New South Wales Court of Criminal Appeal CITATION : Regina v LRS [2001] NSWCCA 338 revised - 11/09/2001 FILE NUMBER(S) : CCA 60346/01 HEARING DATE(S) : 22 August 2001 JUDGMENT DATE : 22 August 2001 PARTIES : Regina v LRS JUDGMENT OF : Priestley JA at 1; Sully J at 58; Smart AJ at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/31/0189 LOWER COURT JUDICIAL Nader DCJ OFFICER : COUNSEL : Crown - E.A. Wilkins Respondent - P.M. Strickland SOLICITORS : Crown - S.E. O'Connor Respondent - D.J. Humphreys CATCHWORDS : Crown appeal against inadequacy of sentence LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 DECISION : Crown appeal against sentence allowed. See Schedule to judgment. IN THE COURT OF CRIMINAL APPEAL 60346/01 PRIESTLEY JA SULLY J SMART AJ Wednesday, 22 August 2001 REGINA v LRS Judgment 1 PRIESTLEY JA: The Court is in a position to deliver judgment straight away. The opinions of the Court are divided. I mention that so that you do not have to wait until everybody has spoken to find out what the result is. The result will be that the appeal will be upheld and there will be a suspended sentence imposed and the details of that will be given later. 2 I will ask Smart AJ to give his reasons first. 3 SMART AJ: The Director of Public Prosecutions appeals against a sentence imposed by Nader ADCJ at East Maitland District Court whereby LRS was placed on a good behaviour bond for three years on a charge of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm. The Director contends that the sentence was inadequate. 4 The facts have to be gleaned principally from the materials tendered by the Crown, including the respondent's record of interview with the police, his two police statements, a statement of facts prepared by the Crown, which was infelicitously worded and some other statements and reports. No statement from the victim of the offence was tendered. It would have exposed him to cross-examination and possibly to self-incrimination. 5 In his remarks upon sentence the judge made some comments as to what he thought probably happened. Some of these involve a degree of surmise. No oral evidence was called. The judge reserved his decision after receiving the documentary materials and hearing addresses. He gave the question of sentence anxious consideration over the ensuing eleven days. It was not an easy issue to resolve. 6 At the time of the offence the respondent was a juvenile, having been born on 20 March 1982. The complainant, on the other hand, was a mature man, having been born on 18 January 1957. He was thus aged forty-three at the time of the offence. The complainant lived "just around the corner" from the respondent's house. 7 The respondent and his de facto wife first met the complainant at the wine bar at Beresfield about six months prior to the offence. They all went back to the complainant's house and spent some time together drinking and chatting. Thereafter, they saw him in the street and at the wine bar. 8 On 22 February 2000 the respondent went to the wine bar at Beresfield with his de facto, the complainant's conduct, facto wife who was a year older than him, and his seven year old brother. The wine bar was within easy walking distance of their home. When they arrived, the complainant was there. He stayed for a short time, leaving about 6 pm and returning about half an hour later. After his return the respondent, his de facto wife and the complainant played darts with the men continuing to drink steadily. About 8.30 pm the respondent's de facto wife and his younger brother walked home. The complainant also left. The respondent continued to drink. 9 About 9.30 pm the complainant returned to the wine bar. He and the respondent drank some more. About 10 pm the respondent left the wine bar, much affected by alcohol. The complainant left at the same time. They met up and walked towards their homes. At one stage the complainant went into a friend's place and obtained some marijuana. As they arrived at the corner of their respective streets the complainant invited the respondent to come into his home for a beer. 10 After entering the complainant's home each of the men started drinking beer. The complainant had about four or five cones of marijuana. There was some talk about various men in the area who were thought to be homosexuals. The respondent said that the complainant asked him if he had anything against gay guys and that he replied that he hated them. He explained that he had been raped by an old guy at Newcastle and that the only gay guy he liked was a nominated person who had helped him "get through" what had happened. The respondent said that the complainant said, "Well, I'm gay". The respondent stated that he was shocked and that the complainant went out to the back of the house. The respondent said that he had an ordinary smoke and drank some more beer. 11 After returning, the complainant invited the respondent to come and look at some "girlie pictures", that is, pictures of nude ladies. The respondent replied, "Yeah, just before I go". The complainant