New South Wales Court of Criminal Appeal CITATION: Brown v Regina; Reid v Regina [2006] NSWCCA 144 HEARING DATE(S): 21/04/06 JUDGMENT DATE: 21 April 2006 JUDGMENT OF: Hodgson JA at 1; James J at 7; Hoeben J at 63 EX TEMPORE JUDGMENT DATE: 04/21/2006 DECISION: Leave to appeal granted. Appeals allowed. Sentences below quashed. Applicants re-sentenced CATCHWORDS: CRIMINAL LAW – SENTENCE – guilty pleas - supplying a prohibited drug on an ongoing basis - supplying a prohibited drug - goods in custody (for applicant Brown only) – both applicants assessed as suitable for Magistrates Early Referral Into Treatment (MERIT) programme - common ground of appeal that sentencing judge erred in not giving consideration to whether the execution of any sentences of imprisonment should be suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act LEGISLATION CITED: Crimes (Sentencing Procedure) Act Drug Misuse and Trafficking Act CASES CITED: Douar v Regina [2005] NSWCCA 455 Zamagias v R [2002] NSWCCA 17 PARTIES: Joanne Maree BROWN v REGINA Hadley James REID v REGINA FILE NUMBER(S): CCA 2006/760; 2006/817 G Rowling - Crown R Burgess - Applicant - Brown COUNSEL: G Rowling - Crown H Cox - Applicant - Reid S Kavanagh - Solicitor for Public Prosecutions Steve O'Connor - Applicant - Brown SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions N Velcic & Associates - Applicant - Reid LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/41/0092 LOWER COURT JUDICIAL OFFICER: Maguire DCJ LOWER COURT DATE OF DECISION: 11/17/2005 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 2006/760 2006/817 HODGSON JA JAMES J HOEBEN J Friday 21 April 2006 Joanne Maree BROWN v REGINA Hadley James REID v REGINA JUDGMENT 1 HODGSON JA: I agree with what is proposed by Justice James, and subject to what I say below, with his reasons. 2 There is some force in the submission for the Crown that the sentencing judge must have been aware of the option of suspending the sentences and must have rejected that option, and that it was not an error that he did not specifically undertake the three-stage process referred to in Douar v Regina [2005] NSWCCA 455. 3 However, even if that submission were accepted, in my opinion the reasons given on sentence do disclose error in that, on that interpretation of the reasons, they indicate that the option of suspending the sentence was rejected wholly on the basis of general considerations, without weighing in the balance powerful considerations particular to these cases. 4 Most importantly, the circumstance that the applicants had undertaken and, over a period of fourteen months, complied with a MERIT program and had successfully completed that program, was a powerful consideration in their favour. I think there is public interest in having successful completion of such a program explicitly adverted to as a factor favourable to a defendant in the sentencing process, in order to encourage others to successfully complete such programs. 5 In my opinion, this consideration is not entirely subsumed in the prospects of rehabilitation of an offender. There is some force in the Crown's submission that the level of the sentences shows that the sentencing judge did have regard to this factor. But this does not overcome his reference to generalities as excluding anything but full time custodial sentences. 6 In my opinion, this is an error which makes it appropriate for this Court to consider what sentence should be imposed. The particular circumstances of this case, including the circumstance of these applicants having undergone five months in custody, make it appropriate for this Court to suspend the sentences. 7 JAMES J: These applications by Joanne Maree Brown and Hadley James Reid for leave to appeal against sentences imposed on them in the District Court on 17 November 2005 by his Honour Judge Maguire were heard together in this Court. Before they went to prison, the two applicants were in a de facto relationship with each other and, although they were not actually co-offenders in the offences for which they were sentenced, the offences for which each was sentenced were similar to the offences for which the other was sentenced. Each applicant had pleaded guilty to all of the offences for which he or she was sentenced. For the sake of convenience, I will refer to the applicants simply by their surnames. 8 The sentences imposed on the applicant Brown were:- For an offence of supplying a prohibited drug on an ongoing basis, a non-parole period of 12 months, with a balance of the term of imprisonment of 12 months. For an offence of supplying a prohibited drug, a non-parole period of 6 months, with a balance of the term of 6 months. For each of two offences of goods in custody, a fixed term of imprisonment of 6 months. 9 The sentencing judge made all the sentences imposed on Brown commence from 15 November 2005, so as to allow for a short discrete period of pre-sentence custody. 