Sentencing Act 1997 (Tas), ss 7(f), 9, 58.

Blake v Adams [2013] TASSC 44, applied.

Criminal Law - Sentence - Relevant factors - Nature and circumstances of offender - Mental disorder.

Judgment Number: [2016] TASSC 43

ACTING SERGEANT MICHAEL BONDE v JASON CRAIG ELLERY

1. On 5 May 2016, the respondent pleaded guilty to one count of common assault, contrary to s 35(1) of the Police Offences Act 1935. The sentence imposed by Magistrate Sharon Cure was an order, pursuant to the provisions of s 7(f) of the Sentencing Act 1997 that, without recording a conviction, the proceedings be adjourned for 60 months and the respondent be released upon his undertaking that:

(a) he would be of good behaviour and not commit any offence of family violence in that period, and appear for conviction and sentence if called upon;

(b) he would continue to engage and receive treatment as directed by Dr Lev Fridgant, or any other practitioner and comply with any medication.

1. The condition in relation to treatment was poorly worded, but the intention is clear enough. The respondent promised to continue treatment he had already commenced with Dr Fridgant, who is a consultant psychiatrist, and further, that he would take any medication prescribed by Dr Fridgant or another practitioner.
2. The applicant has sought a review of the sentence. The sole ground is that the magistrate erred in law in imposing a sentence that was manifestly inadequate in the circumstances of the case.

1. The complaint to which the respondent pleaded guilty alleged that on 15 January 2016 he had unlawfully assaulted his wife by grabbing her arm, forcing her onto a bed, and threatening her by punching at her face. The facts stated were that the assault occurred during an argument which had arisen after his wife had noticed money missing from their bank account, and had sent him a text message demanding that he leave the house. This occurred shortly before the respondent had arrived home from work. When he arrived home, he went to the bedroom where his wife was, and yelled at her. He grabbed her around the left upper arm with one of his hands, forced her onto a bed and stood over her. While holding her there by the arm, he clenched his other hand into a fist and threw a punch at her three times, each time stopping only centimetres from her face. While he was doing this, he said, "Do you want domestic violence, I'll give you domestic violence".
2. At this time the respondent's 12-year old son intervened, attempting to stop the respondent by grabbing at his top. The respondent threw his arms at the child, missing him, but causing him to stumble backwards. The respondent's wife was then able to push him out of the bedroom, allowing the child to enter, and they closed the door.
3. The respondent's wife called the police and left the house with their three children, apparently without any further interference from the respondent. The other two children, who were present in the house during these events, are aged 10 and 8. When police arrived, Mrs Ellery and the children were in the driveway of the home. The police reported that "they appeared distraught and were holding back tears". The respondent was still in the house. Police entered the home and arrested him. He was taken to the police station, charged, processed and bailed. He was also served with a police family violence order preventing him from returning to the home.
4. Neither the respondent's wife nor any of the children suffered physical injury.
5. The learned magistrate was told, without contest by the prosecution, that the respondent had no memory of his offending behaviour, but he accepted that what his wife told the police was true.

1. The respondent was 42 years of age at the time of sentencing. His record of prior offending consists of eight minor traffic infringements, committed over a 20 year period, and one prior matter involving common assault. That assault was committed on 5 April 2009, and he was sentenced on 1 July 2009. The sentence was also an adjournment of proceedings pursuant to s 7(f) of the Sentencing Act, without conviction, for a period of 12 months and release on his undertaking to be of good behaviour and not commit any offences or violence in that period. The person assaulted on that occasion was Mrs Ellery. I will return to this matter during the course of these reasons.
2. The following matters were put to the learned magistrate by the respondent's counsel without contest by the prosecution:

(a) The respondent and his wife have been together for 24 years, and married for 20 years.

(b) The respondent is a self-employed business owner and operator. The business is a retail store. It was opened about three years ago. He works 50 hours per week on average.

(c) He has a good industrial record, having worked full-time for his entire working life. He had previously held high ranking managerial positions in government and government business enterprises.

(d) Since the offence, he had been prevented from returning to the family home by the provisions of the police family violence order. He continued to see his wife and children on a daily basis at work, but could not return home with them. He had been in unstable housing during that period and that situation had taken a toll on his mental health.

