R v BALL, Judd Ashton

ons (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Engert v R (1995) 84 A Crim R 67 Everett v The Queen [1994] HCA 49; 181 CLR 295 at 300 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Heine v R [2008] NSWCCA 61 House v The King [1936] HCA 40; 55 CLR 499 Jimmy v The Queen [2010] NSWCCA 60; 77 NSWLR 540 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Power v The Queen (1974) 131 CLR 623 R v Anforth [2003] NSWCCA 222 R v Boughen; R v Cameron [2012] NSWCCA 17 R v Chaplin [2006] NSWCCA 40; 160 A Crim R 85 R v Collett and Robson (Court of Criminal Appeal, 7 June 1979, unreported) R v Davis [2004] NSWCCA 310 R v De Simoni [1981] HCA 31; 147 CLR 383 R v Dodd (1991) 57 A Crim R 349 R v Douar [2005] NSWCCA 455; 159 A Crim R 154 R v Geddes (1936) 36 SR (NSW) 554 R v Glen (Court of Criminal Appeal, 10 December 1994, unreported) R v Hamid (2006) 165 A Crim R 179; [2006] NSWCCA 302 R v Harris [2007] NSWCCA 130; 171 A Crim R 267 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Merrin [2007] NSWCCA 255; 174 A Crim R 100 R v Newell [2004] NSWCCA 183 R v Ngo [2005] NSWCCA 107 R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225; 91 ACSR 420 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Speechley [2012] NSWCCA 130 R v Stephen [2003] NSWCCA 377 R v Tannous; R v Fahda; R v Dibb [2012] NSWCCA 243 R v Wright (1997) 93 A Crim R 48 R v XX [2009] NSWCCA 115; 195 A Crim R 38 Vartzokas v Zanker (1989) 51 SASR 277 Veen (No 2) v The Queen [1988] HCA 14; 164 CLR 465 Wehlan v R [2012] NSWCCA 147 Williams v R; Saunders v R [2006] NSWCCA 33 Wong v The Queen [2001] HCA 64; 207 CLR 584 Category: Principal judgment Parties: Regina (Appellant) Judd Ashton Ball (Respondent) Representation: Counsel: F Veltro (Appellant) J Manuell SC (Respondent) Solicitors: Solicitor for Public Prosecutions (Appellant) Legal Aid Commission of NSW (Respondent) File Number(s): 2009/62064 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-06-13 00:00:00 Before: Jeffreys DCJ File Number(s): 2009/62064

Judgment 1MACFARLAN JA: I agree with Hall J's reasons for judgment and the orders that he proposes. In particular, I agree that a two year Intensive Correction Order was a manifestly inadequate sentence for the respondent's offence under s 86(2)(b) of the Crimes Act, bearing in mind the Form 1 offences to be taken into account and the objective seriousness of the respondent's conduct described in [93] to [100] of his Honour's judgment. 2HALL J: The Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 against the sentence imposed upon the respondent in the District Court at Sydney on 13 June 2012. 3The respondent is aged 31 years. He was charged on indictment with an offence contrary to s 86(2)(b) of the Crimes Act 1900 that on 5 July 2009 at Northmead he took the female victim (the complainant), without her consent, with intent to obtain an advantage, namely to intimidate her and to have physical control over her and at the time of and immediately before the taking, actual bodily harm was occasioned to her. 4The maximum penalty for an offence under s 86(2) is 20 years imprisonment. There is no standard non-parole period prescribed for such an offence. The sentencing judge imposed a sentence of 2 years to be served by way of an intensive correction order pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999 to operate from 22 June 2012. 5The sentencing judge was required to also take into account on a Form 1, four matters, the first two of which, both individually and together, would require a significant increase in the sentence imposed for the principal offence. The four matters were as follows: (i) Assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act (maximum penalty: 5 years imprisonment); (ii) Use an offensive implement, namely a motor vehicle, with intent to commit an indictable offence, contrary to s 33B(1)(a) of the Crimes Act (maximum penalty: 12 years imprisonment); (iii) Intentionally damaging property (namely a mobile phone) belonging to another person contrary to s 195(1)(a) of the Crimes Act (maximum penalty: 5 years imprisonment); (iv) Take and drive motor vehicle without the permission of the owner, contrary to s 154A(1)(a)/117 of the Crimes Act (maximum penalty: 5 years imprisonment). 6The Crown additionally appeals pursuant to s 5DB of the Criminal Appeal Act against the sentence imposed by the sentencing judge for an offence of drive manner dangerous, contrary to s 42(2) of the Road Transport (Safety and Traffic Management) Act 1999. The maximum penalty for that offence is 9 months imprisonment and/or a fine of 20 penalty units. The offence also carries an automatic disqualification from holding a driver's licence for a period of 3 years, (and where if the court thinks fit, any shorter period of not less than 12 months: s 180(2)(d) of the Road Transport (General) Act 2005). 7In respect of the lastmentioned offence the sentencing judge dealt with the matter pursuant to s 166-168 of the Criminal Procedure Act 1986. His Honour convicted the respondent with no other penalty, pursuant to s 10A of the Crimes (Sentencing Procedure) Act. The sentencing judge also reduced the automatic disqualification period of 3 years to the minimum of 12 months. 8The Notice of Appeal was signed by the Deputy Director of Public Prosecutions on 27 June 2012. It was served upon the respondent on 3 July 2012. 9An Amended Notice of Appeal (identifying the correct statutory basis for the appeal in respect of the drive manner dangerous offence) was signed by the Deputy Director of Public Prosecutions on 15 November 2012 and it was served on the respondent's legal representatives on that date. 10The factual matters relevant to the charged offences and the Form 1 offences were set out in a document entitled "Agreed Facts" which formed part of Exhibit A that was tendered on sentence. 11The offence on the indictment and the offences on the Form 1 and the s 166 Certificate all occurred on 5 July 2009.

FACTS 12For the purposes of analysis the relevant facts may be considered as occurring at four stages.

Stage 1 13The complainant had been out with two friends and at about 1:30 am on 5 July 2009 attended a fast food restaurant at Church Street, Parramatta. Following a meal the complainant endeavoured to start her car. She was unsuccessful as the battery had gone flat. She unsuccessfully sought help from friends and patrons at the restaurant. 14During the course of that day the complainant had received a number of text messages from the respondent with whom she had had a relationship which had recently come to an end. She had not replied to the respondent's messages. Not being able to raise any help from others to get her car started, she responded to his text messages by asking if he had any jumper leads. 15Prior to receiving a response the complainant accepted a lift to her home, having decided to leave her vehicle in the carpark until the following day. On the way home the complainant received a text message from the respondent saying that he would bring jumper leads. She responded by saying that she was being driven home by a friend. When she got home the respondent rang her saying that he would come and pick her up. Shortly after she reached her home a white utility arrived. The complainant saw the respondent was in the passenger seat. He told her to hurry up and that he had the jumper leads to go and fix the car. The complainant got into the car and was driven back to the restaurant carpark. 16In due course, the complainant's car was started. The respondent said that he would drive her car. The driver of the other vehicle left. The complainant did not want the respondent driving her car as she had formed the view that he had been drinking. She ended up driving the car herself with the respondent in the front passenger seat. 17Whilst driving along Windsor Road the respondent began to say to her such things as, "I bet you had a good night, where did you go?". Without any warning, he struck the complainant to the side of her face. The complainant pulled the car over to the side of the road. 18At this point they were at the intersection of Windsor Road and Whitehaven Road, Northmead. The complainant told the respondent to get out of her car. The respondent put his hands up to her face and told her that he was really sorry. The complainant again told him to get out but he refused. He then struck her to the face with his right arm, pushed her face against the driver's side glass window and started pulling her hair. 19The respondent pushed the complainant against the door of the car and continued to push her face against the window. This assault immediately resulted in bruising being occasioned to the complainant's face and forehead with an indentation to the left side of her forehead. This conduct represented item 1 on the Form 1. The relevant facts were set out at [10]-[11] of the Agreed Facts.

Stage 2 20The complainant managed to open her door and fell out of the car. The respondent then climbed across into the driver's seat, closed the door and drove off. The complainant took out her mobile phone and dialled triple-0 and began to speak to the operator. She then saw her car being driven by the respondent rapidly in reverse towards her. 21In an attempt to avoid being struck by the reversing vehicle, the complainant jumped over a small brick fence. The vehicle mounted the kerb, crossed the nature strip and struck the complainant on her arm. This incident was the subject of item 2 on the Form 1 (it is referred to at [13] of the Agreed Facts. 22The respondent got out of the vehicle and approached the complainant who was screaming for help. He began to hit her again. He grabbed her by the hair and dragged her towards the car. The complainant yelled, "help, help somebody help", and told the respondent to "please stop please just leave me alone". Much of what was said at this time was recorded by the triple-0 operator.

