New South Wales Court of Criminal Appeal R v Jeremy Paul Price [2005] NSWCCA 285 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 11 August 2005 JUDGMENT DATE: 15 August 2005 JUDGMENT OF: Simpson J at 1; Johnson J at 61; Rothman J at 62 DECISION: (i) application for leave to appeal granted; (ii) appeal allowed; (iii) the sentence imposed in the District Court quashed; (iv) in lieu thereof, the applicant sentenced to imprisonment with a non-parole period of nine months, commencing 27 October 2004 and expiring on 26 July 2005, with a balance of term of seven months, to expire on 26 February 2006; (v) direct that the applicant be released on parole forthwith. CATCHWORDS: application for leave to appeal against sentence - aggravated breaking and entering a dwelling - serious indictable offence of assault occasioning actual bodily harm - circumstance of aggravation knowing that a person was present - plea of guilty - finding of special circumstances - subjective circumstances - the use of actual violence taken into account as an aggravating factor - previous discharge without conviction - prior offence treated as aggravating factor under s21A(2) - use of testimonial evidence - inadequate attention to subjective case - prospects of rehabilitation - whether material misdirection as to availability of means by which sentence might be served - basis for court to form a s6(3) opinion Crimes Act 1900, s105A, s112( Crimes (Sentencing Procedure) Act 1999, Part 4, Division 1A, s5, s6(3), s10(1)(b), s21A, s44(2), s50, s54A(2), s54B LEGISLATION CITED: Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 Criminal Appeal Act 1912, s6(3) Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 House v The King (1936) 55 CLR 499 Johnson v The Queen (2004) 78 ALJR 616 Lowndes v The Queen (1999) 195 CLR 665 R v Berg [2004] NSWCCA 300 R v G.J. Davies [2004] NSWCCA 319 R v Hallacoglu (1992) 29 NSWLR 67; 63 A Crim R 287 CASES CITED: R v Johnson [2005] NSWCCA 186 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Way [2004] NSWCCA 131; 60 NSWLR 168 R v Wickham [2004] NSWCCA 193 Ryan v The Queen [2001] HCA 21; 206 CLR 267 Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 Crown - Respondent PARTIES: Jeremy Paul Price - Applicant FILE NUMBER(S): CCA 2005/958 W Dawe QC - Crown COUNSEL: Ms G Bashir - Applicant S Kavanagh - Crown SOLICITORS: SE O'Connor - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/41/0110 LOWER COURT JUDICIAL OFFICER: Garling DCJ IN THE COURT OF CRIMINAL APPEAL 2005/958 SIMPSON J JOHNSON J ROTHMAN J Monday 15 August 2005 REGINA v Jeremy Paul PRICE Judgment 1 SIMPSON J: On 18 October 2004 the applicant entered a plea of guilty to a charge of aggravated breaking and entering a dwelling and committing a serious indictable offence therein, knowing that a person was in the dwelling where the offence was committed. The charge was brought under s112(2) of the Crimes Act 1900. The serious indictable offence committed was an offence of assault occasioning actual bodily harm. The circumstance of aggravation was that at the time he entered the dwelling the applicant knew that a person was present therein. For such an offence, s112(2) provides a maximum penalty of imprisonment for 20 years. 2 The offence was committed on 18 October 2003. Accordingly, the sentencing regime contained in Part 4, Division 1A of the Crimes (Sentencing Procedure) Act 1999, ("the Sentencing Procedure Act") introduced into the Crimes (Sentencing Procedure) Act 1999 by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 governs the approach to the sentence to be imposed. A standard non-parole period of five years is prescribed for an offence against s112(2). It will be necessary to consider, at a later point, the provisions of Division 1A. 3 On 27 October 2004 Garling DCJ sentenced the applicant to imprisonment for a total period of two years and eight months made up of a non-parole period of one year and six months, and a balance of term of fourteen months. In so sentencing the applicant his Honour found that special circumstances, within the meaning of s44(2), existed for fixing a balance of term in excess of one third of the non-parole period. 4 The applicant now seeks leave to appeal against the sentence imposed. facts 5 The offence was committed on 18 October 2003, one year to the day before the plea of guilty was entered. It had its genesis in events that occurred on the previous evening, in which the applicant was not involved. On that evening, the applicant's father had been present at a bowling club in Shoalhaven Heads. The victim of the offence, Tristen Tuckley, was also present, as were others. An altercation erupted in which both Mr Tuckley and the applicant's father sustained some injury. Both returned to their homes. 6 The applicant did not see his father that night or the next day, but was told of the incident by his brother, who also told him that Mr Tuckley, who was known to the applicant, had been involved. Between 8.00 am and 8.30 am on the morning after the incident, 18 October, the applicant went to Mr Tuckley's home. Precisely what happened next was the subject of some factual dispute as to which Garling DCJ made findings adverse to the applicant, rejecting his account and accepting that of Mr Tuckley. No challenge is now made to those findings of fact. It is thus unnecessary to recount the applicant's version. On the facts as found by his Honour, the applicant entered Mr Tuckley's front door by force, and walked upstairs to Mr Tuckley's bedroom, where Mr Tuckley was in bed. The applicant was carrying a wooden stick, like a broom handle. He stood over Mr Tuckley, presenting the stick, and accusing Mr Tuckley of having bashed his father. He struck Mr Tuckley hard, in the vicinity of his left eye, and again to his head, and twice to his body. He said to Mr Tuckley: "I'm after you and so are the bikies." 