10 The sentences imposed on the applicant Reid were:- For an offence of supplying a prohibited drug on an ongoing basis, a non-parole period of 12 months, with a balance of the term of imprisonment of 12 months. For each of three offences of suppling a prohibited drug, a non-parole period of 6 months, with a balance of the term of 6 months. 11 The sentencing judge made all of the sentences imposed on Reid commence from 14 November 2005, so as to allow for a short discrete period of pre-sentence custody. 12 Supplying a prohibited drug on an ongoing basis is an offence under 25A of the Drug Misuse and Trafficking Act, for which the maximum penalty is imprisonment for 20 years. Supplying a prohibited drug is an offence under section 25 (1) of the Drug Misuse and Trafficking Act for which the maximum penalty is imprisonment for 15 years. 13 The facts of the offences committed by the applicants can be briefly stated as follows: 14 Brown: As to the first charge of ongoing supply, on each of 25 August 2004, 30 August 2004 and 3 September 2004 Brown supplied a small quantity of heroin ranging from .14 of a gram to .18 of a gram for a price of $100. As to the second charge of supplying a prohibited drug, on 23 August 2004 Reid supplied .07 of a gram of heroin for a price of $50. Brown was present at the time the heroin was supplied and was criminally complicit in the supply. 15 Reid: As to the first charge of ongoing supply, on each of 23 August 2004, 24 August 2004 and 31 August 2004 Reid supplied a small quantity of heroin of about .15 of a gram for a price of $100. As to the three charges of supplying a prohibited drug, on each of 30 August 2004, 3 September 2004, and 8 September 2004, Brown supplied small quantities of heroin (.18 of a gram on the first occasion and .14 of a gram on the second occasion) for a price of $100 or $200. Reid was present at the time the heroin was supplied and was criminally complicit in the supply. 16 All of the supplies by both applicants were made in the course of an authorised controlled operation by police, of which the applicants were, of course, unaware. 17 A somewhat curious feature of the charges is that neither applicant was charged for supplies made by that applicant in which the other applicant was complicit and for which the other applicant was charged. 18 In his remarks on sentence in sentencing Brown Judge Maguire quoted or summarised parts of a presentence report dated 18 July 2005 prepared by a probation and parole officer, in which some of the subjective circumstances of Brown were set out. His Honour also made other findings about the subjective circumstances of Brown. 19 Brown was born on 20 July 1975, and was accordingly 30 years old at the time she was sentenced. She had some criminal history which his Honour in his remarks on sentence described as minor. The parts of his Honour's remarks on sentence in which his Honour quoted or summarised parts of the pre-sentence report were as follows: "Ms Brown was born in Yass and is the eldest of four children. She reported that when she was seven years old her mother left the family home and that she and her sister were reared by her father and her paternal grandmother. Ms Brown's mother remarried and this union produced two children. Ms Brown reported that her half brother died when he was fifteen years old as a result of a heroin overdose. Ms Brown reported that she has a close relationship with both her father and mother. According to Ms Brown, her father was an honest man and she stated that she was raised with strict moral and ethical values. However, she stated that she has not told her father of her current offences as she was ashamed and did not want to disappoint him. Contact with Ms Brown's mother revealed that she had known that her daughter had been using drugs for years but that she was surprised that she was dealing drugs. Ms Brown has two children from a previous relationship aged thirteen and ten respectively. She has been in a relationship with her current partner [co-offender] for the past three years. There are no children from this liaison. Ms Brown completed Year 10 and commenced a Certificate Of Business Administration. However, she was unable to complete this traineeship due to having a baby. Ms Brown stated that she has not been employed since 1992. At interview, Ms Brown presented as genuinely distressed in relation to the possibility of a period of incarceration and how this will affect her children. She admitted to having a heroin addiction and that she was dealing drugs to supplement her own drug use. Ms Brown reported that she would buy a deal and then take out some for herself and then resell it so she could buy more heroin. Ms Brown reported that her partner [co-offender] had not used drugs until he met her. She expressed regret that he became a drug addict due to her negative influence on him. However, it was pointed out to Ms Brown that her partner