Stage 3 23The respondent left the complainant on the ground, got back into the vehicle and moved it onto the roadway on the corner of Whitehaven Road and Windsor Road, Northmead. He then got out of the vehicle and again approached the complainant. 24The complainant got off the ground, went around to the passenger side of the vehicle and attempted to lock herself in. The respondent put his hand through the open window and opened the door. He then grabbed her by the neck and hair and dragged her out of the vehicle. 25The respondent kneed the complainant in the stomach winding her and causing her to fall to the ground. He then proceeded to kick her to the ribs and her buttocks. 26The complainant screamed, "you're killing me", to which the respondent replied "oh yeah" and kicked at her again. 27The complainant begged him not to touch her and the respondent yelled at her: "... I'll fucking, I'll kill you ...I swear, I'll like kill you...I'll kill you...I don't give a fuck, you fuck it up... you think I fucking care about you...I don't fucking care. You don't fucking love me. You don't fucking love me." (Agreed Facts at [21]). 28The respondent then dragged the complainant by the hair over to the passenger side of the vehicle and forced her into the front passenger seat. He then picked her up and attempted to force her body into the foot space of the passenger side of the vehicle. The complainant was stuck in the corner of that space with her legs still hanging out of the vehicle.

Stage 4 29The respondent walked around to the driver's side of the vehicle, got into the driver's seat and started driving. The taking of the complainant's vehicle is the subject of item 4 on the Form 1. It is also referred to at [12]-[13] and [22] of the Agreed Facts. The complainant pulled herself inside the vehicle and managed to close the door. 30By this stage, the complainant had also occasioned bruises to her side, back and buttocks, along with minor lacerations to her feet. 31A resident nearby the area where these assaults took place contacted triple-0 and reported what was happening. 32The respondent drove off in a northerly direction along Windsor Road at high speed. The complainant said, "please stop the car", to which the respondent replied, "no I'm going to crash it". The complainant repeatedly told the respondent to slow down or stop and that he was going to kill them both. The respondent replied, "good, I will kill you", "good I have nothing to lose" and continued to repeat the words "I'm gonna kill you, I'm going to crash the car, I don't care about you or anything". 33At approximately 100 metres south of the intersection of the M2 Motorway, the vehicle driven by the respondent almost collided with the rear offside portion of a gold coloured sedan travelling in lane 1 of the motorway. The respondent continued driving at high speed until he had reached the intersection of Cook Street. He turned right at high speed, causing the rear of the vehicle to lose control and slide towards a telegraph pole on the western kerb of Cook Street, narrowly missing it. 34The respondent continued driving at high speed until he reached the intersection of James Street, Baulkham Hills. He attempted to turn left but was travelling too fast and collided with a "keep left" sign on a median strip in the middle of James Street. 35The respondent continued to drive to the top of James Street, where he pulled over to the right-hand side of the roadway and stopped the vehicle outside a unit complex near the intersection of Railway Street. The respondent's manner of driving as set out in the preceding paragraphs gave rise to the offence of drive manner dangerous on the s 166 Certificate. The Agreed Facts also deals with this aspect at [25]-[33]. 36The complainant heard sirens and got out of the vehicle. She was approached by a female. She told the female to call the police. The respondent drove the vehicle into the underground carpark of the unit complex where he remained for a short time, before he returned and approached the complainant and started pushing her and told her to come inside so they could talk. The complainant noticed that the respondent was holding her mobile phone and she unsuccessfully attempted to recover it from him. The respondent then walked back towards the unit complex. 37A male person, who happened to be known to the complainant, followed the respondent and asked him to return the complainant's phone. The male returned with the phone and handed it to the complainant. 38The complainant again rang the triple-0 number and advised the operator of her location. The respondent returned, started screaming at the complainant and tried to take the phone from her. He managed to take the phone from her and threw it against a brick wall causing it to break into pieces. He then walked over to the phone, picked up the pieces and threw them into nearby bushes. The conduct in this respect is the subject of item 3 on the Form 1. It is also referred to in the Agreed Facts at [39]. 39The respondent approached the complainant and attempted to take her into the unit complex upon which she stated, "there is no way I'm going inside". 40At about 4:15 am, police arrived. They observed the complainant to be shaking and crying. She told police what had happened and was conveyed to Westmead Hospital for treatment of her injuries. 41The respondent was placed under arrest and taken to Castle Hill Police Station where he participated in an interview. He denied assaulting the complainant or driving her vehicle.

THE SENTENCING PROCEEDINGS 42The sentence hearing commenced on 12 October 2010 on which date the Agreed Facts (Exhibit A) was tendered. The proceedings were then stood over to 17 December 2010 but did not proceed on that date. 43The proceedings were adjourned to 29 April 2011, but did not proceed until 16 June 2011 on which date material, including medical reports and the report of a psychologist and other evidence was tendered. The respondent also gave evidence on that date, as did his father. 44The proceedings were adjourned and were next listed for hearing on 19 August 2011. The proceedings were again adjourned until 28 October 2011 and on that date the proceedings were adjourned until 15 December 2011. 45On 15 December 2011, the sentencing judge heard submissions from the parties and then adjourned until 8 June 2012. The proceedings were next listed for hearing on 13 June 2012 and on that occasion the sentencing judge delivered his remarks on sentence. 46The sentencing judge set out in detail the relevant facts and referred to sentencing decisions in relation to offences under s 86(1)(b) of the Crimes Act. These included Chaplin v R (2006) 160 A Crim R 85; R v Collett and Robson (Roden J, 7 June 1979, unreported); R v Newell [2004] NSWCCA 183. His Honour stated: "It is quite clear, on my appreciation of the cases, that non-custodial sentences will generally not be appropriate for an offence under s 86 particularly for an offence which is by way of the aggravated form such as the one here ..." (ROS, 13 June 2012, at [17]) 47His Honour noted that it was "useful to assess the objective criminality of the offence against the following criteria" "(i) the relationship of the offender, if any, to the victim. (ii) the mechanism by which the detention was achieved. (iii) the purpose for which the victim was detained. (iv) the harm or injury done to the victim. (v) the circumstances in which the harm was inflicted, (a) in the course of detaining and/or (b) in the pursuance of the purpose of the detention. (vi) the period or duration of the detention. (vii) the holding place where the detention was affected." 48His Honour proceeded to state that he found that the detention of the complainant had been for a matter of some minutes, that the detention was in the complainant's motor vehicle which was being driven by the respondent in a general direction towards her home and the respondent's home: (ROS at [19]). 49His Honour then went on to deal with the personal and subjective factors concerning the respondent at ROS [20]-[22]. He noted that the respondent had been in a relationship with the complainant for seven years. They had been apart for about a year when he came upon her in a shopping centre and the relationship recommenced. However, it appears that the relationship then deteriorated. 50The sentencing judge referred to the report of Dr Westmore, consultant psychiatrist, who obtained a history that the respondent from the age of 19 years had commenced consuming alcohol and at that time he would consume between five and ten mixed drinks on a weekly basis. From about 2006 his alcohol intake became excessive and at the time of the offence, and some time prior, he was drinking five to ten mixed drinks of alcohol three to four times a week. 51The sentencing judge then referred to the respondent's criminal record which included: A charge of affray on 25 November 2006, dealt with at the Downing Centre Local Court on 7 February 2007, for which the respondent was fined the sum of $500. On 18 February 2010 he was convicted at the Parramatta Local Court and fined in relation to a common assault. This offence took place a few days before the offence for which he was being sentenced in the present proceedings. On 8 February 2010 the respondent was dealt with at the Parramatta Local Court in relation to offences of entering a building with intent to commit an indictable offence for which he received 100 hours community service order, contravening an Apprehended Domestic Violence Order in respect of which he obtained a community service order of 100 hours and driving on a road whilst his licence was suspended for which he obtained a fine. 52Those offences, entering the building with intent to commit an indictable offence, the contravention of the Apprehended Violence Order and the driving offence all followed upon his arrest in relation to the offences the subject of the present proceedings. 53The sentencing judge noted that the respondent, at the time of the subject offences, had been trying to re-establish his relationship with the complainant. She had been in a relationship with another person and it appeared that the respondent had been introduced to that other person a couple of days before the offence in question.

The Sentencing Remarks 54The sentencing judge concluded that in all of the circumstances the respondent's record was not such as to disentitle him to some leniency. 55In his evidence, the respondent said that on the evening of the offence he had taken a drug Stilnox (one and a half tablets) which had been prescribed for him. He had also consumed alcohol, including vodka, with a friend prior to committing the subject offences. 56The sentencing judge observed: "In all those circumstances, it seems first of all that the offender was not planning to see [the complainant] on the night. Secondly, that when he went to see [the complainant] to assist her, he had no intention at that stage of doing anything other than either drive her home or be driven home and it seems that his involvement in offending developed on the way home as a result of discussions that he had with [the complainant]. They had a fairly fractured relationship over a period of time and things escalated very quickly. I take into account that he was intoxicated at the time and more importantly, he was affected by Stilnox. ..." (ROS at [30]). 57The sentencing judge noted that the respondent had shown contrition and remorse and that he had written a letter to the complainant in which he expressed his remorse. He had continued to show contrition in relation to his offending which the sentencing judge said had been out of character. 58The sentencing judge brought into account the respondent's ingestion of alcohol and Stilnox on the night of the offences which it was found "... did not assist his dealing with the situation that he found himself in": (ROS at [32]). 59He also noted in the remarks on sentence: "... that the offender has had substantial psychological and psychiatric difficulties and it is quite clear from the material before me that he is doing something about them ..." (ROS at [37]). 60Reference was also made to the reports of Dr Westmore and Dr Bernardi's report and the pre-sentence report dated 28 April 2011 following which the sentencing judge made a finding in these terms: "In my view the offender's mental health at the time did contribute to the commission of the offence ..." (ROS at [40]). 61His Honour then turned the question of sentence and concluded that it was appropriate that the sentence to be imposed be served by way of an Intensive Correction Order. His Honour set out the reasons for doing so which included at [44]: (i) The sentencing cases referred to in the remarks on sentence in relation to the range of offending for offences under s 86(2) of the Crimes Act ... "and the facts as I have found them". (ii) Acceptance that the respondent had taken steps towards his rehabilitation beyond which a court usually sees. In this respect reference was made to the reports of Dr Bernardi and Mr San Giovanni, psychologist, and the rehabilitation course undertaken by the respondent. (iii) The respondent's genuine remorse and his insight and steps that he had taken to deal "... with what was obviously a personal problem producing serious criminal behaviour ...". 62The sentencing judge then proceeded to impose a sentence of 2 years to be served by the intensive correction order pursuant to s 7 of the Crimes (Sentencing Procedure) Act.

