Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Reid [2016] NSWCCA 151 Hearing dates: 22 July 2016 Date of orders: 04 August 2016 Decision date: 04 August 2016 Before: Hoeben CJ at CL at [1] R A Hulme J at [56] N Adams J at [57] Decision: Crown appeal under s 5D dismissed. Catchwords: CRIMINAL LAW – Crown appeal against sentence – doing an act with intent to pervert the course of justice – participating in the preparation of a false alibi and statement – s 9 bond imposed – whether sentence manifestly inadequate – Crown case consisting mainly of telephone intercepts – respondent an active participant in offence – respondent gave evidence in sentence proceedings – strong subjective case – sentence manifestly inadequate – residual discretion – custodial sentence would seriously interfere with respondent's rehabilitation – Crown appeal dismissed. Legislation Cited: Crimes Act 1900 (NSW) – s 319 Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 5(1), 9, 21A(2) Criminal Appeal Act 1912 (NSW) – s 5D Cases Cited: CMB v Attorney General for NSW [2015] HCA 9; 89 ALJR 407 Khoury v R [2011] NSWCCA 118 Marinellis v Regina [2006] NSWCCA 307 R v Fahda [2013] NSWCCA 86 Regina v Giang [2001] NSWCCA 276 Category: Principal judgment Parties: Regina – Applicant Crown Aaron Joseph Reid - Respondent Representation: Counsel: Mr P Ingram – Applicant Crown Mr S Healy - Respondent Solicitors: Solicitor for Public Prosecutions – Applicant Crown C Hill - Respondent File Number(s): 2015/226602 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 8 March 2016 Before: Baly SC DCJ File Number(s): 2015/226602 Judgment 1. HOEBEN CJ at CL: Offences and sentence The respondent was charged that between 10 August 2014 and 3 September 2014 he did an act with intent to pervert the course of justice contrary to s 319 of the Crimes Act 1900 (NSW) for which the maximum penalty is imprisonment for 14 years. 1. The respondent came before her Honour Judge Baly SC DCJ for sentence in the District Court at Orange on 8 March 2016. Her Honour sentenced the respondent to a good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for 2 years and 6 months. 2. A Notice of Appeal, signed by the Director of Public Prosecutions on 21 March 2016, was served upon the respondent on 23 March 2016. The Director of Public Prosecutions now appeals pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against that sentence. 3. The grounds of appeal are as follows: Ground 1 – The sentencing judge erred by taking into account the respondent's moral culpability when assessing the objective seriousness of the offence. Ground 2 – The sentencing judge erred by assessing the objective seriousness of the offence as falling within the low range. Ground 3 – The sentence pronounced was manifestly inadequate. Factual Background 1. The respondent was a close associate of Mark Gunderson (Gunderson) who used to supply him with the drug known as "ice". Gunderson believed that a young female aged 16 had made some derogatory remarks about his daughter. On 10 August 2014 he went to her residence in the company of an unknown male and made threats to her. When her mother asked him to leave, he grabbed the mother by the face and said "shut the f – up, or I will head-butt you". He intimated to her that he had a pistol. He then left the premises. A complaint was lodged with the police by the mother and an AVO was granted. 2. On 12 August police attended Gunderson's residence to speak to him about the allegations and serve the AVO on him. Subsequently a number of telephone calls were intercepted between Gunderson and the respondent. Later that day, Gunderson telephoned the respondent and said "The coppers have come around at my house and I used you as an alibi. How could I have done it, I was with Aaron all day?". During this conversation Gunderson and the respondent continually laughed about the fact that the police would not be able to prove the offence. 3. On 18 August 2014 police again attended Gunderson's address. When asked about the incident, Gunderson denied even being in Cowra (where the complainants resided). Police inquired whether he would like to offer an alibi witness so they could conduct further inquiries. Gunderson refused. He was then served with a Court Attendance Notice for one count of common assault upon the mother and two counts of intimidation against both the daughter and the mother. 