1. The respondent's counsel provided the magistrate with a considerable amount of information in respect of the respondent's mental health. The respondent had a lengthy and complex history of mental illness. He had been receiving psychiatric and related treatment since he was a child. There had in the past been a number of diagnoses, including autism, Aspergers syndrome, temporal lobe epilepsy, panic disorder, impulse control disorder, and intermittent explosive disorder. The magistrate was provided with a report from Dr Fridgant. The respondent sought a referral from his general practitioner immediately after the offence and first saw Dr Fridgant on 18 January 2016, three days later. The report confirmed that since that time he had been attending consultations with Dr Fridgant on a weekly basis. The report discussed the respondent's mental health history, and confirmed that the psychiatrist had commenced treatment with antidepressants. It noted a significant improvement in mood irritability, and that this had been confirmed by both the respondent and Mrs Ellery. In relation to Mrs Ellery, the report notes her comments during their last visit to the psychiatrist before the report was prepared on 29 February 2016:

"During this interview Michelle was able to communicate to me that [it]since commencing regular therapeutic involvement with me and antidepressant treatment, Jason has been consistently calmer, pleasant and cooperative. There has been a substantial reduction in perceived levels of stress and she expressed a sincere belief that Jason has now found an appropriate combination of psychological and pharmacological management which is likely to improve his long-term prognosis."

Dr Fridgant made a diagnosis of Autism Spectrum Disorder, Asperger's syndrome. He confirmed that he and the respondent had "clear forward plans for ongoing contact in a therapeutic manner and he has been exceptionally adherent to my recommendations and treatment prescription".

1. The respondent's counsel told the magistrate that the respondent had every intention of continuing to see the psychiatrist on a weekly basis. He was meeting the cost of that treatment himself, apart from a small Medicare rebate. The cost was $420 per visit, for each weekly visit.

1. The Magistrates Court record reveals the respondent had appeared on three occasions before entering the plea of guilty on 5 May 2016. In respect to the last of those, 7 April 2016, there is a note indicating that the matter was adjourned "due to lack of court time". On the first occasion, 17 February 2016, the respondent was referred to the Community Forensic Mental Health Liaison Officer, Ms Katrina Brooks. On this occasion the respondent was not legally represented. Although I have not been provided with a transcript of this hearing, I am aware, from my recent experience as a magistrate, that the purpose of such an adjournment is invariably to assess whether the respondent is a suitable candidate for inclusion in the mental health diversion list. Almost certainly the referral would have been initiated by the magistrate. By the second appearance on 4 March 2016, a report from Ms Brooks, dated 3 March 2016, was available to the magistrate. The report notes the respondent as being:

"... initially angry on interview. He believes the Court and Police have treated him unjustly and that he should be able to return to the family home. He advised this situation had cost him money and had caused him to have to close his shop to attend Court and appointments, which in turn was reducing his income and the money he was able to provide for his family. He feels like he has been victimized by the 'system'. Mr Ellery is also dissatisfied with mental health services."

1. The report otherwise confirms the respondent's description of a lengthy history of psychiatric problems and his attempts to obtain appropriate treatment. He confirmed to Ms Brooks his intention to continue to see his psychiatrist, but was resistant to inclusion on the mental health diversion list. Ms Brooks' opinion seems to be expressed in the following sentence:

"Mr Ellery has sufficient supports in place and would not benefit from inclusion on the mental health diversion list, as there is nothing further I would recommend."