GROUNDS OF APPEAL 63The Crown relied upon seven grounds of appeal as follows: "GROUND 1: His Honour failed to impose a sentence that reflected the objective seriousness of the offence. GROUND 2: His Honour erred in ordering that the sentence be served by way of an intensive correction order. GROUND 3: His Honour failed to impose a sentence that properly reflected the taking into account of the four matters on the Form 1 document. GROUND 4: The weight his Honour afforded the respondent's subjective case impermissibly ameliorated the appropriate sentence. GROUND 5: His Honour erred in the manner in which he took into account the mental illness of the applicant. GROUND 6: His Honour erred in disposing of the offence of drive manner dangerous by convicting the respondent without imposing any other penalty pursuant to s 10A Crimes (Sentencing Procedure) Act, 1999. GROUND 7: His Honour erred in imposing sentences that are manifestly inadequate." 64I will deal with the grounds below:

Ground 1: His Honour failed to impose a sentence that reflected the objective seriousness of the offence.

Ground 2: His Honour erred in ordering that the sentence be served by way of an intensive correction order.

Ground 3: His Honour failed to impose a sentence that properly reflected the taking into account of the four matters on the Form 1 document.

Submissions 65These grounds are related and they were dealt with together in submissions.

Crown Submissions 66The Crown's submission was that the offence under s 86(2), the aggravated form of the kidnapping offence, was objectively serious but that the sentence imposed failed to reflect that fact. This position was said to be compounded by the failure by the sentencing judge to properly take into account the Form 1 offences. 67As to the nature of the offence, the Crown submitted that the statutory scheme recognises that a kidnapping offence where the victim sustains actual bodily harm in the context of the offence is more serious and that the threshold for "actual bodily harm" is relatively low and may typically involve bruising and scratching being examples of actual bodily harm. In the present case, it was observed that the actual bodily harm was inflicted both immediately before or at the time the kidnapping offence occurred and following the respondent's actions in having driven the motor vehicle in reverse towards the complainant. 68His actions in grabbing the complainant by the neck and hair and dragging her out of the vehicle, kneeing her in the stomach, causing her to fall to the ground and then kicking her to her ribs and buttocks were said to have constituted actual bodily harm. 69The fact that the respondent took control of the vehicle and drove off whilst the complainant's legs were still hanging out of the vehicle and then drove at high speed despite numerous protestations by the complainant to slow down, and the continued driving at dangerously high speeds whilst telling the complainant that he was going to kill her and crash the car, were all said to indicate or confirm the seriousness of the offence. The effects upon the complainant were said to include: bruising to her side, back and buttocks and minor lacerations to her feet, and the terrifying experience to which the complainant was subjected. 70The Crown contended that the respondent's conduct was brutal, cowardly and inexcusable and that the experience could only be described as fearful and terrifying so far as the complainant was concerned. Those factors, it was contended, were not ameliorated by the fact that the length of the detaining was "a matter of some minutes" or something in the region of 2 kms as found by the sentencing judge. 71The Crown referred to the decision of this Court in R v Hamid (2006) 165 A Crim R 179; [2006] NSWCCA 302 at [65]-[88]. In that case, Johnson J made a number of general observations concerning sentencing for domestic violence offences, which emphasise the exercise of power and control over the victim in domestic violence situations. In that context, both specific and general deterrence are important factors in sentencing, as is the need for denunciation of such conduct and the need to recognise the harm done to the victim and the community consequent upon crimes of domestic violence. 72The Crown referred to the observations of Spigelman CJ in Attorney General's Application under ss 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) [2002] NSWCCA 518; (2002) 56 NSWLR 146 which emphasises the need in taking into account matters on a Form 1 to impose a longer sentence than would have been imposed if the primary offence had stood alone. Additionally, as the Chief Justice there observed, it is wrong to suggest that the additional penalty should be small, sometimes it will be substantial. 73The Crown accepted that not all offences on a Form 1 should ordinarily result in discernable increases in the sentence. However, the respondent's conduct in driving the motor vehicle rapidly in reverse at the complainant, causing her to jump over a small brick wall to avoid being struck, the fact that the vehicle mounted the kerb, crossed the nature strip and struck the complainant's arm, were factors which operate to increase the objective seriousness of the principal offence. 74It was submitted that both individually and collectively the matters on the Form 1 should have resulted in a discernable and significant increase in the sentence imposed for the principal offence.

Submissions on Behalf of the Respondent 75In her written submissions on behalf of the respondent, Ms Manuell SC emphasised the following matters: (i) Duration of the Detention The period over which the offence took place was said to be relevantly short and the distance was only 2-3 kms. (ii) The Extent of Fear or Terror Occasioned It was accepted that the victim was terrified by the respondent's driving and that her terror was exacerbated by the respondent's demeanour and words spoken at the time. (iii) The Purpose of the Detention It was submitted that it would appear that there was no rational purpose for the detention other than for the respondent to take the victim back to the home they had shared. (iv) The Extent (if any) to which Third Parties were Subjected to Ordeal or Anguish by Reason of Fear for the Welfare of the Victim There was said to be no evidence of any third parties being subjected to such matters. (v) Premeditation It was submitted that the offence was not pre-planned. The respondent had not been expecting to see the victim on the night of the offences and only did so when she phoned him late at night because of the problem with the car battery. After he attended and the battery was recharged, and whilst the victim was driving the respondent home, the respondent asked her questions about where she had been that night. Unlike many aggravated kidnapping offences, the s 86(2) offence in this case was said to be spontaneous. (vi) Nature of the Injuries Sustained Whilst the statements by the victim in the Victim Impact Statement were acknowledged, there was no medical evidence or photographs of the victim's injuries tendered in the sentencing proceedings. 76It was accepted, however, that the victim would have been greatly traumatised by the offence. (vii) Domestic Relationship Whilst it was acknowledged that the offence was committed in the course of a domestic relationship which is a matter capable of being an aggravating circumstance, it was submitted that this should not aggravate the seriousness of the s 86(2) offence in this case. A number of stressors affecting the respondent had existed before the offence as detailed in the submissions. These included a serious car accident in which both the respondent and victim had been involved, the victim's miscarriage and the separation of the respondent's parents and the death of the complainant's father. The various problems that existed, it was submitted, placed the offences in the context of a disintegrating relationship where issues of jealousy, anger and mixed messages had not surprisingly arisen. (viii) Seriousness of the Offence It was submitted that although the s 86(2) offence was a serious offence because of the dangerousness of the respondent's driving and the terror the victim experienced, its objective gravity was said to be limited by its spontaneity, its short duration, the respondent voluntarily ceasing the offence, the destination (being a place the victim knew and from which she could obtain assistance), the relatively minor physical injuries inflicted on the victim and the earlier difficulties in the relationship. 77In relation to Ground 3 it was submitted for the respondent that the s 86(2) offence and the Form 1 offences were all part of the same incident and the principle of totality applied. 78Whilst the offences under ss 59(1) and 33B(1)(a) (being offences 1 and 2 on the Form 1) no doubt contributed to the victim's terror on the night, it was observed that the offences took place over minutes and not longer. 79In relation to the offence under s 154A(1)(a), the submission for the respondent was that it was integral to the s 86(2) offence on the basis that it concerned the respondent driving the complainant's car. It was also submitted that the offence under s 195(1)(a) was a significantly lesser offence in which a fine would ordinarily be an appropriate penalty imposed in the Local Court. 80It was submitted that the sentencing judge had given careful consideration to all of the circumstances, both objective and subjective, of the entirety of the respondent's offending behaviour. The sentence imposed in respect of the s 86(2) offence was said to be one which properly punished the whole of his behaviour whilst affording him the opportunity for rehabilitation.