said that they were in his room and directed the respondent where to go. The room was dark and the respondent asked, "Where's the light switch?". The complainant grabbed the respondent from behind, pushed him on to the bed, rolled him over and very quickly tied up the respondent's left wrist and ankle with a piece of rope, tightly. The respondent protested strongly. The respondent told the police that the complainant sat on him while he, the complainant, tied him up. 12 The complainant told the respondent to stay still and keep quiet as no-one could hear him. The respondent said that the complainant grabbed the respondent's right foot and tied it with the rope. Despite the respondent's continued resistance, the complainant tied up the respondent's right wrist and threw away his thongs. The respondent said that the complainant undid his belt and his jeans and pulled his jeans down as far as they would go. The respondent was not wearing underpants. 13 The complainant licked around the respondent's belly button area and down to his scrotum, which the complainant sucked and kissed. He put the respondent's penis in his, the complainant's, mouth. The complainant next sucked the respondent's penis. The respondent said his wrists and ankles burnt and hurt. The respondent said that the complainant sucked him for about fifteen to thirty minutes. Then the complainant stopped, pulled his penis from his shorts and tried to put his penis in the respondent's mouth. 14 The respondent said that he head butted the complainant as hard as he could so that he stopped doing this. The complainant started to suck the respondent's penis again and continued for about five minutes. The respondent continued to protest but the complainant insisted that the respondent was loving it and really wanted more. 15 According to the Crown facts and the record of interview, during this time the respondent devised a plan whereby he pretended and told the complainant that he was enjoying the experience with a view to inducing the complainant to allow himself to be tied up. The respondent said that he resolved to obtain a knife and cut the complainant's penis while he, the respondent, was tied up. 16 The respondent said that he told the complainant that he liked what was being done and asked if he could tie up the complainant and do it to him. The complainant agreed. The complainant laid down on the bed and the respondent excused himself, stating that he was going to the toilet. The respondent slipped into the kitchen, took a knife, and tucked it into the back of his jeans. He went back into the bedroom and put the knife on the floor where the complainant could not see it. 17 The respondent turned on the light so he could see what he was doing. He tied up the complainant tightly. The respondent turned off the light so the complainant could not see the knife. The respondent fondled the complainant's penis for a short period before taking up the knife. The respondent, with one hand, stretched the complainant's penis. In the other hand he held the knife and cut into the complainant's penis at the base, almost amputating it. 18 The respondent immediately ran from the complainant's house, holding the knife, leaving the complainant tied to the bed. The respondent ran around the corner to his house, immediately told his mother what he had done and urged her to call the police and the ambulance, who responded quickly. 19 The respondent, in his record of interview, said that the complainant bought him drinks at the wine bar, gave him more liquor when he entered the complainant's home, and also tried to get him to smoke marijuana. The complainant was preparing the ground for the events which were to come. 20 In answer to the police question, why did he not just leave the house when the complainant was restrained, the respondent replied, "Because I wasn't goin' to have that done to me again and let him get away with it again. No way". The respondent also said that he knew what he was doing. He described himself as having "freaked out" immediately after committing the offence. The respondent's mother and de facto said that when the respondent arrived home he was upset, scared and panicking. 21 The doctor who examined the respondent at 7.15 am on 23 February 2000 stated that he had pale red linear marks on both ankle and wrists, and that these marks were consistent with having been tied with a rope some time before the examination. There was a superficial scratch about twelve centimetres in length on the inner aspect of the left forearm. 22 The complainant was conveyed, as a matter of great urgency to the Prince of Wales Hospital, Sydney. At 8 am on 23 February 2000 he underwent surgery. His penis was successfully revascularised, using microsurgical techniques. The nerves were also repaired and the penis reattached. 23 In his report of 14 February 2000 the complainant's urological surgeon has written: "[The complainant] last saw me on 24.5.2000. At that stage he was claiming that he had normal sensation in the penis and a normal flow rate. He stated that his erections and ejaculations were both normal. On examination the wound on his penis was well healed and there was some minimal thickening just distal to the wound consistent with healing scar tissue". 