicate that his Honour has fallen into legal error in reducing the impact of the sentence and failing to have regard to appropriate criteria in imposing the minimum term. 34 It has also been submitted that it was open to his Honour to have had regard to the prospects of the "crossroads" as they are referred to in the judgment of the Chief Justice of South Australia in Regina v. Osenkowski (1982) 25 A. Cr. 3794. The remarks of the Chief Justice in that decision, as with what was said by Mahoney, ACJ. have to be considered in the context of the principles referred to by the High Court in Bugmy (supra) and the principles adverted to by Simpson, J. 35 Rehabilitation is plainly a matter to take into account. Prospects of rehabilitation are plainly a matter to which much regard might have to be paid by a sentencing judge Bugmy (supra) clearly says this. What was said by Wood, CJ. at CL. in Henry (supra) concerning the availability of the prospects of rehabilitation to allow a diminution in the sentence that might otherwise be passed may not put the matter as highly as others might put it but, however one has regard to the "slamming prison door" principle, one still must have regard to what the High Court has said are the other appropriate considerations in Bugmy (supra). 36 Further as both the judgments in Henry (supra) show, even though drug dependency may have a particular relevance for the relativity of the minimum and additional term and that rehabilitation and its prospects may have a particular impact in that context regard must still be properly paid to those other considerations. 37 In Shrestha v. Regina (1991) 173 CLR 48, there appears a passage to which the respondent's counsel took us which suggested that in an appropriate case considerations of mitigation or rehabilitation may make full-time custodial imprisonment unnecessary or even undesirable. That passage is to be understood in the context of their Honours making general remarks for the differing regimes throughout Australia in some or most of which, unlike New South Wales, suspended sentences are available. Such remarks are themselves posited on there being, in an instant case, considerations of such a compelling nature that no or a very short minimum period in custody might be granted consistently with the need for punishment and deterrence. That is not this case. 38 Whilst it is clear that the circumstances of parole may themselves involve a significant loss of freedom if there is to be confinement for rehabilitation purposes in some such establishment as the trial judge was referring to in his remarks on sentence, it would be an error to allow the fact of such confinement for rehabilitative purposes during the parole period to so diminish the deterrent effects of a minimum term as to reduce it as far as it was reduced here. 39 I conclude, therefore, that his Honour did fall into error and that it is necessary for this court to intervene, absent any matter which, in the exercise of discretion, is seen to have such imperative force as to require that the appeal be dismissed. 40 Both on the re-sentencing and on the exercise of the court's well-known discretion in respect of Crown appeals, there has been tendered in evidence the notice from the Parole Board notifying its decision to authorise the release of the respondent, who has now been at liberty since 22 July, upon stringent terms including a term that he submit for supervision for a period of three years from release; that he, if so directed by his probation and parole officer, seek assistance in controlling his abuse of drugs; undertake urinalysis; authorise and direct his medical and other professional and technical advisers or consultants to provide to the Probation and Parole Service a relevant report on a rehabilitation/ residential centre as directed; accept psychological assessment and/or counselling and other terms. 41 In addition there is a pre-release report which also refers to a pre-sentence report. Those report are in most respects greatly to the respondent's advantage. The former refers to one incident during his confinement at the Metropolitan Remand and Reception Centre which stemmed from his then drug detoxification; it refers to his having been cleared of risk status and having not since come under notice; it refers to the good progress of the respondent which may well be impeded if he is exposed to other individuals in commonly available rehabilitation centres who are entrenched in a drug focused life style; it refers to the respondent clearly needing the assistance of professional intervention "in view his problem drug history, his somewhat advantaged material and social conditions have provided him a lifestyle and value system which could marginalise him from other drug centre residents and affect his performance. It is to be noted he has been the subject of some ridicule and banter at Silverwater due to inmates' knowledge of his father's professional profile". That report states that he has now acquired a good ability to critically appraise the delivery of professional assistance and how his needs can be suitably attended to and has a determination to effectively deal with his personal problems. He has apparently responded well instead to confronting exploration of his problem behaviour particularly when his parents are able to provide input. 42 The reports notes that in the pre-sentence report it is considered by the counsellor:- "[His] drug and personal issues would be appropriately dealt with were he to immerse himself in an environment which offered him productive purpose, a sense of achievement and opportunities to recognise and improve his relationship stresses involving his parents and defacto wife. Further, the inclusion of individual and family counselling services in a non-residential setting would better facilitate monitoring and guidance of associated developments. The counsellor added that residential rehabilitation should be an option during parole in the event that Mr. Webster shows any indication of relapse. Enquiries indicate that several drug centres are prepared if necessary to assess the inmate during parole and tailor a program to involve his family in reaching positive goals. While this avenue would impose further financial and emotional expense upon his parents, they offered a preparedness to provide such support." 43 Further the pre-release report noted that a family arranged farm management position was open to the respondent:- "The inmate clearly recognises the additional upheaval his further drug use and offending has created in his parents' lives and that of his pregnant wife. These impacts have sensitised him to the gravity of his antisocial and maladaptive behaviour. He regarded these matters, in addition to desiring improvements in his functioning, to provide major impetus to resolving his destructive conduct. Mr. Webster's realisation that his drug use points to underlying relationship concerns that need immediate attention has given him a productive direction to pursue. He is aware that he is unable to attain a positive lifestyle independently." 