17 It was submitted on the respondent's behalf that comparisons with other cases are rarely helpful and that the decision in Ralph may be explained on the basis that "the spark of incipient rehabilitation that the sentencing judge detected in the respondent" in the present case, was not to be found in Ralph.
18 It was conceded for the respondent, however, that the impugned sentence was very lenient, but it was one which focused upon the respondent's rehabilitation and that the sentencing judge had expressed no idiosyncratic views in the course of his reasons for sentence. That the judge thought the respondent to be a proper candidate for leniency and the extension of mercy, Mr Priest submitted, is reflected in the fact that his Honour considered the respondent would clearly "need strong support" and thus resolved to have the respondent assessed for a CCTO at the
commencement of the plea. It was submitted that a lenient sentence could be justified as there were reasonable grounds to justify the judge's sympathies.
Inadequacy of reasons
19 The judge's reasons for sentence occupy less than two pages and were described by counsel for the respondent as "tissue thin". Mr Priest candidly submitted that the sentencing judge had done the respondent no favours by giving inadequate reasons for the sentence imposed. The Court was invited to take into account that a person falling for sentence has little control over what a judge says or fails to say in a sentence and cannot ensure that the judge refers to all factors said to be relevant. Counsel for the respondent submitted that the sentencing judge had figured prominently in appeals by the Director over recent years in refusing to give sufficient reasons for the sentences he imposed. It was contended that the fact that his Honour had not mentioned general deterrence, specific deterrence, denunciation or just punishment did not mean that his Honour did not give those principles due regard. Counsel submitted that the absence of any reference to these principles should not be permitted to obscure the real question whether the sentence should properly be viewed as manifestly inadequate.
20 The absence of sufficient reasons for sentence will not necessarily result in intervention by an appellate court.[17] Their absence may, depending upon the circumstances, including the sentence that has been imposed, more readily lead to the conclusion that relevant principles or facts have been overlooked. The failure to make reference to relevant considerations may deny a party the benefit that adequate reasons might have provided.
21 The final submission of counsel for the respondent was that even if the sentence could be described as manifestly inadequate, the principle of double jeopardy had particular poignancy in the present case and the Court should exercise its over-arching discretion to dismiss the appeal.
Seriousness of offence
22 The circumstances of the respondent's offending were very serious. He knew that Ms Thompson lived in the house as a result of the generosity of its owner and he had benefited personally by residing there for some days prior to this event. As a consequence of the arson the owner lost a family home with sentimental value, lost the sum of $56,000 being the balance of the market value of the house in excess of the sum insured, and Ms Thompson lost personal property and a place in which to live rent free. When interviewed the respondent denied that he deliberately lit the fire and denied the suggestion that he had threatened to burn the house down. The pre-sentence report states that the respondent denied that he was responsible for the fire. As there was an absence of real remorse and as the respondent's plea was entered at a relatively late stage, the respondent was not entitled to any significant discount in his sentence for his plea of guilty.
Respondent's antecedents
23 The respondent was 33 at the time of the arson. He admitted 15 prior convictions from four court appearances. In May 2000 he had been released on a CBO for a period of eight months for driving whilst disqualified and exceeding .05. He subsequently breached the CBO. In December 2001 he was sentenced to 18 months' imprisonment with a minimum non-parole period of six months for armed robbery, recklessly causing injury and two counts of reckless conduct endangering life. In April 2003 he was released on intensive correction orders for reckless conduct causing a serious injury, damaging property, making a threat to kill, unlawful assault and other offences. This respondent's criminal history is significant and shows that he wholly disregarded orders of the court, the leniency afforded to him and his undertakings or promises to be of good behaviour. On each prior occasion the orders made or sentences imposed had been directed towards providing the respondent with every prospect for rehabilitation. That did not deter him from offending in the present circumstances. And as has also been mentioned, the respondent, whilst on bail for the arson offence, committed further offences against Ms Thompson during a period of apparent reconciliation. Hence there was much force in the Director's contention that in these circumstances the extent to which the respondent could be treated with leniency was limited, particularly when one has regard to the respondent's antecedents, the uncertainty of his relationship with Ms Thompson and his extensive untreated problem with alcohol abuse.
24 It may be said that the sentence imposed by his Honour was intended to promote the respondent's rehabilitation. It may also be assumed that his Honour took into account the psychiatric assessment which disclosed the respondent had been previously assessed as having a borderline personality disorder with antisocial traits and a previous diagnosis of bipolar affective disorder. Similarly, his Honour was probably satisfied that drunkenness contributed to the commission of the offence and that a sentence of no more than 12 months' imprisonment was appropriate given that the judge apparently contemplated that the respondent would benefit from an intensive alcohol treatment program which should be addressed at the earliest possible time within the community. It is plain enough that, to achieve that end, the judge thought it necessary to order that the six month immediate custodial component of the CCTO run concurrently with the remainder of the nine month non-parole period of the sentence the respondent was then serving, which had been imposed on 1 December 2005.
