Dinsdale v The Queen

A G Braddock for the appellant (instructed by Young & Young)

R E Cock QC with J A Girdham for the respondent (instructed by Director of Public Prosecutions (Western Australia))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Criminal law - Sentencing - Crown appeals against sentence - Circumstances in which Court of Criminal Appeal should allow appeal against sentence and substitute its own sentence - Necessity to find and identify error before allowing appeal - Whether failure to do so in reasons of Court of Criminal Appeal.

Criminal law - Sentencing - Crown appeals against sentence - Circumstances in which judicial discretion to suspend sentence should be exercised - Whether power to suspend sentence is confined by reference wholly, mainly or specially to the effect on rehabilitation of the offender.

1. GLEESON CJ AND HAYNE J. The appellant appeals from orders of the Court of Criminal Appeal of Western Australia (Kennedy, Pidgeon and Murray JJ) allowing a prosecution appeal against the sentence imposed on him in the District Court of Western Australia. The appellant had been indicted in the District Court on one count of sexual penetration of a child under the age of 13 years and one count of indecently dealing with that child. Both offences were alleged to have occurred on the same date and at the same place. The appellant pleaded not guilty but was convicted on both counts. The trial judge (Judge Viol) sentenced him to concurrent terms of suspended imprisonment (each term being of 18 months, suspended for 18 months).
2. The Court of Criminal Appeal allowed the prosecution appeal, set aside the sentence imposed by the trial judge on the offence of sexual penetration and in lieu, ordered that the appellant be sentenced to 30 months' imprisonment. The order for suspension of the term of imprisonment was set aside.
3. It is desirable to restate some propositions which are fundamental to criminal appeals but which may sometimes be obscured by the development of shorthand descriptions of what is done in particular cases. It is of the first importance to identify the jurisdiction which the Court of Criminal Appeal exercises, the power the Court is given, and the circumstances in which those powers may be exercised. In this particular case, the Court of Criminal Appeal of Western Australia was exercising jurisdiction given by s 687(1) of the Criminal Code (WA) to hear and determine a prosecution appeal against sentence brought pursuant to s 688(2). That latter sub‑section provides:

"An appeal may be made to the Court of Criminal Appeal on the part of the prosecution -

(d) against any punishment imposed or order made in respect of a person convicted on indictment ..."

The powers of the Court of Criminal Appeal on such an appeal are prescribed by s 689(3), which provides:

"On an appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict or which may lawfully be passed for the offence of which the appellant or an accused person stands convicted (whether more or less severe) in substitution therefor as they think ought to have been passed and in any other case shall dismiss the appeal."

The task of the Court of Criminal Appeal was to determine whether there was error made in sentencing the accused, error being understood, in this context, as it was explained in House v The King[1]:

"It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

1. Those principles apply both to Crown appeals based upon alleged inadequacy and appeals by offenders based upon alleged excessiveness.
2. The prosecution's notice of appeal to the Court of Criminal Appeal advanced four grounds:

"1. The learned Judge erred in failing to pay proper regard to the principles of general deterrence and the need for condign punishment to protect children in the community.

2. The learned Judge erred by making an order which failed to adequately reflect the seriousness of the offences and the Respondent's breach of a position of trust in relation to the complainant.

3. The learned Judge erred in placing undue emphasis on factors personal to the Respondent.

4. In the circumstances the sentence of 18 months suspended was so inadequate as to manifest error in the sentencing discretion."

Properly understood, the first three grounds seem to have been little more than particulars of the last. Thus, as was accepted in argument in this Court, the appeal to the Court of Criminal Appeal was based upon an allegation of manifest inadequacy rather than specific error. That is, the error assigned was of the third kind mentioned in House v The King. Only if this error was demonstrated was it open to the Court of Criminal Appeal to "pass such other sentence warranted in law ... in substitution"[2] for the sentence passed at trial.

1. Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non‑custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.
2. In the present case, the reasons of the Court of Criminal Appeal contain no explicit statement of a conclusion that the sentence was manifestly inadequate. The respondent submitted that the Court's reasons must nevertheless be understood as revealing that the Court reached that conclusion.
3. The Court of Criminal Appeal acknowledged at the start of the reasons of Murray J (with which the other members of the Court agreed) that it must search for error of principle which caused the discretion of the sentencing judge to miscarry. The question whether the Court of Criminal Appeal is to be understood to have found such an error of principle must, no doubt, be answered by considering the reasons which the Court gave. It is not necessarily to be answered in the negative, however, simply because the reasons contain no explicit statement to that effect.
4. In this case, four facts must be borne in mind. First, the only issue agitated at the hearing of the appeal to the Court of Criminal Appeal was whether the sentence imposed by the trial judge was manifestly inadequate. Secondly, the appeal was allowed. Thirdly, the Court of Criminal Appeal resentenced the appellant to significantly more severe punishment than the trial judge had imposed. Lastly, the ground of appeal which was agitated before the Court of Criminal Appeal (manifest inadequacy) was a ground which did not require, or even admit of, expansive elaboration of a process of reasoning which leads to its acceptance or rejection. Given these facts, we consider that the Court of Criminal Appeal must be understood to have concluded that the sentence imposed by the trial judge was manifestly inadequate. There is no other explanation consistent with the course of proceedings below, the Court's reasons and its orders[3].