4. On 18 August 2014 Gunderson telephoned the respondent. The following conversation was then recorded by the police: "GUNDERSON: This happened between 11 and 12 Sunday just gone. Where was you on Sunday?" RESPONDENT: I don't know, home I think. GUNDERSON: Good 'cos I was there with you until 2 o'clock. RESPONDENT: Yeah. GUNDERSON: Good 'cos if I need you to testify for me can you? RESPONDENT: Yeah. GUNDERSON: Good she's claiming compensation. She's claiming I pulled a pistol out to shoot her. I said I wasn't even in town so you're going to have to do a statement for me. RESPONDENT: Yeah mate. GUNDERSON: I left your place at 2 o'clock I think it was. RESPONDENT: It would have been around there. GUNDERSON: You got to do a – I turned up around 10. RESPONDENT: And had a barbeque and that. GUNDERSON: In a little white ute. I left there prior to 2 o'clock. Simple I need it on paper though. When you get to Cowra tomorrow can you come to the police station with me? RESPONDENT: Does it have to be a certain time? GUNDERSON: Yeah. They've served me with papers. I've got it here. They said I grabbed her with my right hand around her throat. RESPONDENT: We were trying to fix me motorbike. GUNDERSON: That's right. RESPONDENT: She's right, I'll write something out. GUNDERSON: I'll take you to the cop and you can do a statement. I was there from 10 o'clock until 5 minutes to 2. Catch up with you smoko tomorrow." 1. At 7.21pm that night a further telephone conversation was recorded between Gunderson and the respondent. The respondent asked if he should "write one up now". Gunderson replied that he should. The respondent said "I will show you before I drops it in". Gunderson said "I was there from 10 o'clock until about 5 to 2". The respondent said "And you come in the back way and you came into my shed and you had a look at my motorbike for me. Then we had a barbeque just some chops with bread and then you went home". Gunderson said "I left about 5 to 2. See if Janeen can sign it as well, now she's claiming compensation, stupid bitch should get her facts right. I wasn't even in town". The respondent said "You can get people in trouble that way". 2. At 8.49pm that night Gunderson again contacted the respondent. He asked if the respondent had "written it" to which the respondent replied he had typed it out on the computer. Gunderson asked him to read it out. The respondent then read out what appeared to be a statement as follows: ""On Sunday the 10th, just before 10am, Mark Gunderson arrived at my residence in Canowindra via my back lane gate. He parked in front of my shed as my vehicle was already in there. He had a look at my motorbike which is having issues at the moment. We fiddled around with the bike for a while but had no luck getting it going. We chucked some chops and bread on the barbecue, which we ate. Mark told me a few things that could be wrong with my motorbike. Around 2pm Mark left in his ute via my back lane." 1. Gunderson said "f-ing beautiful". The respondent said "I've got, at the top, statement and date 18th August". 2. Gunderson said "Put down your address … can you send me a picture of your bike in the shed because I've got to have a look at it – the make, the colour, blah, blah, blah – you know what I mean, 'cos then if they ask "well what sort of bike" then I'll know such and such, 'cos I'm going to contest this 'cos if I agree to the AVO, it pleads my guilt on the assault charges. When you get a minute, duck out and send me a picture of the bike. F-ing then I've got that in my head too". The respondent said "How could he have seen you Sunday you were here?" Gunderson said "That's right if I get an alibi I'm laughing." The respondent said "Well, we can only tell the truth". Gunderson said "That's right. They can get f-d. As soon as you get a chance, send me a photo of that bike. I'll see you by smoke tomorrow, that's one I owe you." 3. At 9.04pm the respondent sent Gunderson three photographs of a red coloured motorbike. He sent a text at the bottom of these photographs that read "This is my bike". 4. At 10.12pm a further telephone conversation took place between Gunderson and the respondent. "GUNDERSON: Listen, I've just gone through these papers. It wasn't this Sunday, it was last Sunday! RESPONDENT: Yeah. That was the 10th. GUNDERSON: Yeah. RESPONDENT: Yeah that's what I've got typed out. GUNDERSON: Oh, have ya? You f-ing legend! I just wanted to catch you before … RESPONDENT: You get those photos? GUNDERSON: It's a Suzuki is it? RESPONDENT: Yeah. GUNDERSON: 250cc? RESPONDENT: Twin cylinder, just an old Suzuki. GUNDERSON: That's all I needed to know. You're a f-ing legend. You keep one, I'll keep one and I'll give one to the solicitor. You're on the ball! RESPONDENT: Well, we can only tell the truth [laughing]. GUNDERSON: You're a f-ing lifesaver! I can't wait to see you tomorrow. Come straight to my place." 1. On 21 August 2014 Gunderson contacted the respondent by telephone: "GUNDERSON: Listen to me carefully. I've got a lawyer. I've got an appointment on Tuesday. What are you doing Sunday? RESPONDENT: Nothing. GUNDERSON: Can I hire you and your wife and your kids services. Because we are going to be working on a motorcycle again and Um, having a little barbeque. I think your wife took photos of us didn't she? RESPONDENT: Yeah. GUNDERSON: Aye. Easy done isn't it! Your wife took photos of us working on a bike and eating a steak sandwich. RESPONDENT: Yep. GUNDERSON: And I was holding a little cranky son. I think if she did, she could print those pictures out for me couldn't she. RESPONDENT: Easy done brother." 