25 I should refer to the submission made by the Director that it is unclear from an examination of the legislative scheme whether his Honour was entitled to order concurrency between the six months of the CCTO to be served in custody and the sentence that the respondent was already undergoing. The respondent contended that there was no legislative embargo on ordering that the custodial portion of a CCTO be served concurrently with the sentence the respondent was undergoing. Assuming that such a course was open, the Director had submitted that the sentence imposed was impractical as it envisaged that upon the respondent's release he would be subject to a CCTO which ran simultaneously with conditional release on parole. Both the terms of release under a CCTO and parole are onerous. The Director submitted that the purposes of the CCTO could be undermined if the conditions of parole were incompatible with the conditions of the CCTO. He submitted that the risk of that occurring increased if the period between the imposition of the CCTO and the date of eligibility for release on parole were significant. It was further submitted that his Honour must have taken into account that the respondent was likely to be released on parole and had thereby taken into account possible executive action by the Adult Parole Board in contravention of s.5(2AA)(a) of the Sentencing Act 1991.
26 The Director did not allege such error in his grounds of appeal nor did the Director seek to rely upon any such error. As these matters were only the subject of written submissions, no oral argument being addressed to them, I express no view about whether an order for concurrency could have been made. Even if such a course is open, it is difficult to see why it would be followed in preference to release on parole in terms similar to those that would be made under a treatment order. As the "COATS"[18] pre-sentence report indicated, the process exists for the Adult Parole Board to refer the respondent to COATS prior to his release, subsequent to which a treatment plan ensuring participation in community based drug treatment would be co-ordinated thereby providing an appropriate means to address the causal factors underlying the respondent's offending.
Combined custody and treatment order pursuant to s.18Q of the Sentencing Act 1991
27 There is a two stage process involved in the making of orders such as a CCTO, an intensive corrections order or a suspended sentence.[19] There must first be a determination as to what is the appropriate sentence without regard to the manner
in which the sentence is to be served.[20] A Court cannot make a CCTO pursuant to s.18Q of the Sentencing Act 1991 "if the sentence of imprisonment by itself for the whole term stated by the Court would not be appropriate in the circumstances having regard to the provisions of this Act."[21] Similar provisions appear in relation to making "intensive correction orders"[22] or when "suspending a sentence of imprisonment".[23] The questions of proportionality and the appropriateness of the term of imprisonment must have been determined before the court can consider whether any of these sentencing options should be utilised.[24] The alternatives available as to how the sentence may be served, relate to the implementation of the sentence and not to its imposition.[25] The sentencing judge should not tailor the sentence to be imposed according to the manner in which he or she considers the sentence should be served.[26] First, the appropriate sentence must be determined. Then the judge may determine if such an order should be made. The two steps should not be elided.[27] The focus by his Honour appears to have been on the implementation of the sentence and not upon its appropriateness.
28 As I have already observed his Honour at a very early stage of the plea stated that he would have the respondent assessed for a CCTO and for a CBO. It is difficult to discern what circumstances had then been placed before his Honour that influenced the consideration of such a course. Before the Court can make a CCTO it must conclude, having regard to the various sentencing considerations set out in the Act, that a term of imprisonment of not more than 12 months' duration is appropriate.
29 While it was appropriate and necessary for the sentencing judge to take these personal factors into account, the sentencing principles of general deterrence, specific deterrence, just punishment and denunciation were also to be reflected in the sentence that was proposed. The sentence imposed makes it apparent that the judge did not have any, or any due, regard to them in the sentencing disposition. The result was a sentence which in my view did not properly reflect those objectives and which was not reasonably proportionate to the crime. The sentence imposed reveals such manifest inadequacy and is so inconsistent with recognised sentencing standards as to constitute error in principle. A proper exercise of the sentencing discretion required the imposition of a head sentence with a new non-parole period. I would therefore allow the appeal.
30 Bearing in mind the principles of restraint which must be exercised by this Court in re-sentencing the person who is standing for sentence a second time,[28] I would re-sentence the respondent to a term of imprisonment for three years and six months. I would order that the term of imprisonment be served cumulatively upon the sentence that was imposed on 1 December 2005 of 18 months' imprisonment with a non-parole period of nine months. I would fix a new non-parole period[29] and direct that the respondent serve a period of two years and six months before becoming eligible for parole.
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