44 That report concluded:- "Mr Webster impresses as one whose imprisonment has enabled him to reflect on his drug related problems and consider constructive methods of improving his circumstances. His ability to detoxify from heroin has so far shown minimal difficulty. However, he is yet to adequately examine the degree to which his family relationship issues influence his decisions to act self-destructively and against the interests of others. This needs to be the focus of his personal growth. … In view of Mr Webster's positive attitude and promising progress, it is recommended that he be released to parole, conditioned that he undertake:- 1. urinalysis for a minimum of six months, 2. psychological counselling, 3. drug counselling, 4. enter a residential drug rehabilitation programme if so directed 5. maintain employment." 45 There is a further note indicating he appears to have used his time in custody constructively and that residential drug treatment option should be available to him. The Lyndon Community Rehabilitation Programme is apparently available to him if it is regarded as appropriate. 46 Notwithstanding those favourable observations and what appears in the respondent's affidavit on this appeal to which I will shortly refer, it nonetheless seems to me that this court should not decline to stay its hand. In my view the error made by the trial judge was so glaring and the absence of an appropriate regard for the criteria enunciated in Bugmy (supra) by the High Court so obvious that the court should not in its discretion refrain from returning the respondent to custody but consistent with the usual practice on Crown appeals only for the minimum period appropriate to apply those principles. This, at least, should mark as clearly as possible that there is in the objective circumstances of armed robberies of the kind here in question a minimum of full-time custody which can be expected except in the most exceptional circumstances. 47 I am, however, of the view in accordance with that practice to which I have referred, that having regard to the sentencing material, double jeopardy, the discretionary considerations and the matters in the respondent's affidavit, that minimum term should be disturbed only to the extent of increasing it by a further six months and that the court should in so extending the term make to the Corrective Services authorities recommendations that all possible steps should be taken to seek to avoid any deleterious effect upon the rehabilitation process as it has been proceeding with the respondent and to enable him to maintain contact with his family. In particular that it should be recommended:- 1. That his classification be given maximum expedition. 2. That he be detained insofar as compatible with proper prison administration and discipline:- (a) in minimum security conditions; (b) in conditions maximizing his continued contact with his family; (c) in conditions maximizing his prospects of rehabilitation having regard particularly to the contents of the parole report and to the applicant's affidavit on appeal; (d) in conditions minimising his exposure to hardened criminals. 48 I propose the Registrar be directed to notify immediately the Corrective Services Commission in respect of these recommendations upon the court making the orders that I propose. 49 I cannot leave the matter, however, without referring briefly to two matters. Firstly, the respondent's affidavit admitted on this appeal, sworn 27 September 1999, in which he sets out his background. He refers to the conditions under which he spent his time in custody and the conditions that prevailed during his life while subject to sentence. He refers to himself as not wanting to be part of the gaol system:- "In jail for the first time I would have to say is even worse than using heroin and it has been the worst part of my life. In jail I was so scared watching people stood over and bashed or even stabbed for a roll of tobacco and paper. Also if you had a good pair of runners and other prisoners knew it was your first time, three or four Aboriginals would come over and take them from you. I cannot put in words how much jail scared me and made me feel it was just the worst thing that could ever happen in my life. It was only because of using heroin that I went to jail - before using heroin I was a law abiding citizen. I do not want to be part of a jail system with corrupt people and other drug addicts who do not want to help themselves but are happy to live with the cycle of drugs and jail." 50 Later he refers to his time out of gaol and in particular his time with his new born son and his wanting to get way from his old environment, to move to the country, to marry his fiancee and to be a great husband and father and stay away from drugs and crime. I have had regard to what was said in that affidavit when on the question of the exercise of discretion to intervene and on re-sentencing. 51 In accordance with the principles of law applicable on sentencing, I consider we must uphold this appeal and return the applicant to custody. The six months additional minimum term that I have referred to reflects those principles and also reflects my appreciation of the tragic impact on the respondent of his having to return to custody as being a matter exceptionally onerous. 52 The second matter requires reference to what has occasioned the error here. The course taken below by the judge at first instance is what has compelled the court to have to return the applicant to custody in imposing a sentence in accordance with principle. No doubt a sentence which had properly reflected the legal requirements would have in fact avoided the more onerous effect to which I have referred. 53 The mistake at first instance has caused the problem here. That is one the reasons why this court has now for a number of years sought to make it clear to trial judges that sentences in this realm are too low far too often and occasion the personal disruption accompanying successful Crown appeals. The guideline judgment in Henry (supra) was intended to provide to sentencing judges rules of policy the application of which would avoid such personal disruption in the ordinary case. It is not enough to mouth the formula of saying one has referred to that decision, one has to apply it. 54 I therefore propose that the appeal be upheld and the sentence varied to the extent of increasing the minimum term from six months to 12 months. I would therefore propose that the minimum term would expire on 7 January in the year 2000. The time during which the respondent has been at liberty should count as part of the term. 55 GROVE, J: I agree with the judgment just delivered by Greg James, J. and the orders he proposed together with the recommendations which he has foreshadowed. I would only wish to add a few words for myself. 56 It will be a distasteful task for this court to recommit a young man to prison in the circumstances which were outlined in the preceding judgment. The necessity to do so is a direct result of the failure of the District Court to discharge its clear duty to impose a sentence which was compatible with recognisable and well established principle and guideline. The sentence imposed at first instance was, so far as the calculation of the minimum term component was concerned, I regret to say a departure from the expected standards of the responsible exercise of jurisdiction. 57 SULLY J: I agree with the orders proposed by Greg James, J. for the reasons given by his Honour. 58 I emphatically support what has fallen from the presiding judge in his additional remarks. 59 GROVE, J: The orders of the court would be those proposed by Greg James, J. together with the recommendations which have been foreshadowed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.