Douar v Regina

Solomon DCJ then expressed concern about the Form 1 matters, and Counsel addressed with respect to those, emphasising that they were possession offences only. 28 Solomon DCJ enquired concerning the bail conditions to which the Applicant had been subject between July 2001 and April 2003. Following a submission from the Applicant's Counsel, Solomon DCJ said (transcript, 24 April 2003, page 8.57): "HIS HONOUR: So for 18 months he reported 7 days a week? AINSWORTH: He started out at 7 days a week from the moment he got bail for the matter on the indictment. At some time across the spectrum it was reduced to four times a week. HIS HONOUR: But you say it's onerous then? AINSWORTH: Yes. Reduced to four times a week and then his Honour Chief Judge Blanch reduced it to once a week as at February of this year. HIS HONOUR: In terms of periodic detention, what's the maximum period I can -- AINSWORTH: Three years. Your Honour has to fix a minimum additional term." 29 Counsel for the Applicant adverted in submissions to the time gap between the offence and entry of the plea of guilty, but submitted that "when the indictment was finalised then he pleaded guilty to it" and "it's a plea at a fairly early opportunity" (transcript, 24 April 2003, page 5.10). Counsel later submitted to Solomon DCJ that the Crown had been informed by facsimile on 14 February 2003 that the Applicant was to plead guilty to the matter on the indictment with other offences to be placed on a Form 1 (transcript, 24 April 2003, page 9.50). 30 At the conclusion of submissions on sentence, the following exchange occurred (transcript, 24 April 2003, page 10.5ff): "HIS HONOUR: Madam Crown what percentage must the non-parole period be of the maximum? It's 25 percent, it's a quarter. AINSWORTH: If, for example, your Honour was going to give the maximum amount of periodic detention, which is 3 years, your Honour would then have to give him 2 years and 3 months. HIS HONOUR: 2 years and 3 months. That's my intent." 31 Solomon DCJ then proceeded to pass sentence.

Findings of the Sentencing Judge 32 In the course of his relatively short remarks on sentence, Solomon DCJ made a number of findings which are presently relevant. 33 With respect to the objective seriousness of the offence, his Honour said (remarks on sentence, 24 April 2003, page 2.6): "There is no doubt from the facts contained in Annexure A [the Statement of Facts] that the offender was involved in the commercial distribution of methylamphetamine. This is the first time the offender has been dealt with in relation to any commercial dealing of methylamphetamine. I am aware of the line of authority which indicates that if a person commercially deals in the supply of a prohibited drug then a full time custodial sentence is required, except in exceptional circumstances. Whilst this is not an isolated matter it is the first time the offender has been dealt with in relation to the supply of a prohibited drug. I must also look to the small quantity of the drug and the small amount of money located in the possession of the offender." 34 His Honour took into consideration that the Applicant "for some 21 months has been on bail, and that for some 18 months of that period was required to report on a daily basis to police" (remarks on sentence, 24 April 2003, page 3.2). 35 Solomon DCJ made a number of findings favourable to the Applicant (remarks on sentence, 24 April 2003, page 3.6): "I wish to refer to some of the subjective matters which apply in this case. In the first instance, the offender pleaded guilty to the offence at the earliest opportunity. The offender is entitled to a discount in respect of the plea. The plea indicates that the offender is contrite. The plea also does have a utilitarian benefit to the community. I further take into consideration the young age of the offender, he having been born on 8 September 1982. I also take into consideration the favourable matters contained in the pre-sentence report, the most favourable being that the offender's family has taken him out of the area in which he mixed in bad company and that since the offender has left the area in which he previously resided he has not committed any offences." 36 His Honour concluded (remarks on sentence, 24 April 2003, page 4.5): "Mr Ainsworth has submitted to me that, having regard to, firstly, the relatively small quantity of the drug, secondly the fact that the offender has complied with onerous bail conditions for 21 months and, thirdly, that the offender has not committed any offences in the last 21 months, that a term of periodic detention appears to be the appropriate sentence. I agree with that submission and it is my intention to sentence the offender to three years of periodic detention and to set a minimum term of two years and three months. In sentencing the offender I also take into consideration the matters contained in the Form 1."

Events Subsequent to Sentencing 37 On 15 July 2003, the Applicant lodged a Notice of Intention to Appeal to the Court of Criminal Appeal, the Registrar having extended the time for the lodging of such a Notice to 15 July 2003. The Notice expired on 15 January 2004 and no extension was sought by the Applicant prior to that date. 38 According to an affidavit of the Applicant sworn on 29 September 2005, the Applicant changed solicitors on 7 August 2003 and instructed his former solicitors to forward the papers to his new solicitors. In or about October 2003, the Applicant instructed Counsel to act on his behalf on an application for leave to appeal against sentence. It does not appear that the Applicant paid his then legal representatives and no action was taken on his behalf. The Applicant's Notice of Intention to Appeal expired on 15 January 2004. 39 It appears that it was not until 22 June 2005 that a Notice of Application for Leave to Appeal was filed in the Registry. It is that application which is presently before the Court. 40 Other events which occurred between April 2003 and October 2005 are relevant to the present application. Given the state of the materials before this Court at the hearing of this application on 17 October 2005, directions were given for the parties to provide additional information to the Court concerning these events. What follows is drawn from that information which is agreed between the parties. 41 On 2 May 2003, the Applicant attended the Silverwater Periodic Detention Centre in accordance with the order of the District Court. Thereafter, the Applicant has served 15 periods of periodic detention with a balance of 108 periods to serve. 42 On 28 July 2003, the Applicant was sentenced at Burwood Local Court for charges of driving whilst disqualified and speeding. He was ordered to perform 140 hours of community service and was disqualified for two years with a fine of $350.00 for the speeding matter. 43 On 18 September 2003, the Applicant was sentenced at the Downing Centre Local Court upon a charge of goods in custody by way of a 12-month bond under s.9 Crimes (Sentencing Procedure) Act 1999. 44 On 15 October 2003, the Applicant's periodic detention order was revoked by the Parole Board upon the grounds of his failure to attend, without approval, in compliance with the order. The revocation order was later rescinded by the Parole Board on 4 August 2004. 45 On 18 November 2003, the Applicant was sentenced at Fairfield Local Court upon one count of taking part in a race between vehicles for which he was fined $1,000.00 and disqualified for 12 months. 46 On 28 June 2004, the Applicant was arrested and charged with goods in custody, possession of a prohibited drug and driving whilst disqualified and a warrant was executed in relation to revocation of his periodic detention order. He remained in full-time custody until 10 August 2004 when he was granted conditional bail and was released from custody. 47 On 10 August 2004, the Applicant was sentenced at Burwood Local Court for possession of a prohibited drug and goods in custody. On each count, he was fined $500.00. 48 The Applicant attended for periodic detention between 25 and 27 August 2004. On other occasions, he was absent without leave until his periodic detention was again revoked by the Parole Board on 15 September 2004. 49 On or about 1 October 2004, the Applicant was served with a summons to appear before the New South Wales Crime Commission. He first provided a statement to police on 2 December 2004 in relation to their investigation into the shooting of Michael Darwiche on 8 May 2004. In that statement, the Applicant informed police that he was with Mr Darwiche at the time of the shooting and he informed police of the identity of the alleged offenders. Mr Darwiche, who survived the shooting, had also informed police of the identity of the alleged offenders prior to the Applicant making his statement. Since that time, the Applicant has given evidence consistent with his statement in committal proceedings in early June 2005. 50 On 1 June 2005, the Applicant was sentenced at Burwood Local Court on two counts of driving whilst disqualified and one count of failing to appear in accordance with his bail undertaking. On the first count of drive whilst disqualified (call-up for breach of community service order imposed on 28 July 2003), he was sentenced to imprisonment for two months to commence on 1 June 2005. On the second count of driving whilst disqualified (committed on 28 June 2004), he was sentenced to imprisonment for four months to commence on 1 June 2005 and was disqualified from driving for two years. The Applicant appealed against the severity of these sentences and that appeal is pending before the Parramatta District Court. He was fined $300.00 with respect to the failure to appear. 51 Following the revocation of the Applicant's periodic detention order on 15 September 2004, the Parole Authority (formerly the Parole Board) has stayed the revocation pending determination of the present application to this Court. The Applicant applied for a home detention assessment which was subsequently not approved. If this Court does not intervene and quash the sentence, the Parole Authority will proceed to revocation. This will lead to the effective translation of the sentence into one to be served by way of full-time custody, under s.163 Crimes (Administration of Sentences) Act 1999.