24 The judge took into account the extensive admissions made by the respondent to the police on the day of the incident and his early plea of guilty, both for their utilitarian value and as an indication of some contrition. The respondent had no prior convictions. 25 The judge relied on the report of a registered psychologist with the Department of Juvenile Justice. Attention was devoted to the previous incident of sexual abuse. It may have exaggerated his feelings and intensified his resolve to retaliate. The report recorded that the respondent had a past history of ADHD but no prior history of violence or grossly impulsive behaviour. The psychologist described the respondent as naive and vulnerable to victimisation. 26 The probation officer reported, "Inquiries suggest that a lack of adequate guidance, nurturing and the absence of a male role model had adverse effects upon his development". 27 and "He admitted to have commenced the consumption of alcohol during his early teenage years. Inquiries revealed that he was permitted to consume alcohol in the family home from this age". 28 The officer reported that the respondent presented as an immature and simple character, who appears to have experienced a disadvantaged background. She thought that he needed structured and long term treatment and counselling so that he could address a number of underlying issues. 29 The judge noted that the respondent left school in year 9 and went to a TAFE college at Metford and had a number of unskilled occupations. He had a baby. 30 The judge thought that there was no real chance that the respondent would commit an offence of this kind again. 31 The judge attached importance generally to the respondent's age of seventeen. He said: "... It appears to me to be of particular significance that the offender was still in his 17th year at the time of the commission of the crime and the victim was about 25 his senior, and this to me suggests ... the great likelihood ... that the offender was in a general way under the moral influence of the victim ..." 32 The judge expressed some reservations and scepticism about parts of the respondent's version of events. He thought the respondent probably co-operated to some extent. Otherwise the complainant would not have been able to tie up a struggling seventeen year old youth. There is no evidence of the weight and strength of the complainant. He seemed to have a rope ready in a darkened room. The respondent was well under the influence of alcohol and may not have been reacting quickly. The element of surprise is also important. It was pointed out by the Crown that the judge had not made definitive findings as to his surmises but had left them as possibilities. 33 There are of course a large number of variables in a situation such as the one which existed. The judge said: "I have vacillated a number of times as to what should be the appropriate response of this Court because on the one hand I cannot overlook the fact that the crime is a very serious one and in ordinary circumstances there could be no doubt that it would warrant a sentence of full time imprisonment. To mutilate someone in that way is a most serious crime and one can imagine that if it were done for other reasons, for malicious reasons, entirely malicious reasons, in other circumstances it would carry with it quite a heavy sentence of imprisonment. That consideration has a countervailing consideration and a strong countervailing consideration and that is the fact that the offender was an immature boy at the time that this happened". 34 This and other passages in the judge's reasons reveal that he was acutely conscious of the seriousness of the crime. 35 The judge further said that, having regard to the respondent's age, the extreme uniqueness of the circumstances in which he found himself, the extreme disgust and horror he felt, and that he was morally inferior (that is, in the sense of wills) in that situation to the man who was with him, the respondent should not go to gaol. The judge then stipulated a number of conditions designed to help the respondent and advance his rehabilitation. 36 The Crown contended that the sentence itself was so inadequate that this alone demonstrated error. It also relied on specific errors. 37 The Crown contended that the judge failed to give proper weight to the objective seriousness of the offence. The judge did appreciate the seriousness of the offence and there is no doubt that the respondent over-reacted and that such reaction could not be justified. Action taken as a result of provocation can never be justified. The role of provocation is to mitigate the gravity of the offence. It allows that the conduct of a complainant may, having regard to the circumstances, explain why a respondent has performed the acts which he did and in certain circumstances why he has lost his self-control. 