7 Mr Tuckley was taken to the hospital and treated. He remained an in-patient until 21 October. He suffered fractures to his nose and other facial bones, trauma to the left side of his face, swelling of the left eye and nose area, and bruising to the chest. He was not expected to suffer any long-term neurological injury (and no later evidence contradicted this prediction). 8 On 20 October 2003 the applicant voluntarily presented himself at the Nowra Police Station, and was interviewed. At that time he made no admissions and declined to respond to the allegations that were put to him. subjective circumstances 9 An impressive subjective case was presented on the applicant's behalf. He himself gave evidence, as did his mother; a pre-sentence report and two reports of a psychologist, Mr Liam Guilfoyle, were provided. A large body of testimonial material was accepted into evidence. From this material the following emerges. 10 The applicant was born on 21 July 1979. He was 24 years of age at the time of the offence. He had previously, in 2001, been charged with an offence of assault occasioning actual bodily harm to which he pleaded guilty. He had received the benefit of an order under s10(1)(b) of the Sentencing Procedure Act, with no conviction recorded. The applicant gave an account of the circumstances of this offence, which appears not have been in issue, and to have been accepted by Garling DCJ. In short, the applicant said that he had learned that a young acquaintance, whom he knew to have a learning disability, had been assaulted. He located this young man, whose face, he said, was covered in blood. The young man identified his assailant. A fracas developed between the applicant and the assailant, as a result of which the applicant was charged. Apart from some traffic offences, which appear to have been disregarded as irrelevant to the present offence, he had no other convictions. 11 He is the eldest of three boys in what is apparently an extremely closely-knit family. In a letter provided to the court his mother described him as "strong willed" but "very sincere", and as having always had a protective streak towards his family. She described him as very affectionate towards her, and as having a very close bond with his father. This latter observation is borne out by the applicant's own evidence. Asked about his relationship with his father, he said: "If I ever needed help or money or ever been in trouble like that he'd always help me out. He's – like – if I've ever needed someone there he's always been there." He said his father had always been very supportive, he felt very loyal towards him; and when asked to describe the closeness of the relationship with his father, he said: "There's no one I could be closer to besides my mother and father I suppose, yeah." 12 He said that on the morning of 18 October his brother had told him of the incident of the previous evening, involving his father and Mr Tuckley, and of his father's injury, and: "... you know I just feared the – I just yeah, just scared for him, you know like I was just scared for my dad ..." Later, he said he thought he was in shock more than anything. 13 Perhaps strangely, in cross-examination, he said that he had not seen his father that morning, although he knew that he was home in bed, because he (the applicant) was embarrassed to look at him in his injured condition. 14 He was asked about his present attitude to his actions on the morning of the offence, and said: "I've got my deepest sympathy. Like I feel I can't get on with my life, I can't – I feel that bad that I've gone into someone else's house. Like I just – if I could take it back I would, like it's something that I'm very, very sorry for that what I've done." 15 The testimonial material portrayed the applicant as a hard working young man, holding down a full-time job as a general labourer in an earthmoving, excavation and concreting business (where he was highly regarded), as well as developing his own weekend business in lawn mowing and yard maintenance. As well as that, he had been diligently and repeatedly involved in a variety of community and charity endeavours, raising money for, for example, Child Flight and Care Flight, and fundraising for something called "Heads Youth Park Committee". 16 At the time of sentencing he had been in a committed relationship for about eighteen months. Immediately after the offence he recognised that he had a problem. With the assistance of his mother, he was referred by his general practitioner to Mr Liam Guilfoyle, psychologist, for assessment and anger management training. Mr Guilfoyle's first report to the court, dated 5 December 2003, described the applicant as in the low average range of intellectual ability, with some inflexibility of perception, which was likely to be exaggerated under stress; as a person who is usually cooperative, but having periods of impulsiveness, with a high level of self criticism. Mr Guilfoyle thought that his aggressiveness was not such as would lead him to plot or anticipate retaliation. 