CONSIDERATION 81The offence of kidnapping is the subject of Division 14 of Part 3 - Offences against a person. Section 86 is concerned with three categories of kidnapping offences. The first deals with the "basic offence" of kidnapping by a person who takes or detains a person, without the person's consent: "(a) with the intention of holding the person to ransom, or (ai) with the intention of committing a serious indictable offence, or (b) with the intention of obtaining any other advantage." 82An offence under s 86(1) attracts a maximum penalty of 14 years imprisonment. 83The second category is the aggravated form of the offence: s 86(2). Under that provision a person is guilty of an offence if: (a) the person commits an offence under sub-section (1) in the company of another person or persons, or (b) the person commits an offence under sub-section (1) and at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. 84The maximum penalty for the aggravated form of the offence is imprisonment for 20 years. 85The third form of the offence is the specially aggravated offence. Under s 86(3) a person is guilty of an offence if the person commits an offence under sub-section (1) in the company of another person or persons and where at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. 86The maximum penalty for such an offence is a term of imprisonment for 25 years. 87The facts as set out above, establish that the offender committed a series of assaults upon the complainant immediately before and during the detention, certain of which occasioned actual bodily harm. In addition, the complainant was severely traumatised by the experience to which she was subjected. 88The factors which bear upon the assessment of the seriousness of an offence under s 86 include: "... the circumstances of the detention ..." R v Speechley [2012] NSWCCA 130 at [55] per Johnson J with whom McClellan CJ at CL and Hammerschlagg J agreed. 89The act of unlawfully detaining a person in a motor vehicle whilst it is driven at high speed and otherwise in a reckless manner, needless to say, adds a very serious dimension to the gravity of the offence. 90Whilst the sentencing judge set out a series of "criteria" by which the 'objective criminality' of the offence was to be assessed, only three factors were specifically discussed in relation to the objective circumstances. The first was the duration of the detention which his Honour observed to have been "for a matter of some minutes". The second was the fact that the detention occurred in the complainant's vehicle (at [19]). The third was the fact that the respondent had not been planning to see the complainant on the night in question and did not have any intention of doing anything when he went to see her other than to drive her home. 91The offending conduct, his Honour noted, developed "on the way home as a result of discussions that he had with [the complainant] ..." (at [30]). 92The Agreed Facts, however, simply records that the respondent began to speak to the complainant saying such things as "I bet you had a good night, where did you go?": see para [17] above. 93There was no discussion or evident consideration by the sentencing judge of the following circumstances each of which is relevant to the objective seriousness of the offence under s 86(2). (i) The unlawful detention began with the respondent dragging the complainant by the hair over the passenger side of the vehicle and then attempting to force her into the foot space of the passenger seat, followed by him taking control of the vehicle and driving off with the complainant's legs outside of the vehicle. (ii) The use of the vehicle as a means of effecting the unlawful detention and exposing the complainant to an objectively high risk of serious physical injury. (iii) The combination of assaults upon the complainant by the respondent, after he stopped the vehicle. (iv) Notwithstanding that the offence lasted for "a matter of minutes", the complainant's unlawful detention whilst the vehicle was driven by the respondent at high speed and in reckless manner, with the respondent making statements to the effect that he would kill her, subjected the complainant to a terrifying experience. 94In Regina v Collett and Robson (Court of Criminal Appeal, 7 June 1979, unreported) Roden J stated: "... a second consideration will be the extent to which fear or terror may be occasioned in the detainee, how he or she is treated and what may be required of him or her by the captors ..." 95Although Roden J was addressing the statutory offence of aggravating kidnapping in company contrary to s 86(2)(a) of the Crimes Act, the above observation equally applies to this case. 96The complainant's Victim Impact Statement was before the sentencing judge. It was tendered without objection although, as noted in the written submissions for the respondent, it was in inadmissible form. However, be that as it may, it recorded the psychological trauma experienced during and subsequent to the offences committed by the respondent. Although the sentencing judge must have been aware of the Statement's contents, no specific reference was made to the impact of the unlawful detention had upon the complainant as detailed in her Statement. In particular, his Honour did not record any assessment by him of the significance of the physical and psychological effects of the offences upon the complainant. 97The objective seriousness of the detention was increased by the fact that after forcibly dragging and placing the complainant within the passenger side of the vehicle she was effectively entrapped in a vehicle then driven at high speed. Those circumstances added significantly to the trauma of the detention. 98The respondent, once having placed the complainant in a vulnerable position, then set about abusing the power and control that he held over her by subjecting her to the danger to which I have referred. The abuse of power and control in offences involving domestic violence has been recognised as an aggravating factor: R v Hamid [2006] NSWCCA 302 at [67]-[78] per Johnson J. In R v Glen (Court of Criminal Appeal, 10 December 1994, unreported) Simpson J also stressed the importance of general deterrence in cases of domestic violence. By reason of the prior relationship that had existed between the respondent and the complainant in the present case, the violence of the respondent, occurring as it did in a domestic-type setting, was a factor relevant to the objective seriousness of the offending conduct. 99I have earlier set out the Crown's submission in which it was contended that the respondent's conduct immediately before and during the detention amounted to a serious aggravation of the offence and that it could be properly characterised as "brutal, cowardly and inexcusable". I, with respect, accept that description as entirely apposite and as conveying the gravity of the respondent's conduct. 100In summary, the matters that were relevant in the assessment of the gravity of the offence included the following: (i) The assaults upon the complainant by the respondent immediately before the commission of the offence; (ii) The respondent's actions in detaining the complainant in the motor vehicle and then driving it at high speed. (iii) The respondent's statements directed at the complainant whilst driving at high speed referred to in paragraph [32] above ("good, I will kill you"..."I'm gonna kill you, I'm going to crash the car, I don't care about you or anything"). (iv) The fact that the complainant was subjected to a serious risk of injury whilst the respondent was driving the vehicle in a reckless manner including losing control of it and allowing it to slide, narrowly missing a telegraph pole. 101The presence or absence of a particular type of advantage within s 86(1) does not mean that the presence or absence of the same is decisive in a determination of the seriousness of the particular offence before the Court: R v Newell [2004] NSWCCA 183 per Howie J at [32], Bell and Hislop JJ agreeing. 102The respondent's plea, of course, indicates an acceptance that he did act with the intention of obtaining an advantage. As in Newell, supra, it is clear in this case that he detained the complainant intending to obtain an advantage for himself, whatever that advantage might have been: at [33]. 103The offence committed under s 86(2), in my opinion, required appropriate denunciation and punishment consistent with the provisions of s 3A of the Crimes (Sentencing Procedure) Act. 104In relation to the matters on the Form 1, as earlier indicated, the first and second items on the Form 1 were significant. Whilst the sentencing judge noted that the Form 1 matters should impinge upon the sentence for the principal offence, as the Crown observed, it is unclear from his Honour's remarks on sentence, what impact he intended that the matters on the Form 1 should have on the ultimate sentence to be imposed. 105In Attorney General's Application Under S 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) [2002] NSWCCA 518; 56 NSWLR 146, Spigelman CJ formulated a number of propositions as to the process for taking into account matters on a Form 1. They included: (i) That the entire point of the process is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone. (ii) It is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial. (iii) The relevant authorities focus on the sentence that is appropriate for the charge on the indictment, with a view to increasing it by reason of the Form 1 offences for which guilt has been admitted: at [18]-[19]. 106In addition, the Chief Justice observed: "... although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty of the primary offence is one. The principle of totality is another." (At [42]). 107The first matter on the Form 1, as set out above, was "assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act (maximum penalty: 5 years imprisonment". 108The facts concerning the respondent's assaults upon the complainant have been set out earlier. Striking the complainant to the face with his right arm, pulling her hair, pushing her against the door of the vehicle and her face against the window, resulting in bruising to the complainant's face and forehead, indicates that the assaults cannot be regarded as trivial or of no consequence. Although not at the high end of the range, they were nonetheless significant and ought to have been reflected in the sentence imposed. 109In relation to item 2 on the Form 1 involving the respondent rapidly reversing the vehicle towards the complainant causing her to jump over the small brick fence and striking her on the arm, that involved a serious offence, involving a motor vehicle and ought to have been reflected in the sentence imposed. 110The latter offence under s 33B(1)(a) of the Crimes Act attracted, as noted above, a maximum penalty of 12 years imprisonment. 111I accept the Crown's submission that the actual sentence imposed bespeaks error. Although his Honour adverted to the need to take into account the matters on the Form 1, the sentence imposed, in my opinion, does not reflect a sentence that properly took into account items 1 and 2 on the Form 1. Accordingly, Ground 3 has been established. 112Ground 1, failure to impose a sentence that reflected the objective seriousness of the offence, in my opinion has been made out. 113I have also concluded that the sentencing judge erred, in terms of Ground 2, in ordering that the sentence be served by way of an Intensive Correction Order. I do not consider that the service of the term of imprisonment by Intensive Correction Order imposed by the sentencing judge was commensurate with the offence. 114The general principles in relation to Intensive Correction Orders were the subject of consideration in R v Tannous; R v Fahda; R v Dibb [2012] NSWCCA 243 by Basten JA at [11] to [25]. See also R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225 at [96]-[100]. 115In Tannous Basten JA observed that the service of a sentence by way of Intensive Correction in the community is a more lenient penalty than full-time imprisonment, a fact that was acknowledged by the parties in that case, although there have been differing views expressed as to the degree of leniency involved: see in this respect R v Boughen; R v Cameron [2012] NSWCCA 17 at [111] and Whelan v R [2012] NSWCCA 147 at [120]. 116Intensive Correction Orders are, of course, a form of imprisonment and have been treated as having a significant punitive effect. However, it is necessary to consider the nature of the offence in question in each case and the relevant circumstances concerning the objective seriousness of the offence in determining whether such an order is appropriate. 117The aggravated form of the kidnapping offence under s 86(2) Crimes Act carries, as earlier indicated, a maximum penalty of imprisonment of 20 years. In a case such as the present where the aggravating factor is actual bodily harm caused by acts immediately prior to and/or during the detention, and in which the victim is subject to psychological trauma in a motor vehicle driven at high speed and in a reckless manner it is apparent that the gravity of such an offence is significant. Taking into account all of the objective factors to which I have earlier referred concerning the offending in the present case, I have concluded, as earlier indicated, that the imposition of an Intensive Correction Order is not an appropriate form of punishment. In particular, it does not sufficiently address the issue of general deterrence in a case of this kind.