38 The Crown correctly submitted that the respondent should not have taken the law into his own hands. The provocation was, in my view, extreme. It involved a seventeen year old boy being forced to submit to someone fondling and sucking his penis and testicles for a long time whilst he was tied down on a bed and thus powerless. He also had to endure the complainant trying to insert his penis into his mouth. The complainant was supposed to be a friend. The respondent would probably also have been conscious of the complainant having plied him with liquor. I do not think that it can be fairly said that the judge failed to give proper weight to the objective seriousness of the offence. 39 The Crown submitted that the judge gave too much weight to the mitigating aspects of the circumstances of the offence and too little weight to the evidence that it was premeditated and motivated by revenge. 40 The Crown submitted the offence was entirely malicious. The Crown in its written submissions contended the judge appeared to think the offence was less blameworthy by reason of the conduct of the complainant. I think that all the judge was doing was taking into account the provocation offered by the complainant and the reprehensible conduct of the complainant perpetrated upon the respondent. It was substantial. The Crown relied upon the respondent's statement that he was in part motivated by the conduct of a person other than the victim. The relevance of that incident is to demonstrate the effect that the conduct in question was likely to have on the respondent and a person in the position of the respondent. He would have an increased aversion to it and be likely to retaliate. The Crown relied on the respondent being motivated by revenge, little remorse and premeditation. 41 The premeditation, such as it was, occurred while the respondent was tied on the bed, powerless, and the subject of a serious and prolonged sexual assault. There was no doubt this made the respondent very angry. The complainant's conduct would have made many people very angry if they had been subjected to it. The respondent certainly over-reacted. The judge was mindful of the need to obtain the right balance. I do not think that this complaint by the Crown has been established. 42 The Crown further submitted there was no reasonable proportionality between the weight given to the objective gravity of the crime and the subjective features of the respondent. 43 The Crown in its written submissions in effect challenges the judge's view that the respondent was immature. It pointed to him having left school and having a steady girlfriend at the time of the offence and the respondent being less than a month short of his eighteenth birthday. However, the evidence before the judge pointed to the respondent being immature and simple. I do not regard leaving school early and having regular sexual intercourse from an early age as signs of maturity. 44 The Crown correctly stressed the importance of deterrence because of the seriousness of the crime. However, I regard the circumstances of this case as quite unusual and as being one in which considerable weight should be given to the question of rehabilitation. Having regard to the complainant's conduct and the vulnerability of the respondent, I do not regard the sentence as lacking proportionality. 45 I regard the sentence imposed by the judge as being one that was reasonably open to him in the unusual and exceptional circumstances of this case. The sentence itself did not bespeak error. 46 For those reasons, I would dismiss the appeal. 47 PRIESTLEY JA: I have come to a different conclusion. In my opinion, the appeal should be upheld. Although I am thus disagreeing with the conclusion arrived at by Smart AJ, there is very little else in what he has said with which I disagree. 48 I accept his statement of the facts of the matter and adopt his recitation of the arguments for the appellant and for the respondent. The area of it which leads me to come to the conclusion that the appeal should be upheld is that the objective circumstances of the offence seem to me to be of such seriousness that, even taking into account the mitigating factors which have been explained, both by Judge Nader and Smart AJ, my view is that the only appropriate response from the Court is that there should be a sentence of imprisonment. 49 However, as I have indicated, I agree that the mitigating factors in the case are powerful. The chief ones, which have already been mentioned but which I note very briefly without going through all the details, are the age of the respondent and the fact that immediately after committing the crime he exhibited genuine dismay and took steps which were almost as speedy as were possible to have the injured man attended to. 50 He immediately made a clean breast of the whole matter, or something at the very least very close to a clean breast, to the police and co-operated and later, at the first real opportunity, pleaded guilty to the offence with which he was charged. 