17 As at the date of the first report, Mr Guilfoyle considered the applicant "well motivated" to continue with his treatment, but recognised that, at that time, it was too early to anticipate progress. The applicant had, in the preceding months, attended for four sessions of evaluation and counselling. In the second report (15 October 2004) Mr Guilfoyle said that the applicant had responded "extremely well" to the therapy, had made some progress, and understood that failure to learn more self-control would expose the applicant to further difficulties. He thought the applicant had made "a constant and committed effort ... and had made some good gains". the remarks on sentence 18 Having recited the undisputed facts, and made findings (adverse to the applicant) in relation to those that were disputed, Garling DCJ conventionally dealt with the evidence of subjective circumstances, and the relevant sentencing considerations. He referred to Mr Guilfoyle's report and concluded that: "[The applicant] in my view clearly needs help." 19 He noted the plea of guilty, which he said was entered "at the earliest time", which he later held should reduce the sentence that would otherwise have been imposed by 20%. He said that the applicant had "no real criminal record other than for the one offence" to which he had already referred. This was the assault occasioning actual bodily harm committed in 2001. Although no conviction had been recorded when the applicant was dealt with for this offence, on at least two occasions his Honour referred to this as a "conviction", something it will be necessary later in these reasons to consider. The judge noted the applicant's strong family ties. He also noted the gravity of the offence, committed as it was within a domestic dwelling house. Indeed, he gave (correctly) considerable emphasis to the seriousness of the offence, and to the need for the sentence to reflect considerations of general deterrence. 20 His Honour then turned to the requirements of the Sentencing Procedure Act. S21A requires a sentencing court to take into account aggravating and mitigating factors listed, respectively, in sub-s(2) and sub-s(3). The closing words of subs(1) provide that the listed aggravating and mitigating factors are to be taken into account in addition to any other matters that are required or permitted to be taken into account under any Act or rule of law. Sub-s(2) expressly provides that the court is not to have additional regard to any listed aggravating factor if that factor is an element of the offence. Sub-s(4) provides that the court is not to have regard to any aggravating or mitigating factor contained in either subsection if it would be contrary to any Act or rule of law to do so. 21 In Part 4, Division 1A of the Sentencing Procedure Act, provision is made, in respect of certain identified offences listed in the Table, which forms part of Division 1A, for standard minimum sentences. Where a standard minimum sentence applies, a sentencing court is required to sentence in accordance with s54B. By s54A(2) the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences of that category. By s54B(2) a court is to set the standard non-parole period, unless the court determines that there are reasons for setting a longer or shorter non-parole period; by subs(3) the reasons for which a court may take either course are only those referred to in s21A. The standard non-parole period is intended to apply to sentences imposed after trial: R v Way [2004] NSWCCA 131; 60 NSWLR 168. It does not reflect any reduction attributable to the utilitarian value of a plea of guilty: see R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. 22 A standard non-parole period of five years has been fixed for offences against s112(2). 23 Garling DCJ said: "Let me say right from the beginning I do not believe this does fall into the mid-range, it falls in my view below the mid-range, and quite a way below." As a result of that finding, his Honour did not feel constrained to impose the standard non-parole period and did not do so. He was not in any event so constrained because of the applicant's plea of guilty. The standard non-parole period nevertheless remains relevant as a benchmark or guide: Way [122]; R v G.J. Davies [2004] NSWCCA 319. 24 His Honour went on to deal with the aggravating and mitigating factors as required by s21A. He found that two aggravating factors existed: one he identified as the use of actual violence in the commission of the offence, and the other as the previous "conviction" for assault occasioning actual bodily harm. He dealt comprehensively, but relatively briefly, with the mitigating factors. He held that the mitigating factors far outweighed the aggravating factors. He found that the applicant had good prospects of rehabilitation, and accepted his expressions of remorse as genuine. He held, however, (correctly) that principles of general deterrence were of importance. the grounds of appeal 25 The grounds of appeal are framed as follows: "Ground 1: the learned judge erred in assessing the applicant's culpability by taking into account as aggravating factors pursuant to s21A(2) Crimes (Sentencing Procedure) Act 1999, (a) an element of the offence and (b) a spent conviction; Ground 2: the learned trial judge erred in failing to give proper effect to the mitigating features in the applicant's case." 26 Some modification was made to Ground 1 following receipt by counsel of the Crown submissions in response to written submissions which had been made in support of that