was an active participant in the using and selling of the heroin. Ms Brown stated that she last used heroin in January 2005 and that she used at least 3 times after her arrest in September 2004. At interview, Ms Brown was adamant that she had not used in the past 6 months. However, Ms Brown failed to acknowledge that had her drug dealing not been intercepted by police she would have more than likely still be using and dealing. As to the charges of Goods In/On Premises, Ms Brown admitted that she knew the boys clothing was stolen goods and that she bought them from her sister. As to the charge of the Proof of Age card, Ms Brown stated that she found the card in the street and had intended to take it to the shop where she had found the card outside on the pavement. Ms Brown reported that she commenced using cannabis at the age of nineteen and progressed to using amphetamines and then heroin. Ms Brown stated that she used to use heroin three times a day. She noted that she ceased using heroin when the relationship with her defacto terminated in 2001. She stated that she was 'clean' for 2 years and relapsed back to her heroin use when she was offered a 'free shot' from her then girlfriend. Ms Brown reported that she immediately reverted to her significant heroin addiction and began dealing to supplement her income to enable her to purchase more heroin for her own use. She is currently on the Methadone Program of 60 mls a day and is intending to decrease this prescribed dosage to enable her to commence on the Buprenorphine Program. Contact with the Merit Program confirmed that Ms Brown had attended their program and completed a Relapse Prevention Program. Contact with the Killard Centre confirmed that Ms Brown attends the Methadone Clinic every day and that out of seven urine tests only one returned a positive for heroin on 08/01/2005. Ms Brown intends to decrease her Methadone dose to enable her to commence the Buprenorphine Program in the near future. It was reported that Ms Brown has, since her first appointment on 17/11/2004, presented as less angry and with improved communication skills. Ms Brown reported that she had been dealing heroin to support her own heroin addiction. She stated that she was using heroin up to three times a day". 20 In his remarks on sentence in sentencing Reid, Judge Maguire quoted, or summarised parts of a pre-sentence report dated 18 July 2005, prepared by a probation and parole officer Ms Skinner, in which some of the subjective circumstances of Reid were set out. His Honour also made other findings in his remarks on sentence about the subjective circumstances of Reid. 21 Reid was born on 29 May 1978 and was accordingly 27 years old at the time he was sentenced. The parts of his Honour's remarks on sentence in which his Honour quoted or summarised parts of the pre-sentence report were as follows: "Mr Reid first came into contact with this Service in October 1996 when he received a supervised good behaviour bond from Queanbeyan Children's Court for assault occasioning actual bodily harm. Mr Reid was supervised throughout those 12 months and reportedly responded in a satisfactory manner. He next came into contact during the preparation of a pre-sentence report in August 2000 for assault police, assault occasioning actual bodily harm and an unrelated shoplifting. He was apparently extremely intoxicated with liquor at the time. He received three concurrent 18 month custodial sentences with six months non-parole in October 2000 for these offences. On his release in April 2001 his case management focused on his alcohol intake and cannabis use with some purported success. His main goal was to obtain work and in early 2002 he began employment as a trainee at a New South Wales Government Department in Queanbeyan. At the time of the end of his supervision it was noted that he did very well. During the preparation of this report Mr Reid has been involved with the Merit Team, Alcohol and Drug Services, Methadone Program and this Services' Aboriginal Client Service Officer. He has reported satisfactorily although not always as scheduled. Identifying as Aboriginal Mr Reid is the eldest of two boys to his mother. He first remembered meeting his father at about the age of five, however, he claimed that at that time his father sexually molested him. His mother remarked at the time her son stated he never wanted to go back to his father but apparently she did not know of the molestation allegation. Mr Reid stated that he next met his father at the age of 16 when his father came back into his life ostensibly to help his son get back on track after he'd got into some trouble as a juvenile. This arrangement apparently did not work. Mr Reid describing his father as a stranger who he never connected to and within 12 months his father is reported to have disappeared from his life. Mr Reid described his relationship with his mother as difficult stating that when