Application for Extension of Time 52 The Court has been informed that the Applicant's Notice of Intention to Appeal lodged on 15 July 2003 was received, out of time, by order of the Registrar under s.10(1) Criminal Appeal Act 1912. That notice had effect for a period of six months which expired on 15 January 2004: clause 3A(1) Criminal Appeal Rules. The Applicant applies now to the Court for an extension of that six-month period to 22 June 2005. Such an application may be made after the period has expired: clause 3A(2). 53 The Court has a discretion with respect to extension of time similar to that which existed under now-repealed s.10(3) Criminal Appeal Act 1912. In exercising that discretion, the Court has regard to the prospects of success on the application for leave to appeal itself: R v Young [1999] NSWCCA 275 at paragraph 30ff. The Court will usually require some satisfactory explanation as to why an appeal was not brought within the time allowed, especially if the delay is considerable: R v Beattie [2000] NSWCCA 201 at paragraph 17. 54 The Applicant has provided some explanation as to why his Notice of Intention to Appeal was not acted upon by 15 January 2004. Events which have occurred since then no doubt explain why he has taken action, since June 2005, in this respect. The Crown has not pointed to any prejudice as a result of the Applicant's delay. 55 It is appropriate to consider the Applicant's ground of appeal to assess his prospects of success if an extension of time is allowed. 56 To the extent that aspects of post-sentence conduct of the Applicant have been mentioned, the Applicant does not seek to rely upon these matters for the purpose of demonstrating error in sentence. The review of a sentence in the light of subsequent events is the proper province of the Executive Government and not of this Court: R v Munday (1981) 2 NSWLR 177 at 178; R v Goodwin (1990) 51 A Crim R 328 at 329-330; R v Many (1990) 51 A Crim R 54 at 62; R v Fordham (1997) 98 A Crim R 359 at 377-379; R v Willard (2001) 120 A Crim R 450 at 454-5. In this case, the Applicant contends that the District Court fell into error on sentence and that post-sentence events are relevant to any sentencing decision which this Court might make. 57 Events which have occurred since April 2003 involve matters which are both favourable and unfavourable to the Applicant. In the event that error is established with respect to sentence, the Applicant submits that this Court should resentence him and have regard to his assistance to the authorities since October 2004 in fixing penalty. In the event that error is demonstrated, it will be necessary to consider the proper construction and application of s.6(3) Criminal Appeal Act 1912. Is the Court to apply the s.6(3) test to the events as they stood at the time when the Applicant was sentenced by Solomon DCJ on 24 April 2003 or is that test to be applied to the factual circumstances as they stand in late 2005? 58 It is appropriate to turn to the sole ground of appeal to consider whether error is demonstrated in this case.

The Sole Ground of Appeal - The Sentencing Judge Erred in Imposing an Order for Periodic Detention Having Not Considered the Appropriate Sentence of Imprisonment 59 The events which led to Solomon DCJ imposing a sentence of imprisonment by way of periodic detention have been outlined earlier in this judgment. The Applicant submits that his Honour erred in that the requirements of s.6 Crimes (Sentencing Procedure) Act 1999 were not met. Section 6 provides: "6 Periodic Detention (1) A court that has sentenced an offender to imprisonment for not more than 3 years may make a periodic detention order directing that the sentence be served by way of periodic detention. (2) This section is subject to the provisions of Part 5." 60 The Applicant submits that the remarks on sentence of Solomon DCJ do not reflect the two-stage approach required when imposing periodic detention, that is, his Honour did not first fix an appropriate period of imprisonment and then give consideration as to whether the sentence ought be served in circumstances other than full-time custody. The Applicant submits that his Honour determined to proceed by way of periodic detention and then moved directly to impose the maximum sentence of periodic detention which the law allows. The Applicant submits that this approach does not comply with s.6 and decisions of this Court: R v Wegener [1999] NSWCCA 405 at paragraph 23; R v Foster [2001] NSWCCA 215; R v Zamagias [2002] NSWCCA 17 at paragraph 26; R v Hanslow [2002] NSWCCA 161; R v Schodde (2003) 142 A Crim R 307 at 311 (paragraph 14). 61 The 1999 amendments to the Periodic Detention of Prisoners Act 1981 inserted s.5 which required a two-step sentencing process: Wegener at paragraph 19ff. Before that amendment, it was accepted that a sentence to be served by way of periodic detention might be longer than a sentence of full-time custody to compensate for the element of leniency in a sentence of periodic detention: R v Sadebath (1992) 16 MVR 138 and R v Bang (Court of Criminal Appeal, 1 September 1992, unreported). Following the 1999 amendments, that approach is no longer available: Schodde at 311 (paragraph 15). It is necessary for a sentencing judge to determine whether a sentence of imprisonment is to be imposed and the length of that sentence, and only then consider whether the sentence ought be served by way of periodic detention. 62 It has been said that it is unnecessary that a sentencing court expressly state that it has applied the two-stage approach in arriving at the sentence imposed: Foster at paragraph 33; Zamagias at paragraph 30. The failure of a court to indicate expressly that it has taken the two-stage approach to the determination of a sentence of periodic detention does not, of itself, demonstrate a failure to carry out the sentencing exercise in this manner: R v Saldaneri [2001] NSWCCA 480 at paragraph 14; Zamagias at paragraph 30. 63 However, the nature of the sentence imposed, and the failure to record that a two-stage approach has been taken, may lead the Court to examine carefully the findings made by the sentencing Judge to determine whether the sentence is erroneous: Foster at paragraph 35; Zamagias at paragraph 30. 64 The Applicant submits that an examination of the remarks of sentence of Solomon DCJ, viewed against the background of what was said during submissions, demonstrates a clear breach of the two-stage approach which renders the sentence erroneous. 65 The Crown acknowledged that the process of imposing a periodic detention order involved two distinct steps. Since periodic detention is a form of imprisonment, the Court must initially find that "no penalty other than imprisonment is appropriate": s.5(1) Crimes (Sentencing Procedure) Act 1999. Secondly, if the term of imprisonment is not more than three years, the Court may then order that the sentence be served by way of periodic detention: s.6(1) Crimes (Sentencing Procedure) Act 1999. 66 The Crown submits that Solomon DCJ complied with these two steps. Firstly, his Honour determined that no penalty other than imprisonment was appropriate by concluding that, for an offence such as the present one, "a full time custodial sentence is required except in exceptional circumstances". Secondly, his Honour then determined that the sentence of imprisonment ought be served by way of periodic detention. Although his Honour did not specifically state the length of the sentence of imprisonment that he intended to impose prior to determining that the sentence be served by way of periodic detention, the Crown submits that this was not necessarily indicative of error given that Solomon DCJ clearly understood the line of authority which ordinarily required a full-time custodial sentence for supply of a prohibited drug. 67 The Crown relied upon the statement of Badgery-Parker AJ in Foster at paragraph 33 that the failure to advert to the two-stage process did not require a conclusion, in every case, that the sentence imposed must be set aside. The Crown submitted that error should not be inferred in this case, in particular having regard to the experience of the District Court Judge and the fact that a full-time custodial sentence of three years' imprisonment was within the range for offences of this type. This suggests, the Crown submitted, that although his Honour did not specifically say so, he had considered that a three-year sentence was appropriate and he then acceded to the submission made on behalf of the Applicant that it be served by periodic detention. 68 I shall return later in this judgment to the Crown submission that a full-time custodial sentence of three years' imprisonment was within the range for offences of this type. For the moment, attention will be confined to the Applicant's submission that error is demonstrated in the manner alleged in the sole ground of appeal. 69 Although the authorities speak of a two-stage process, it is preferable to step back a stage and to identify a three-stage process in passing a sentence of imprisonment to be served by way of periodic detention. Each step requires the Court to consider the objective gravity of the offence balanced against the subjective circumstances of the offender, but it is the first of those considerations that will principally determine which of the available sentencing alternatives the Court should adopt: Zamagias at paragraph 23. 70 The first question to be asked and answered is whether there are any alternatives to the imposition of a term of imprisonment. Section 5 prohibits a Court from imposing a sentence of imprisonment unless the Court is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. At this stage in the process, the only consideration is whether a sentence of imprisonment should be imposed, and not the manner in which that sentence of imprisonment is to be served: Zamagias at paragraph 25. 71 The second step is reached where the Court has determined that no penalty is appropriate other than a sentence of imprisonment. The Court is next to determine what the term of that sentence should be. This has been regarded as the first step of a two-step approach: Foster at paragraph 30; Zamagias at paragraph 26. The determination of the term is to be made without regard to whether the sentence will be immediately served or the manner in which it is to be served. This is because any of the alternatives available in respect of a sentence of imprisonment can only be considered once the sentence has been imposed. It follows that the term of the sentence cannot be influenced by what order might be made after the sentence has been imposed. The sentence cannot be increased because it is to be served by way of periodic detention: Wegener at paragraph 22; Zamagias at paragraph 26. 72 The third stage is reached once the length of the sentence of imprisonment has been determined. The Court is then to consider whether any alternative to full-time imprisonment is available in respect of that term and whether any available alternative should be utilised. The availability of an alternative to full-time custody will generally be governed by the length of the term that has been determined, subject to the restrictions or preconditions imposed by the legislature on a particular sentencing alternative. The appropriateness of an alternative to full-time custody will depend upon a number of factors; one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purpose of punishment. The Court in choosing an alternative to full-time custody cannot lose sight of the fact that the more lenient the alternative, the less likely it is to fulfil all the purposes of punishment: Zamagias at paragraph 28. 73 This Court has acknowledged the logical difficulty arising from the statutory requirement to choose a term of imprisonment before selecting the manner in which the imprisonment is to be served. Periodic detention is more lenient than full-time custody. Such an approach, however, is that required by the statute: Wegener at paragraphs 31-32; Schodde at 311 (paragraph 16); R v Strahan [2003] NSWCCA 397 at paragraph 18. 74 Having determined the appropriate sentence, the Court must explain the sentence imposed. This may require, in an appropriate case, some discussion of the alternatives available and why a particular alternative has been chosen. However, it is unnecessary that a sentencing court expressly state that it has applied these two steps in arriving at the sentence imposed. In particular, merely because a court has not expressly indicated that it has taken the two-step approach to the determination of the sentence of imprisonment, it does not follow that it has failed to carry out the sentencing exercise in this manner: Zamagias at paragraph 30. 75 It appears that Solomon DCJ has complied with the requirements of the law with respect to the first and third steps referred to above. However, I am satisfied that a fair reading of the transcript of proceedings and his Honour's remarks on sentence supports the conclusion that his Honour did not comply with the requirements of the law at the second stage. No submission was made to his Honour by the Crown or Counsel for the Applicant concerning the appropriate length of any full-time sentence of imprisonment for the offence. His Honour was urged by Counsel for the Applicant to impose a sentence of periodic detention, albeit "a reasonable amount of periodic detention". His Honour enquired as to the longest permissible term of periodic detention allowed by law and proceeded to impose that sentence upon the Applicant, with a non-parole period calculated as 75% of that sentence. There was no reference to "special circumstances" or the question whether the non-parole period ought be less than the statutory formula under s.44(2) Crimes (Sentencing Procedure) Act 1999. 76 I am satisfied that error is demonstrated in this process in that his Honour failed to apply the requirements of the law at the second stage of the process. The error is similar to that held by this Court to have occurred in Schodde and Strahan, where Hulme J (Hodgson JA and Hidden J agreeing) observed at paragraph 13: "It is also to be inferred from the limited terms in which his Honour expressed himself that he did not employ the two stage process required at the time of sentence by s 5(1) of the Periodic Detention of Prisoners Act 1981. As has been made clear by a number of cases, including Regina v Schodde [2003] NSWCCA 164 at [14-15] and the cases there cited, a judge is required to set the term of a sentence of imprisonment before considering whether to order that it be served by an alternative to full time custody."