1. Gunderson subsequently attended an appointment with a solicitor. On 3rd September 2014 Gunderson's solicitor sent a letter to Senior Constable Matthew Owen, who was the informant in relation to the offences alleged against Gunderson. In this letter Gunderson's solicitor indicated that he had received instructions from Gunderson regarding his alibi. He provided the respondent's contact details. As a result of receiving this letter, Senior Constable Owen made attempts to obtain a statement from the respondent. The respondent was difficult to contact. Senior Constable Owen eventually made contact with the respondent by telephone. The respondent requested Senior Constable Owen to attend his residence and pick up his statement from his wife. Senior Constable Owen did so. The statement consisted of a typed document signed by the respondent. The contents of this statement were exactly the same as those read out by the respondent during the phone conversation on 18 August 2015. 2. As a result of receiving this document, Senior Constable Owen made a number of other inquiries. On 21 January 2015, Gunderson appeared before the Cowra Local Court charged with one count of common assault and two counts of intimidation. He pleaded guilty to these offences. 3. At about 11am on 3 August 2015 police arrested the respondent and conveyed him to the Cowra Police Station. He was later interviewed. He admitted that the phone number police had intercepted during the phone conversations was his phone number. He was shown a copy of the statement supplied to Senior Constable Owen and he admitted that it was his statement. He indicated that the contents of this document were true and correct. He declined to answer any more questions and was later charged. Proceedings on sentence 1. The respondent gave evidence in the sentence proceedings. The effect of this evidence was that he was using ice and had become addicted to it and that Gunderson was his supplier. He said that he had complied with Gunderson's request to provide a false alibi because he was scared of him. He said that he had seen Gunderson bash two people. The respondent agreed that he was dependent upon Gunderson for his supply of ice. 2. The respondent said that he was on medication for depression and psychological difficulties. He had completed a rehabilitation course conducted by the Salvation Army and he believed that he had his ice addiction under control. He was seeing his doctor weekly for his depression medication. While he was addicted to ice, he had gone off his medication and this had led to a worsening of his depression. 3. His wife told him to leave the marital home because of his drug addiction and for a while he was living with another drug user. Since completing the rehabilitation course, his wife had taken him back into the family home. His intention was to return to work, if he did not receive a gaol sentence. He would be working for his father and there was a job available for him. 4. Under cross-examination he agreed that there were two reasons why he committed the offence – to keep feeding a drug habit and because he was afraid of Gunderson. Even though he was doing a favour for Gunderson, he still had to pay for his drugs. His belief was that unless he did the favour for Gunderson, he would not sell drugs to him and that he would hurt him or his family. The respondent said that he made suggestions about the statement and the alibi so that he would not get into trouble with Gunderson. The respondent said that he was not thinking clearly at the time. He maintained that he was just a passive participant in the offending and did whatever Gunderson said. 5. There were documents before the court which set out the respondent's subjective case. He was born in December 1976 and was aged 37 at the time of the offending and 39 when sentenced. His criminal history recorded one conviction for an offence of driving while his licence was cancelled in 1997. There was a letter from the Salvation Army concerning his successful completion of the Bridge Program rehabilitation course. There were a number of testimonials from local persons including the editor of a newspaper and the secretary of a junior rugby league football club. Remarks on sentence 1. Her Honour found that the respondent had pleaded guilty at the first available opportunity and accordingly was entitled to a discount of 25% on sentence. Her Honour noted that the maximum penalty of imprisonment for 14 years was an important legislative guidepost to which she had to have regard when imposing sentence. Her Honour then reviewed the factual background as set out above. 2. Having done so, her Honour observed that the offence was a public justice offence and was regarded by the community and by the courts as very serious. Her Honour remarked that this was because offences such as these struck at the very heart of the justice system and those who interfere with the course of justice must be subject to an appropriately severe penalty. Her Honour accepted that general deterrence was of paramount importance when sentencing for such offences. 