Ground 4: The weight his Honour afforded the respondent's subjective case impermissibly ameliorated the appropriate sentence

Ground 5: His Honour erred in the manner in which he took into account the mental illness of the applicant 118These two grounds were argued together. 119The Crown accepted that the respondent was able to demonstrate persuasive subjective circumstances, particularly in terms of his rehabilitation, but it was submitted that the sentencing judge's attention to the subjective considerations resulted in inadequate weight being given to the objective circumstances of the case. 120It is well established that there ought to be a reasonable proportionality between a sentence and the circumstances of the crime: R v Geddes (1936) 36 SR (NSW) 554 at 556 per Jordan CJ and R v Dodd (1991) 57 A Crim R 349 at 354 per Gleeson CJ, Lee CJ at CL and Hunt J. 121In the latter case, the court observed that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without such an assessment the other factors requiring consideration in order to arrive at a proper sentence to be imposed cannot be given their place. 122The issue raised by Grounds 4 and 5, raise for consideration the question as to whether or not the sentence imposed reflects inadequate weight having been attached to the objective circumstances of the offending. The Crown referred to the fact that the sentencing judge found that the respondent's mental health at the time "contributed" to the commission of the offence. The Crown, however, also observed that his Honour did not appear to go so far as to find that the respondent acted without knowledge of what he was doing or the gravity of his actions. This, the Crown noted, was understandable given that the offence the respondent pleaded guilty to is an offence of specific intent: s 428B Crimes Act. 123Dr Westmore, forensic psychiatrist, examined the respondent on 5 April 2011 and provided a report dated 11 April 2011 (Exhibit 1). 124He obtained a family history from the respondent which included the fact that in May 2006 he and the complainant had been involved in a serious motor vehicle accident after which he believed that both he and the complainant developed a range of psychiatric symptoms. The respondent said that, in particular, he suffered flashbacks. The history was that he had suffered similar symptoms when he was in year 12 and had been the victim of an armed hold-up when working in a video store. 125He was treated with antidepressants and prescribed Stilnox because he was having problems sleeping after the motor vehicle accident. 126The history was that although he was working full-time in the finance industry he had become depressed in mood and in due course his relationship with the complainant deteriorated. In September 2006, the complainant had a miscarriage, which caused further strain on the relationship. The history was that they separated around May 2007 but initially remained in contact. After some 13 months they met accidentally in a shopping centre and their relationship recommenced. 127By early 2009, he was drinking to excess and he had been resorting to alcohol. The relevant history included the fact that one or two months before the offence on 5 July 2009 the respondent heard that the complainant was having a relationship with another man. 128On the night of the offence, he and a friend had shared a bottle of vodka and he had also taken two tablets of Stilnox. 129Dr Westmore opined that the respondent had suffered episodes of depression and had previously been diagnosed as having a Post-Traumatic Stress Disorder. 130As at July 2009, he was depressed and abusing alcohol quite heavily. 131A report by Dr Bernardi, psychiatrist, stated that she had examined the respondent on 14 June 2011 and considered that he suffered from major depression and would benefit from an antidepressant medication as well as counselling. She stated that the combination of alcohol abuse and Stilnox had led to pathological intoxication and contributed to the assault which occurred against a background of a dysfunctional relationship. 132A psychologist report by Mr Sirgiovanni dated 19 April 2011 was tendered at the sentence hearing (Exhibit 3). Mr Sirgiovanni expressed the opinion that the respondent suffered from a mixed anxiety and depressive disorder. 133Finally, a report of Professor Graham A Starmer (Exhibit 4) expressed the view that the respondent's consumption of a substantial amount of alcohol and a dose of Stilnox was capable of influencing the respondent's behaviour in an emotionally charged situation. 134On analysis it is clear that there was little by way of evidence that established that the respondent acted without knowing what he was doing at the time of the offences, or that he had no appreciation or knowledge of the gravity of his actions. As the Crown observed, having consumed Stilnox and a large quantity of alcohol he was able to demonstrate a presence of mind to contact another friend to drive him to meet the complainant and then take them to the complainant's car. 135Upon arrest, the respondent was able to take part in an ERISP where he denied that he had assaulted the complainant or driven her vehicle. 136The evidence establishes a history of the respondent having previously combined Stilnox with excessive quantities of alcohol. Although there was a history of depression and that his consumption of alcohol and Stilnox may have exacerbated it, I do not consider that the evidence as to the respondent's mental health substantially reduced his culpability. 137In the circumstances to which I have referred, and taking into account the subjective case presented on behalf of the respondent, I consider that the sentence imposed was disproportionate to the objective gravity of the offence. 138Accordingly, I consider that Ground 5 should be upheld.

Ground 6: His Honour erred in disposing of the offence of drive manner dangerous by convicting the respondent without imposing any other penalty pursuant to s 10A Crimes (Sentencing Procedure) Act 1999 139Although the offence attracted a maximum penalty of only 9 months imprisonment and/or a fine of 20 penalty units, the circumstances of the offence did, in my opinion, require a penalty to be imposed. 140The relevant factors include the respondent driving at a high speed over a distance in a built-up residential area in a manner which led to him losing control of the vehicle, at one point narrowly missing another motor vehicle and later colliding with a traffic sign. Clearly, the potential for danger in the circumstances was high both to the complainant and to other members of the public. 141The sentencing judge stated: "... in all the circumstances and taking into account his driving record and taking into account the sentence that I have already imposed I deem it inappropriate to impose any penalty but I convict him and I disqualify him for a period, which is the minimum period of 6 months" (later corrected to the statutory minimum of 12 months). 142The sentencing judge did not elaborate as to why he considered it "inappropriate" to impose "any" penalty. The offence was clearly a serious offence of its kind. I accept the submission made on behalf of the Crown that it warranted more than just recording of a conviction without penalty. 143The fact that the sentencing judge had imposed a sentence for the offence under s 86(2) did not provide a sufficient basis for not imposing any penalty. His Honour, of course, was required to consider, inter alia, the objective seriousness of the offence and to impose a sentence and then proceed to determine matters of concurrency and accumulation. This his Honour failed to do. 144I accordingly am of the opinion that Ground 6 should be upheld.

Ground 7: His Honour erred in imposing sentences that are manifestly inadequate 145This ground has essentially been addressed in discussion of the other grounds relied upon by the Crown. 146Given the seriousness of the offence under s 86(2) of the Crimes Act I do not consider that a two year Intensive Correction Order was sufficient to punish the respondent and denounce his conduct. The objective seriousness of the offence could not, in my assessment, be regarded as at the low end of the range for such offences. The imposition of an Intensive Correction Order did not give sufficient effect to general or specific deterrence. 147On the hearing, evidence was given which indicated that the respondent has made significant progress towards rehabilitation and has secured ongoing employment and his personal life has stabilised. 148The Crown has submitted that this is an appropriate case for the Court to exercise its discretion under s 5D(1) and s 5DB(2) of the Criminal Appeal Act to vary the sentences imposed and to impose such other sentence or sentences as the Court considers proper. 149I have concluded, notwithstanding the strong subjective circumstances established by the respondent, that the objective seriousness of the s 86(2) offence and items 1 and 2 on the Form 1 required the imposition of a sentence involving a term of full-time custodial imprisonment.

TOTALITY 150The respondent's offending conduct occurred over one period in the early hours of 5 July 2009. It may be considered in terms of three categories of offending: (i) The assaults occurring before the unlawful detention of the complainant. (ii) The unlawful detention of the complainant during which she was assaulted. (iii) The driving of the motor vehicle in a dangerous manner, including at high speed. 151In relation to the latter offence under s 42(2) of the Road Transport (Safety and Traffic Management) Act 1999, the potentiality of danger associated with driving at such a speed in a residential area is apparent. The Crown submitted that, objectively, it was a serious example of an offence under that provision which warranted more than just the recording of a conviction without penalty. 152As I have already indicated, the sentencing judge was required, in my opinion, to determine and impose a sentence which reflected the objective seriousness for that offence. He was then required to consider whether the sentence should have been served concurrently or cumulatively with the other sentences in order to arrive at an appropriate sentence that reflected the total criminality of the respondent: Pearce v R (1998) 194 CLR 610. 153I am of the opinion that by taking into account, in determining the sentence for the offence under s 86(2) of the Crimes Act, the seriousness of the dangerous manner in which the respondent drove the vehicle as an aggravating factor in the determination of sentence for that offence, the sentence required to be imposed in respect of the offence under s 42(2) of the Roads Transport (Safety and Traffic Management) Act ought to be wholly concurrent with the sentence to be imposed for the offence under s 86(2) of the Crimes Act.