I am satisfied that the approach taken by Solomon DCJ in this case involved, in substance, a movement directly from the decision that imprisonment was required to a conclusion that the maximum amount of periodic detention permitted by law ought be imposed with a non-parole period calculated, without further consideration, by application of the statutory formula to the maximum permissible sentence of periodic detention. I infer that this was done to extend a measure of leniency to the Applicant by imposing periodic detention, but doing so without first determining the appropriate length of the sentence of imprisonment. In effect, the maximum term of periodic detention was imposed to compensate for the Applicant avoiding full-time custody. This approach, which was available at earlier times and was reflected in cases such as Sadebath and Bang , has not survived the amendment to the Periodic Detention of Prisoners Act 1981 in 1999 and the enactment of s.6 Crimes (Sentencing Procedure) Act 1999 . 77 I have not overlooked the fact that Solomon DCJ was urged by Counsel for the Applicant to consider imposition of "a reasonable amount of periodic detention". Neither the Crown nor Counsel for the Applicant reminded his Honour of the decisions of this Court in Wegener, Schodde, Hanslow and Strahan. However, the Applicant was entitled to be sentenced according to law, and this did not occur. 78 The importance of compliance with the staged process in imposition of a sentence of imprisonment by way of periodic detention was touched upon by Bell J (Giles JA and Carruthers AJ agreeing) in Schodde at 311-312 (paragraph 16): "The requirement that the sentencer first set the term of the sentence and only then give consideration to whether to order that the sentence be served by way of periodic detention ensures that the offender is sentenced to the term appropriate to the offence. In the event of revocation of the periodic detention order there can be no complaint that a sentence structured to reflect a measure of leniency has been converted into one of greater severity than is appropriate." 79 It is the circumstance of revocation of a periodic detention order which has caused the issue to be ventilated on an application for leave to appeal against sentence before this Court: Schodde; Hanslow; Strahan. In particular, it is at that point, where the Parole Board (now the Parole Authority) considers revocation of a periodic detention order giving rise to a statutory conversion of the sentence into full-time imprisonment, that a question arises whether what was initially (in the eyes of some) a lenient approach to sentence may become a harsh one. Considerations of that type lie behind the present application.

Application of s.6(3) Criminal Appeal Act 1912 to this Case 80 I am satisfied that error has been demonstrated in the sentencing process in this case. An extension of time ought be allowed for the Applicant to make application for leave to appeal against sentence. What approach should the Court take to that application in the light of this established error? 81 It is informative to observe the approaches of this Court in Schodde and Strahan where a similar error had been made by the sentencing judge. In Schodde, Bell J said at 313 (paragraphs 25-27): "It is the Crown's submission that notwithstanding the identification of error this is a case in which the Court would not intervene since no lesser sentence is warranted in law; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 per Spigelman CJ at [79].

Since specific error has been identified it is necessary for this Court to exercise its own sentencing discretion (albeit that exercise may lead to a conclusion that no lesser sentence is warranted in law). In exercising this discretion we may have regard to the circumstances as they exist at the date of the application.

I turn to the question of re-sentencing. …" 82 In Strahan, Hulme J said at paragraphs 14-16: "Thus, there was error in the process of the sentencing of the applicant. However, before this Court proceeds to allow any appeal and re-sentence, the requirements of s 6(3) of the Criminal Appeal Act must be addressed. The sub-section provides: 'On an appeal under s 5(1) against a sentence the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor and in any other case shall dismiss the appeal.'