"A court must not use a sentencing option in subsection (2) unless satisfied, having regard to Division 1 of Part 2, that it is not appropriate to use any of the options listed before that option."

Thus a court may not impose a term of imprisonment unless satisfied that it is not appropriate to use any of the other sentencing options given in the Act.

1. In considering the present matter, the Court of Criminal Appeal dealt first with the length of the term of suspended imprisonment which the trial judge had fixed in relation to the offence of digital penetration and only then turned to consider whether an order for suspension of imprisonment would be appropriate. In that regard, the Court said that:

"The question then is whether the case is of a type which, notwithstanding [the] conclusion [that imprisonment is required], makes it appropriate in mercy, to aid a process of rehabilitation, or otherwise for good and sufficient reason, to order the suspension of service of the term."

The Court concluded that the offences committed by the appellant "were rightly found to be of sufficient seriousness to require the punishment of imprisonment to be imposed", but concluded that because "there was no rehabilitation process going on which merited the support of a suspended sentence" there was no reason shown which "dictated a merciful disposition of the case".

1. This inverts the order in which the statute requires a sentencing judge to consider matters. The sentencing judge must first decide the kind of punishment to be imposed. In this case that was understood as requiring a choice between imposing a term of suspended imprisonment and imposing imprisonment which the appellant would have to serve immediately. Only if satisfied that it is not appropriate to impose a term of suspended imprisonment may the judge impose a term of imprisonment which is to take effect immediately. The Court of Criminal Appeal considered how long a period of incarceration (immediate or suspended) the appellant's conduct warranted and then searched for reason "in mercy" to suspend that term. This is not what s 39(3) of the Act required. Nor was it required by either s 6(4) or s 76(2) of the Act. Section 6(4) provides:

"A court must not impose a sentence of imprisonment on an offender unless it decides that -

(a) the seriousness of the offence is such that only imprisonment can be justified; or

"Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances."

1. Sections 6(4) and 39(3) reflect the principle of sentencing that imprisonment is a punishment of last resort. Section 76(2) also reflects that principle, and the related consideration that committing a further offence during the period of suspension should not produce an unintended consequence.
2. No doubt, under s 6(4), a sentencing judge must determine whether imprisonment is warranted and, under s 76(2) must fix the length of the term which would otherwise be appropriate. Neither step must be allowed, however, to obscure the need to decide whether suspended imprisonment is an appropriate disposition of the matter. Only if it is decided that it is not appropriate may a court impose a term of immediate imprisonment.
3. Because the resentencing by the Court of Criminal Appeal was flawed, the sentence imposed by that Court cannot stand. But the error which the Court of Criminal Appeal committed in resentencing the appellant is an error which also reflects upon the opinion which the Court formed about the adequacy of the sentence imposed on the appellant. The adequacy of that sentence could not be judged except against the standards of sentencing that are set, in fundamentally important respects, by the Act. As we have said, the Act requires a court passing sentence to decide first whether a sentence of suspended imprisonment could properly be imposed, before deciding to impose a sentence of actual imprisonment. It follows that the adequacy of the sentence passed by a trial judge is not to be determined by looking first at the length of term of suspended imprisonment which was imposed and only then deciding whether, "in mercy", the prospects of the offender's rehabilitation were such that the sentence can be suspended. Adequacy principally depended, in the present case, upon whether suspended imprisonment was inappropriate.
4. Accordingly, not only was the resentencing of the appellant by the Court of Criminal Appeal flawed, its conclusion that the sentence imposed by the trial judge was manifestly inadequate was made under an evident misapprehension of applicable principle. It follows that the appeal to this Court should be allowed and the orders of the Court of Criminal Appeal set aside.
5. The sentence imposed on the appellant by the trial judge was undoubtedly merciful. Ordinarily, conduct of the kind committed by the appellant would merit immediate imprisonment for a significant period. While that is ordinarily the case, we do not accept that it is an invariable rule. We agree with Gaudron and Gummow JJ and with Kirby J that, in the circumstances of this case, the sentence passed at trial was not manifestly inadequate. The discretion to impose a suspended sentence is not confined by considerations relating to rehabilitation. These will often be significant, but there may be other relevant matters, of the kind taken into account by the trial judge in the present case. That being so, we joined in the orders which have earlier been pronounced.