51 Other matters are the good prospects of rehabilitation, or perhaps to put it slightly more accurately the position that prospects of his leading a stable and lawful life seemed to be high on the evidence before the Court; and the facts of his de facto wife and child and his current employment which I think it is material also to bear in mind. 52 In addition to those matters, which in themselves would not, in my opinion, be enough to justify a sentence which did not involve some immediate custody, there are two other factors which lead me to think that a suspended sentence is in this Court's dealing with the matter appropriate. Those two matters are the fact that the respondent has now for some time been subject to the orders made by Judge Nader. What is usually referred to as double jeopardy or quasi double jeopardy is something which this Court takes into account regularly in resentencing, resulting in a conclusion that although the sentence appealed against must be increased, it should be a lesser sentence than the Court thinks would have been appropriate at first instance. 53 The other factor which also has had a strong bearing upon my conclusion is that in the course of submissions today the Crown made it clear that the Crown's position was that either a suspended sentence or a sentence of periodic detention would be within the proper sentencing range for this offence in the circumstances in which it came about. 54 In those circumstances, I think the appropriate course for the Court to take is to make the following orders: 55 To confirm the conviction that has been recorded by his Honour Judge Nader, but to set aside the other orders made by him. Then, in lieu of those orders, in my opinion, the respondent should be sentenced to imprisonment for a term of two years to date from today, the whole of that sentence to be suspended upon the following conditions. 1. That he enter into a bond himself in the sum of $1,000 to be of good behaviour for a period of two years from today. 2. That he appear before a judge of this Court if called upon to do so at any time during the period of the bond. 3. That within seven days from today he report to and register with the Maitland office of the Probation and Parole Service and thereafter accept such assistance and reasonable directions as may be given to him by that Service. 4. That he advise the Registrar of that office of any change of residential address. 56 It may be that the orders substantially as I have suggested they should be will need some drafting revision if they become the orders of the Court and I will leave that to be dealt with when we have finished giving our reasons and have had the opportunity of hearing counsel upon the form of the orders. 57 I would propose that orders substantially as I have outlined should be made. 58 SULLY J: I am prepared to join in the orders proposed by the learned presiding Judge; but I wish to take a few moments to place on record the process of reasoning by which I have been persuaded to that conclusion. 59 Since part of what I will be saying will no doubt be seen as implying some criticism of the learned sentencing Judge, I would wish to make it plain at once that I well understand the difficulties under which his Honour was functioning in connection with this present matter. His Honour was sitting at the East Maitland District Court. His Honour is recorded as having complained in terms that he had access to not a single law report or other useful book. His Honour plainly considered that he was not getting that degree of practical assistance which he felt he needed from those then appearing before him. 60 It would be no more than practical fairness to understand that the situation of a District Court Judge who is operating under those constraints, and who is subject as well to the well-known pressures that are brought to bear upon Judges of the District Court to dispose quickly of large volumes of cases, needs to be borne in mind when coming to a particular analysis and critique of his Honour's remarks on sentence. 61 I should say at once, also, that part of what I will have to say would be capable, in sufficiently supple and resourceful hands, of being made a loom upon which there might be woven yet another web of eloquent forensic artifice as to the way in which a single Judge should apply the relevant provisions of the Crimes (Sentencing Procedure) Act 1999. It should not be necessary to say, but experience teaches that it would be prudent to make it clear nevertheless, that such is not my intention. The very last thing that the proper operation of the Act requires is the creation of artificial frameworks within which sentencing Judges will be more or less expected as of course to operate. 62 All of that said, it seems to me that the first problem presented by the remarks on sentence in the present case is what I would respectfully see as a failure on the part of his Honour to articulate clearly the precise findings of fact forming the basis of a clearly exposed process of reasoning bringing his Honour to the ultimate conclusion which is the subject of the present appeal. 