Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Crown appeal - Respondent instigated and abetted setting fires to property at two different properties on successive nights - Residential and business and properties involved - Properties owned by same people against whom respondent held a grudge - Damage to the extent of about $588,000 and victims concerned for their safety - Where respondent with diagnosed mental illnesses - Where illnesses had causative connection to offending and affected considerations of imprisonment - Where other mitigating personal circumstances and factors - Sentence of home detention for 16 months and order requiring completion of 50 hours of community service manifestly inadequate.

Judgment Number: [2024] TASCCA 8

DIRECTOR OF PUBLIC PROSECUTIONS v EMILY KATE KING

1. The appeal is allowed and the sentence of Blow CJ imposed on 22 April 2024 is set aside.
2. On count 1 on complaint 371/2022 the respondent is made the subject of a home detention order for 16 months to commence on 23 April 2024, on the same conditions as applied to the order of Blow CJ of 22 April 2024.
3. On counts 2 and 3 on that complaint, the respondent is sentenced to 20 months' imprisonment the execution of the whole of which is suspended on condition that she not commit any offence punishable by imprisonment for a period of three years and that she perform 210 hours of community service within that period, less the number of hours determined by Community Corrections to have been performed pursuant to the order of 22 April 2024.
4. The respondent is to report to a probation officer at 75 Liverpool Street, Hobart within one clear working day of today.

DIRECTOR OF PUBLIC PROSECUTIONS V EMILY KATE KING

1. This is a Crown appeal against a sentence imposed by Blow CJ on 22 April 2024. The respondent pleaded guilty to two counts of unlawfully setting fire to property, one count of burglary and one count of stealing. The respondent was convicted and made subject to a home detention order with an operational period of 16 months. The learned sentencing judge also made a community correction order to operate for 12 months from the day following sentence with a special condition requiring the respondent to perform 50 hours of community service.
2. The sole ground of appeal is that the sentence was manifestly inadequate.