1. On 4 March 2016, the respondent was represented by his counsel, Ms Tolputt. On this occasion, again no plea was entered. However, it is clear from a bail condition imposed on that day that the purpose of the further adjournment was to facilitate the respondent's referral to another service, the Defendant Health Liaison Officer, Ms West. This also is a common strategy in the Magistrates Court, in cases of family violence. The purpose of such a referral is to enable the officer to investigate and discuss with the respondent appropriate therapy and referral to other services, with a view to addressing any underlying issues which may have contributed to the alleged or admitted family violence. There is no report from Ms West but a transcript of the sentencing hearing makes it clear that the respondent did attend upon her as required by the court's bail condition, but did not accept her recommendations, in particular, referral to a behavioural change program run by the Catholic Welfare Service. The magistrate was told that the respondent was not prepared to attend this program because of his personal objection to any involvement with the Catholic Church.
2. It seems from the transcript that Mrs Ellery was also represented by a lawyer on the 5 May 2016. This lawyer was apparently appearing in respect of an application by Mrs Ellery to vary the police family violence order with a view to enabling the respondent to return to the family home. The application was discussed at the commencement of the proceedings, but, it seems, adjourned to another day. The transcript would suggest that although there was a police prosecutor presenting the facts in respect of the offence, Mrs Ellery's lawyer also contributed submissions in respect of the sentencing proceedings. It seems that this occurred with the agreement of both the police prosecutor and the respondent's lawyer. Mrs Ellery's lawyer specifically addressed the prior matter of assault in 2009, confirming that the assault had been perpetrated upon Mrs Ellery. It was submitted that at that time the respondent did not have any psychological support and was not medicated, and it was put that Mrs Ellery's purpose in reporting the matter to police in 2009 was to ensure that the respondent obtained treatment. The lawyer further put that that was Mrs Ellery's reason for contacting police in respect of this offence. Her primary concern was that Mr Ellery obtain treatment because "when he is medicated he is not a risk to her he is not a risk to the children and that's what she's seen demonstrated to her over their 19 years of marriage". It was at this point that the magistrate suggested that it may be appropriate, in the community's interest and in the interest of the respondent and his wife and children, to require the respondent to undertake to continue his treatment for the next three years. To this suggestion, Mrs Ellery's lawyer replied, "Absolutely."

1. The learned magistrate engaged in a detailed and lengthy conversation with the prosecutor and the respondent's counsel before imposing sentence. It is clear from this discussion that her Honour accepted that the offence was largely attributable to the untreated and complex mental health condition of the respondent, and further that an important sentencing outcome was that the respondent be encouraged, and indeed obliged, to continue appropriate treatment. It is clear also that she accepted that this was consistent with the attitude of Mrs Ellery and in the best interests of Mrs Ellery and the children. Her Honour was invited by Mrs Ellery's lawyer to consider the financial impact on the family of any order she might make, and specifically the impact of a fine. It is clear that her Honour was from an early stage in the discussion considering the utilisation of an order under s 7(f), largely because of what she saw as the desirability of having the respondent undertake, as a condition of release, to continue his treatment for a significant period of time.
2. During this discussion there was no demur from the prosecutor in respect of the proposition that the matter be dealt with by an order under s 7(f). The prosecutor did submit that any period of adjournment should be for five years rather than three years, but otherwise did not take issue with what was being proposed. However, towards the end of the discussion, her Honour specifically raised the question as to whether the order under s 7(f) should be with or without conviction. The respondent's counsel submitted that a conviction may have an impact on the respondent's economic or social wellbeing or employment prospects, in the sense that if for some reason he did not continue the operation of his business, a conviction may impact on his prospects for gaining employment, particularly with a government department or agency. In respect of this issue, the prosecutor submitted that her Honour should proceed on the basis of recording a conviction. It was put that the respondent had had the benefit of a conviction in respect of the 2009 offence, and that the circumstances of this offence could not be considered to be at the lowest end of the scale of seriousness for this type of offence.
3. Her Honour's final sentencing comments effectively involved a consideration of the factors set out in the Sentencing Act, s 9. By this stage, her Honour had clearly decided to proceed under s 7(f) and was simply concerned with whether or not she did so with or without recording a conviction, and the appropriate period of the adjournment. Her Honour's comments included the following:

(a) Her Honour agreed that the offence was serious in nature.

(b) In respect of the respondent's antecedents and character, she inferred that he had a serious mental illness which at the time contributed to his offending, that he immediately sought treatment, had received treatment, and had put himself on a "pathway of rehabilitation".

(c) In relation to the potential impact of a conviction on his employment prospects, and to finalise her sentencing comments, her Honour said this:

"He's still a young man and I'm of the view that a conviction may have an impact on his employment prospects in the future and therefore I exercise my discretion in his favour. It's a line ball really because of the serious nature of the offence but he gets the benefit of the previous offence being some considerable time ago, six years ago, and arising out of the same set of circumstances. He would never get this opportunity again but I'm going to, because of the long period of time that I'm making this 7(f) order, not record a conviction on this occasion."

1. Section 7 of the Sentencing Act provides as follows:

A court that finds a person guilty of an offence may, in accordance with this Act and subject to any enactment relating specifically to the offence -

(f) with or without recording a conviction, adjourn the proceedings for a period not exceeding 60 months and, on the offender giving an undertaking with conditions attached, order the release of the offender ..."