The appropriate process required in light of the terms of s 6(3) was considered in Regina v Simpson (2001) 53 NSWLR 704 at [79] and I need not dilate at length on that here.

The question then arises whether a less severe sentence was warranted in law and should have been passed. …" 83 In Schodde, the Court had regard to circumstances as they stood at the time of the application to this Court in considering the question whether "some other sentence, whether more or less severe is warranted in law and should have been passed". The Court had regard to steps taken by the Applicant since his original sentencing including courses in literacy, numeracy, anger management and drug and alcohol education from the time that he had returned to full-time custody. The Applicant's periodic detention order had been revoked and he was serving a sentence of full-time custody by the time his application was heard and determined by this Court. In the circumstances of the case, a sentence of full-time imprisonment was substituted: Schodde at 314 (paragraph 31). 84 In Strahan, the Court concluded that a sentence of imprisonment for three years was excessive at the time of imposition and that some lesser period was required. Hulme J said at paragraphs 17-18: "In these circumstances I have reached the conclusion that the sentence of three years' custody was excessive and some lesser period was required. I do not ignore the fact that his Honour also directed that the sentence be served by way of periodic detention. However, the law requires that the length of the period be determined prior to the selection of the method by which that period is to be served and in light of that, it seems to me that his Honour was not justified in fixing the three year term that he did, notwithstanding the leniency inherent in periodic detention.

I may perhaps add that I find the requirement that it is only after the term is fixed that the issue of periodic detention can be addressed is one which is a requirement which is quite inappropriate in any sentencing regime but for better or worse judges are stuck with it. Thus, in my view, the applicant has made out the requirement of s 6(3) of the Criminal Appeal Act."

It does not appear from the judgment in Strahan that the Applicant sought to rely upon post-sentence conduct before this Court. 85 Both Bell J in Schodde and Hulme J in Strahan referred to the statement of Spigelman CJ in Simpson at 720-721 (paragraph 79) as the relevant statement of principle. There, the Chief Justice said (Mason P, Grove J and Newman AJ agreeing): "Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: 'If it is of the opinion that error has occurred in the sentencing process'. That is not the statutory formulation. By s.6(3) this Court must form a positive opinion that 'some other sentence … is warranted in law and should have been passed'. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to 'quash the sentence and pass such other sentence in substitution therefor' is not satisfied. As the judgments in Dinsdale [(2000) 202 CLR 321] to which I have referred indicate, the exercise of the power in s.6(3) further requires the identification of error in the requisite sense."

The Competing Submissions 86 In the present case, the Applicant submits that the answer to the question whether some other sentence "is warranted in law and should have been passed" requires consideration of the Applicant's circumstances at the present time, when his application is before this Court, in accordance with the approach adopted in Schodde. The Crown submits that the question must be asked by reference to the circumstances as they stood at the time when the Applicant was sentenced before Solomon DCJ in the District Court on 24 April 2003. 87 In the great majority of cases, it may not much matter which point in time is used as the reference point. Commonly, where the Court receives evidence on sentence, it takes the form of evidence updating the applicant's position including rehabilitative steps taken whilst in custody since imposition of the original sentence. 88 In the present case, however, the answer to this question may have greater significance for the Applicant. If the question is to be asked by reference to the Applicant's present circumstances, his assistance to law enforcement authorities in connection with the shooting of Mr Darwiche may be relevant to the imposition of penalty: s.21A(3)(m); s.23 Crimes (Sentencing Procedure) Act 1999. Assistance to law enforcement authorities may be taken into account under s.23(1) where the assistance relates, inter alia, to the detection or investigation of, or in proceedings relating to, any offence, whether or not the offence is that for which the offender stands to be sentenced. In deciding whether to impose a lesser penalty for an offence, the Court must consider a number of matters specified in s.23(2) of the Act. A lesser penalty imposed under s.23 in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence: s.23(3). The Court has limited information concerning the extent and value of the Applicant's assistance to the authorities. Having received a summons to attend the New South Wales Crime Commission, the Applicant made a statement to police and has given evidence for the prosecution in committal proceedings against persons charged with the attack upon Mr Darwiche. It appears that the Applicant's evidence is essentially corroborative of that of Mr Darwiche concerning the identity of the alleged offenders. A letter dated 29 March 2005 from Detective Superintendent Henney addressed to the Parole Board is before the Court (Annexure "C", Affidavit of Applicant sworn 29 September 2005). The letter indicates that the Applicant's assistance has been of value to the authorities. The letter pre-dates the committal proceedings at which the Applicant gave evidence for the prosecution. 89 At the request of the Court, Counsel for the Applicant and the Crown provided further written submissions concerning the powers and functions of the Court under s.6(3) Criminal Appeal Act 1912 in the circumstances of this case.

The Applicant's Submissions 90 The Applicant relies upon passages in the judgment of Kirby J and Hayne J in AB v The Queen (1999) 198 CLR 111 concerning the functions of the Court of Criminal Appeal once error in principle has been established. Kirby J at 152 (paragraph 106) concluded that, once error in principle is established, the entire sentence imposed upon the appellant should be reconsidered and the Court of Criminal Appeal will be obliged to exercise its own sentencing discretion in the place of that which miscarried at first instance. Hayne J, at 159-160 (paragraphs 129-130), referred to the limited task of the Court of Criminal Appeal which is governed by well-established principles emerging from House v The King (1936) 55 CLR 499 at 504-505. Hayne J said at 160 (paragraph 130): "The difference between cases of specific error and manifest excess is not merely a matter of convenient classification. It reflects a fundamental difference in what the appellate court does. In the former case, once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed. By contrast, in the case of manifest excess, the error in reasoning of the sentencing judge is not discernible; all that can be seen is that the sentence imposed is too heavy and thus lies outside the permissible range of dispositions. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed." 91 Following the decision of the High Court of Australia in AB v The Queen, the matter was remitted to the New South Wales Court of Criminal Appeal to be dealt with in accordance with the reasons of the High Court. A question arose before the Court of Criminal Appeal as to the powers and functions of the Court in dealing with the remitted appeal. It was submitted on behalf of the Crown that the task of the Court was confined to a consideration of the two matters identified in the judgments of the majority in the High Court in relation to which error had been demonstrated. It was submitted for the appellant that, error having been demonstrated, it was the duty of the Court to reconsider the whole sentence by reference to all the evidence and all the principles which may bear upon it. Barr J (Spigelman CJ agreeing) rejected the Crown's submission and concluded that, error having been found, it was the duty of the Court of Criminal Appeal to reconsider the whole sentence by reference to all the evidence and all the principles which might bear upon it. This approach was said to be consistent with the requirements of s.6(3) Criminal Appeal Act 1912: R v AB (No. 2) (2000) 117 A Crim R 473 at 486-8 (paragraphs 71-81). In a separate judgment, O'Keefe J at 475-6 (paragraphs 9-18) reached the same conclusion. 92 In Ryan v The Queen (2001) 206 CLR 267, the High Court of Australia found error in principle on sentence, set aside the orders of the Court of Criminal Appeal and remitted the matter to that Court for sentencing in accordance with the reasons for judgment of the High Court. When the remitted appeal came before the Court of Criminal Appeal, it was accepted (applying R v AB (No. 2)) that, in principle, the Court was bound in the circumstances to proceed to sentence afresh: R v Ryan (No. 2) [2003] NSWCCA 35 at paragraph 24. 93 In both R v AB (No. 2) and R v Ryan (No. 2), the Court of Criminal Appeal had regard, in imposing sentence, to post-sentence evidence of the offenders' conduct up to that time including evidence of rehabilitative steps taken whilst in custody. 94 The Applicant submits that if, having found error, the Court must conclude that "another sentence is warranted" as a condition precedent to admitting evidence of post-sentence conduct, the Court would be required to exercise its discretion twice - firstly, to determine if another sentence is warranted and, if so - secondly, to further reduce the sentence having regard to the new evidence. To invite such an approach, the Applicant submits, is to complicate unnecessarily the task of this Court in a manner not required by s.6(3) of the Act. 95 Further, the Applicant submits that such an approach is inconsistent with established practice in this State. The Applicant points to a series of decisions of this Court where evidence of post-sentence conduct has been received, usually by way of affidavit outlining events (for example, assistance to the authorities, recent ill health, onerous custodial status and the performance of courses and training whilst in custody) and the Court has taken that evidence into account, once patent error has been established, in determining whether another sentence ought be passed in accordance with s.6(3) of the Act. In this context, the Applicant refers, by way of illustration, to R v Willard at 455 (paragraph 31); R v De Luca [2002] NSWCCA 446 at paragraphs 23-25; R v Sweetman [2000] NSWCCA 228 at paragraph 13; R v Eagleton [2003] NSWCCA 40 at paragraph 29; Schodde at 313 (paragraph 25); R v Chew [2004] NSWCCA 132 at paragraph 25; R v Marchando [2003] NSWCCA 71; R v Johnson [2003] NSWCCA 129 at paragraph 45; R v Scott [2003] NSWCCA 28 at paragraph 28; Hanslow at paragraph 27; R v MJM [2004] NSWCCA 66 at paragraph 47-48; R v M [2005] NSWCCA 224 at paragraph 32. 96 The Applicant submits that this approach is not inconsistent with what was said by Spigelman CJ in Simpson at 720-721 (paragraph 79). It is accepted that the Court will not quash a sentence and resentence simply because error has been established. However, the Applicant submits that where error is established, the Court's discretion is enlivened to consider whether "some other sentence" is warranted. Formation of that opinion, once error has been established, is to be made, consistent with the approach in R v AB (No. 2) and other authorities cited by the Applicant, upon the basis of all relevant material then before this Court. 97 To the extent that there are passages in the decision of this Court in R v Johnson [2005] NSWCCA 186 which may point to a contrary conclusion, the Applicant submits that those statements are incorrect and ought not be followed. In Johnson, Hunt AJA (Hulme J and myself agreeing) considered, at paragraph 27 to 39, the application of s.6(3) Criminal Appeal Act 1912. Hunt AJA said at paragraphs 33, 34 and 39 (the parts of the judgment which the Applicant submits are erroneous are highlighted): "33 What all of these cases [ Simpson ; R v Oastler (Court of Criminal Appeal, 7 October 1992, BC9203282); R v Astill (No. 2) (1994) 64 A Crim R 289; R v Cocking [1999] NSWCCA 311] emphasise is that the mere existence of error in the sentence imposed does not permit this Court to substitute another sentence for it unless such substituted sentence is warranted in law. Section 5(1)(c) of the Criminal Appeal Act permits a person convicted to appeal with leave against the sentence imposed. Section 6(3) permits the Court to impose another sentence in substitution for that sentence only if it is of opinion that such other sentence is warranted in law and should have been imposed. Neither provision requires this Court to identify any particular error before exercising that power. Indeed, as House v The King (1936) 55 CLR 499 at 504-505 says, even if the precise nature of the error may not be discoverable, it is sufficient that the result was so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the sentencing discretion.