1. In early 2021 the respondent commenced a relationship with Jarrod Minehan. At that time Mr Minehan and his then wife, together with Christopher and Rebecca Kline, owned and operated a concrete business. Mr Minehan was Mrs Kline's brother. During the course of that year Mr and Mrs Minehan's marriage ended, following which the relationship between Mr Minehan and Mr and Mrs Kline badly deteriorated and became acrimonious. Mr Minehan was removed from the business.
2. The respondent felt very strongly about how her partner had been treated by Mr and Mrs Kline and decided to seek revenge. She sent numerous messages to others asking whether they knew anyone who could "light a car on fire." A few days before 14 December 2021 she contacted a man named Dylan Booth asking him, in return for money, to damage property on her behalf. She approached Mr Booth because she knew of him and knew he needed money. The respondent told Mr Booth that she would need the "jobs" to be done whilst she and Mr Minehan were out of the state.
3. On 14 December 2021 the respondent, when in Queensland, sent Mr Booth a message on a social media application giving the address of Mr and Mrs Kline's home in Snug in southern Tasmania. The message was accompanied by a photograph of the house. She told Mr Booth that it was an "insurance job". The respondent asked Mr Booth to "cause as much havoc as possible" and to burn the caravan and the Toyota Hilux he would find there. She said to him "If you do a good job of the [Snug] one I have another one for you." At about 2.30 am the following morning Mr Booth went to the home with a can of petrol. He was accompanied by his close friend Kirsten Donoghue. Mr Booth decided to not burn the caravan because it was too close to the house. However, he broke the window of the Hilux with a jemmy bar, emptied the petrol into the vehicle and set fire to it. The vehicle and tools contained in it were totally destroyed. The value of the loss was $84,726. That is the subject of the first count of unlawfully setting fire to property.
4. The respondent waited up to hear from Mr Booth. When he notified the respondent that the "job had been done" she required proof, and he sent her a photograph. That must have been very soon after the fire was lit because, by 2.43 am, the respondent had paid him $500 by electronic transfer. The respondent looked at the Tasmanian Fire Service website to check that there had been a report of the fire.
5. Apparently pleased about what had happened so far, the respondent then asked Mr Booth to "do another job", this time to damage the business premises of Concrete Tas Pty Ltd in Stanton Place at Cambridge. That company, of which Mr and Mrs Kline were principals, operated the concrete business in which Mr Minehan had been involved. The respondent sent Mr Booth a photograph of a map she had drawn showing the location of the premises. She said to him: "Steal whatever you want to steal. Do whatever you want to do. Trash it, cause carnage". Mr Booth went to the Stanton Place premises at about 2.30 am on 16 December 2021, again with Ms Donoghue. Mr Booth smashed a glass door and he and Ms Donoghue entered. They removed and stole a diesel heater, a welder and a radio. Mr Booth then smashed the window of an Isuzu truck which was parked outside. He emptied a can of petrol into it and set it on fire. The truck was destroyed. The fire spread to the business premises. The cost of the damage to the Stanton Place premises and the truck was assessed in the total sum of $503,848.69. This conduct gives rise to the remaining three counts_._
6. Soon after the crimes at Cambridge were committed Mr Booth again reported back to the respondent. A series of messages were exchanged which made clear that Mr Booth and Ms Donoghue had acted in accordance with the respondent's instructions and that she was pleased with the result. She paid him another $500.
7. The identity of those involved was quickly established by the police. The respondent was arrested and interviewed on 16 December 2021. She made detailed admissions including that she had never met Mr and Mrs Kline. She admitted that she asked for the car to be burnt and the business to be "done". She did not, she said, ask for the business to be burnt but admitted she told Mr Booth to, in effect, do as much damage as he could. She wanted Mr and Mrs Kline to suffer a hurtful consequence because she thought what they had done to her partner was "fucking horrible" and she responded in the only way in which she said she generally reacted, that is with "violence or anger".
8. Before going further, it is desirable to attempt to bring some clarity to concepts that were mentioned in the submissions and the subject of some debate. Various references were made to the respondent's "criminal responsibility", "culpability", "criminality" and "moral culpability". As Wilson J said in Veen v The Queen (No 2) (1988) 164 CLR 465 at [486] (in dissent), there is an "... ease with which obscurity of meaning can infect this area of discourse."
9. Criminal responsibility relates to criminal liability; it attaches to a person whose conduct and state of mind is such as to make out the offence. "Culpability" is a broad concept which generally encompasses the notion of blameworthiness. It is a word often used when discussing the role or level of responsibility of joint offenders: R v JW [2010] NSWCCA 49 at 162; R v Sukkar [2011] NSWCCA 140 at [36]. It will be used in that sense in these reasons.
10. The next step is to distinguish between the concept of the objective seriousness of the offence, described by the appellant as "criminality", and that of the moral culpability of an offender. This distinction follows on from statements of the High Court in Muldrock v The Queen [2011] HCA 39, 244 CLR 120, Bugmy v The Queen [2013] HCA 37, 249 CLR 51 at [44]- [46] and Munda v Western Australia [2013] HCA 382, 249 CLR 600 at [57]. Moral culpability is more concerned with circumstances or characteristics of the offender which may have an impact on blameworthiness. Despite the distinction, it is accepted that the line between the two is not always clear and that some factors that are personal to an offender, such as mental health impairment, may in some circumstances affect both the assessment of the objective seriousness of the offence and the moral culpability of the offender: see the helpful discussion of the general issue in DS v The Queen [2022] NSWCCA 156, 109 NSWLR 82 at [63]- [80], [90]-[96].
11. As noted by the Court in DS at [91], the proposition that personal circumstances of the offender may diminish or reduce moral culpability raises the question as to from what moral culpability is reduced. Their Honours said, "The short answer is from a moral culpability that corresponds or substantially correspondences with the objective seriousness (or gravity) of the offence." Additionally, at [92] the Court observed that the discussion of objective seriousness and moral culpability was not meant to burden sentencing judges but to assist by inviting, and to an extent requiring, them to determine the seriousness of the offence and how much moral blame the offender bears, but only as part of the consideration of the weight to be attached to the various sentencing factors for the purpose of undertaking the process of instinctive synthesis.