1. Mr Christin Dinsdale (the appellant) was a friend of the family of the complainant who, at the relevant time, was a girl of nine years. On an unknown date between December 1995 and January 1996, the complainant had stayed overnight in the appellant's home with the appellant's daughter, a girl of about the same age. The complainant stated that at some stage during the evening, whilst she and the appellant's daughter were watching television, the appellant pulled up her skirt, moved her underpants and inserted his thumb into her vagina. When the appellant asked her if she liked it, she said that she did not and the appellant stopped and walked away.
2. On the following afternoon, before the complainant returned to her home, she said that she and the appellant's daughter went into the appellant's bedroom. He offered to massage the girls who lay on the bed on their stomachs for this purpose. When he suggested that he should "look for blackheads", the appellant's daughter got off the bed and moved to another part of the room. According to the complainant, the appellant moved her underpants to one side and looked closely at her vagina.
3. The complainant first told her mother about the incidents in about March 1998. Soon after, the police were informed and the appellant was charged. He was tried before Viol DCJ and a jury in the District Court of Western Australia.
4. The charges brought against the appellant comprised one count of sexual penetration of a child under the age of 13 years[19] and a second count of indecent dealing with a child under the age of 13 years[20]. The maximum sentence provided by law in respect of the first count was 20 years imprisonment[21] and in respect of the second count, 10 years imprisonment[22]. The appellant, when charged with the offences, denied his guilt. Both the complainant and the appellant gave evidence at the trial, as did the appellant's wife and a neighbour. On 24 September 1998, the jury found the appellant guilty on both counts. He was convicted. It thus fell to Viol DCJ to sentence him.
5. In the sentencing proceedings, Viol DCJ had available to him a victim impact statement made by the mother of the complainant. It described how the complainant had become withdrawn and unhappy until the disclosure was made[23]. His Honour also had before him character references from the appellant's wife and a family friend. The wife, in particular, asserted her continuing belief in her husband's innocence. She asked the judge to remember that he was not only sentencing the appellant but also his family.

1. In passing sentence, Viol DCJ described the offences of which the appellant had been convicted. In recounting the matters that tended to emphasise the seriousness of the offences, Viol DCJ mentioned the following: (1) that the offences themselves were objectively serious, especially that relating to sexual penetration; (2) that the appellant had breached a position of trust, given that he was looking after the complainant; (3) that the appellant had exhibited no remorse; and (4) that the victim impact statement indicated that the complainant had been affected by the offences and was, in his Honour's opinion, likely to have problems in the future.
2. As against these considerations, Viol DCJ listed a number of factors which tended to mitigate the punishment proper to the offences. These included: (1) the devastating effect which imposing a prison sentence would have on the appellant and his family; (2) the social stigma that would follow the conviction, quite apart from a prison sentence; (3) the absence of any prior convictions for offences of this kind and the fact that his last conviction had been many years earlier; and (4) the written testimonials deposing to the appellant's previous good character and personal qualities.
3. Notwithstanding these matters, Viol DCJ stated that in the serious circumstances of the offences, the imposition of a sentence of imprisonment was "unavoidable". He then turned to the submission put to him by counsel for the appellant that the term of imprisonment should be suspended. Of this submission, his Honour said, addressing the appellant[24]:

"Some of the bases for taking this action are to further a rehabilitation process and whether it's possible to see whether there is any chance of ... reoffending. As to rehabilitation, this process has clearly been going on since the offences which occurred some 3 years ago. Your family and friends attest to your industry and to the general care of your family and your attitude to your family and friends and quite obviously there have been no offences committed to anyone's knowledge since that time.

As to the likelihood of reoffending, no-one of course can be sure of this, but as far as I can see from all the circumstances and information available, I doubt whether you will reoffend in this way again. I have had a chance to consider this matter and have decided that this is a case where any term of imprisonment should be suspended, and in full."

1. Viol DCJ thereupon sentenced the appellant to 18 months imprisonment in respect of his conviction on the first count. He suspended that sentence "in full". As to the conviction on the second count, he sentenced the appellant to 18 months imprisonment and ordered that it be served concurrently with the sentence imposed in respect of the first count. That term of imprisonment was also "suspended in full". He gave the appellant a warning as to the operation of the sentences so suspended that, if he were convicted of a relevant offence during the 18 months of their currency, he would be obliged to serve the sentence of imprisonment so imposed. In accordance with the sentence, the appellant was released from the custody in which he had been held whilst awaiting sentence.
2. It is important to consider the sentence so imposed in the context of the submissions put to Viol DCJ on behalf of the parties. Sentencing remarks should not be read in isolation. Ordinarily, as here, they respond to the submissions that are made. Those for the appellant emphasised the isolated nature of the offences. Whilst it was accepted that the appellant could not take advantage of evidence of remorse, having pleaded not guilty and maintained his innocence, it was submitted that the offences of which he was convicted were out of character for him. On the other hand, the prosecutor rejected the submission that a suspended sentence should be imposed. He submitted that a custodial sentence was necessary and should not be suspended. According to the prosecutor, the only proper way to reflect leniency was in the length of the custodial sentence.
3. Following the sentence imposed on the appellant, the Crown appealed to the Court of Criminal Appeal of Western Australia.