34 In such a situation where the precise nature of the error is not apparent, the Court will inevitably have concluded that the sentence imposed was outside the appropriate range for the circumstances of the particular case, and it must determine for itself what sentence is warranted in law in relation to those circumstances. In cases where the error is apparent, the Court must first consider whether the sentence imposed is outside the appropriate range for the circumstances of the particular case unaffected by that error and, if it is, determine for itself what sentence is warranted in law in substitution for that sentence . …

39 Considering all of the relevant material in the case for myself in the way I have outlined, I am not satisfied that the sentences imposed were outside the appropriate range for the circumstances of this case . …" 98 The Applicant submits that the highlighted passages are not consistent with authority. The Applicant submits that, where error has been established, the statutory trigger for the quashing of a sentence does not involve thereafter an additional determination as to whether the sentence at first instance was "outside of the range". This suggests that the Court must first find error and additionally manifest excess, before considering whether another sentence is warranted. The Applicant submits that this approach is not correct and is not supported by authority. 99 The Applicant contends that there is nothing in the decisions relied upon in Johnson (R v Astill (No. 2)) (1992) 64 A Crim R 289 at 304; R v Oastler (Court of Criminal Appeal, 7 October 1992, BC9203282); R v Cocking [1999] NSWCCA 311) which is inconsistent with the Applicant's submission. 100 The Court in Johnson did not consider whether evidence of post-sentence conduct could be taken into account by the Court for the purpose of a s.6(3) decision. That question did not arise in the case. I have recorded the Applicant's submission that certain statements in Johnson are erroneous. If it were necessary to determine that question for the purpose of this application, it would have been appropriate for the Chief Justice to consider whether a bench of more than three judges ought sit to hear the matter: R v Mai (1992) 26 NSWLR 371 at 380-381. However, as will be seen, I do not consider that it is necessary for the purpose of deciding this case, to determine whether any statement in Johnson was erroneous. 101 The Applicant submits that, consistent with what Spigelman CJ said in Simpson, s.6(3) requires the Court to form a positive opinion that "some other sentence … is warranted in law and should have been passed". It is submitted that, when the Court considers whether "another sentence" is warranted in law, it considers all the relevant material afresh and, if in so doing, the Court forms the opinion that a lesser sentence is warranted, the Court must quash the original sentence and impose "such" sentence in its place. In so doing, the Applicant submits that the Court is not concerned strictly or solely with whether the impugned sentence was within range. The impugned sentence may well be within range, but if the Court, in its own exercise of discretion, determines that a lesser sentence is appropriate, it should proceed to impose that sentence. The Applicant relies upon the decision in R v Price [2005] NSWCCA 285 at paragraphs 51-55. Simpson J said at paragraphs 53-55: "That leaves open the question of precisely what it is necessary for an applicant for leave to appeal against sentence to establish before this Court can form the s6(3) opinion. Something less than manifest excess or manifest inadequacy will suffice; but the demonstration of error in the sentencing process, is not, of itself, sufficient.

Given that, in almost every case, there is a range of sentences that would, without manifest excess or manifest inadequacy, meet the circumstances of the case, it will almost always be the case that: '... some other sentence is warranted in law ...'

It may be, that in order to form an opinion that: '... some other sentence ... should have been passed ...'

the court must form the opinion that the identified error was, or the identified errors were, such as to lead to the conclusion that they in fact infected or affected the end result, that is, the sentence selected." 102 The Applicant submits that the correct approach to the question whether "another sentence is warranted" is not satisfied by an attempt to divine what impact, if any, an error may have had on the sentencing outcome. The proper approach, consistent with authority, is that where the sentencing discretion has miscarried in accordance with the principles enunciated in House v The King, the Court exercises the discretion afresh (albeit that the Court may not proceed to resentence), and in so doing, will have regard to all that is relevant to the instinctive synthesis. If the Court forms the view that a lesser sentence is warranted in law, the Court must substitute the lesser penalty. 103 The Applicant relies upon the following statement of Gleeson CJ in R v Araya and Joannes (1992) 63 A Crim R 123 at 129-130: "The Court received an affidavit sworn by the solicitor for the appellant proving the confiscation of certain property and the inability of the applicant, by reason of the circumstance that he left his proceedings too late to challenge that confiscation order in whole or in part. As a matter of practice, this Court customarily adopts a flexible approach towards the reception of evidence in support of an application for leave to appeal against the severity of sentence. If it became necessary technically to justify reception of a good deal of the evidence we receive it would be done on the basis that it may become relevant to our re-sentencing the applicant if we decided to grant leave to appeal and have allowed the appeal. However, I would prefer to say that the practice that the Court adopts is taken because of our overriding obligation to look at all relevant facts or possibly relevant facts to determine whether a miscarriage of justice has occurred." 104 The Applicant submits that, whilst s.6(3) does not adopt the language of s.6(1) of the Act (which refers to a miscarriage of justice) Gleeson CJ in the above passage was concerned with the receipt of evidence to determine whether another sentence "is" warranted. In order to determine whether a miscarriage has occurred, or in the terms of s.6(3) whether the Court is of the opinion that another sentence "is warranted" (not "was warranted"), the Court has regard to all relevant factors. 105 The Applicant submits that, error having been established, it is open to the Court to receive evidence of post-sentence conduct of the Applicant with the view to determining whether, for the purposes of s.6(3), some other sentence is warranted in law and should have been passed.