he was growing up she used to beat him sometimes with an electric cord to the point of bleeding. His relationship with his brother appears to also have been violent with some incidents of violence that involved the police. The mother stated that she was disappointed and angry at her son's offending behaviour and that she had not brought Hadley up to do things like that. She said he had no male role models throughout his childhood. He is in a four year relationship with the co-offender. He has no children of his own, however his partner has two children who live with them. He finished Year 11 at High School in 1995. He had a fairly good work record prior to his illicit drug use". He presented as a young man with a history of some drug and alcohol abuse. He has taken steps to address that use and seems motivated to gain work and skills that are employable. His relationship with the co-offender continues and that appears to be a support to remain free of future drug use and offending behaviour". 22 In this judgment reference has already been made to some of the subjective circumstances of each of the applicants. However, only passing reference has been made to the subjective matters which were the focus of most of the argument on the two applications. 23 The two applicants were arrested on or about 8 September 2004. On 9 September 2004 both applicants were assessed as suitable to enter a MERIT programme. MERIT is an acronym for Magistrates Early Referral Into Treatment. 24 On 9 September 2004 each applicant was granted bail on conditions which included the following conditions: "1. Report daily between 8 am and 8 pm to the Officer in Charge at the Queanbeyan Police Station; 2. Report to the MERIT team upon release and obey all reasonable directions of members of the MERIT team; 3. Reside at 4 Young Street, Queanbeyan or as directed by the MERIT team." 25 Each applicant was released on bail and remained at liberty on bail until sentenced by his Honour. Each applicant entered into a MERIT programme. A MERIT programme was described in general terms by Ms Skinner in one of her reports as follows: "To remain on Methadone and increase dose (daily attendance required) Review stability regularly with prescribing doctor and caseworker Random urinalysis Relapse management Explore education and training options Weekly case management and supervision at MERIT Office" 26 In a report of 27 July 2005 Ms Skinner, as a MERIT caseworker, described the response of Brown to the treatment plan as follows: "It would be unrealistic to say that Ms Brown's response to the treatment plan has been 100% successful, however all things considered her progress has been remarkable and I believe she has reached a stage in her rehabilitation from where she can only progress, she has: Remained on the Methadone Program Attended all appointments with her prescribing doctor and Methadone case manager Provided random urine samples as requested Completed and actively participated in a four weeks Relapse Management course Attempted a TAFE business course/explored tertiary study options Attended all appointments at MERIT Maintained stability for her children Made arrangements to repay her outstanding debts". 27 In a report of 26 July 2005, Ms Skinner described the response of Reid to the treatment plan as follows: "Mr Reid has responded remarkably well to the treatment plan and has complied willingly with all direction from this worker. Mr Reid has been proactive with his treatment options, with the result that he has gained a great deal of insight into his addiction, as evidenced by the number of random urines which have revealed no illicit drug use". 28 On 27 July 2005 both applicants came before Judge Maguire. There were admitted into evidence pre-sentence reports for both applicants; the further reports on both applicants by Ms Skinner; and drug and alcohol reports by Ms Maloney, a member of the Regional Drug and Alcohol Treatment Team attached to the Greater Southern Area Health Service. All of these reports were highly favourable to the applicants, indicating that they had abstained from using drugs, that they had participated fully in the MERIT programme, and that they had achieved a high degree of rehabilitation. 29 On 27 July 2005 each of the applicants gave oral evidence before his Honour. 30 On 27 July 2005 the legal representatives of each of the applicants submitted that Judge Maguire should make an order under section 11 of the Crimes (Sentencing Procedure) Act, adjourning the proceedings on sentence for the purpose of furthering the applicant's rehabilitation. These applications were opposed by the Crown, on the grounds that, if an offender has been convicted of trafficking in a prohibited drug to any substantial degree, then, save in exceptional circumstances, a custodial sentence should be imposed. 