3. Her Honour noted the Crown submission that the objective seriousness of the offending fell into the midrange of seriousness. When determining whether or not it did, her Honour took into account that the respondent was willing to go through with providing the false alibi and that a number of steps were taken in the planning phase, including providing a false photograph, giving details of a false barbeque, typing up the statement and providing it to the police. 4. Her Honour balanced that evidence against the oral evidence of the respondent. Her Honour accepted his evidence that he felt pressured and was scared of Gunderson. Her Honour took into account that Gunderson was feeding the respondent's ice habit and that the respondent had seen him "bash" two people, that Gunderson had told him that he had guns and that he had heard stories about what Gunderson had done to other persons. Having seen the respondent give evidence, her Honour was of the opinion that he may well have been an impressionable person, particularly because of his dependence on Gunderson supplying him ice, as well as his depression. 5. These were generous findings by her Honour. In making that observation I am conscious of the fact that her Honour had an advantage which this Court does not, of seeing and hearing the applicant give his evidence. Those findings, however, are difficult to reconcile with the content of the telephone intercepts which give an impression of the respondent being an enthusiastic participant in the offence to such an extent that he proffered a number of suggestions to give the story verisimilitude. He appears to have composed the statement without any assistance from Gunderson. Nevertheless, these findings by her Honour were open to her and have not been challenged by the Crown. 6. Her Honour found that the respondent was not going to benefit personally from committing the offence except to secure his supply of ice. Her Honour accepted that the respondent had a choice and that there was no issue of duress. Her Honour was satisfied that the respondent did not appreciate at the time how serious the offence was. Her Honour found that he had a choice, that he chose to become involved and took the various steps referred to in the Agreed Facts. 7. It was against that background that her Honour said: "All in all, I do not find that the matter falls into the midrange, I find that it falls into the lower range of seriousness. I am prepared, in making that finding, to have taken into account the question of Mr Reid's moral culpability, and I have reduced it, not significantly, but to an extent, because of what I have accepted was pressure asserted by Mr Gunderson, in the circumstances as I have outlined them, that led to the offender committing the offence." (Sentence judgment, 6.4) 1. Although her Honour found that there was some planning, she did not accept that it was sufficient to be an aggravating factor as identified in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Her Honour nevertheless assessed the offence as a serious one in relation to which general deterrence was an important consideration. 2. In relation to the respondent's subjective case, her Honour found that the respondent was a person of prior good character, with no relevant criminal history, and that the references which were before the court established that he was a person who had acted out of character in relation to this offence. Her Honour was prepared to give him the benefit of his prior good character. Her Honour considered that the respondent was entitled to some leniency because of his prior good character and that she considered it to be a significant matter in the exercise of her sentencing discretion. 3. This finding sits somewhat uneasily with the fact that the respondent had admitted that he had been in possession of ice and had been using ice for a period of time before this offence occurred. However, this finding was not challenged by the Crown in the appeal. 4. Her Honour took into account that the respondent had completed a rehabilitation program with the Salvation Army and that he appeared to have overcome his ice addiction. Her Honour also took into account that his addiction to ice at the time of the offending contributed to its occurrence. That was one of the reasons why her Honour reduced her assessment of the respondent's moral culpability for the offending. 