1. The respondent pleaded guilty on the agreed basis that she abetted and instigated Mr Booth and Ms Donoghue to commit the crimes: Criminal Code, s 3(1)(c) and (d). However, in terms of criminal responsibility for instigating the crime of unlawfully setting fire to property on the second night, s 5 of the Criminal Code may have had a role to play.[1]
2. The relative culpability of co-offenders is not necessarily defined by their physical role in the crime. Although the respondent did not do the acts which constituted the crimes, the criminal culpability of her conduct was at a high level. The respondent caused the crimes to have been committed by Mr Booth and gave him detailed instructions and information to assist him. She used what she understood to be Mr Booth's need for money to induce him to do her bidding and lied to him about the reason she wanted the damage done. In those circumstances, the appellant's submission that the respondent is to be regarded as more blameworthy than both Mr Booth and Ms Donoghue, even though charged as an instigator and abettor, should be accepted: Director of Public Prosecutions v SJK [2002] VSCA 131 at [47]; GAS v The Queen [2004] HCA 22, 217 CLR 198 at [23]; R v Wright [2009] NSWCCA 3.

1. Although the crimes were committed against property, the respondent's aim was to harm Mr and Mrs Kline. Beyond the financial harm they suffered, as the sentencing judge pointed out, they were subjected to very upsetting experiences in the middle of the night on two consecutive nights. Although the second fire was in the vicinity of unoccupied business premises, that was not the case with the first fire. Mr and Mrs Kline were at home when they were woken at 2.37 am by notifications on their phones from cameras monitoring the premises. They saw the Hilux fully alight. There was an obvious personal risk to them which would have been even greater had Mr Booth decided to carry out the respondent's instruction to burn the caravan.
2. A victim impact statement given to the sentencing judge indicated that they were immediately concerned for the safety of their 13 year old son, and screamed at him to get out of the house with his pets. He suffered a lasting psychological impact. All serious fires of this nature impose some risk on officers of the Tasmania Fire Service who are responsible for attending them.
3. The sentencing judge recognised the seriousness of the offending and commented:

"I have to sentence Ms King for instigating and encouraging the commission of crimes that resulted in over $580,000 worth of damage. No penalties other than imprisonment or home detention would be appropriate."

1. The objective circumstances of the respondent's crimes were such as to require a sentencing response which sufficiently reflected the obvious need for general deterrence, punishment, denunciation and protection of the public.