DISCRETION 154The Court has a discretion to decline to interfere, even when satisfied that the sentence is manifestly inadequate: Criminal Appeal Act, s 5D(1); Green v R; Quinn v R [2011] HCA 49; 244 CLR 462 at [1] and [24]. 155Ms Manuell SC on behalf of the respondent submitted that, should error be found, the Court should exercise its discretion not to intervene. In that respect it was observed that, as at the date of the hearing of the appeal, three and a half years had past since the respondent committed the subject offences. After he was charged, it was noted he was on bail and reporting to the police three times a week for a period of nearly three years before sentence. 156Since being charged he has: (i) Obtained and maintained employment; (ii) Established a new and healthier relationship; (iii) Re-established a supportive relationship with both of his parents; (iv) He has been required to submit to regular urinalysis since sentence and has not failed any such testing; and (v) He has undergone psychiatric and psychological treatment for his depression. 157It was further noted on his behalf that, since being sentenced, the respondent has complied with all of the conditions of his Intensive Correction Order and become a parent for the first time. 158It was submitted that the respondent is, effectively, well on his way to full rehabilitation. The sentences imposed on the respondent, it was submitted, had achieved, or continued to achieve, all of the purposes of sentencing set out in s 34 of the Crimes (Sentencing Procedure) Act. 159The particular matters to which attention has been drawn as set out in paragraph [156] above are very important matters to be taken into account in determining whether the residual exercise should be exercised. Additionally, the issue of delay itself and anxiety and distress arising from the appellate process are all matters to be considered. 160There is no doubt that the period of time taken during the sentencing process in the District Court was both substantial and unusual and is regrettable indeed. It is to be considered in the context of the further delay that has arisen through the hearing and disposition of the Crown appeal. 161The respondent relied, in the event of re-sentencing, upon his own affidavit declared and affirmed on 19 November 2012 as well as the affidavit of Vanessa York affirmed on 13 November 2012. That evidence supports the matters to which I have referred in paragraph [156]. 162Balanced against the matters to which I have referred is the need to consider, in the context of the present case, the purposes of sentencing as stated in s 3A of the Crimes (Sentencing Procedure) Act which are expressed to include: (a) to ensure that the offender is adequately punished for the offence. (b) to prevent crime by deterring the offender and other persons from committing similar offences. (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender. (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 163Whilst the evidence establishes that the offender has, to date, successfully achieved milestones in his progress towards rehabilitation there is a need for the matters referred to in sub-paragraphs (a), (b), (e), (f) and (g) to be considered. 164Each of the matters set out above has required careful consideration be given to whether or not this Court should intervene. Having regard to the full circumstances of the offending and to the leniency of the sentences imposed I consider that the case is not an appropriate one in which to decline to intervene. 165In re-sentencing the respondent, it is necessary to determine what allowance should be made for the time served "in the community". On one view, as the sentence imposed by the sentencing judge was one of imprisonment, the circumstances of the imprisonment should be disregarded and the respondent should be allowed credit for the whole of the term served. 166I have determined that an appropriate starting point is 3 years 6 months imprisonment. 167The respondent pleaded guilty on the first day of his trial. Before the sentencing judge the Crown had submitted that the maximum appropriate discount to reflect the utilitarian value of the plea should be no greater than 15%. The sentencing judge determined that the sentencing discount for the plea should be 15%. 168On re-sentencing, allowing for a discount of 15% would result in a sentence of 2 years and 11 months. On the basis of the respondent's age and the evidence as to his good rehabilitation prospects I consider a finding of special circumstances is appropriate in the present case and I accordingly make such a finding. On that basis the statutory ratio of the non-parole period to the balance of term will be varied and will be reflected in the re-sentencing orders proposed. 169On the above basis I am of the opinion that the respondent should be re-sentenced in relation to the offence under s 86(2) upon the basis of a non-parole period of 1 year 6 months to commence on 22 June 2012 with a balance of term of 1 year 5 months to expire on 21 May 2015. Time served under the Intensive Correction Order is to count as part of the sentence to be imposed under the re-sentencing orders. 170The respondent should be sentenced to a fixed period of 6 months in respect of the offence committed by him under s 42(2) of the Road Transport (Safety and Traffic Management) Act 1999, such sentence to be wholly concurrent with the sentence to be imposed with respect to the offence under s 86(2) of the Crimes Act 1900. 171The respondent has been convicted of the offence charged under s 42(2) of the Road Transport (Safety and Traffic Management) Act 1999 by the order made by the District Court on 13 June 2012. The sentencing judge also made an order under s 188(2)(d)(ii) of the Road Transport (General) Act 2005 disqualifying the respondent from holding a driver licence for a period of 12 months. 172This lastmentioned order, however, was not specifically identified or referred to in the Grounds of Appeal, although there was reference to it in the Crown's written submissions at [80] and in the respondent's written submissions at [52]. 173The Crown's submission that the Court should vary the "sentence" the subject of the appeal under s 5DB of the Criminal Appeal Act 1912 does not, in my opinion, with sufficient specificity, identify the s 188(2)(d)(i) order as part of the appeal brought by it under s 5DB, although the terms of that section having regard to the definition of "sentence" in s 2(1) of the Act, may have application to such an order. In those circumstances I do not consider, by reason of procedural fairness and discretionary considerations, that this Court should interfere with the order shortening the "automatic disqualification" specified in the lastmentioned order. 174The action taken by the sentencing judge in not imposing a penalty in respect of the offence under s 42(2) of the Road Transport (Safety and Traffic Management) Act is taken to be, for the purpose of the Criminal Appeal Act, a sentence passed by the court on the conviction of the offence: s 10A(2) Crimes (Sentencing Procedure) Act 1999. 175Accordingly, the appeal under s 5DB in these proceedings concerns only the sentencing judge's action in not imposing a penalty as noted above. That "sentence" in that respect should be set aside in accordance with the re-sentencing orders I propose.

RE-SENTENCING ORDER 176I propose the following orders: (1) Appeal by the Crown upheld. (2) The sentences imposed by Jeffreys DCJ in the District Court on 13 June 2012 be set aside. (3) The respondent, in respect of the offence contrary to s 86(2) of the Crimes Act 1900, be re-sentenced to a term of imprisonment of 2 years and 11 months comprising a non-parole period of 1 year and 6 months to commence on 22 June 2012 and to expire on 21 December 2013 with a balance of term of 1 year and 5 months to expire on 21 May 2015. (4) Order that the time served by the offender pursuant to that sentence imposed in the District Court is to count as part of the sentence imposed by the Court. (5) An order that the respondent be released on parole on 21 December 2013. (6) The respondent, in respect of the offence contrary to s 42(2) of the Road Transport (Safety and Traffic Management) Act 1999 be sentenced to a fixed term of imprisonment of 6 months to commence on 22 June 2012 and to expire on 21 December 2012. 177CAMPBELL J: This Crown appeal has two parts. The first is an appeal under s.5D Criminal Appeal Act 1912 ("Appeal Act") against the sentence passed on the respondent in the District Court of New South Wales by his Honour Judge Jeffreys on 13th June 2012 for an offence contrary to the provisions of s.86(2)(b) Crimes Act 1900 (NSW) ("Crimes Act"). The second is an appeal brought under s.5DB Criminal Appeal Act 1912 (NSW) against the sentence passed on the same day in respect of "a related summary offence" specified in a certificate under s.166 Criminal Procedure Act 1986 ("Procedure Act"). 178The indictment relevant to the s.5D Appeal Act appeal averred: On 5 July 2009 at Northmead and elsewhere in the State of New South Wales, [the respondent] took [the victim] without her consent, with intent to obtain an advantage, namely to intimidate her and to have physical control over her and at the time of and immediately before the taking, actual bodily harm was occasioned to her. 179The respondent pleaded guilty to the charge on the indictment on the first day of trial, 12th October 2010. On sentence for the principal offence he requested the Court to take four additional offences into account on a Form 1. Those four additional offences, which I will detail later, arose out of the same episode of criminality as gave rise to the principal offence. I should not be taken as suggesting that this consideration is decisive of any question arising in this appeal. 180The related summary offence was one of driving in a manner dangerous. This offence was committed contemporaneously with the principal offence. An additional related summary offence of common assault, a backup offence, was withdrawn after sentence on the principal offence. 181For the principal offence (taking into account the Form 1 offences), the primary judge sentenced the respondent to imprisonment for a period of two years to be served by way of intensive correction order under s.7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act"), commencing on 22nd June 2012, the day on which the sentence was passed. The intensive correction order was subject to conditions imposed under the Crimes (Administration of Sentences) Act 1999 (NSW) ('Administration Act") and the regulation made thereunder. 182In respect of the serious driving offence, the primary judge, exercising his powers in that regard under s.10A Sentencing Act, convicted the respondent and disposed of the proceedings without imposing any additional penalty, except for disqualifying the respondent from holding a driver's license for a period of 12 months commencing on 13th June 2012, the day on which the sentences were passed.

The grounds of appeal 183The Crown advanced seven grounds of appeal as follows: GROUND 1: His Honour failed to impose a sentence that reflected the objective seriousness of the offence. GROUND 2: His Honour erred in ordering that the sentence be served by way of an intensive correction order. GROUND 3: His Honour failed to impose a sentence that properly reflected the taking into account of the four matters on the Form 1 document. GROUND 4: The weight his Honour afforded the respondent's subjective case impermissibly ameliorated the appropriate sentence. GROUND 5: His Honour erred in the manner in which he took into account the mental illness of the applicant. GROUND 6: His Honour erred in disposing of the offence of drive in a manner dangerous by convicting the respondent without imposing any other penalty pursuant to s10A Crimes (Sentencing Procedure) Act, 1999. GROUND 7: His Honour erred in imposing sentences that are manifestly inadequate. 184In written submissions and orally, the Crown grouped grounds 1 - 3 and, then 4 - 5, together. Ground 6 was addressed separately. Ground 7 received little by way of separate attention, but with respect, it may be that, properly understood, Grounds 1 to 5 were really particulars of Ground 7, and the real complaint of the Crown is one of manifest inadequacy: Dinsdale v. The Queen [2000] HCA 54; 202 CLR 321 at 325 per Gleeson CJ and Hayne J. 185The thrust of the Crown's argument was that a consideration of all facts, matters and circumstances appropriate to be considered in sentencing for the principal offence including: the objective seriousness of the offending; the need to take into account the additional offences; the need to fix an appropriate sentence for each of the principal offence and the s.166 matter; and the weight properly due the respondent's subjective case, required nothing less than a full time custodial sentence. An important corollary of the Crown's main argument is that, in all relevant circumstances, an intensive correction order served in the community is too lenient because it did not reflect the necessary "reasonable proportionality between a sentence and the circumstances of the crime": R. v. Geddes (1936) 36 SR (NSW) 554 at 556; R. v. Dodd (1991) 57 A Crim. R 349 at 354.