ground. Leave was granted to the applicant to amend the ground by substituting the word "prior" for the word "spent" in sub-para (b). Ground 1: erroneously taking into account aggravating factors 27 Ground 1 is in two parts, that need to be dealt with separately. (a) the use of actual violence 28 I have already referred to that part of the remarks on sentence in which his Honour expressly included the use of actual violence in the offence as an aggravating factor, to be taken into account pursuant to s21A(2). It will be remembered that the offence with which the applicant was charged was one which incorporated, as an element, assault occasioning actual bodily harm. Notwithstanding this, it was argued on behalf of the Crown that, by reason of the conjunction of s112(1) with s105A, both of the Crimes Act, his Honour was entitled to proceed as he did. S112(2) was the subsection under which the applicant was charged. However, it is necessary also to have regard to s112(1). The two subsections, relevantly, provide: "112 (1) Whosoever: breaks and enters any dwelling house ... and commits any serious indictable offence therein, ... shall be liable to imprisonment for fourteen years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years." 29 S105A defines circumstances of aggravation, which include, relevantly, the following: "(a) the alleged offender is armed with an offensive weapon, or instrument; (c) the alleged offender uses corporal violence on any person; (f) the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed." 30 In written submissions it was argued on behalf of the Crown: "... the offence in this case was committed contrary to s112(2) and the circumstance of aggravation preferred in the indictment was that the applicant committed the offence knowing someone was inside the premises." The Crown went on to argue that a second circumstance of aggravation was the use of corporal violence. It submitted that his Honour's reference to the actual or threatened use of violence was in fact a further circumstance of aggravation under s105A. 31 This argument cannot be accepted. The offence with which the applicant was charged was, as I have indicated, of breaking, entering and committing an indictable offence. The indictable offence – an integral element of the offence with which he was charged – was assault occasioning actual bodily harm. This necessarily involves the use of violence. The use of violence could not, therefore, further aggravate the offence. Nor could it be used, under s105A, as a circumstance of the aggravation. It was already an element of the offence charged. The reason that s21A(2) prohibits reliance upon an element of the offence as an aggravating factor is plain: The elements of any offence have already been taken into account in the calculation of the maximum penalty applicable to the offence, and therefore of the approach to sentencing in any such offence: see R v Johnson [2005] NSWCCA 186 at [22]. 32 In my opinion, his Honour did impermissibly take into account the use of actual violence as an aggravating factor. This was an error in the sentencing process. (b) the use of the prior "conviction" 33 The argument advanced on behalf of the applicant in support of the second limb of Ground 1 was a technical one, but that does not necessarily detract from its merit. S21A(2)(d) identifies, as an aggravating factor: "the offender has a record of previous convictions". I have already indicated that, in relation to the previous offence, the applicant was discharged without conviction. This was done under s10(1)(b) of the Sentencing Procedure Act which provides: "(1) Without proceeding to a conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) ... (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) ..." By subs(2) of s10, a court may make such an order if satisfied: "(b) that it is expedient to release the person on a good behaviour bond." Subs(3) prescribes factors to which the court is to give regard in deciding whether to make an order under subs(1). These include such predictable matters as character, antecedents, age, health and mental condition, the trivial nature of the offence, the extenuating circumstances in which the offence was committed, and any other matters that the court considers proper. 34 By subs(4) an order under s10 has the same effect as a conviction for certain stated purposes, including for the purposes of any law concerned with the restoration of stolen property or for compensation. There is no reference in that sub-section to s21A. 35 The simple consequence of the applicant having been dealt with under s10 is that he was not convicted of that offence. It was therefore argued on his behalf that it was an error for Garling DCJ to take that "conviction" into account as an aggravating factor. 36 In my opinion there are good reasons for interpreting s21A(2)(d) as proposed on behalf of the applicant, that is strictly, and excluding reference to an offence in respect of which the offender has been given the benefit of a s10 order, from s21A(2)(d). Firstly, s21A(2)(d) is, in effect, a penal provision, which ought to be construed strictly, and beneficially to those against whom it operates. That is a conventional principle of statutory construction. Secondly, a s10 order is intended, expressly, to permit an offender to retain the benefit of good character. To extend the meaning of "conviction" in s21A(2)(d) to include a finding of guilt for an offence in respect of which no conviction has been recorded would be to defeat at least part of the object of s10. This court has held that s21A(2)(d) involves the application of the principles stated in Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465: see R v Wickham [2004] NSWCCA 193. 