1. The appellant contends that the learned sentencing judge, by deciding on home detention for 16 months supplemented by 50 hours of community service, imposed a sentence which was manifestly inadequate. The factors which persuaded the sentencing judge to not impose a sentence of imprisonment arose from her personal circumstances. The respondent was 26 when the crimes were committed. When sentenced she was 28. She had no prior convictions of relevance. She has three children. Two children aged 12 and 7 were not in her care; the oldest, from an early age; the younger from more recently due to the respondent's mental health. She and Mr Minehan had a child. The child was born while the respondent was awaiting disposition of the criminal proceedings and, at the time of sentence, was 7 months old. That child has health issues. The respondent helped with the care of Mr Minehan's four young children when they were with him on alternate weeks. Mr Minehan was self-employed in a trucking business he apparently established after his involvement with the concrete business came to an end.
2. The sentencing judge was informed that the respondent had an extremely dysfunctional and traumatic childhood. She had no relationship with her biological father. She was the victim of physical, sexual and emotional abuse perpetrated by two adult males from which her mother did not protect her. She was eventually removed by child protection authorities into foster care. She disengaged from education with limited literacy and numeracy after year eight. When she was 14 she commenced a relationship with an older male and she became pregnant about a year later. Her first child was born when she was 16.
3. The respondent made full admissions in her video interview with police and accepted responsibility for the instigation of the fires. She pleaded guilty at an early stage and was committed to the Supreme Court for sentence. She expressed regret and a desire to apologise to the complainants during the sentencing process.
4. The sentencing judge was informed that, if the respondent was imprisoned, Mr Minehan would be responsible for the care of their child and in those circumstances he would be unable to operate the trucking business he had commenced.
5. The respondent's mental health was a significant matter in sentencing. She had a long history of poor mental health which was the subject of submissions by her counsel. The sentencing judge was given a report prepared by a clinical psychologist, Damien Minehan dated 24 January 2024 and a report prepared by a probation officer of the respondent's suitability for a home detention order.
6. Mr Minehan interviewed and assessed the respondent and considered her medical history. He diagnosed complex post-traumatic stress disorder, borderline personality disorder and anti-social personality traits. According to Mr Minehan, complex PTSD is characterised by chronic and ongoing exposure to trauma over an extended period. Mr Minehan listed the diagnostic criteria for borderline personality disorder and expressed the view that there was evidence for all of them being present in the respondent. They relevantly included a pattern of unstable and intense interpersonal relationships characterised by alternating between extremes of idealisation and devaluation, impulsivity, and inappropriate, intense anger or difficulty controlling anger.
7. Mr Minehan reported that the respondent had taken intentional overdoses in 2013 and in 2021. The latter resulted in an intensive care admission and discharge into the care of her foster parents with follow up by the community mental health team. Her referral was with the background of "a two months deterioration in her mental health state with symptoms including emotional lability, impulsivity, emptiness, feelings of abandonment, severe identity disturbance, hypervigilance, dissociation and chronic suicidal ideation." It was noted however that her engagement with community mental health service has been sporadic.
8. Mr Minehan was asked to consider whether, and if so how, the principles discussed by the Victorian Court of Appeal in R v Verdins [2007] VSCA 102, 16 VR 269 may apply to the respondent. At [38] of his report Mr Minehan correctly noted the effect of Verdins to be that a court may take a person's mental condition into account in mitigation concerning moral culpability, the kind of sentence imposed and its conditions, general and specific deterrence, whether a sentence will weigh more heavily than it would on a person of normal health and whether imprisonment is likely to have a serious effect on mental health. At [39] of his report he said this:

"The psychological symptoms associated with these conditions are likely to have affected the mental functioning of Ms King at the time of the offending in the following ways:

• Emotional dysregulation affective instability, intense anger and impulsivity - these symptoms are more like to have a relationship with impulsive offences that have occurred within interpersonal conflict. ... .
• Interpersonal/relationship difficulties - in addition to the symptoms described above, Ms King's psychological issues within her interpersonal relationships resulting from complex PTSD and BPD are likely to have affected her mental functioning during the time in which the unlawfully setting fire and associated offences took place. These offences are less impulsive in nature and involve prior planning, Ms King's tendency to be involved in intense interpersonal relationships involving idealisation and periods of intense anger has likely resulted in her being driven to act against those she felt had wronged Mr Minehan. Ms King had demonstrated propensity to act in an angry and emotionally dis-regulated way when she perceives that she, or someone she cares about, has been wronged in some way. "

1. The report continued that, "Additionally, a custodial sentence is likely to be particularly onerous for Ms King and will result in a deterioration in her mental health. Ms King is likely to experience depressive symptoms, emotional instability and significant suicidal ideation within a prison setting. Separation from her infant child as well as the prison environment itself will have a negative impact on her mental health."
2. The sentencing judge accepted and acted on Mr Minehan's opinion and took into account suggested mitigating factors. His Honour said:

"Ms King had a terrible childhood. In particular, she was physically, sexually and emotionally abused by a number of people. She has mental health problems, apparently contributed to by the childhood abuse. She has been diagnosed as suffering from complex post-traumatic stress disorder and borderline personality disorder.