Crown appeals 186In my judgment proper resolution of the appeals involves calling to mind two important considerations. First the rule of restraint required to be exercised as a matter of principle in the disposition of Crown appeals. And, secondly, a proper understanding of the nature of intensive correction orders. Both these matters are settled in principle and nothing in what I write is likely to extend the reader's understanding of them. But, sometimes, the exposition of one's understanding even of matters of settled principle assists in exposing the process of reasoning which leads to the conclusion expressed. 187In Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at 500 [112] Bell J spoke of: ..[t]he distinctive nature of Crown appeals, which is that they should be brought as a rarity to establish a matter of principle including, where appropriate, to address manifest inadequacy in sentencing standards. (Emphasis added; citations omitted.) Her Honour's dissent does not affect the accuracy of this statement. In their majority joint judgment, French CJ, Crennan, and Kiefel JJ said at 466 [2]: In Crown appeals, circumstances may combine to produce the result that if the appeal is allowed the guidance provided to sentencing judges will be limited and the decision may occasion injustice. And at 477 [36] their Honours explained that the focus upon general guidance of sentencing courts "is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion". These principles particularly affect the existence and exercise of the "residual discretion" which is "a discretion to decline to interfere even though the sentence is erroneously lenient": at 466 [1]. This discretion has not been extinguished by the enactment of s68A Crimes (Appeal and Review) Act 2001 (NSW) excluding the element of double jeopardy as a limiting consideration in the determination of a Crown appeal: at 471-2 [26]. It will be necessary to return to these considerations later in these reasons. 188To ascertain their true nature, and to enable due consideration of the argument in the light of the particular circumstances of the case, it may be useful to summarise the law relating to intensive correction orders now.

Intensive correction orders 189Intensive correction orders (sometimes referred to in these reasons as ICOs) are a relatively new sentencing option first introduced in New South Wales on the enactment of the Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (NSW) which commenced on 1st October 2010. 190The statutory provisions relevant to the making of intensive correction orders are ss.5, 7, 64 - 73A Sentencing Act; Part 3 Crimes (Sentencing Procedure) Regulation 2010 ("Sentencing Regulation"); Part 3 (ss.80 - 93) Administration Act and Chapter 3 (Clauses 174 - 178) Crimes (Administration of Sentences) Regulation 2008 (NSW) ("Administration Regulation"). Similar sentencing options are available elsewhere in Australia and New Zealand: R. v. Tannous [2012] NSWCCA 243 at [19] - [21] per Basten JA (Hall and Beech-Jones JJ agreeing). 191Before Tannous, the legislation had been considered by this Court a number of times, which decisions are analysed and discussed by a five - judge bench in R. v. Pogson; R. v. Lapham; R. v. Martin [2012] NSWCCA 225; 91 ACSR 420 at [79] - [93] per McClellan CJ at CL (as he then was) and Johnson J; Price (substantially), R.A. Hulme and Button JJ agreeing. As the relevant statutory provisions are set out in the joint judgment in Pogson from [38] - [67], it is unnecessary for me to reproduce them here. The expanded court was constituted in Pogson to resolve uncertainties arising from previous decisions concerning the circumstances in which an intensive correction order is available as a sentencing option. The Court as presently constituted is bound by that decision. Therefore, it is unnecessary for me to undertake the same review and analysis again. Rather, I gratefully draw upon the conclusions expressed in Pogson for the purpose of this case. 192It is not necessary for me to set out the legislative history, or draw upon the materials that may be admissible under s.34 Interpretation Act 1987 (NSW). This material has already been referred to in the joint judgment in Pogson and informs the conclusions expressed there: see also Tannous [11] - [25]. 193If one first considers, as one must, the statutory scheme, it is in my view fundamental to bear in mind that an intensive correction order is intended by the Legislature, in an appropriate case, to operate as a means of serving a term of imprisonment: s.7 (1) Procedure Act. This means that a court considering an intensive correction order must first have been satisfied "having considered all possible alternatives, that no penalty other than imprisonment is appropriate": s. 5 (1) Sentencing Act. Sight should not be lost of the consideration, implicit in the section, that imprisonment is the most severe penalty available to a sentencing court. As it is put in the joint judgment in Pogson (drawing upon Wehlan v. R. [2012] NSWCCA 147 at [120] per Schmidt J, Allsop P (as he then was) and Davies J agreeing): It should be kept in mind that an ICO is a substantial punishment to be utilised in an appropriate case: Wehlan at [120]. However, as with all sentencing options which do not involve immediate incarceration, it may also reflect a significant degree of leniency: Wehlan at [120]. Their Honours also pointed out "the severity of an ICO has been underscored in several Victorian decisions". At [111] McClellan CJ at CL and Johnson J observed: However, ... the stringent conditions attached to an ICO ensure that an offender subject to such an order is not living a carefree existence amongst the community. An ICO deprives an offender of his or her liberty in a real and not merely fictional sense. 194At [72] their Honours described the mandatory conditions imposed by dint of s.81 Administration Act, and contained in Clause 175 Administration Regulation, as "prescriptive and intrusive". 195The sanction for any breach of an intensive correction order is in the hands of the executive branch of government under the Administration Act. The options available to the Commissioner of Corrective Services, and the Parole Authority, respectively, escalate in severity. In appropriate circumstances, the Parole Authority is authorised by s.163 Administration Act, after complying with statutory conditions, to make an order revoking the intensive correction order. The effect of the revocation order is that the offender is taken into custody: s.164 Administration Act. Under s.165 Administration Act, the Parole Authority "may make an order re-instating the offender's intensive correction order in respect of the remaining balance of the offender's sentence" but only after the offender has served at least one month of the sentence by way of full time detention. 196As it was put in the joint judgment at [100]: It is apparent that the mandatory conditions may operate to impose significant restrictions on an offender's freedom. And, of course, a breach of the conditions may result in his or her sentencing regime being altered, including being required to serve the balance of the sentence in full-time custody. 197It is an important aspect of the ratio of Pogson that the only categories of offence "or offenders" excluded from the potential availability of an intensive correction order are prescribed sexual offences (and offenders), the subject of s.66 Sentencing Act. 198The availability of an intensive correction order is not restricted to offenders who have a particular need to be rehabilitated, that is to say those who need to be corrected from criminal engagement and thereby prevented from re-offending by the supervised observance of the mandatory conditions to which they will be subject. For in the sense discussed by King CJ in Vartzokas v Zanker (1989) 51 SASR 277 at 279, "every offender is in need of rehabilitation": Pogson at [17] - [125].