31 Judge Maguire refused the applications for orders under section 11 of the Crimes (Sentencing Procedure) Act. His Honour said that he would not pass sentence "in the short-term", wishing to have a transcript of the proceedings on 27 July 2005 and the opportunity of giving the matters further consideration. His Honour observed that it was inevitable that a full time custodial sentence would be passed on each applicant. However, his Honour continued each applicant's bail. 32 Both applicants came before Judge Maguire on 17 November 2005. In addition to the reports which had been admitted into evidence on 27 July 2005, further reports were admitted into evidence, being, in the case of each applicant, a further report from Ms Skinner and a further report from the Drug and Alcohol Treatment Team. All these further reports were highly favourable to the applicants. 33 In his remarks on sentence in sentencing Brown Judge Maguire accepted that she had sold heroin, only in order to support her own drug habit; that she had a history of heart trouble; that she had had a disadvantaged childhood; that she was concerned for her own children; that she was contrite; that she was continuing to abstain from using drugs; that her prospects of rehabilitation were good; that she was entitled to a discount of 25 per cent for her pleas of guilty; and that there were special circumstances within section 44 of the Crimes (Sentencing Procedure) Act. 34 However, his Honour proceeded to say:- "Offences of this nature are taken very seriously by the community which expects the Court to visit them with sentences of imprisonment. General deterrence is an important factor in the sentencing process in such cases. The statistics provided by the Judicial Commission demonstrate that any sentence less than full-time custody is rare indeed". 35 His Honour refused a further application which had been made for an order under section 11 of the Crimes (Sentencing Procedure) Act, and his Honour proceeded to impose the sentences of imprisonment stated earlier in this judgment. 36 In his remarks on sentence in sentencing Reid, his Honour referred to some of the favourable reports about Reid. His Honour found that Reid was contrite and that he had good prospects of rehabilitation and that there were special circumstances within section 44 of the Crimes (Sentencing Procedure) Act. However, his Honour made the same remarks as he made in sentencing Brown about community expectations, the need for general deterrence and the statistics provided by the Judicial Commission. 37 His Honour refused a further application for an order under section 11 of the Crimes (Sentencing Procedure) Act and proceeded to impose the sentences of imprisonment stated earlier in this judgment. 38 A number of grounds of appeal were raised by the applicants but, in my opinion, it is unnecessary to refer to all of them. It is convenient to proceed to consider the common ground of appeal that his Honour erred in not giving consideration to whether the execution of any sentences of imprisonment should be suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act. 39 In Zamagias v R [2002] NSWCCA 17, Howie J, with whose judgment the other members of the Court agreed, set out the steps which should be taken by a judge in imposing a sentence of imprisonment under the provisions of the Crimes (Sentencing Procedure) Act. See especially at paragraphs 22 to 32 of Howie J's judgment. 40 A sentencing judge should first determine, pursuant to section 5 of the Act, whether he or she is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. 41 If a judge decides that no penalty other than imprisonment is appropriate, the judge must then decide what the term of the sentence of imprisonment should be. In deciding what the term of a sentence of imprisonment should be, a judge is not to have regard to how the sentence might be served, including whether the execution of the sentence might be suspended. 42 Having decided what the term of a sentence of imprisonment should be, a judge must then decide how the sentence should be served, for example, whether it should be served by way of periodic detention or by way of a home detention order or whether the execution of the sentence should be suspended. 43 Howie J was careful to state at paragraph 30 of his judgment that it is unnecessary for a sentencing judge expressly to state that he or she has taken all of these steps. In many cases there will be no live issue that no penalty other than imprisonment is appropriate or that the sentence of imprisonment set should be served by way of immediate full time imprisonment. 44 In the case of the present applicants, although the sentencing judge did not expressly refer to section 5 of the Crimes (Sentencing Procedure) Act, I consider that it is clear from the comments made by his Honour on 27 July 2005 and from the remarks on sentence delivered by his Honour on 17 November 2005, that his Honour did give consideration to whether a penalty other than imprisonment was appropriate and concluded that no penalty other than imprisonment would be appropriate. Such a conclusion was clearly open to his Honour and did not involve any error. 