5. Her Honour found that the respondent's prospects of rehabilitation were good and that he was well supported by his long term partner and that they had eight children together. Her Honour took into account that the respondent was supported by his parents, had good prospects of work and wanted to continue working and set up his own business. Her Honour noted that he had not taken the drug ice since his rehabilitation program and had managed to rehabilitate himself from that addiction. Her Honour concluded that the respondent's prospects of rehabilitation were very good and that there was little chance of him re-offending. The key to his rehabilitation was continued abstinence from the use of ice and him receiving proper and regular treatment for his depression. Her Honour noted that the respondent had not been taking his medication for depression at the time of the offending. Her Honour found that the respondent now realised the very serious nature of his offending and that he would not re-offend. In conclusion, her Honour found that the respondent had a very strong subjective case and that there were a number of mitigating factors relevant to his offending. 6. It was for those reasons that her Honour concluded that the requirements of s 5(1) of the Sentencing Act had not been made out and that a penalty other than a sentence of imprisonment was appropriate. Crown submissions on appeal 1. The Crown submitted that its appeal in substance related to Ground 3 and that at best, Grounds 1 and 2 were particulars of the inadequacy of sentence. Insofar as Ground 1 was concerned, the Crown accepted that it was an unproductive exercise to seek to draw distinctions between the objective seriousness of the offending and moral culpability of the offender when a process of instinctive synthesis was involved and the authorities did not, in terms, draw such a distinction. 2. The Crown submitted that it was not altogether clear what her Honour meant when she said that the offence fell "into the lower range of seriousness". If her Honour simply meant that it was not a midrange offence but something less than that, then that was a finding properly open to her. The Crown submitted, however, that if her Honour meant that it should be characterised as at the lower end of objective seriousness, her Honour had thereby fallen into error. This was despite the fact that such an assessment involved an exercise of discretion. The Crown submitted that such a finding was inconsistent with the Agreed Facts and the active and enthusiastic participation of the respondent in the creation of false alibi and the composition of the statement. 3. The Crown relied upon the observations of Simpson J in R v Fahda [2013] NSWCCA 86: "4 The starting point in considering this ground must be recognition of the principle stated in Mulato v R [2006] NSWCCA 282 at [37] and [46]. Assessment of objective seriousness of an offence is the role of the sentencing judge. While such an assessment is not immune to appellate review, any interference with the findings of the sentencing judge must be founded upon one of the errors specified in House v The King [1936] HCA 40; 55 CLR 499: acting on a wrong principle, allowing extraneous or irrelevant matters to guide or affect the decision, mistake of facts, failure to take into account some material consideration, or production of a result that is unreasonable or plainly unjust, indicative in itself of a failure properly to exercise the power conferred. 5 In this case, the assessment of the objective gravity of the murder as lying in the mid-range depended upon an array of factual findings emerging from the evidence, together with an evaluation of the significance of at least some of those facts. In R v Koloamatangi [2011] NSWCCA 288, at [51] Basten JA (with whom Adams and Johnson JJ agreed) saw the superior position of the trial judge in these circumstances as "accentuating" the appellate court's reluctance to interfere in the assessment. His Honour nevertheless also emphasised the duty of the appellate court to intervene where error is established." Consideration 1. Even allowing for her Honour's finding as to the respondent's subjective case, and her finding that he was "pressured" to commit the offence, there were some features of the offence which pointed to objective seriousness of a high degree and certainly approaching, if not at, the midrange of seriousness. The objective seriousness of the offending remains an important consideration and the undoubted enthusiasm with which the respondent participated in the offending has to be given full effect. The House error was the failure by her Honour to properly take into account the objective seriousness so that the result produced was unreasonable and plainly unjust. 2. In effect her Honour allowed the subjective case to overwhelm a proper assessment of the objective seriousness of the offending. The false statement would have provided a complete defence to the criminal charge of assault and intimidation of a mother and her child. The respondent continued in his support for Gunderson and was prepared to give the account in his statement as evidence in court. I have already referred to, and the Agreed Facts set out, the significant changes to the alibi suggested by the respondent. Those suggestions were not invited by Gunderson but were made on the initiative of the respondent. Even when the respondent was arrested and charged by police, he did not resile from his adherence to the truth of the statement. Without the respondent's assistance, Gunderson had no false alibi. When properly taken into account these factors indicate that the objective seriousness of the offence was well above what could be properly characterised as "the lower range of seriousness". 