37 On behalf of the Crown it was submitted that, on the principles stated by the High Court in Veen, it was appropriate that his Honour take into account the finding of guilt of the previous offence. In Veen, the majority in the High Court said: "... antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: ... the antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration, or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows the need to impose condign punishment to the offender and other offenders from committing further offences of a like kind." (internal references omitted) 38 It is, however, true, as counsel for the applicant responded, that his Honour did not purport to take the previous offence into account on the basis of the principles in Veen. He did not make relevant findings of fact to bring the circumstances within those principles. For example, he did not find that the applicant had a "dangerous propensity" or that his moral culpability was "illuminated" by reference to the prior offence. But it is also true that, in some respects, the statement in Veen is not entirely without application. There were parallels in the circumstances of the two offences: in each case the applicant violently sought to avenge a wrong done to another. I would not be satisfied that two instances of such conduct, over a period of years, could be elevated to a "dangerous propensity". His Honour did not so find. In my opinion, had his Honour purported to apply Veen, he could have done so only in the most limited way. Veen is not, in my opinion, intended to apply to every case where an offender has some criminal history, even of a like kind to that under consideration in the sentencing exercise. 39 Moreover, it is plain that his Honour was conscious of the need to incorporate in the sentence a component that reflected personal deterrence. To have gone further and used the offence in a Veen way may have been a duplication. 40 In my opinion, in treating the prior offence as an aggravating factor under s21A(2), his Honour was in error. Accordingly, I am of the view that this ground also has been made good. 41 That however, is not the end of the matter. It is not in every case where irrelevant considerations have been taken into account that the consequent sentence can be shown to be erroneous. As was pointed out in R v Johnson [2005] NSWCCA 186, pursuant to s6(3) of the Criminal Appeal Act 1912, a sentence can only be set aside where attended by error if it can also be shown that some other sentence ought to have been passed. I will return to this issue. ground 2 42 S5 of the Sentencing Procedure Act provides: "(1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate." 43 Garling DCJ declared himself satisfied that no sentence other than a term of full-time imprisonment was appropriate in the circumstances. That finding has been challenged on behalf of the applicant. The proposition that was put was that his Honour reached that view only by failing to give proper effect to the mitigating features. Advanced concurrently with this argument was an argument that, even if a sentence of full-time custody were required or warranted, the sentence imposed was, in all of the circumstances, outside the bounds of a legitimate sentencing discretion. 44 I have already noted that his Honour alluded, although briefly, to the applicant's subjective circumstances. The complaint that is now made is that this was done in a somewhat dismissive or cursory way, without giving full weight to the strength of the material that was before the court. For example, of the testimonials, his Honour said: "There are a number of references, they speak highly of the prisoner, and his father says he acted the way he did because of strong family ties." He also said: "I accept that he has done some charity work." Later, he repeated that the applicant had "done charitable work" and said that: "He is a respected person in the community and a good worker." 45 I have come to the view that there is some force in the complaint made on behalf of the applicant. The testimonial evidence was unusually strong. It is not uncommon in this Court to see a series of references from community members who are acquainted with the offender. However, in this case, a good deal of detail was put before the court, and this included extensive material concerning the contribution the applicant had made in a variety of ways. To say that the applicant had "done some charity work" or "done charitable work" is not to do full justice to that part of the evidence which referred to the applicant's commitment to fund raising on behalf of charitable causes. There was a great deal of such material, which, in my view, was subsumed too readily into a bare acknowledgment. In R v Berg [2004] NSWCCA 300, Howie J, with whom Spigelman CJ and Wood CJ at CL agreed, said: "Another very significant consideration in the present case is the applicant's history of social service, as indicated in the letter of the Mayor of Lismore and, as I have already indicated, in such a case as this, an offender is entitled to call upon the bank of credit arising from his community welfare support that has mounted over the years by way of mitigation." See also Ryan v The Queen [2001] HCA 21; 206 CLR 267. 