1. Other sections which are relevant to an order made under that section are as follows:

In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including -

(a) he nature and circumstances of the offence; and

(b) the offender's antecedents and character; and

(c) the impact that a conviction would have on the offender's economic or social wellbeing or employment prospects."

"58 Purpose of orders to adjourn, discharge or dismiss

An order under section 7(f), (g) or (h) may be made for such one or more of the following purposes, as is relevant in the circumstances, as the court thinks fit:

(a) to provide for the rehabilitation of an offender by allowing the offender's sentence to be served in the community unsupervised;

(b) to take account of the trivial, technical or minor nature of the offence committed by an offender;

(c) to allow for circumstances in which it may be inappropriate to record a conviction against an offender;

(d) to allow for circumstances in which it may be inappropriate to inflict any punishment other than a nominal punishment on an offender;

(e) to allow for the existence of other extenuating or exceptional circumstances that may justify the court showing mercy to an offender."

1. As already noted, the sole ground of the application is that the sentence was manifestly inadequate. It is clear from the applicant's submissions that the focus of the applicant's argument is that the failure to record a conviction renders the sentence manifestly inadequate. Interestingly, counsel for the applicant did submit that the sentence would have been within a proper exercise of the sentencing discretion had her Honour made a probation order without recording a conviction. The basis of this submission seems to be that the requirement for supervision under the probation order would have added a punitive element sufficient to bring the sentence within the proper exercise of discretion.
2. In Collins v Caccavo [2015] TASSC 53, Estcourt J summarised the principles applicable on a review of this nature, particularly one brought on behalf of the prosecution. These principles had, in turn, been derived from his Honour's analysis of comments of Pearce J in Barrett v Wilson [2015] TASSC 3, 69 MVR 333 and Lyons v Bakes [2015] TASSC 37:

"• The appellate court may not substitute its own opinion for that of the sentencing magistrate merely because it would have exercised the sentencing discretion in a different way.

• A sentencing court has a wide measure of latitude that is to be viewed with respect and restraint by appeal courts.
• An appellate court must not interfere with the exercise of the sentencing discretion, except in a clear case of error. A magistrate is vested with a very wide discretion.
• It is not sufficient to set aside a sentencing order just because a more severe sentence would have been imposed by the appellate court.
• A motion to review must fail unless the Court is satisfied that the sentence was so manifestly wrong in its inadequacy, as to amount to a clear error in the sentencing process.
• Manifest excess or inadequacy must be plainly apparent.
• There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case.
• There must always be a place for the leniency which has traditionally been extended even to offenders with bad records.
• Crown appeals should be brought only in limited circumstances, such as where a sentence reveals such manifest inadequacy as to constitute an error in principle, or where a sentence is so disproportionate to the seriousness of the crime as to shock the public conscience."

1. I respectfully agree that these are the appropriate principles applicable to a case such as this.
2. Mr Thomspon, who appeared for the applicant, summarised the arguments in favour of the proposition that the sentence was manifestly inadequate, as follows:

(a) Although not at the higher end of the scale of seriousness, the factual circumstances revealed a serious offence with aggravating features. The assault was in the context of family violence, all of the children were present in the home, and the 12-year old son was directly involved in the incident. Although Mrs Ellery suffered no physical injury, it was submitted that it should be inferred that the respondent had only stopped the assault because of the intervention of the child. The violence was accompanied by verbal and physical threats.

(b) Apart from the respondent's mental health condition, there were few mitigating circumstances. He was not a youthful or first offender. The prior matter involved an assault against the same complainant, and he had been dealt with leniently on that occasion. Mr Thompson did concede, however, that there was no suggestion that the respondent had breached the conditions of his release.

(c) In relation to the involvement of the respondent's mental health, the evidence revealed that he had stopped seeking treatment before the offence was committed, and was unmedicated at the time.

(d) It was submitted that the report of Ms Brooks demonstrated that the respondent was resentful and lacked insight.

(e) Whilst the adjournment of the proceedings was on the basis of an undertaking to continue treatment for a period of five years, there would be no supervision of such treatment and compliance with the undertaking, and the lack of supervision would reduce the punitive element of the sentence and its effectiveness in terms of achieving the aim of rehabilitation.

(f) General deterrence is still an important consideration, despite the respondent's mental health condition. It is a question of degree, and general deterrence in the circumstances of this case deserves appropriate weight.