3. The observations of McColl JA (Latham J agreeing) in Marinellis v Regina [2006] NSWCCA 307 are apposite: "8 The essence of the s 319 offence was doing an act intending to pervert the course of justice. In terms of the applicant's guilt, it was the tendency of the conduct which was decisive; it was irrelevant whether his conduct did or did not bring about a miscarriage of justice: R v Rogerson [1992] HCA 25; (1992) 174 CLR 268 at 298 per McHugh J. It is not to point that the applicant's endeavours failed because his letters were intercepted by correctional services officers and brought to the attention of police. In assessing the objective criminality of the offence, it was relevant for the sentencing judge to consider the harm caused by his conduct. There was no suggestion that the police officers named by the applicant in his correspondence, fortuitously intercepted by correctional service officers, were corruptible. But in the context of an act intended to pervert the course of justice, the fact that the act did not succeed or even was doomed to failure, is "of far less significance than in the case of sentencing for an attempt to commit a substantive crime… the nature and degree of the perversion of justice intended … is the major factor in evaluating [its] criminality: Taouk v R (1992) 65 A Crim R 387 at 392 per Badgery-Parker J (with whom Clarke JA and Abadee J agreed.)" 1. The importance of the respondent's enthusiastic participation in the scheme and his creative input were matters of importance which increased the seriousness of the offending. In relation to a similar issue, McClellan CJ at CL (with whom Studdert J agreed) said in Regina v Giang [2001] NSWCCA 276: "26 There can be little doubt that when the offender is the instigator of the act which is intended to compromise the integrity of the curial process and benefits or intends to benefit from the doing of the agreed act, extraordinary circumstances will be required before a custodial sentence is not appropriate. 27 The situation may be different when the offender, although a willing participant, neither initiates or stands to benefit from the offence. No doubt it was for this reason that Giles JA remarked with respect to the co-accused in Purtell, who had assisted in creating the false reference, but received the same sentence, that her circumstances were not comparable to those of the principal offender. Hulme J of course, emphasised the need to impose a sentence "which hurt significantly" in the context of an offender who had benefited from his dishonest conduct." 1. The benefit for the respondent, as her Honour appreciated, was the maintenance of his supply of ice into the future. When one has regard to the content of the telephone conversations between the respondent and Gunderson the result is that each of them was largely an equal partner in what was a joint criminal enterprise to create the false alibi. The respondent's role in participating in the creation of the false statement was properly to be understood as "close to matching" Gunderson's role. This was a proposition correctly put by the Crown in the sentence proceedings (8.3.2016, p 14.15) 2. As her Honour stated at an early point in her remarks on sentence, this offence is of its very nature serious and strikes "at the very heart of the justice system". Even so, the sentences imposed for such offending have not properly matched its seriousness. In that regard, I would endorse the observations of Simpson J (with whom Davies J and Grove AJ agreed) in Khoury v R [2011] NSWCCA 118 where her Honour said: "88 The sentences the subject of the statistics do not appear to reflect the serious view this Court has repeatedly and consistently expressed concerning the gravity of offences of this kind: see R v Taouk (1992) 65 A Crim R 387 at 415; Marinellis v R [2006] NSWCCA 307 at [10]-[11]; Taylor v R [2007] NSWCCA 99 at [39]-[40]. See also R v Einfeld [2009] NSWSC 119, per James J at [183] (upheld on appeal: Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 )." 