1. The Court of Criminal Appeal upheld the Crown's appeal. It set aside the sentence of 18 months imprisonment for the offence of sexual penetration and in place of the sentence imposed by Viol DCJ, substituted, for that offence, a sentence of 30 months imprisonment. It left the sentence in respect of the second count standing and directed that it be served so that the aggregate sentence of imprisonment would be 30 months. The appellant was declared eligible for parole in respect of the term of imprisonment. The order for suspension of the service of the term of imprisonment was set aside. In the result, the appellant was returned to custody. The reasons for the orders of the Court of Criminal Appeal[25] were given by Murray J.
2. His Honour began with a reference to two considerations which controlled the Court of Criminal Appeal in what it might do[26]:

"[T]his Court will be circumspect [in a Crown appeal] to ensure that the discretionary sentencing judgment of the court below is only upset in a clear case where that is required, not merely to correct a lenient sentence, but only where from the leniency or otherwise it appears that there has been an error of principle which has caused the discretion of the sentencing Judge to miscarry, and where it is seen to be necessary to intervene to aid the consistency and certainty of the sentencing process and to avoid undue disparity. Even in such a case this Court will have regard to the fact that it is dealing with a discretionary judgment and, in choosing the sentence to be substituted for that passed by the sentencing Judge, it will have regard to the principle of double jeopardy so as to substitute a sentence towards the more lenient end of the range of proportionate sentences conceived to be available[27]."

1. After describing the offences of which the appellant had been convicted and accepting that they were "of a relatively minor nature when compared to others of the same types"[28], Murray J referred to the boldness of the appellant's conduct in the presence of his own daughter, the invasion of the person of the complainant and the fact that separate incidents were involved in the offences committed on different days. He set out the reasons of the primary judge for the orders that he had made and noted that the Crown's appeal was both against the length of the aggregate term of imprisonment imposed and the decision to suspend its service. He recorded the submission that Viol DCJ had placed "undue emphasis" on matters personal to the appellant[29].
2. Murray J then addressed the two issues which had been identified. As to the length of the term of imprisonment, he referred to another case of digital penetration of a young female complainant in O'C[30]. That case had also been decided by the Court of Criminal Appeal but prior to the availability of the power to suspend the serving of a sentence of imprisonment. A two year probation and a requirement of 150 hours of community service imposed at trial were there set aside and a term of 12 months imprisonment substituted, with eligibility for parole[31]. His Honour accepted that there were some differences in the two cases that meant that the sentence imposed in O'C could not be regarded as a "bench mark"[32] for the present case. He declined a submission of the Crown that the two offences should have attracted a cumulative sentence. Then, without either expressly finding an appealable error in the reasons of the primary judge or identifying precisely what such error was (for example the imposition of a "manifestly inadequate" sentence), Murray J went on to dispose of the first of the arguments advanced in the appeal[33]:

"Given the constraints arising out of the fact that this is a Crown appeal, I would allow the appeal thus far to the extent necessary to impose a sentence of 30 months imprisonment for the digital penetration offence ... I would not interfere with the order for the concurrent service of the two terms. I am persuaded of the need to intervene in this case, particularly having regard to the age of the child, the confidence with which the offences were committed, their impact upon the victim, the repetition of the conduct, the breach of trust involved, and the complete lack of remorse shown."

1. Having determined that an increase in the sentence of imprisonment was proper to the case, Murray J turned to the second issue, namely whether the sentence so imposed should be suspended, as had been ordered at trial. He referred to the authority of the Court of Criminal Appeal of Western Australia in R v GP[34] and quoted from his own reasons in that decision[35]:

"[T]he circumstances of the case are such as to establish, the burden being on the offender, that there is a real prospect that the rehabilitation and reformation of the offender will be positively assisted by the making of an order of suspension or that there are special reasons why the court should be merciful."

1. In passing, Murray J noted a difference of view which had emerged in the same court in R v Liddington[36]. In that decision, whereas Malcolm CJ[37] and Steytler J[38] had affirmed that the primary purpose of suspending service of a sentence of imprisonment was rehabilitation or reformation of the offender, Ipp J had "expressed his conclusion more widely"[39]. Ipp J did not consider that suspension should "necessarily be used primarily to provide an inducement to the offender to reform"[40]. Instead, he expressed the view that "[i]t should simply be used whenever the circumstances of the case are such that a suspended sentence would be the appropriate sentencing disposition"[41]. Whilst concluding that the use of suspended sentence was primarily confined as "an aid to rehabilitation", Murray J in the present case accepted that this was "by no means the sole purpose"[42] justifying its use. He acknowledged that, additionally, consideration could be given to whether such a course was "appropriate in mercy" or otherwise justifiable "for good and sufficient reason"[43]. Having so stated the principles, Murray J concluded thus[44]:

"There was nothing to suggest what the likelihood of repetition might be except the passage of time between the commission of the offences and the trial. It was not possible to say that during that period a process of rehabilitation had been continuing. Up to and following his conviction it was evidently the case that the respondent continued to deny the commission of the offences. In those circumstances he was clearly not dealing with the causes of his commission of the offences. There is nothing to suggest whether or not in future his inhibitions might again break down so that he might re-offend if the opportunity presented itself."