1. There is no doubt that some of these arguments have considerable force. However, I am unable to agree with the proposition that the sentence is manifestly inadequate. In my view, the sentencing option adopted by her Honour was well within the proper exercise of her sentencing discretion in the circumstances of this case. It involved a reasonable and considered response to the circumstances of the offence and the offender, and the various sentencing considerations arising from those circumstances.
2. There is no question that the assault was a relatively serious example of family violence and was aggravated by the presence, and indeed the involvement, of children. (See Family Violence Act 2004, s 13(a).) Family violence must always be regarded as a serious matter. It is not necessarily less so because it occurs without premeditation in the course of raised emotions during an argument. A party to a relationship is entitled to expect that he or she will be safe if disagreeing or arguing with his or her partner. Family violence can have devastating and long-term consequences for the victims of the violence and the children of the relationship who witness or are caught up in the violence.
3. While accepting that the offence was serious, it was open to her Honour, on the evidence presented to her, to conclude that the violence was largely attributable to the untreated mental health condition of the respondent. During the course of submissions, her Honour did refer to Hurd v The Queen [1988] Tas R 126, and in particular to comments made in the course of that case that "general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others". (See Cox J (as he then was) at 131, citing R v Anderson [1981] VicRp 17; [1981] VR 155, Young CJ and Jenkinson J.) However, I would agree with Mr Thompson's submission that this must always be a question of degree and a consideration which responds to the particular circumstances of the case. In this case, there is no doubt that general deterrence had a role to play in sentencing. However the real significance of the underlying mental illness and its link to the offending was to put in the proper context the respondent's response to his commission of the offence, the real prospects of rehabilitation if the mental illness was appropriately treated, and the significant and well thought out attitude of his wife towards the offending and his response in obtaining treatment. In this case, there was a real opportunity to advance the rehabilitation of the respondent through long-term engagement with his psychiatrist and consequent medication. It was clearly in the interests of the community, the respondent's family and the respondent himself, that this specific avenue of rehabilitation be encouraged by the sentence to the greatest extent possible. These considerations were clearly uppermost in the mind of the learned magistrate and there was agreement from all parties, including Mrs Ellery in that regard.
4. Mr Thompson submitted that the fact that the respondent had been forgiven by Mrs Ellery ought be given minimal weight. He cited a passage from Pearce J in Director of Public Prosecutions v JCN [2015] TASCCA 13 at [20] concerning observations by his Honour that victims of family violence are often prepared to overlook the violence in order to continue the relationship. In that case, his Honour was dealing with the question of bail under the Family Violence Act, and his observations were clearly a generalisation derived from the experience of the courts in a whole range of matters relating to family violence. Those observations do little to inform the circumstances of this case. I reiterate my view that Mrs Ellery's position in relation to the relationship, and the need and benefits of ongoing treatment of her husband's mental health problems, demonstrated a well thought out and logical response to the circumstances of this case, and the ongoing welfare of herself and her family.
5. I also reject the submission from Mr Thompson that the respondent, in his dealing with Ms Brooks and Ms West, demonstrated a lack of insight and commitment to rehabilitation. As her Honour noted during the course of argument, it was unlikely that there was anything that the Defendant Health Liaison Officer, Ms West, could offer the respondent that would not be offered by ongoing therapy with his psychiatrist. The respondent's comments, reported by Ms Brooks, reflect nothing more than his frustration with being diverted from the real and significant help that he had already obtained from his psychiatrist. Ms Brooks concluded that there was nothing further that she was able to offer him.
6. The respondent pleaded guilty to the offence at the first opportunity after referral by the court to each of the abovementioned officers. This can be regarded, having regard to those referrals which almost certainly were initiated by the court, as a plea of guilty at an early opportunity. He had immediately accepted the truth of his wife's allegations despite the uncontested assertion that he had no memory of the offence. He sought help from a psychiatrist, whom he saw within three days of the commission of the offence, and had been attending weekly sessions since that time. His intention, which was to be the subject of his undertaking, was that he would continue to attend on a weekly basis. The treatment was coming at considerable cost to him, $420 per consultation, which he had been and was prepared to continue paying, despite drawing a very modest income from his business. In my view, there was ample evidence to establish that he had responded appropriately to the commission of the offence and had due insight into his conduct.
7. Her Honour adopted, as she was required to do by the legislation, a two-step process in making the order under s 7(f). Firstly, she considered whether or not it was appropriate to make an order under that section at all. In doing so it was appropriate for her to have regard to the provisions of s 58 and, in particular, par (a) which provides that one of the purposes of such an order is to "provide for the rehabilitation of an offender by allowing the offender's sentence to be served in the community unsupervised". In the circumstances of this case, Mr Thompson's submission that a probation order would have been a more appropriate way of mandating treatment than an undertaking given for the purposes of an order under s 7(f), has little merit. The undertaking requiring treatment was to be in place for a lengthy period. By the Sentencing Act, s 60, the respondent was liable to be called upon to appear before the court, by order of the court, or by a notice issued by the proper officer of the court, at any time within that period of 60 months. Upon such an appearance, in the event that the court was satisfied that the respondent had failed to observe the conditions of the undertaking, then he would be liable to be resentenced by the court for the original offence.
8. An undertaking with conditions attached provided the learned magistrate with an opportunity to tailor the conditions to ensure that the specific treatment of relevance in this case was undertaken. That was the effect of the condition which referred to the specific practitioner who was to provide the treatment. While specific conditions can be imposed in a probation order, the usual practice would be to put in place general conditions, leaving these questions of ongoing treatment in the hands of a probation officer. Whilst that might be an appropriate response in very many cases, in this particular case there was real purpose and logic in the approach taken by her Honour.
9. An undertaking with conditions attached is capable of having real punitive effect. In Blake v Adams [2013] TASSC 44, Porter J cited with approval a passage from a judgment of Harrison J (with whom Beazley JA and McCallum J agreed) in R v Maugher [2012] NSWCCA 51, in respect of "the Crown's submission that the recording of a conviction was a matter of special significance or importance in the case, given that it was an ostensibly serious case of supplying drugs":