Amongst other things, the symptoms of those conditions include problems with emotional regulation, strong attachments to individuals, and periods of intense anger. She instigated and encouraged the offending against Mr and Mrs Kline because of feelings of intense anger related to her perception of how they had treated Mr [J] Minehan. She was still angry when she was interviewed by the police, and now regrets things that she said in anger.

It appears that her mental health has improved following changes to her medication a few months ago. She is now receiving professional assistance from a private psychologist weekly and from a psychiatrist every three weeks, as well as taking a depot injection once per month.

If I were to send Ms King to prison, that would result in a prison experience that would be more difficult for her than for most prisoners, for a number of reasons. Her treatment by the psychologist and the psychiatrist would be interrupted. Her mental health would no doubt get much worse. She would be very anxious about the impact of her absence on her baby and Mr [J] Minehan. He now operates a trucking business. I expect he would be unable to both operate his business and look after the baby if she was in prison.

... I think it is clear from the psychological report ... that her mental health problems contributed to her commission of the offence and therefore lower her culpability.

The relationship between Ms King's mental health problems and her offending means that she is not as blameworthy as someone with no mental health problems. There are other significant mitigating factors including her cooperation with the police, her early please of guilty, her remorse, and her desire to apologise."

1. Primarily, the appellant submits that the objective circumstances of the crimes committed by the respondent and the level of her criminality and the impact on the victim or victims, lead to the conclusion that general deterrence, denunciation, punishment, and public safety, were all predominant factors in the exercise of the sentencing discretion. The appellant says the suggested reduction in moral culpability must be minimal given the nature of the respondent's actions in bringing about the crimes.
2. While the appellant concedes there were many factors the sentencing judge had to consider, some of them significant mitigating factors such as the early plea of guilty, the mental health of the respondent and the impact on her family, it is submitted the sentencing judge erred as he placed too much weight on those personal considerations and tailored a sentence to ameliorate perceived hardship. This had the effect of diminishing to a significant degree the impact or the punitive aspect of the sentence, and therefore, the deterrent aspect. In short, the argument is that the approach taken by the sentencing judge failed to sufficiently reflect the predominant factors, and erroneously gave too much weight to factors personal to the respondent.
3. For the respondent, counsel sought to put a number of factual matters in context. Counsel pointed out that the sentencing judge was told the respondent's plan was not thought out at length, and the plan was not one of any great level of detail nor were there detailed specific instructions. It was said to be "generally a spontaneous plan, influenced by her overwhelming anger." Then counsel for the State did not take any issue with those submissions. Counsel then appearing for the respondent told the sentencing judge that the respondent formed very strong attachments to people she was close to, and that in the context of losing contact with her son, Mr J Minehan had become a sole focus; the fallout with his family had become all-encompassing for her. It was submitted she goes to significant and sometimes disproportionate lengths to defend those to whom she is close when they are aggrieved.
4. His Honour was also told that the respondent's response to the situation was so intense that Mr Minehan specifically organised to travel to Queensland to get away from everything, and that the respondent could not specifically recall many of the details of the week or so when the offending occurred. Counsel submits the factor of revenge has to be put in that broader context and her background, notably the role her mental illnesses played.
5. Although accepting a high level of objective seriousness, heavy reliance is placed on the established fact of the respondent's impaired mental health, its connection with the offending and its significance in terms of actual imprisonment. In particular, it is argued that the unchallenged causal connection between her psychiatric conditions and the offending, and Mr Damien Minehan's unchallenged opinion as to the effect of imprisonment on her must be given considerable weight, with several limbs of the Verdins "principles" being enlivened.
6. It was put there is a number of other factors present which warrant a lenient sentence. Those factors include, but are not limited to, early pleas of guilty, remorse, reduced moral culpability, lack of criminal history, prospects of rehabilitation and the personal circumstances including background of deprivation and dysfunctional upbringing. As to the relevance and effect of such background see Bugmy v The Queen [2013] HCA 37, 249 CLR 571; Banfield v Tasmania [2024] TASCCA 1. In short, counsel argues that the sentencing judge's approach was properly nuanced and individualised given all of the circumstances, and the sentencing exercise did not miscarry.
7. Mention should be made of the co-offenders who were charged with the same crimes. Mr Booth is yet to be dealt with. Ms Donoghue was sentenced on 20 February 2023, also by Blow CJ, to three years' imprisonment with a non-parole period of 18 months. She was 28 years old at the time of the crimes. She had a number of minor prior convictions, mostly for driving offences, with a long history of alcohol and drug use. She began using crystal methamphetamine very heavily about a year before the crimes, she had a reasonable employment history until her drug use reached the point where she stopped work. She had been promised $1,000 for the commission of the crimes but received nothing; her involvement was to obtain money for drugs.
8. A psychological report showed that Ms Donohue had symptoms consistent with aspects of complex post-traumatic stress disorder, as well as border line traits, although no formal diagnosis had been made. She was also exposed to domestic violence and sexual abuse when she was about nine years old and there were multiple incidents of violence in her relationships as an adult. However, the psychologist considered that the symptoms did not causally contribute to her offending behaviour. On 12 October 2023 the Court of Criminal Appeal unanimously dismissed her appeal against the sentence on the ground that it was manifestly excessive. Of course, parity cannot be an issue in considering whether the respondent's sentence was manifestly inadequate, but it would arise in relation to a re-sentencing exercise: Director of Public Prosecutions v Swan [2016] TASSC 9, 28 Tas R 1 at [33].