1. As to a "merciful disposition", Murray J expressed the view that there were no reasons to support such an approach[45]:

"If the respondent's otherwise good character could not sway the court from the view that for purposes of general deterrence imprisonment was required having regard to the seriousness of the offences, I can see no basis upon which that good character could sway the court from the imposition of imprisonment to be immediately served."

1. Following dismissal of the consideration of the impact of the punishment on the appellant's family, Murray J proceeded to his orders. He substituted the sentences of imprisonment, to be served immediately, as already set out.
2. The appellant sought, and was granted, special leave to appeal to this Court. His grounds of appeal did not expressly complain about the severity of the substituted sentence imposed on him by the Court of Criminal Appeal in the exercise of its powers. Instead, his grounds complained that that Court had erred in allowing the Crown appeal, although no express or implied error of law or fact had been identified. He claimed that it had also erred in disturbing the order of suspension of the sentence of imprisonment, that order being within the discretion of the primary judge, not being flawed for lack of evidence of rehabilitation, and being founded on relevant considerations. Further, the appellant argued, the Court of Criminal Appeal had erred in attempting to prescribe too narrowly the circumstances relevant to a decision to suspend a term of imprisonment.
3. Although the appellant had been denied bail[46], on 13 June 2000, he was admitted to bail by order of this Court pending the determination of this appeal[47]. No consideration was given during argument to the power of this Court, by its order, to recommence the service of a custodial sentence which otherwise, according to its terms, had expired[48]. It was not disputed that, if the appellant failed in his appeal, he would have to serve the balance of the custodial sentence remaining when he was granted bail. In the event, it is not necessary to explore this question.

1. Several provisions of the legislation of Western Australia must be noticed. The first concerns the powers and functions of the Court of Criminal Appeal in an appeal. These are set out in s 688 of the Criminal Code (WA). The relevant parts of s 688 state:

"(2) An appeal may be made to the Court of Criminal Appeal on the part of the prosecution -

(d) against any punishment imposed or order made in respect of a person convicted on indictment ...".

1. In Western Australia, the prosecution does not require leave to appeal against sentence but may appeal as of right[49]. In such an appeal, the question for the Court of Criminal Appeal is whether "they think that a different sentence should have been passed"[50]. If that question is answered in the affirmative, the Court is required to substitute such sentence as "they think ought to have been passed"[51].
2. In 1995, the Parliament of Western Australia enacted the Sentencing Act 1995 (WA) ("the Act"). The early sections of the Act contain a number of general principles of sentencing[52], list a number of matters which are considered to be aggravating factors[53], and also state considerations to be regarded as mitigating factors[54]. Amongst the principles of sentencing expressed, the first is that the sentence imposed "must be commensurate with the seriousness of the offence"[55]. Also included is the general principle that a court "must not impose a sentence of imprisonment on an offender unless it decides that - (a) the seriousness of the offence is such that only imprisonment can be justified; or (b) the protection of the community requires it"[56].
3. By s 39 of the Act, provision is made for sentences that may be imposed on a natural person. A range of possible sentences is set out, beginning with the imposition of no sentence and ordering the release of the offender in s 39(2)(a) and increasing in severity to the imposition of suspended imprisonment and an order for the release of the offender under Pt 11 of the Act in s 39(2)(f). The imposition of a term of imprisonment in s 39(2)(h) is the sentence appearing last in the sub-section, thereby reinforcing the position of this sentence as the punishment of last resort.
4. The power to suspend a sentence of imprisonment appears in s 76 of the Act which relevantly provides:

"(1) A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court; but not more than 24 months.

(2) Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances."

1. By s 77, the Act contains provisions on the effect of suspending a term of imprisonment. Relevantly, it states:

"(1) An offender sentenced to suspended imprisonment is not to serve any part of the imprisonment that is suspended unless -

(a) during the suspension period he or she commits an offence (in this State or elsewhere) the statutory penalty for which is or includes imprisonment; and

(2) The suspension period begins on the day on which the sentence is imposed.

(4) An offender who is sentenced to suspended imprisonment is to be taken to be discharged from the sentence at the end of the suspension period."

Appeals, Crown appeals and the requirement of error

1. The legal process before the Court of Criminal Appeal was, as described, an appeal. This is a creation of statute[57]. An appeal may take several forms, the precise nature in a particular case depending upon the legislation in question[58]. Here, that legislation, by providing for an appeal, required the demonstration of error before the appellate court enjoyed the authority to disturb the decision subject to appeal. In Lowndes v The Queen[59], this Court remarked that:

"a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. ... The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."