Crown Submissions 106 The Crown submits that s.6(3) sets out two distinct steps that must be taken by this Court. The first step requires the Court to decide if some other sentence is warranted in law and should have been passed by the original sentencing judge on the evidence at that time. The second step gives this Court, if it is so satisfied, the power to quash the sentence and pass another sentence in substitution. 107 The Crown submits that this construction is reached as a process of statutory interpretation. The Crown points to the use of the past tense in the phrase "and should have been passed" in s.6(3) of the Act. The prerequisite to this consideration is the finding of error. Such error may be an error of law or fact that impacts on the sentence imposed by the sentencing judge in such a way that the Court reaches the conclusion that some other sentence is warranted in law, or it may result from a finding that the sentence was manifestly excessive or inadequate based on the evidence before the sentencing judge. 108 The Crown submits that the use of the present tense in the phrase "is warranted in law" in s.6(3) does not detract from this submission. The Crown submits that the change of tense from present to past between the two phrases linked by the word "and" can support no other interpretation than that the provision refers to a conclusion by this Court that, as a result of error, another sentence is warranted in law, and the sentencing judge should have passed such sentence, were it not for the error. It follows from this, the Crown submits, that this Court cannot make a finding that the sentencing judge should have passed such other sentence as warranted in law on the basis of evidence that could not have been before the sentencing judge. 109 The Crown submits that this Court is not entitled to receive new evidence, that is evidence of post-sentence conduct, until the Court reaches the stage of determining to resentence the Applicant. Reference is made to decisions of this Court where reliance has been placed upon post-sentence assistance to the authorities on the part of the applicant: R v Cartwright (1989) 17 NSWLR 243 at 257; Many at 62; R v Gallagher (1991) 23 NSWLR 220 at 223B-C, 232-233; R v Scullion (Court of Criminal Appeal, 15 July 1992, unreported, BC9203142) at pages 1-3, 11-18. 110 If the Court finds error and concludes that the first stage required by s.6(3) is satisfied, the Crown submits that the power of the Court to quash the sentence and embark upon resentencing is triggered. It is at that point that the Court may take into account evidence of post-sentence conduct in carrying out the function of sentencing the Applicant on the basis of the evidence before it. 111 The Crown submits that this approach to the construction of s.6(3) is supported by decisions of this Court, including the statements in Simpson of Spigelman CJ at 720-721 (paragraph 79) and Sully J at 723 (paragraph 100). 112 The Crown submits that, when the statement of the Chief Justice in Simpson concerning the operation of s.6(3) is viewed in the context of the line of authority concerning admissibility of post-sentence conduct, the Court cannot consider such evidence in deciding the first step, or the "essential precondition" for the exercise of the power to resentence. It is only if the Court reaches the point of quashing the sentence and resentencing, that such evidence may be considered. The Crown submits that Simpson ought be applied and followed in the circumstances of this case with this consequence. 113 The Crown emphasises the mixture of present and past tense in a way which, the Crown contends, requires the statutory question to be answered only by reference to events as they stood at the time of the original sentence. On the Crown submission, it is only when the s.6(3) opinion may be formed using that reference point, that the gateway is open to the receipt of evidence of post-sentence conduct to be taken into account by the Court in the exercise of the sentencing discretion.

Resolution of Competing Submissions 114 In the present case, error has been demonstrated on the part of the learned sentencing judge. This Court is empowered to pass another sentence if it is of the opinion that such other sentence is warranted in law and should have been passed. 115 The appropriate starting point is the construction of s.6(3) explained by the Chief Justice in Simpson at 720-721 (paragraph 79). Simpson is a recent decision of this Court constituted by a five-judge bench. As Simpson makes clear, the demonstration of patent error is not the trigger for this Court to resentence. The test in s.6(3) must be satisfied. 116 The decision in Simpson did not touch upon the question of the use of evidence of post-sentence conduct in the formation of a s.6(3) decision, where patent error was demonstrated in the sentencing process. Where error has been established in the sentencing process, I do not consider that anything said by the Court in Simpson operates to preclude reliance by the Court upon evidence of post-sentence conduct until after the s.6(3) opinion has been formed by the Court. Nor do I consider that such a construction is supported by decisions of this Court concerning the admission of evidence of post-sentence conduct in the context of s.6(3) of the Act. 117 In Simpson, Spigelman CJ at 720 (paragraphs 75-78) referred to Dinsdale v The Queen (2000) 202 CLR 321, where the Western Australian equivalent of s.6(3) was considered (a provision which Spigelman CJ described as being, relevantly, in the same terms as s.6(3)). In Dinsdale at 324-325 (paragraphs 3-6), Gleeson CJ and Hayne J referred to the principles in House v The King as having direct application to the formation of the statutory (s.6(3)) opinion. Likewise, Gaudron and Gummow JJ at 329 (paragraph 21) and Kirby J at 339-340 (paragraph 58) referred to the principles in House v The King. It is not said in Dinsdale that, in a case where patent error is established, there is a cumulative requirement for the appellant to demonstrate that the sentence was manifestly excessive before the Court will proceed to resentence. The statutory test in s.6(3) is not equated with the test of manifest excess even where patent error has been demonstrated. Nor is it said that the Court is to be confined to the evidence before the original sentencing court in applying the s.6(3) test where patent error has been established. 118 The decision of this Court in Oastler has been cited in cases concerning the proper construction of s.6(3): Astill (No. 2) at 304; Cocking at paragraphs 22-23; Johnson at paragraphs 30-31. In Oastler, the Court received and referred to an affidavit outlining the applicant's co-operation with the authorities since being sentenced (pages 6, 9). It appears that the Court, having found error in the sentencing process, received evidence of the Applicant's post-sentence conduct which was taken into account by the Court in reaching the conclusion that the sentence imposed in the District Court was "not excessive" and was "appropriate to [the] case". This approach supports the Applicant's submission concerning the use of evidence of post-sentence conduct in this case. 119 The strongest argument in favour of the narrow approach advanced by the Crown is the statutory construction argument based upon the use of the past-tense phrase " should have been passed" in s.6(3). Section 6(3) is curiously worded. The section mixes the present and past tenses. The section does not use consistently the past tense - "was warranted in law and should have been passed" nor the present tense - "is warranted in law and should be passed". A mixture of tenses is used. 120 There is an ambiguity in this aspect of the section. Where competing constructions are available, a construction that would promote the purpose or object underlying the provision ought be preferred: s.33 Interpretation Act 1987. The purpose of s.6(3) should be understood against the background of statements of principle concerning the function of a Court of Criminal Appeal on a sentence appeal in cases such as House v The King, AB v The Queen and Dinsdale v The Queen. 121 The ambiguity appears in a section providing for appeals in the criminal context. There is an established practice of this Court whereby the Court receives evidence of post-sentence conduct which will be taken into account, if patent error or manifest excess is demonstrated, for the purpose of determining whether a different sentence should be substituted for the purpose of s.6(3) of the Act. This is a powerful factor which supports the Applicant's submission concerning use of evidence of post-sentence conduct, and which promotes the clear, consistent and effective administration of the criminal appellate jurisdiction under s.6(3) of the Act. 122 Insofar as the Crown seeks to rely upon cases such as Scullion, Willard and MJM, it should be kept in mind that the argument there was that the Court of Criminal Appeal should intervene because of the Applicant's post-sentence assistance to the authorities, and not by reason of error. Where the alleged basis for intervention relates to post-sentence conduct and not error on sentence, the application of a fresh evidence rule as applied in Scullion, Willard and MJM is understandable. In the present case, however, the issue is the point at which evidence of post-sentence conduct may be received by this Court where error has been established in sentencing at first instance. 123 I adopt the approach of Sperling J (Giles JA and Hidden J agreeing) in R v Burke [2002] NSWCCA 353 at paragraphs 82-92 concerning the use of fresh evidence for the purpose of a s.6(3) decision. Sperling J said at paragraphs 82ff: "82 For the purpose of determining the effect of the fresh evidence which has been admitted, it is necessary for me to state my understanding of the meaning and operation of s 6(3) of the Criminal Appeal Act 1912, which provides as follows:

In my understanding, the section operates as follows in the ordinary case, that is, a case not involving fresh evidence. If the sentence is manifestly excessive, in the sense that it exceeds the proper exercise of sentencing discretion, the statutory formula is satisfied and the appellate court must quash the sentence and re-sentence the offender. Where the sentence is not manifestly excessive, the appellate court must quash the sentence and re-sentence the offender if - and only if - (a) the sentence imposed below is vitiated by error, and (b) the sentence is more severe than the appellate court would have imposed and, necessarily, would now impose on re-sentencing the offender.