1. The primary purpose of Crown appeals against sentence is to lay down principles for the governance and guidance of courts having the duty of sentencing offenders. They also serve to maintain confidence in the administration of justice by an intervention of an appellate court in the case of a manifestly inadequate sentence: Green v The Queen [2011] HCA 49, 244 CLR 462 at [1]- [2]; Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 306; Director of Public Prosecutions v Swan (above) at [30].
2. The appellant needs both to persuade this Court of error in the exercise of the discretion, and to negate any reason the residual discretion of this Court not to interfere should be exercised: CMB v The Attorney-General (NSW) [2015] HCA 9, 256 CLR 346 at [66].
3. In our view, the appeal should be allowed. In all of the circumstances, the sentence imposed was such that it bespeaks error. The aggravating features of the respondent's conduct and the high level of objective seriousness have already been discussed. We accept that the factors of general deterrence, specific deterrence, denunciation and punishment were predominant factors. The respondent's conduct amounted to revenge by proxy in exchange for actual payment and was persisted in over a period of less than 48 hours. She used a man to do her bidding whom she knew to be financially vulnerable, or "malleable", as the appellant's counsel put it. The respondent's conduct resulted in very substantial damage and risk of injury or worse. Absent the respondent's actions, the crimes would not have been committed.
4. It is also true that there were grounds for leniency. These have also been detailed. There were relatively early pleas of guilty, to the complaints as distinct from an indictment, and evidence of remorse. In particular, the respondent's background and her impaired mental functioning relevant to her conduct and the effect of a sentence of imprisonment weighed heavily in the balancing exercise. On the basis of Mr D Minehan's opinion it must be accepted, as the sentencing judge did, that the respondent's moral culpability was appreciably diminished because of the operative effects of her mental illnesses. In addition, his opinion established that any sentence of imprisonment would weigh more heavily on her and have a significant adverse effect on her mental health: Verdins at [32], limbs 1, 5 and 6.
5. All of that said however, the objective seriousness of the offending - with the consequent need for denunciation, deterrence and punishment - is such that it is not properly reflected in the sentence imposed, even accepting all of the matters that operated in the respondent's favour.
6. We are satisfied that the residual discretion not to allow this appeal should not be exercised. The manifest error effectively amounts to one of principle. The factors that might lead to the exercise the discretion include delay, the imminent or past release from prison parole or unconditionally, and the effect of any resentencing on progress towards rehabilitation: Green v The Queen (above) at [43]. Delay was a factor in this case but was not mentioned as an issue before the sentencing judge. The respondent pleaded guilty on 9 March 2023, and was committed to this Court for sentence, first appearing on 1 May 2023. The sentencing proceedings commenced on 9 November 2023. There were two subsequent short hearings when the matter was adjourned on each occasion because of the unavailability of Mr Minehan's report, with the plea in mitigation being made on 1 February 2024. The sentence was handed down on 22 April 2024 after a home detention assessment report had been obtained.
7. It cannot reasonably be said that in those circumstances, delay would trigger the exercise of the residual discretion. There are no other circumstances, either alone, or in combination with others, that would produce an injustice if the appeal were allowed.