1. The necessity to show error in such a case is fully accepted by courts deciding appeals against sentence[60]. Indeed, it is commonly referred to by the Court of Criminal Appeal of Western Australia[61]. Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it[62]. As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts[63].
2. As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly[64]. In appellate review of sentencing, it will commonly be the case that the appellate court's authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried[65].
3. The existence of this residual basis for appellate intervention is well established. In fact, it is inherent in the provision by statute of a facility to appeal against sentence to a court of criminal appeal. It enables such a court to correct "idiosyncratic views"[66] of individual judges about punishment for particular crimes or types of crime and to replace a sentence that is manifestly disproportionate to the circumstances. Such disproportion can arise where the punishment imposed is considered to be plainly excessive. But it can also arise where such punishment is judged to be manifestly inadequate.

1. Because the necessity to find and identify error to justify appellate disturbance of the sentence of the primary judge constitutes an important constraint on unwarranted appellate interference in sentencing, the absence in the reasons of Murray J of a clear finding of error, and identification of the content of such error, prima facie entitled the appellant to succeed in this appeal. It may be said to be unlikely that the Court of Criminal Appeal would have overlooked so elementary and fundamental a feature of the exercise of its jurisdiction. Although the same could have been said in Lowndes v The Queen, this Court attached significance to the omission in that case[73]. Indeed, the omission founded the orders of this Court allowing the appeal.
2. In the present instance, to avoid this conclusion, the Crown pointed to a number of considerations. First was the acknowledgment, expressed at the outset of Murray J's reasons, in orthodox terms, of the rules restraining appellate interference in sentencing and particularly in the context of a Crown appeal. His Honour specifically acknowledged the need for demonstration that "an error of principle" had caused "the discretion of the sentencing Judge to miscarry"[74]. On this basis, it was argued, a minor rearrangement of the reasons, inserting this acknowledgment just prior to the conclusion allowing the appeal or before the concluding collection of reasons justifying that result, would have cured the defect.
3. I accept that reasons of busy courts of criminal appeal should not be scrutinised with a fine tooth comb to detect error. And that mere verbal infelicities in reasons should generally be ignored. But the point raised is important because it constitutes a significant protection to a prisoner against an over-ready appellate disturbance of the sentence imposed by the primary judge simply because of a difference of opinion about the correct sentence. Almost certainly, the primary judge will have had more time to consider the sentencing options and the punishment proper to the case than will a busy appellate court. Disturbance of that judge's disposition requires a careful indication of the error that has been made warranting that course. Otherwise, especially where intervention is apparently being justified on the basis of manifest error, it is all too easy for the mind to slip into impermissible reasoning. The complaint here was not of the failure of the appellate court to identify all of its reasons but of its failure to show that it had approached those reasons in the way required by law[75].

1. The statutory power to suspend the operation of a sentence of imprisonment, although historically of long standing, is sometimes considered controversial[86]. The "[c]onceptual [i]ncongruity" involved in this form of sentence has been criticised[87]. It has been suggested that there is a temptation to use this option where a non-custodial order would have been sufficient and appropriate[88]. It has also been suggested that, despite the rhetoric, such sentences are seen by some not to constitute much punishment at all[89].
2. The statutory power to impose suspended sentences of imprisonment exists in Australia under federal law[90] and in every State and territory jurisdiction[91]. The power long existed in New South Wales[92]. It was abolished in that State in 1974 following the recommendation of an expert committee[93]. Subsequently, however, the Law Reform Commission of that State recommended restoration of this sentencing option[94]. It is a measure of the favour with which suspended sentences of imprisonment are commonly viewed that this sentencing option was then restored as part of the law of that State[95].
3. Whatever the theoretical and practical objections, suspended imprisonment is both a popular and much used sentencing option in Australia[96]. Courts may not ignore the provision of this option because of defects occasionally involved in its use. Nonetheless, the criticisms draw attention to the need for courts to attend to the precise terms in which the option of suspended sentences of imprisonment is afforded to them and to avoid any temptation to misapply the option where a non-custodial sentence would suffice. They also emphasise the need to keep separate the two components of such a sentence, namely the imposition of a term of imprisonment, and the suspension of it where that is legally and factually justified[97].
4. In Western Australia, the "starting point"[98] for judicial analysis concerning the availability and suitability of a suspended sentence of imprisonment is the language of s 39(2) and s 76 of the Act. From s 39(2)(f) can be deduced the purpose of Parliament to afford "suspended imprisonment" as an option to be available in an appropriate case. It is there treated as the penultimate punishment in the hierarchy of sentencing options provided, just slightly lower in severity than the imposition of a term of imprisonment to be immediately served[99]. It is to be read with the injunction in s 6(4) restraining the imposition of a sentence of imprisonment and confining it to the punishment of last resort.

