Blundell v R

The prosecution did not oppose community service.

The applicant offered to make restitution by periodic payments.

The applicant will report forthwith to the Probation and Parole Service for a comprehensive and up to date pre-sentence report." 21 These are not easy submissions to respond to. Presumably, it was intended to assert that inadequate recognition was given to subjective circumstances, and/or inadequate consideration was given to the sentencing options of a community service order or a periodic detention order, and/or to the circumstance that the offences could have been dealt with in the Local Court, with the jurisdictional limit applicable to that Court. 22 In fact, his Honour did give express consideration at least to the second and third of these. He said: "I intend to, despite what the Crown and the defence have admitted, I do not think that community service is an appropriate sentence for this crime. I think that it is more serious than that and what I intend to do is to regard this as if I were sentencing him in the Local Court."

At the time the maximum jurisdiction of the Local Court in sentencing was imprisonment for 2 years. 23 It is true that the Crown prosecutor did not oppose a community service order and made an express concession that the financial advantage obtained by the applicant was at the lower end of offences of their type and that the imposition of a community service order would not be a manifestly inadequate sentence. 24 Such a concession does not and can not bind a sentencing judge. 25 To the extent that these submissions are intended to challenge the adequacy of consideration given to subjective circumstances, they run straight up against the express words in the Remarks on Sentence. His Honour was fully aware of all of the subjective circumstances. 26 Nevertheless, I have come to the view that, in respect of offences involving a total of a little under $17,000, committed by a 42 year old of previously impeccable character, a starting point of imprisonment for 2 years was manifestly excessive. 27 Section 5(1) of the Sentencing Procedure Act provides: "5(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." 28 While, on one view, it may be implicit in his Honour's express rejection of a community service order that he formed the view that no sentence other than a period of imprisonment would be adequate to deal with the applicant's criminality, it is not apparent that he had in mind the injunction contained in s 5(1). In my opinion, having regard to the amount involved, a penalty other than imprisonment would have been one appropriate means of dealing with the applicant's criminality. That is not to say that that was the only available alternative. It was in failing to take account of s 5(1) and to consider alternatives to a fulltime custodial sentence, that his Honour misdirected himself. A further consideration in this respect, to which no reference was made, was the lengthy delay in the finalisation of the proceedings. That was a period of 5 years. The materials before this Court contain no information to explain the delay, although it is apparent that other charges were brought, and were either dismissed or withdrawn. 29 At the hearing of the application the Court directed preparation of a report pursuant to s 86(1) of the Sentencing Procedure Act confirming the applicant's suitability for community service work and the availability of such work and arrangements for it to be performed. That report having been provided, and being positive, I propose that the applicant be granted leave to appeal against sentence, the appeal be allowed, and the sentences imposed in the District Court be quashed, and an order, pursuant to s 8(1) of the Sentencing Procedure Act, be, in respect of each offence, substituted. 30 The Court therefore made the following orders:

(1) Leave granted to the applicant to appeal against the sentences imposed;

(3) In lieu thereof, in respect of each offence direct the applicant to perform 100 hours of community service work.

(4) The applicant is directed to report to the NSW Probation and Parole Service within 7 days. **********

30/04/2008 - Judgments of Grove J and Hulme J inserted in Paras 1 and 2 - Paragraph(s) 1 and 2 02/07/2008 - Judgment date added to coversheet. - Paragraph(s) 0

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