The following passage from Simpson [2001] NSWCCA 534, at [79] is in point.

There is an efficiency built into s 6(3). In an appeal against the severity of sentence, there is no need to resolve a question of error which has been raised as a ground of appeal if re-sentencing by the appellate court would not result in a lesser sentence irrespective of that question.

At this point, I should introduce a qualification. What I have said concerning the operation of s 6(3) is, I believe, correct in the generality. However, in special circumstances, some refinement is necessary. For example, if there were error in the sentencing process below which cannot have made any material difference to the result, the appellate court would not intervene, even if it would have imposed a less severe sentence were it re-sentencing the appellant. That is, of course, unless the sentence below was manifestly excessive, in which case the sentence would be set aside on that account and the appellate court would then re-sentence the appellant.

That situation is covered if one reads 'error' in what I have written as meaning - as I intend it to mean - error contributing to the result.

Another example of a special case would be an error which has a narrow and discrete effect on the result, such as, for example, an omission to make an order that the offender is to be released on the expiration of the non-parole period where the sentence is not more than three years. In such a case, the sentence is relevantly more severe than it should have been, in that the offender might be required to serve longer than the non-parole period contrary to law. The appeal would be allowed in such a case, and the error would be corrected by adding the necessary order without the need to re-sentence the appellant afresh, even if the appellate court would have imposed a different sentence were it re-sentencing the appellant afresh. Again, that would be the situation unless the sentence was manifestly excessive, in which case the sentence would be set aside on that ground and the appellant would be re-sentenced.

It follows that where fresh evidence has been admitted on an appeal against sentence, that does not mean that the sentence should necessarily be quashed and the offender re-sentenced by the appellate court, even if it is thought that the new material would or might have led the sentencing court to a different result. As Sully J said in W [2001] NSWCCA 172, at [26]: 'It is one thing to say that the primary sentencing Judge, had his Honour been aware of this material, ought to have taken into account, and might well have come on that basis to an end result more favourable to the applicant than the result reached. It is an entirely different thing to say that it necessarily follows in such a case that this Court will, without more, interfere with what in fact happened in the Court below.'

In an appeal against sentence based on fresh evidence, s 6(3) operates in the following way in the ordinary run of such cases.

If, taking into account the fresh evidence, the sentence is manifestly excessive - in the sense that the sentence, if passed on the evidence before the sentencing court together with the fresh evidence, would be in excess of the proper application of sentencing discretion - the appellate court must quash the sentence and re-sentence the offender. If, however, that is not the case, the appellate court must dismiss the appeal unless, on the evidence before the sentencing court together with the fresh evidence, the appellate court would impose a less severe sentence. In that event, the appellate court should allow the appeal but only if there is also the additional element of material error.

The fact - if it be the fact - that the fresh evidence may have resulted in a lesser sentence below, or even that it would have done so, does not mean that the appeal must be allowed and that the applicant must be re-sentenced by the appellate court. I repeat: if the appellate court is of the opinion that it would not impose a less severe sentence on the whole of the evidence, including the fresh evidence, the appeal must be dismissed unless the sentence is manifestly excessive in the sense in which I have used that expression." 124 The statement of Sperling J in paragraph 91 in Burke is pertinent to this case. I am satisfied that, error having been established in the sentencing process at first instance, it is open to this Court to admit evidence of post-sentence conduct for the purpose of determining whether a sentence should be substituted under s.6(3) of the Act.

Should a Sentence be Substituted for that Imposed in the District Court? 125 The Applicant submits that this Court should impose a different sentence in exercise of its function under s.6(3) of the Act. 126 I have concluded that it is open to the Court to receive evidence of post-sentence conduct of the Applicant, including evidence of his assistance to the authorities in the prosecution arising from the shooting of Mr Darwiche. In the light of all the evidence, is the Court in a position to conclude that a sentence of imprisonment of three years with a non-parole period of two years and three months was outside the appropriate range for the circumstances of the particular case unaffected by that error? If such a finding is made, the s.6(3) test, as explained in Johnson, would be satisfied. It would not be necessary for the Court to consider further the Applicant's submission that the decision in Johnson is wrong. 127 The offence to which the Applicant pleaded guilty involved deemed supply of 8.12 grams of methylamphetamine. Although the quantity exceeds the traffickable quantity (3 grams) and the indictable quantity (5 grams), it is not a substantial quantity of the drug. The Form 1 matters involved offences committed by the Applicant in May and July 2001 concerning possession of prohibited drugs. There was only one offence of supplying a prohibited drug to be considered on sentence in this case. 128 The Applicant had no prior convictions for drug offences and only one prior conviction for a driving offence. He was 18 years of age at the time of the offence. His plea of guilty assists him on the question of sentence. 129 The Applicant's submission that post-sentence conduct ought be taken into account by this Court operates as something of a two-edge sword for him. He seeks to invoke, in his favour, his assistance to the authorities, including the giving of evidence in the criminal proceedings arising upon the attack upon Mr Darwiche. Determination of the weight to be given to this factor would require more information than that which is presently available to the Court to allow the requirements of s.23(2) Crimes (Sentencing Procedure) Act 1999 to be satisfied. 130 There are two areas within the post-sentence conduct which do not operate in the Applicant's favour. Firstly, he failed to report frequently, without approval from the authorities, for periodic detention. The point was reached where the periodic detention order was revoked. On the evidence before this Court at present, the Applicant's failure to attend for periodic detention may operate adversely to his interests. The position is different to that in Hanslow at paragraph 30, where the Court concluded that the disruption to the applicant's periodic detention did not reflect adversely upon him. 131 Secondly, the Applicant has committed a number of offences since being sentenced in the District Court in April 2003. Although the commission of offences after an offence for which an offender stands to be sentenced ought not operate to increase punishment for the principal offence, such offences may be taken into account in assessing the Applicant's prospects of rehabilitation: Charara v Director of Public Prosecutions (2001) 120 A Crim R 225 at 233-4 (paragraphs 37-40); R v Mehajer and Jacobs [2003] NSWSC 885 at paragraphs 44-49. 132 It might be concluded that the prospects of the Applicant's rehabilitation appeared somewhat brighter in April 2003 than they do at the end of 2005. He has not complied with the periodic detention order and has committed further offences. On the other hand, the Applicant has assisted law enforcement authorities and is giving evidence to the prosecution with respect to a serious matter. Although the Court is not in a position to identify with precision the extent and value of the Applicant's assistance to the authorities, it appears that it is not insubstantial and has extended to him giving evidence for the prosecution in committal proceedings. 133 The Applicant has approached the present application upon the basis that the Parole Authority will proceed to revoke the periodic detention order in accordance with its stated intention. This is a realistic expectation, in particular given the limited powers of that Authority under s.163 Crimes (Administration of Sentences) Act 1999. This Court should apply the s.6(3) test to a sentence of full-time imprisonment of three years with a non-parole period of two years and three months. 134 The Crown submits that, in the circumstances of this case, no lesser sentence is warranted in law and that the appeal should be dismissed. The Crown submits that the Applicant received a lenient sentence for the offence of supplying a prohibited drug, an offence bearing a maximum penalty of 15 years. It is submitted that periodic detention will not normally be considered to be an appropriate sentence in drug supply offences: R v Ha [2004] NSWCCA 386 at paragraph 20; R v Nasr [2004] NSWCCA 441 at paragraphs 29-30. 135 The Crown submits that a full-time custodial sentence of three years' imprisonment for an offence of supplying methylamphetamine, in similar quantities to the present case, has been upheld by this Court: R v CBK [2002] NSWCCA 457; R v Tirtabudi [2004] NSWCCA 328; Nasr; R v Walker [2005] NSWCCA 109. The Crown submits that a full-time sentence of imprisonment for three years would have been open to Solomon DCJ and that, accordingly, a sentence of imprisonment for three years to be served by way of periodic detention was clearly open to the court at first instance. 136 The Crown submits that, taking into account the nature of the offence, the fact that Solomon DCJ found that it was not an isolated incident and had a commercial aspect to it, combined with the significance of general and specific deterrence, meant that no lesser sentence could be warranted than a full-time custodial sentence. In addition, the Crown submits that the total sentence needed to reflect the five offences for possession of drugs in similar circumstances contained in the Form 1 for which an additional penalty was justified: Attorney-General's Application No. 1 of 2002 [2002] 56 NSWLR 146 at 155, 159 (at paragraphs 18, 42). 137 The Crown submitted that an order that the sentence be served by way of periodic detention constituted a lenient sentence in all the circumstances of the case. 138 The Crown has referred to a number of decisions where this Court has upheld sentences within this broad range for supplying a prohibited drug (see paragraphs 134-135 above). Having examined the decisions in question, I consider that there are points of distinction both in the nature and frequency of the offending conduct involved and in the subjective circumstances of the offenders so as to operate against the Crown submission that this sentence lay within the range of appropriate sentences. In Nasr, CBK, Walker and Tirtabudi, the indictment included more than one count of supplying a prohibited drug, with some cases involving charges of ongoing supply. In Walker, the offender had prior convictions for drug offences, including a supply conviction. 139 As I have said, it is not necessary in this case to consider the correctness of Johnson. Using the Johnson formula, however, I am satisfied that a sentence of full-time imprisonment of three years with a non-parole period of two years and three months lies outside the appropriate range of sentence for this offence and this offender. The following features of this case are pertinent to the determination of where the present sentence lies by reference to the appropriate range of sentence: (a) the indictment included a single count of supply;