The error of confining the discretion to suspend imprisonment

1. In my view, to limit the exercise of the discretion to suspend a sentence of imprisonment by reference wholly, mainly or specially, to the effect which suspension would have on rehabilitation of the offender would constitute an error. There is nothing in the grant of the power, as expressed in the applicable legislation, to justify confining its availability in such a way. Had the legislature intended to limit the discretion to suspend by reference to such a consideration, it could have done so. This consideration is particularly relevant to the Western Australian legislation, which amounts to a recent endeavour to collect all the main principles of sentencing in a statute of general application.
2. Moreover, the scheme of the legislation, and the two steps which s 76(1) and (2) of the Act requires, suggest, as a matter of construction, that the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term[110]. This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender. It would be surprising if the legislation were to warrant, at the second step, concentration of attention only on matters relevant to the offender, such as issues of the offender's rehabilitation and the court's mercy[111]. On the contrary, the structure and language of s 76(2) of the Act support the view that what is required by a proposal that a term of imprisonment should be suspended is reconsideration of "all the circumstances". This necessitates the attribution of "double weight" to all of the factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment[112].
3. Adopting this approach, then, permits attention to be given not only to the circumstances personal to the offender but also to the objective features of the offence. These may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. They may require that the prison sentence be immediately served, despite mitigating personal considerations. This approach is consonant with the recognition in jurisdictions other than Western Australia of the "complete discretion"[113] which, subject to the statute, the primary judge has in suspending a sentence of imprisonment. In other States, it has been considered undesirable to attempt to circumscribe the language of the statute by reference to supposed formulae, particular considerations or any other gloss[114].

1. In its reasoning and in its resulting orders, both in respect of the increase in the term of imprisonment imposed on the appellant and in setting aside the order for suspension of service of that term, the Court of Criminal Appeal erred. Accordingly, I favoured orders allowing the appeal, setting aside the orders of the Court of Criminal Appeal of Western Australia, and in place of those orders, ordering that the appeal to that Court be dismissed. On 7 September 2000, this Court made orders in those terms and I joined in those orders.

3. CDJ v VAJ (1998) 197 CLR 172 at 236 [186] per Kirby J. See also Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 666‑667 per Gibbs CJ; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259 per Kirby P. ↑

17. R v Dinsdale unreported, Court of Criminal Appeal of Western Australia, 2 February 1999 ("CCA judgment"). ↑

18. In this case, under the Sentencing Act 1995 (WA), s 76. ↑

23. See Sentencing Act 1995 (WA), s 24; R v Pinder (1992) 8 WAR 19 at 39-40. ↑

24. Sentencing remarks, R v Dinsdale unreported, District Court of Western Australia, 2 October 1998 at 18-19. ↑

27. R v Peterson [1984] WAR 329 at 330-331 per Burt CJ; Leucus (1995) 78 A Crim R 40 at 51-52 per Murray J. ↑

46. Possibly for the reason noted in Suresh v The Queen (1998) 72 ALJR 769 at 781 [61]; 153 ALR 145 at 161. Note corrigendum 72 ALJR v. ↑

48. cf Whan v McConaghy (1984) 153 CLR 631 at 636; Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 464-465 [93]-[94], 487-492 [158]‑[168]. ↑

49. Leave of the court was previously required in Tasmania under the Criminal Code (Tas), s 401(2)(c): Everett v The Queen (1994) 181 CLR 295 at 299. However, that requirement for leave was repealed by the Criminal Code Amendment (Appeals) Act 1996 (Tas), s 4. ↑

51. Criminal Code, s 689(3). See also Anderson v The Queen (1996) 18 WAR 244 at 246. ↑

57. State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 at 322 [72]; 160 ALR 588 at 609. ↑

58. Fleming v The Queen (1998) 197 CLR 250 at 258-260 [17]-[21]; cf Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297-298 per Glass JA. ↑

60. See eg R v Tait (1979) 24 ALR 473 at 476; Allpass (1993) 72 A Crim R 561 at 562; R v Clarke [1996] 2 VR 520 at 522. ↑

61. See eg R v Shaharuddin [1999] WASCA 229 at [2]. ↑

62. cf House v The King (1936) 55 CLR 499 at 504-505. ↑

63. House v The King (1936) 55 CLR 499 at 505; Cranssen v The King (1936) 55 CLR 509 at 519-520; Harris v The Queen (1954) 90 CLR 652 at 655. ↑

65. Valentini and Garvie (1980) 2 A Crim R 170 at 174; Davey (1980) 2 A Crim R 254 at 259-261. ↑

66. cf R v Osenkowski (1982) 30 SASR 212 at 213 per King CJ; cf R v P (1992) 39 FCR 276 at 285. ↑

70. Griffiths v The Queen (1977) 137 CLR 293 at 310. ↑

71. Whittaker v The King (1928) 41 CLR 230 at 248 per Isaacs J (diss); cf R v Tait (1979) 24 ALR 473 at 476-477; Malvaso v The Queen (1989) 168 CLR 227 at 234; R v Grein [1989] WAR 178 at 180; Everett v The Queen (1994) 181 CLR 295 at 299. ↑