1. That the appeal has been allowed does not mean that the mitigating factors and the respondent's personal circumstances cease to have any effect or weight; proper regard must still be had to those matters. Nor does it necessarily follow that the respondent should be sentenced to an immediate term of imprisonment. Scope for individualisation remains.
2. The respondent's case presented, and does present, a difficult sentencing exercise. We propose to take a course that calls for some discussion. Section 7 of the Sentencing Act 1997 (the Act) sets out the types of orders, as alternatives, that a Court may make if a person is found guilty of "an offence". The combined effect of s 7, s 8(1), s 8(2) and s 42AC(1)(b) is that a court imposing a sentence, for one offence, cannot impose both a term of imprisonment, immediate or suspended, and make a home detention order. However, s 11(1)(b) of the Act enables a Court to impose on an offender who has been convicted of more than one offence specified in one or more complaints or indictments, a separate sentence for each of those offences.
3. The appropriateness of imposing a suspended term of imprisonment and making a home detention order in respect of closely related offences committed by an offender, arose in Director of Public Prosecutions v King; Director of Public Prosecutions v Webb [2020] TASCCA 32, Tas R 156. It was Mr Webb's case that involved the point. He had pleaded guilty to charges of aggravated burglary, wounding and assault. All charges arose from a "home invasion" type incident. On the charge of aggravated burglary, he was sentenced to 15 months imprisonment the execution of which was wholly suspended for three years, while on the other two charges he was made the subject of a home detention order for 18 months. A Crown appeal against manifest inadequacy was unanimously dismissed.
4. In his reasons at [30], Blow CJ observed that the course taken by the sentencing judge was a one that was permitted by s 11(1) referred to above. However, his Honour said:

"[T]hat was a course that should not normally be taken by a sentence in relation to a single escapade because it is clear from s 8(2) and s 42AC(1)(b) that home detention is meant to be an alternative to a sentence of imprisonment, suspended or otherwise, rather than as a form of penalty that might be combined with a suspended sentence."

1. At [71], Wood J, after noting that a home detention was intended to be an alternative to an immediate or wholly or partly suspended term of imprisonment, said that she wanted to make it clear she did not suggest that a home detention order combined with a suspended sentence should not have been imposed across multiple counts. It was "an exceptional case and called for an exceptional order", being fashioned to be as punitive as it could be without imposing imprisonment. Her Honour continued:

"I can think of other examples where a court may impose two sentencing orders, which present a similar tension in their purpose, but which, in a particular case, may achieve a just outcome. ... Ultimately, the wider the range of sentencing orders and the more flexibility in fashioning sentencing orders to achieve the objectives of sentencing, the greater the scope for producing a just sentence in an individual case." [Emphasis added].