63 As has already been remarked by both of the other members of this Bench, the remarks on sentence combine, and, if I might respectfully say so, confuse, in a practical way statements which might be understood as expressing concluded findings of fact, and statements which might be understood as ruminative exercises stopping short of some particular finding or findings of fact. For myself, I have to say that I have not found it at all easy to disentangle from the remarks on sentence the one and the other of those two categories of materials. 64 The second problem that I respectfully see with the remarks on sentence is that they do not seem to me, upon a fair reading, to have approached in the way that the Act requires a balancing, in the successive stages prescribed by the Act, of the various alternatives available under the Act to a sentencing Judge. It seems to me that when his Honour arrived, at page 16, at the conclusions expressed as to the overall balance of objective and subjective features at which his Honour had arrived, his Honour needed, not to jump, as it were, at once to the conclusion that he did not think that the present respondent should go to gaol. What this particular case required was a very careful consideration, in a precise way, of what alternatives were available under the Act to the passing of a sentence of imprisonment. That is to say, what was required was a level-headed consideration of the alternatives for which provision has been made variously under ss 8, 9, 10 and 11 of the Act. 65 If there had been a proper consideration of those alternatives then, as I understand the scheme of the Act, it necessarily followed that a sentence of imprisonment must be passed. I do not mean passed and served in full time custody. I mean passed. That done, it was then necessary to consider, and to decide, whether service of the sentence thus passed should be: (a) suspended pursuant to s 12; (b) service by means of home detention pursuant to s 7; (c) service by means of periodic detention pursuant to s 6; or, (d) service in full time custody. 66 My purpose in saying all of that, I repeat with emphasis, is not to suggest that from now on it will be a ground of appeal to this Court that a sentencing Judge has not meticulously set out, as though in a prescribed check list, a precise series of procedural steps of the kind which I have just outlined; and has thereafter meticulously marked each with a tick or a cross as the Judge might think appropriate. 67 My purpose is rather to suggest that, given the particular nature of the present case, the taking of time to sift carefully through the statutory scheme and the alternatives provided by it must have resulted, as I respectfully think, in a conclusion that it could not possibly be correct, given the objective gravity of what is involved in the present matter, to have dealt with it by any of the alternatives made available by ss 8, 9, 10 and 11 of the Act. 68 In other words, it seems to me that a proper and methodical approach must have made it at once apparent that at the very least a sentence of imprisonment needed to be passed formally, if only as a means of a proper public denunciation of behaviour which, in my view, was on the objective circumstances extremely serious behaviour. It has to be borne steadily in mind that an offence of the kind here in question attracts on conviction a statutory maximum penalty of imprisonment for twenty-five years. I do not say that in a minatory sense, suggesting there was ever any proper basis upon which such a sentence of twenty-five years could have been passed upon the present respondent. My purpose is rather to underline what must surely be obvious to anybody who reads the relevant legislation: that an offence of this kind is regarded by Parliament as an extremely serious offence, the worst kind of example of which can attract, as I have said, a statutory penalty of imprisonment for as long as twenty-five years. 69 The third problem that I respectfully think arises upon a fair reading of the remarks on sentence is what seems to me to have been, with all proper respect to the learned sentencing Judge, a failure to come to grips in a sufficiently clear and precise way with the question of deterrence: deterrence personally to the respondent, and general deterrence. 70 Anybody capable of doing what this respondent did to his particular victim needs to have it brought home to him in the clearest, sharpest and most unforgettable way that such behaviour is simply not tolerable in a civilised society. 71 So far as concerns deterrence of a more general kind, it seems to me that sentencing in cases of the present kind needs to bear sensibly in mind what the experience of the Court, certainly at its trial level, suggests to be the steadily increasing incidence of what has come to be called the homosexual advance defence. 