1. It follows that in this case the sentence imposed by her Honour was manifestly inadequate and a sentence of imprisonment should have been imposed. Absent other considerations, the Crown appeal should be allowed and the respondent should be resentenced so as to serve a term of imprisonment. There are, however, other considerations. Residual discretion 1. A finding of manifest inadequacy does not end the matter. The effect of the residual discretion needs to be considered. When considering the residual discretion, it needs to be kept in mind that the offending took place almost two years ago. The respondent was arrested in August of 2015. He was sentenced in March 2016, i.e. five months ago. In an affidavit, sworn 20 July 2016, the respondent deposed to continuing to attend drug and alcohol counselling sessions, which have been of considerable assistance in enabling him to remain drug free. He deposed that he has found the pending appeal to be very stressful. He would like to start his own landscaping business but cannot do so as long as the appeal is pending. Although he has been accepted back into the family home after becoming drug free, the respondent has expressed concern that should he receive a sentence of imprisonment, his wife might not be so willing to accept him back a second time. 2. It is necessary for the Crown to demonstrate that the discretion to resentence should be exercised by this Court (CMB v Attorney General for NSW [2015] HCA 9; 89 ALJR 407 at [6]). There French CJ and Gageler J said: "33 Descriptions of the discretion expressly so conferred on the Court of Criminal Appeal as "residual" ought not to be misunderstood. To enliven the discretion, it is incumbent on the appellant in an appeal under s 5D to demonstrate that the sentence pronounced by the court of trial turned on one or more specific errors of law or of fact, or, in the totality of the circumstances, was unreasonable or plainly unjust. The discretion is residual only in the sense that its exercise does not fall to be considered unless that threshold is met. Once the discretion is enlivened, it remains incumbent on the appellant in an appeal under s 5D to demonstrate that the discretion should be exercised." 1. To similar effect, Kiefel, Bell and Keane JJ said: "54 … Where error of that kind is established in an appeal by the offender, it is the duty of the Court of Criminal Appeal to exercise the sentencing discretion afresh. Where error of that kind is established in an appeal by the prosecution, the Court of Criminal Appeal may in its discretion dismiss the appeal notwithstanding that the sentence is erroneously lenient. This is sometimes described as "the residual discretion". As French CJ and Gageler J explain, the discretion is residual only in that its exercise does not fall to be considered unless House error is established." 1. There is a consideration which strongly favours this Court exercising the discretion not to intervene and resentence the respondent, despite the error in sentencing established by the Crown. This is the issue of his continuing rehabilitation. At the time of the offending, the respondent clearly had an ice addiction, which continued until his completion of the rehabilitation program in September 2015. This led to him separating from his partner of 22 years, the mother of his eight children. He has remained drug free since September 2015. As his affidavit made clear, it remains something of a constant battle for him to maintain that abstinence and it is for that reason that he continues to attend drug and alcohol counselling sessions with the Western NSW Local Health District. He has found that counselling is of considerable assistance in remaining drug free. 2. There is also the issue raised in the presentence report concerning his mental condition. He developed mental health problems following a work place injury in 2002. Since that time, he has experienced bouts of depression for which he was prescribed medication but which he was not taking at the time of the offending because of his drug addiction. He is now back on his medication and receiving regular treatment. At the time of sentence, he was seeing his doctor for that matter on a weekly basis. 3. It is likely that should the respondent be resentenced to a term of imprisonment, his rehabilitation in respect of his ice addiction and the treatment of his depressive condition would be placed in jeopardy. It is most unlikely that he would receive the same support and treatment in prison as he is now receiving. It should also not be ignored that the presence of his wife and children must be operating as a stabilising influence and as a motivation for him to continue with his rehabilitation, remain drug free and comply with his medication. 4. In those circumstances, I am not persuaded that the Crown has met the onus required of it to satisfy the Court that it should intervene and resentence the respondent to a custodial penalty. 5. Accordingly, although the Crown has established manifest inadequacy in the sentence imposed by her Honour, this Court should not intervene and resentence the respondent. 6. The order which I propose is that the Crown appeal under s 5D be dismissed. 7. R A HULME J: I agree with Hoeben CJ at CL. 8. N ADAMS J: I agree with Hoeben CJ at CL. ********** 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. Decision last updated: 04 August 2016