(b) the supply count was based upon deemed supply arising from the Applicant's possession of 8.12 grams of methylamphetamine - an amount in excess of the traffickable quantity (3.0 grams) and the indictable quantity (5.0 grams);

(c) although in excess of these levels, the quantity was not a substantial one in terms of those frequently encountered in the Courts;

(d) the Applicant possessed the drug for sale for commercial gain;

(e) there were five counts of simple possession of prohibited drugs on the Form 1 - these offences, even taken together, would ordinarily be dealt with by way of non-custodial penalty in the Local Court;

(f) the Form 1 offences allowed the inference that the Applicant's supply offence was not an isolated drug offence on his part - the inference was not open that the Applicant had supplied drugs on other occasions - the Form 1 offences were possession offences only;

(g) the Applicant was 18 years old at the time of the offence;

(h) the Applicant had no prior criminal history for drug offences - his only prior offence was for a driving offence. 140 Judicial Commission sentencing statistics are also relevant to this question. Some 347 offenders were sentenced in the higher courts between July 2002 and July 2005 for supply of amphetamines in quantities which were less than the commercial quantity (250.00 grams). Of these, 144 (41%) received sentences of full-time imprisonment and the balance did not. Of those sentenced to full-time imprisonment, 98 (68%) received head sentences of two-and-a-half years or less. Some 27 offenders (19%) received head sentences of between two-and-a-half years and three years. Some 19 offenders (13%) received head sentences exceeding three years. Where a non-parole period was set for those sentenced to full-time imprisonment, 115 offenders (92%) received a non-parole period of two years or less. Some 11 offenders (8%) received non-parole periods of more than two years.

141 This Court has emphasised that care must be taken in the use of sentencing statistics, in particular, because the facts of individual cases are not known: R v Bloomfield (1998) 44 NSWLR 734 at 739. In this case, the sentencing statistics do provide assistance. There is a large sample of cases (347) which were dealt with in the higher courts over a three-year period for supply of less than the commercial quantity of amphetamines (that is, between 5 and 250.00 grams). The Applicant possessed 8.12 grams for the purpose of supply. This quantity is likely to lie towards the lower end of the range of quantities included in the sentencing statistics. He was 18 years old and had no relevant prior convictions. These are features which, once again, are likely to feature in offenders towards the lower end of the range reflected in these statistics. The sentencing statistics serve to fortify a conclusion that a sentence of full-time imprisonment of three years with a non-parole period of two years and three months lay outside the appropriate range of sentence for the circumstances of the particular case.

142 Further, the Judicial Commission's statistics support the conclusion expressed in paragraph 139(e) above, that simple possession offences ordinarily will be dealt with in the Local Court by way of a non-custodial penalty. Of 11,536 cases of possession of cannabis determined in the Local Court between July 2001 and June 2005, only 301 (3%) were dealt with by way of full-time imprisonment. Of 2,722 cases of possession of amphetamine dealt with in the same period in the Local Court, only 65 (2%) were dealt with by way of full-time imprisonment.

143 Using the words of s.6(3), I have formed the opinion that a lesser sentence is warranted in law and should have been passed, having regard to the evidence before this Court which is, for reasons already given, significantly different from that which was before the sentencing judge. That is not to say that a sentence of full-time imprisonment is not open and appropriate in this case. For an offence of supplying prohibited drugs, a full-time custodial sentence is required absent exceptional circumstances: Ha at paragraph 20. However, a full-time sentence of the duration here involved is outside the appropriate range for this offence and this offender. 144 I propose that this Court should intervene to extend time and grant leave to appeal and to quash the sentence imposed upon the Applicant in the District Court on 24 April 2003. 145 At the conclusion of the hearing before this Court on 17 October 2005, it was indicated that, following receipt of the additional information and written submissions directed by the Court, the view might be formed that the appropriate course would be to remit the matter to the District Court for sentence (transcript, 17 October 2005, page 14.35). This course is open under s.12(2) Criminal Appeal Act 1912 and was adopted, in similar circumstances, in Wegener at paragraphs 27 and 28. This Court has remitted matters to the District Court for sentence under s.12(2) in other appropriate cases: R v McLean (2001) 121 A Crim R 484 at 495 (paragraph 62); R v Cooney [2004] NSWCCA 255 at paragraphs 33-34, 38. 146 Having concluded that the sentence ought be quashed, it seems to me that the preferable course is to remit the matter to the District Court for sentence. More than two-and-a-half years have passed since the original sentencing decision. There are significant new factors in the case, including the Applicant's assistance to the authorities, as to which this Court has limited information. In circumstances where it would be necessary for this Court to receive further evidence touching a number of matters for the purpose of sentence, I consider that the appropriate course in this case is to remit the matter to the District Court so that the question of sentence may be considered afresh by that Court. 147 Accordingly, I propose the following orders:

(a) pursuant to clause 3A(2) Criminal Appeal Rules , the period for which the Notice of Intention to Apply for Leave to Appeal lodged on 17 July 2003 is extended to 22 June 2005;

(b) leave to appeal is granted, the appeal is allowed and the sentence imposed by Solomon DCJ on 24 April 2003 is quashed;

(c) pursuant to s.12(2) Criminal Appeal Act 1912 , the matter is remitted to the District Court for resentencing in accordance with this judgment;

(d) the question of the Applicant's bail pending his appearance in the District Court may be determined by a single judge.

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