46 The manner in which the charity and community work was dealt with may be contrasted with the attention paid by his Honour to the objective seriousness of the offence. It was certainly not wrong for his Honour to emphasise the very serious nature of the offence and the need for the sentence to reflect both general and personal deterrence. However, balance demanded that equal attention be directed to the very powerful subjective case that was made on behalf of the applicant. 47 It was also complained that the sentencing judge did not pay adequate regard to the applicant's own immediate and voluntary steps towards rehabilitation. 48 Little was said by his Honour about this, although he made a specific finding that the applicant has good prospects of rehabilitation. As I earlier mentioned, he concluded that the mitigating factors far outweighed the aggravating factors. I am of the view that, like the applicant's community work, his positive steps towards rehabilitation were given inadequate attention. 49 I have also come to the view that there is merit in the argument that the judge was wrong to conclude that he had no alternative than to impose a period of full-time imprisonment. In my opinion, it would have been open to his Honour to have considered the imposition of a term of imprisonment to be served by way of periodic detention. (Of course, such a decision could not have been made until after the term of imprisonment had been fixed, but it would, in my view, then have been open: in concluding at an early stage that only a term of full-time imprisonment would meet the circumstances of the offence, his Honour deflected himself from later considering whether the term imposed could be served by way of periodic detention, for which the applicant had been assessed as suitable.) 50 I do not for one moment suggest that a sentence to be served by way of periodic detention was dictated, or mandated; merely that it would have been one available option. 51 In R v Simpson [2001] NSWCCA 534; 53 NSWLR 704, following the decision of the High Court in Dinsdale v The Queen [2000] HCA 54; 202 CLR 321, this court pointed out that establishing error in the sentencing process is not, alone, a sufficient basis for allowing an appeal against sentence. By s6(3) of the Criminal Appeal Act, before this Court can proceed to set aside a sentence, it must form the opinion that: "... some other sentence, whether more or less severe, is warranted in law and should have been passed ..." 52 However, in Johnson, at [29], this Court rejected a submission that the consequence of the decision in Simpson is that the court will never intervene unless the sentence imposed at first instance is shown to have been manifestly excessive (or manifestly inadequate). 53 That leaves open the question of precisely what it is necessary for an applicant for leave to appeal against sentence to establish before this Court can form the s6(3) opinion. Something less than manifest excess or manifest inadequacy will suffice; but the demonstration of error in the sentencing process, is not, of itself, sufficient. 54 Given that, in almost every case, there is a range of sentences that would, without manifest excess or manifest inadequacy, meet the circumstances of the case, it will almost always be the case that: "... some other sentence is warranted in law ..." 55 It may be, that in order to form an opinion that: "... some other sentence ... should have been passed ..." the court must form the opinion that the identified error was, or the identified errors were, such as to lead to the conclusion that they in fact infected or affected the end result, that is, the sentence selected. 56 In the present case, a number of errors have been identified. They are not errors of a formal or trivial or immaterial kind: two distinct matters have erroneously been taken into account in aggravation of the offence; and there has been a material misdirection as to the availability of the means by which the sentence might be served, thus depriving the applicant the opportunity of serving his sentence in a way that has a significant element of leniency: R v Hallacoglu (1992) 29 NSWLR 67; 63 A Crim R 287. Further, inadequate attention was given to the applicant's powerful subjective case. I am more than satisfied that another sentence is warranted in law; and I am comfortably satisfied that another, less severe, sentence should have been passed. S6(3) constrains this Court to impose the sentence it considers should have been imposed. If the applicant were to be sentenced to the term he was (a non-parole period of eighteen months with a balance of term of fourteen months), then that sentence ought to have been ordered to be served by way of periodic detention. Alternatively, a significantly shorter sentence ought to have been imposed, with a non-parole period of no more than nine months. It is too late now to retrieve the opportunity to order that the applicant serve his sentence by way of periodic detention. He has served almost ten months of the non-parole period in full-time custody. The alternative, however, may be imposed. 57 In accordance with its established practice, and without objection from the Crown, this court received additional material relevant to sentence in the event that the court proceeds to re-sentence. 