1. The other member of the Court, Estcourt J, did not, in that context, express a view about the combination of sentences imposed by the sentencing judge.
2. It might be possible to describe the respondent's course of conduct as an "escapade", but there are some factual differences to the case of Mr Webb. Here, there was a gap in time, albeit short, between the instigation and completion of the first count of unlawfully setting fire to property, and the instigation of the remaining crimes. In any event, the observations of Wood J which have been highlighted in the passage quoted are, with respect, rightly made, and should be endorsed.
3. In this case, the Court's view is that a sentence can be fashioned which takes into account all of the competing objectives of the sentencing process and which properly reflects the objective seriousness of the offending and the consequent dominant factors, along with the matters which operate in the respondent's favour. That sentence will involve a not dissimilar approach to that taken in the case of Webb but will involve a greater punitive element.
4. In relation to a wholly suspended term of imprisonment, there is the debate about the utility and perceived effect of suspended sentences. The issue was discussed at some length in Director of Public Prosecutions v Vincent [2020] TASCCA 16 at [32]- [41] where Martin AJ (with whom Blow CJ and Pearce J agreed) concluded: "It is true that a wholly suspended sentence is a severe sentence, and a more severe sentence than many members of the public might realise."
5. His Honour went on to note that the legislation concerning suspended sentences had become stricter in the last decade and referred to the following. Section 24(1) of the Act makes a suspended sentence subject to a condition that the offender does not commit another offence punishable by imprisonment during the period the order is in force. Applications for an offender who has breached a condition of a suspended sentence may now be made orally: s 27(4). If a court is satisfied that an offender has been found guilty of a new offence, the court must activate the suspended sentence unless it is of the opinion that that would be unjust: s 27(4B) and (4C).
6. To be added to those observations, is the fact that s 24(2) of the Act enables a court to suspend the whole or part of a sentence of imprisonment on a number of conditions, one of which is that the offender perform community service for the number of hours specified in the order, and any other condition as the court considers necessary or expedient. Those conditions, of course, are in addition to the statutory condition in s 24(1), that the offender does not commit another offence punishable by imprisonment during the period the order is in force. Those conditions, in particular that relating to community service, enables a court to impose a suspended term of imprisonment "which adds a sting" to what otherwise might be thought as a lenient sentence: R v King [1970] 1 WLR 1016 at 1017. At the same time, they provide additional potential for the sentence to be served.
7. The imposition of a sentence of imprisonment is a grave step to take whether or not the offender's liberty is immediately removed or curtailed: R v NJK [2011] NSWCCA 151 at [31]. In Zaky v The Queen [2015] NSWCCA 161 at [29], Hamill J (with whom Johnson and Davies JJ agreed) said that the New South Wales Court of Criminal Appeal "had made it clear that while there is an element of leniency in the suspension of a sentence, it remains a gaol sentence and an appropriate and available sentencing option", adding that "[I]t is unfortunate that this needs to be stated yet again....". His Honour referred to R v Zamagias [2002] NSWCCA 17 at [32] and R v Nahlous [2013] NSWCCA 90 at [86].
8. It follows from that discussion that this Court must proceed on the basis that a suspended sentence, as a term of imprisonment, is a heavy sanction. It is useful as a sentencing option: see Zaky at [34]-[35]. One of the main purposes in suspending a term of imprisonment is to encourage reform of the offender with a central consideration thus being the prospects of rehabilitation. The Act allows suspension on conditions which involve an immediate punitive impact.
9. The Court makes the following orders:

(a) The appeal is allowed and the sentence of Blow CJ imposed on 22 April 2024 is set aside.

(b) On count 1 on complaint 371/2022 the respondent is made the subject of a home detention order for 16 months to commence on 23 April 2024, on the same conditions as applied to the order of Blow CJ of 22 April 2024.

(c) On counts 2 and 3 on that complaint, the respondent is sentenced to 20 months' imprisonment the execution of the whole of which is suspended on condition that she not commit any offence punishable by imprisonment for a period of three years and that she perform 210 hours of community service within that period, less the number of hours determined by Community Corrections to have been performed pursuant to the order of 22 April 2024.

1. Because of ss 24(4) and 28(b) of the Act, the Court is required to order the respondent to report to a probation officer. The order is that she report to a probation officer at 75 Liverpool Street, Hobart within one clear working day of today.

[1] 5 In case of instigators, mode of execution immaterial

Where a person instigates another to commit a crime, and a crime is actually committed after such instigation by the person instigated, it is immaterial whether the crime actually committed is the same as that instigated or not, or whether the crime is committed in the manner suggested or not; provided in either case that the facts constituting the crime actually committed are a probable consequence of carrying out the instigation. In any such case the instigator is deemed to have himself committed the crime actually committed.