72. A consideration acknowledged in the CCA judgment at 2 by reference to R v Peterson [1984] WAR 329 at 330-331; cf R v Clarke [1996] 2 VR 520 at 522. ↑

75. cf CDJ v VAJ (1998) 197 CLR 172 at 236-237 [186]. ↑

76. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 258-259. ↑

79. Unreported, Court of Criminal Appeal of Western Australia, 23 April 1999. ↑

82. See eg Anderson v The Queen (1996) 18 WAR 244. ↑

83. R v Osenkowski (1982) 30 SASR 212 at 213; R v Clarke [1996] 2 VR 520 at 523; cf R v Cuthbert (1967) 86 WN (Pt 1) (NSW) 272 at 274. ↑

84. The Act, s 39(2)(f). See also Pt 11, esp ss 76, 77. ↑

86. Bagaric, "Suspended Sentences and Preventive Sentences: Illusory Evils and Disproportionate Punishments", (1999) 22 University of New South Wales Law Journal 535 ("Bagaric"). ↑

87. Bagaric (1999) 22 University of New South Wales Law Journal 535 at 538. ↑

88. Bagaric (1999) 22 University of New South Wales Law Journal 535 at 541. ↑

89. Great Britain, Home Office, Crime, Justice and Protecting the Public, (1990) Cm 965 at [3.20]‑[3.21]. ↑

Sentencing Act (NT), s 40; Penalties and Sentences Act 1992 (Q), s 144; Criminal Law (Sentencing) Act 1988 (SA), s 38; Sentencing Act 1997 (Tas), ss 7, 24; Sentencing Act 1991 (Vic), s 27. See also Crimes Act 1900 (ACT), ss 556A and 556B. ↑

Crimes Act 1900 (NSW), ss 558-560, 561-562 (repealed). ↑

Crimes and Other Acts (Amendment) Act 1974 (NSW), s 13. See also New South Wales, Criminal Law Committee, Proposed Amendments to the Criminal Law and Procedure, (1973) at 15. ↑

New South Wales Law Reform Commission, Sentencing, Discussion Paper 33, (1996) at 351-355. ↑

Crimes (Sentencing Procedure) Act 1999 (NSW), s 12. ↑

See Bagaric (1999) 22 University of New South Wales Law Journal 535 at 542-544 for a discussion of its use in Victoria. ↑

Bagaric (1999) 22 University of New South Wales Law Journal 535 at 547; cf van de Worp v The Queen [2000] WASCA 154 at [128]. ↑

99. The sentence of imprisonment that is to be immediately served appears in s 39(2)(h). Par (g) was repealed. ↑

100. R v Liddington (1997) 18 WAR 394 at 398-401. ↑

102. Bagaric (1999) 22 University of New South Wales Law Journal 535 at 544-549; cf Dao v The Queen unreported, Court of Criminal Appeal of Western Australia, 22 January 1999 at 6. Bagaric, at 548-549, reports on a United States survey of attitudes to 36 different penalties. All of the groups ranked the three suspended sentences of three years, 12 months and six months lower in order of severity than a fine of $500 and above a fine of $250: Sebba and Nathan, "Further Explorations in the Scaling of Penalties", (1984) 24 British Journal of Criminology 221 at 228. ↑

103. R v Percy [1975] Tas SR 62 at 74; R v Causby [1984] Tas R 54 at 67; Davies v Deverell (1992) 1 Tas R 214 at 220; R v GP (1997) 18 WAR 196 at 234; R v Liddington (1997) 18 WAR 394 at 398-399, 406. ↑

104. See eg R v Liddington (1997) 18 WAR 394 at 399, 406. ↑

105. R v Liddington (1997) 18 WAR 394 at 396 per Malcolm CJ. ↑

Such as Ipp J in R v Liddington (1997) 18 WAR 394 at 401 and McKechnie J in O'Brien v Ritchie unreported, Supreme Court of Western Australia, 17 March 1999 at 7. ↑

R v Liddington (1997) 18 WAR 394 at 401 per Ipp J. ↑

Thomas, Principles of Sentencing, 2nd ed (1979) at 244-245; R v P (1992) 39 FCR 276 at 285. ↑

cf R v Shueard (1972) 4 SASR 36 at 43; R v Prindable (1979) 23 ALR 665 at 669; Davey (1980) 2 A Crim R 254 at 259-260. ↑

R v Liddington (1997) 18 WAR 394 at 402 per Ipp J. ↑

114. cf R v Wacyk (1996) 66 SASR 530 at 534; Police v Cadd (1997) 69 SASR 150 at 169. ↑

115. See eg R v Shaharuddin [1999] WASCA 229; van de Worp v The Queen [2000] WASCA 154. ↑

116. cf Griffiths v The Queen (1977) 137 CLR 293 at 330. ↑