45 As regards the second step, the terms of the sentences set by his Honour were, in my opinion, lenient, and clearly within a proper exercise of his Honour's sentencing discretion. 46 However, the question arises whether the sentencing judge did give consideration to the final step to be taken by a sentencing judge, that is, of determining how the sentences of imprisonment should be served and, in particular, whether the execution of the sentences of imprisonment should be suspended under section 12 of the Crimes (Sentencing Procedure) Act. 47 Section 12(1) of the Crimes (Sentencing Procedure) Act provides: "(1) A court that imposes a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an order: (a) suspending execution of the whole of the sentence for such period (not exceeding the term of the sentence) as the court may specify in the order, and (b) directing that the offender be released from custody on condition that the offender enters into a good behaviour bond for a term not exceeding the term of the sentence". 48 Section 12 of the Act was capable of being applicable because none of the sentences imposed by his Honour were for terms of more than two years. 49 I have noted earlier in this judgment that the way in which a sentence of imprisonment should be served will often not be a live issue and there is no general requirement that a sentencing judge should expressly state that he has given consideration to how a sentence of imprisonment he is about to impose should be served. Furthermore, in the present case no application had been made by the legal representative of either applicant in the proceedings on sentence that execution of any prison sentence should be suspended. 50 However, in the case of each of these applicants, the applicant had been assessed as suitable for a MERIT program. Each applicant had been released on conditional bail, including conditions that the applicant enter into a MERIT program. Each applicant had entered into a MERIT program and had participated in that program for more than a year and reports from the case workers and health professionals showed that each applicant had participated fully in the program and had achieved a high degree of rehabilitation. There was also evidence that each applicant had obtained employment. 51 In these circumstances, I consider that the sentencing judge was required to give consideration to whether he should suspend the execution of the sentences of imprisonment he was about to impose, even though no such submission had been made on behalf of either applicant in the proceedings on sentence. 52 Before this Court, it was submitted by counsel for the Crown that it could be inferred from the remarks made by his Honour about community expectations, the need for general deterrence in sentencing for offences of these kinds and the statistics provided by the Judicial Commission and from a remark made by his Honour that he could not let the applicants go home, that his Honour had given consideration to whether he should exercise the discretion under section 12 of the Act to suspend the execution of the sentences of imprisonment. 53 I am not persuaded that his Honour did give consideration to whether he should exercise the discretion to suspend the execution of the sentences. 54 The remarks made by his Honour on which the Crown relied were made, in each set of remarks on sentence, in the context of his Honour considering and refusing an application for a "Griffiths remand", that is an application for an order, not under s 12, but under s 11 of the Act. 55 I consider that, in not giving consideration to whether the execution of the sentences should be suspended, the exercise by his Honour of his sentencing discretion miscarried. In fairness to his Honour, I repeat that no submission had been made to his Honour in the proceedings on sentence that he should make orders under section 12 of the Act. 56 The judge at first instance not having exercised the discretion conferred by section 12 of the Act, this Court should itself exercise the discretion. In exercising its discretion the Court of Criminal Appeal can take into account matters occurring since the original sentencing of the applicants. Such matters include that the applicants have now spent over five months in prison. Such matters also include, in the case of the applicant Brown, further medical evidence about her heart condition and about her having been pregnant at the time of the sentencing, and having subsequently, on medical advice, had a termination of the pregnancy. 