"37 Whilst that contention is understandable as a general proposition, it is important that it not be permitted in this case to dilute or to downgrade the significance of the imposition of a bond. If the seriousness of the present offence and the need for denunciation and general deterrence are important considerations, they are to my mind more than adequately contemplated in this case by both the terms and the duration of the bond that has been imposed. The respondent has been made subject to a judicially sanctioned requirement that he be of good behaviour for a period of two years. There are onerous consequences that apply if he fails to observe that requirement. That fact alone would in my view impress the seriousness with which the Court was treating the respondent's conduct upon an objective and reasonable member of the community. It should not pass without comment that the significance of a bond, and the consequences of disregarding its conditions, is regularly considered by this Court to be important when deciding whether or not to grant bail to applicants who have allegedly disregarded the conditions and restrictions that a bond imposes. Much more than mere lip service is regularly paid in this context to the important and significant consequences for bail applications created by offences allegedly committed in breach of such conditions. It is wrong in my view to assume that the decision to not record a conviction is automatically or necessarily coextensive with the imposition of an inadequate, or even a particularly lenient, sentence." [Porter J's emphasis.]

1. Having determined to deal with the matter by order under s 7(f), for a purpose specified in s 58, her Honour then needed to separately consider the question of whether or not to make the order with or without conviction. Her Honour expressly addressed the considerations in s 9, as she was required to, in respect of this question. As I have already noted, she accepted that the matter was serious but noted also that, although the matter was finely balanced, the respondent's antecedents and character, which included his mental health condition, and the undoubted impact that a conviction would have in the event that he was required to seek employment, tipped the balance in favour of not recording a conviction. Although this was a merciful decision, particularly as he had on a prior occasion received the benefit of such an order, it was a course that was open to her Honour. The potential impact of a conviction on the respondent could well have been significant. If his business was unable to continue for any reason, then it was foreseeable that he would attempt to re-enter government service at a high level. The recording of a conviction on this occasion would have been the first time that he had been convicted of an offence other than relatively minor traffic regulatory breaches. Although a conviction was not recorded, the conditions of release were onerous and required real commitment and had real financial consequences for the respondent. In the event of breach, he was liable to resentence. Further the decision not to record a conviction had a role to play in the encouragement of the respondent's ongoing treatment. This was for the clear and accepted benefit, not only of the respondent, but also of his family and, by extension, the wider community.
2. It follows that my conclusion is that manifest inadequacy is not plainly apparent and, to the extent that her Honour's decision was merciful, it can be seen that this was a reasonable response to the circumstances of the case. I would be satisfied of that conclusion even if this review did not fall into the category of a "Crown" appeal, but my conclusion is reinforced by the considerations relevant for that reason.
3. The motion to review is dismissed.