58 The material confirms that the applicant's progress towards rehabilitation has continued, and that he continues to receive the support of his family and his partner. It is not such, however, as to alter the view as to sentence I would in any event have formed, on the material that was before Garling DCJ. 59 I would set aside the sentence imposed and substitute a sentence composed of a non-parole period of nine months; I would adopt the finding of special circumstances, and maintain the proportions between the non-parole period and the balance of term selected by his Honour and impose a balance of term of seven months, the sentence to commence on 27 October 2004, the non-parole period to expire on 26 July 2005 and the balance of term on 26 February 2006. Pursuant to s50 of the Sentencing Procedure Act, I would direct that the applicant be released on parole at the expiration of the non-parole period. Since that date has passed, I would direct that the applicant be released forthwith. 60 The orders I propose are: (i) application for leave to appeal granted; (ii) appeal allowed; (iii) the sentence imposed in the District Court quashed; (iv) in lieu thereof, the applicant sentenced to imprisonment with a non-parole period of nine months, commencing 27 October 2004 and expiring on 26 July 2005, with a balance of term of seven months, to expire on 26 February 2006; (v) direct that the applicant be released on parole forthwith. 61 JOHNSON J: I agree with Simpson J. 62 ROTHMAN J: I have had the opportunity of reading in draft the judgment of Simpson J in this matter. I agree with the orders proposed by Simpson J for the reasons I now express together with the reasons for Judgment of Her Honour. 63 Her Honour at paragraph 51 and following discusses the test for intervention by this Court under s.6(3) of the Criminal Appeal Act 1912. Her Honour cites R v Simpson (2001) 53 NSWLR 704. Spigelman CJ, expressing the view of this Court, there said: "[79] Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: 'if it is of the opinion that error has occurred in the sentencing process'. That is not the statutory formulation. By s.6(3) this Court must form a positive opinion that 'some other sentence … is warranted in law and should have been passed'. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to 'quash the sentence and pass such other sentence in substitution therefor' is not satisfied. As the judgment in Dinsdale to which I have referred indicate, the exercise of the power in s.6(3) further requires the identification of error in the requisite sense." 64 It is insufficient to show an error in principle in taking into account factors that were impermissible or taking them into account in a manner that was impermissible. The test must always be that which is contained in the provisions of ss.6(3) of the Criminal Appeal Act. That test involves the formation of the opinion by this Court that "some other sentence, whether more or less severe is warranted in law and should have been passed." 65 The exercise of judgement that is required in a sentencing appeal has been the subject of discussion and is well settled. It is insufficient for this Court to form a view that it would have exercised its discretion in the sentencing matter differently from the way in which it has been exercised by the sentencing judge. "The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice." ( Lowndes v The Queen (1999) 195 CLR 665 at [15]) 66 I refer in particular to the principles adumbrated by the High Court of Australia in House v The King (1936) 55 CLR 499, particularly, in the oft cited passage at page 504 in the joint judgment of Dixon J (as he then was), Evatt and McTiernan JJ. I also refer once more to the injunction to appellate courts contained in the joint judgment of Gummow, Callinan and Heydon JJ in Johnson v The Queen (2004) 78 ALJR 616 at [26]: "Judges of first instance should be allowed as much flexibility in sentencing as is constant with consistency of approach and as accords with the statutory regime under which sentencing is effected." 67 While House v The King, supra, is a well used authority, it is necessary to remind ourselves of the principle as there expressed: "If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance . In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 68 It is always necessary in order for this Court to intervene in a sentence for the Court to be satisfied that there is an error of the kind referred to by the High Court in House. Once there is such an error the only test is that which is contained in s.6(3) of the Criminal Appeal Act 1912; namely, whether some other sentence is warranted in law and should have been passed. 69 In my opinion, it is counter productive to seek to overly analyse how and in what circumstances that latter test will be satisfied. Error, of itself, is not sufficient, but is necessary. 70 Once this Court has determined that there is an error in the sentence and some other sentence is warranted in law, it is not necessary to show that the sentence on appeal is manifestly excessive (or, in the case of a Crown appeal, manifestly inadequate). Once error is found and the Court has formed the requisite opinion under s.6(3) of the Criminal Appeal Act, the discretion of the Court in the adjusting of sentence ought not be constrained. It is, in those circumstances, appropriate to exercise afresh the discretion involved in the sentencing process and to do so on the basis of material received during the course of the appeal. ********** 15/11/2005 - - Paragraph(s) 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.