57 In my opinion, this Court should make orders suspending the execution of the sentences imposed on the applicants. The offences which the applicants committed are offences of a kind which are properly regarded as objectively serious. However, the particular offences committed by these applicants were at, or close to, the lower end of the range of objective seriousness for such offences. The offences of ongoing supply of a prohibited drug involved the supply of very small quantities of drugs by persons who were themselves addicted to drugs and who were dealing in drugs, only in order to support their own drug habits. 58 Even apart from rehabilitation, each of the applicants had some subjective features meriting some leniency in sentencing. As regards rehabilitation, each of the applicants had demonstrated over a lengthy period a capacity for rehabilitation and had already achieved a high degree of rehabilitation. As I have already remarked, each of the applicants has now served more than five months in prison. 59 It was submitted on behalf of both applicants that some allowance should have been made, and should be made, for what was submitted to be a kind of quasi-custody to which the applicants had been subjected under the bail conditions and the MERIT program. The restrictions principally relied on by counsel for the applicants were that the conditions of bail involved daily reporting to police and the conditions of the MERIT program involved daily attendances, for example at a centre to obtain methadone. However, a MERIT program falls far short of being a full time residential program in a drug rehabilitation centre. If any allowance was to be made for this factor, it would, in my opinion, only be a very small allowance. 60 Having regard to my conclusion on the common ground of appeal I have been considering, it is unnecessary to consider in detail the other grounds of appeal. I would reject grounds of appeal that his Honour did not take into account a period of quasi-custody, that his Honour erred in deciding that no penalty other than imprisonment was appropriate or that the terms of the sentences set by his Honour were manifestly excessive. 61 I consider that in the case of each applicant the Court should make an order under section 12 of the Crimes (Sentencing Procedure) Act suspending the whole of each sentence for the entire term of the sentence. 62 The practical effect of such orders would be that the applicants would be entitled to be released. 63 HOEBEN J: What troubles me about his Honour's remarks on sentence is that he appears to have rejected out of hand any consideration of a suspended sentence. This was in the context of a strong subjective case to the effect that both applicants had successfully completed fourteen months of a strict drug rehabilitation program. 64 Against that background, it seems to me that his Honour should have provided some reasoning for why a sentence of fulltime was inevitable. It follows that I agree with Justices Hodgson and James and the orders proposed by them. 65 HODGSON JA: I will deal first with the case of Brown, and the orders I propose are: (1) Leave to appeal granted. (2) Appeal allowed. (3) Sentences below quashed. (4) On the first count, applicant sentenced to a non-parole period of one year and balance of term of one year, to commence on 15 November 2005, so that the term of the sentence expires on 14 November 2007 and the non-parole period expires on 14 November 2006. (5) On the second count, applicant sentenced to a non-parole period of six months and balance of term of six months, to commence on 15 November 2005, so that the term of the sentence expires on 14 November 2006, and the non-parole period expires on 15 May 2006. (6) In respect of each of two charges of goods in custody, applicant sentenced to a fixed term of imprisonment for six months to date from 15 November 2005. (7) Execution of all those sentences is suspended, in each case for the term of the sentence. (8) Applicant to be released from custody on condition that she enter into a good behaviour bond for the term of the sentence on the first count. 66 Turning to Reid: (1) Leave to appeal granted. (2) Appeal allowed. (3) Sentence below quashed. (4) On the first count, applicant sentenced to a non-parole period of one year and balance of term of one year, to commence on 14 November 2005, so that the term of the sentence expires on 13 November 2007 and the non-parole period expires on 13 November 2006. (5) On each of the second, third and fourth counts, applicant sentenced to a non-parole period of six months, and balance of term of six months, to commence on 14 November 2005, so that the term of the sentence expires on 13 November 2006 and the non-parole period expires on 13 May 2006. (6) Execution of all these sentences is suspended, in each case for the term of the sentence. (7) Direct that the applicant be released from custody on condition that he enters into a good behaviour bond for the term of the sentence on the first count. 67 Those are the orders of the Court. 68 I return the exhibits. ********** 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.