72 I acknowledge at once that on a strict view the homosexual advance defence is not the particular issue that arises in the present case; but the issue that does arise in the present case is, at least broadly, akin in conceptual terms to that defence. It seems to me to be necessary to make it clear on every occasion when the issue arises that no civilised society can tolerate the proposition that it is a reasonable response to a homosexual advance, or indeed to homosexual abuse, at least of the kind here in question, simply to kill or maim the person who has provoked the offender. 73 To deviate in any significant way from that simple proposition seems to me, so far from upholding the rule of law in the relevant context, to weaken it in a way which, if we are not careful, will take on a life of its own to the disadvantage of everybody caught up in this kind of milieu and behaviour. 74 For the whole of those reasons, I simply cannot accept that a s 9 bond reflected a proper penalty in the present case, even taking at their flood in favour of the respondent the strong subjective features to which the other members of the Court have referred in all necessary detail, and to which I need not now refer again in detail. 75 My own preference, since I think it would be out of the question to deal with this matter on the basis of home detention, would have been to take the periodic detention alternative. That would have enabled the passing of a sentence of imprisonment for three years, the maximum permitted in connection with a periodic detention sentence. A properly framed ancillary order for the service of such a sentence by periodic detention would not have interfered, if sympathetically and intelligently administered, with the progress which the respondent appears to have made in the matter of his domestic life, his vocational life and his affairs more generally. But it would have sent a clear signal that however exigent the subjective features, there simply cannot be a proper response to this kind of gross violence except a response that is a proper denunciation in the form of a proper sentence of imprisonment. 76 Plainly, to give effect to what I consider to have been the proper course available in this Court, bearing in mind those constraints in the matter of resentencing to which, in particular his Honour the presiding Judge, has referred, and with which I respectfully agree and need not repeat, would leave the Court split three ways as to what was to happen. 77 It is not in the public interest, as it seems to me, that such a result be entertained by the Court. If the Court cannot in the circumstances of the particular case speak with one voice - in my own view, if I might respectfully say so, always the desirable objective where the Court of Criminal Appeal, of all Courts, is concerned - then at the very least the Court should resolve the matter before it upon the basis of some sensible adjustment of views that enables a workable majority to be achieved. 78 For those reasons, and although, as I say again so there were will be no misunderstanding in future cases about where I stand on the point, I think that a suspended sentence does not answer in the way that I would think proper all the requirements of the present case. But I accept respectfully that it is better in the public interest that I yield that position in favour of the position adumbrated by his Honour the presiding Judge. 79 For all of those reasons, I respectfully concur in the orders proposed by his Honour. (Short minutes of orders handed up.) 80 PRIESTLEY JA: I will initial my written alterations and the second page with the date and then say the Court makes orders in the form of the short minutes of orders initialled by me and placed with the papers. (The terms of the Short Minutes are set out in the Schedule) THE SCHEDULE Short Minutes of Order: 1. Crown appeal against sentence allowed. 2. Respondent's conviction confirmed. 3. The further orders of Nader ADCJ set aside. 4. In lieu of those orders, the respondent is sentenced to a term of imprisonment for two years commencing on 22 August 2001. 5. The whole of the respondent's sentence be suspended for the period of two years commencing forthwith. 6. The Court orders the immediate release of the respondent upon the following conditions: (a) that he enter into a good behaviour bond in the sum of $1000 to be of good behaviour for two years from 22 August 2001; (b) to appear before a Judge of this Court if called upon during the term of the sentence; (c) within 7 days of 22 august 2001, report to the Maitland office of the Probation and Parole Service, and thereafter to accept such assistance and reasonable directions made by the Probation and Parole Service; (d) advise the Probation and Parole Service of any change of residential address; (e) to continue psychiatric treatment and assessment as directed by the Probation and Parole Service; (f) to undertake alcohol and other drug counselling programmes as directed by the Probation and Parole Service. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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