Statutory procedures 199In Tannous, at [12] - [14], Basten JA described the specific procedures to be followed for the making of an intensive correction order in the following terms: [12] Part 5, by contrast, is specific to procedures for intensive correction orders: s 64-73A. An intensive correction order is not available in respect of certain sexual offences: s 66. Further, it may not be made unless the court is satisfied with respect to the conditions of eligibility in s 67. These include satisfaction that the offender is "a suitable person" to serve the sentence by way of intensive correction in the community: s 67(1)(b). [13] Section 69 states that before imposing a sentence of imprisonment "the court may refer the offender for assessment as to the suitability of the offender for intensive correction in the community": s 69(1). Whilst that provision confers a power, it appears that the obtaining of such a report is a necessary pre-condition to making such an order because there is a requirement for the court, in taking that step, to have regard to the contents of the assessment report on the offender: s 67(2)(a). Further, the power to make such an order is conditioned upon an affirmative assessment that the offender is a suitable person to serve the sentence in the community: s 67(4). A finding of suitability does not, however, mandate such an order: s 67(3). [14] The exercise of the power to make an intensive correction order is not solely contained within the Sentencing Procedure Act. There is a further requirement that the sentencing court impose conditions, prescribed as mandatory conditions by the Crimes (Administration of Sentences) Regulation 2008 (NSW), the obligation being imposed by s 81(2) of the Crimes (Administration of Sentences) Act 1999 ("the Administration Act"). 200The steps necessary to be followed in compliance with all of the provisions of the Sentencing Act before a sentencing judge may make an intensive correction order are as follows: (1)Satisfaction of the requirements of s.5(1): "no other penalty than imprisonment is appropriate"; (2)Imprisonment for how long? As a matter of principle "the term of the sentence cannot be influenced by what order might be made after the sentence has been imposed": R. v. Douar [2005] NSWCCA 455; 159 A Crim R 154 at [72]. But at this stage, the question of the appropriateness of an intensive correction order must have been raised, or suggested itself, because of s.69. As Basten JA has pointed out, referral of the offender for assessment as to his or her suitability for an intensive correction order is mandatory before any final decision is made. Moreover, s.69 (2) Sentencing Act provides: A court is not to refer an offender for such an assessment unless satisfied, having considered all the alternatives, that no sentence other than imprisonment is appropriate and that the sentence is likely to be for a period of no more than 2 years. It is impermissible for a court to either shorten or extend the period proposed to justify the making of the order: R. v. Stephen [2003] NSWCCA 377 at [23] R. v. Ngo [2005] NSWCCA 107 at [33] (both decisions were concerned with periodic detention). Also, because s.7 (2) of the Sentencing Act prohibits the setting of a non-parole period, the usual order of things is varied. Section 44(1) requires a Court to "first ... set a non-parole period for the sentence". Normally, because the non-parole period is the minimum time that an offender must serve, its length is the "primary perspective" of the sentencing process: Power v The Queen (1974) 131 CLR 623 at 627 - 629; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at 716[55] - 717 [57]. Accordingly the sentencing court must have formed a provisional view "that the sentence is likely to be for a period of no more than 2 years". This is a reference to the total term, not a non-parole period, even if fixed terms are usually equated with non-parole periods; (3) The court then must refer the offender for assessment as to the suitability of the offender for intensive correction in the community. The assessment is carried out on behalf of the Commissioner of Corrective Services: s.70 Sentencing Act; Clause 14 Sentencing Regulation. Obviously, this will involve an adjournment of the proceedings on sentence. (4) When the sentencing proceedings resume, the court, "for any sufficient reason", may decline to make an intensive correction order "despite the contents of the assessment report" s.67(3). But it may only make an intensive correction order if it is satisfied of the matters contained in paragraphs (a) - (d) inclusive of s.67(1). Of these, the Court may only be satisfied that the offender is a suitable person "if the assessment report states, that in the opinion of the person making the assessment, the offender is a suitable person to serve the sentence by way of intensive correction in the community": s.67(4). And an order may be made only if the Court is satisfied "that it is appropriate in all of the circumstances": s.67(1)(c). Naturally, such satisfaction will depend upon the consideration of all the facts, matters and circumstances appropriate to the sentencing task generally including the principles that underpin sentencing law. Section 68 imposes limits on the imposition of an intensive correction order concurrently, or consecutively, with other terms of imprisonment; (5) By dint of s.81(2) of the Administration Act, the Court must make an order imposing the conditions specified in Clause 175 of the Regulation made under that Act. Other conditions may be imposed as a matter of discretion. 201From step (3) onwards it is clear that the focus of the process is on the suitability of the offender to serve his sentence by way of intensive correction. This will require a particular emphasis on the "subjective features" of the case. Of course, a decision that the circumstances of the offence and the offender are inconsistent with the degree of leniency implicit in an intensive correction order will be "sufficient reason" for declining to make the order notwithstanding an assessment favouring the offender. 202In my judgment it is relevant to bear in mind these statutory requirements, and the way they impact upon sentencing practice, when considering, and assessing, the sentencing judge's reasons for sentence.

Proceedings in the District Court 203The offence was committed on 5th July 2009 and the respondent was arrested on the same day, but released on conditional bail. Additional conditions were imposed when he came before the Local Court on 10th July 2009. 204When arraigned in the District Court on 12th October 2010, the respondent pleaded guilty. A pre-sentence report was ordered and for that purpose the bail conditions were amended requiring the respondent to attend the Burwood Office of the Probation and Parole Service by a specified time and thereafter as directed. The proceedings were adjourned to 17th December 2010. The respondent kept his appointment, but the pre-sentence report initially produced was very short because the author became ill. When the matter was again before the District Court on 17th December, a further pre-sentence report was ordered and the matter was again adjourned, this time to 29th April 2011. The second report was provided on 28th April 2011, but the matter was "not reached" on 29th and stood-over to 16th June 2011 when it came before the sentencing judge. Substantial evidence was taken on that day including the testimony of the respondent. 205The evidence tendered on behalf of the respondent included a report of Dr. Elsa Bernardi, psychiatrist, of 15th June 2011 (Exhibit 2). She recorded a history of the consumption of the sleeping medication Stilnox, in combination with the consumption of alcohol earlier in the evening, before the commission of the offence. Dr. Bernardi expressed the view that "this combination led to pathological intoxication and contributed to the assault". 206During the course of argument, the sentencing judge quizzed counsel about this phenomenon. His Honour said he would be "very interested" to receive further evidence about this matter, which prompted an application for an adjournment on behalf of the respondent, consented to by the Crown (16/06/11 extract of transcript 5.15-45; 32.5-20T). The matter was adjourned until Friday 12th August 2011. 207Following the adjournment, a pharmacological report was requested with all due promptitude by the Legal Aid Commission from Associate Professor Starmer. But it was not prepared until 19th August 2011, and not received until 25th August. This necessitated further adjournment from the 12th August 2011. 208The matter was mentioned before the sentencing judge on 19th August 2011 at which time counsel were unaware that the report would be signed that day. The matter was adjourned again to 28th October 2011. Unfortunately the matter had to be adjourned again because counsel who had previously appeared was unavailable. The matter was stood-over to 15th December 2011 with a direction that counsel provide written submissions in relation to the evidence which had by then been received about the effects of Stilnox. 209On 15th December 2011, Prof. Starmer's report was tendered without objection. Evidence about the respondent's continuing employment was also tendered; further argument ensued leaving insufficient time that day for his Honour to deal with the matter finally. His Honour's intention had been to deal with the matter after a jury had been allowed home early for the weekend, or at least so I infer. Sentencing was adjourned to 2nd March 2012 at 2 p.m. 210The matter was not dealt with on the 2nd March for reasons that are not obvious from the material before this Court. It was mentioned on the 9th March and stood over to 5th April 2012 for sentence. On that day having confirmed "that all submissions are completed", his Honour said: Well I've been giving anxious consideration to this matter and it seems to me that it's likely that a custodial sentence that would be imposed would be in the region of two years. Consequently I propose ordering an assessment in relation to an intensive correction order, unless either of you have got something to say about that. (05.04.12: 1.30T). His Honour made it clear that referral for assessment was not an indication that he had finally decided to make such an order. His Honour made an order under s.69 Sentencing Act, and adjourned the proceedings to 8th June 2012. 211After hearing further argument on 8th June, his Honour adjourned the matter to Wednesday, 13th June 2012 for sentence and indicated "I will be imposing a sentence of two years imprisonment by way of an intensive correctional order". It is relevant to note that by then the respondent had been on conditional bail just 3 weeks short of 3 years.

Objective circumstances of the indictable offence 212Section 86 of the Crimes Act, so far as is relevant, is in the following terms: 86 Kidnapping (1) Basic offence A person who takes or detains a person, without the person's consent: (a) with the intention of holding the person to ransom, or (a1) with the intention of committing a serious indictable offence, or (b) with the intention of obtaining any other advantage, is liable to imprisonment for 14 years. (2) Aggravated offence A person is guilty of an offence under this subsection if: (a) the person commits an offence under subsection (1) in the company of another person or persons, or (b) the person commits an offence under subsection (1) and at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. In the present case, paragraph (b) of subsection 2 is the source of the relevant aggravation. In particular, the offence to which the respondent pleaded guilty included the element of occasioning actual bodily harm to the victim immediately before the commission of the basic offence. 213As I stated at the outset, the additional offences on the Form 1 arose out of the same events, as did the related summary charge on the s.166 certificate. The sentencing judge recorded his findings in respect of each matter compendiously at [5] - [13] of his reasons on sentence, which I set out as follows: 5. The facts are that the offender and Ms. Sprowle had been in a relationship prior to 5 July 2009. On that day at about 1:30 am, Ms. Sprowle drove her motor vehicle to the Parramatta McDonald's restaurant in Parramatta. She was with two friends, she had left her vehicle there, she came back and she tried to start her vehicle and she was unable to start it as the battery had gone flat. During that day Ms. Sprowle had been receiving text messages from the offender. After not being able to raise help from anyone else, she responded to the text messages that she had been receiving by text asking the offender if he had any jumper leads. Prior to receiving any response from the offender, Ms. Sprowle decided to accept a lift home and that is where she went. When she was being driven home she received a text message from the offender saying that he could bring jumper leads down to where she was and she responded by saying that she was being driven to her home by a friend. A little bit later she received a phone call that the offender would pick her up. 6. The offender then went to her home and when she was there she, Ms. Sprowle, saw a white utility pull up and she saw the offender in the passenger seat. The offender called out to her "hurry up, I've got the jumper leads, we'll go and fix the car". Ms. Sprowle got into the utility and it was driven to the McDonald's car park. When the offender and Ms. Sprowle and the other person got to the car, Ms. Sprowle's car started and the offender said that he would drive Ms. Sprowle's car and the other person left. Ms. Sprowle did not want the offender to drive her car as she had formed the view that he had been drinking. She ended up driving her car with the offender in the passenger seat. 7. As she was driving along Windsor Road, the offender said to her, "I bet you had a good night, where did you go? Without warning Ms. Sprowle felt a blow to the side of her face, she pulled the car to the side of the road and said to the offender, "Get out of the car". The offender put his hands up to his face and said, "I'm really sorry." She again told him to get out of the car and he refused. At this stage the car was at the intersection of Windsor Road and Whitehaven Road, Northmead. The offender struck Ms. Sprowle to the face with his right arm and pushed her face against the driver's side glass window and started pulling her hair. He pushed her against the door and continued to push her against the window. Ultimately Ms. Sprowle was occasioned bruising to her face and forehead with an indentation to the left side of the forehead as a result of the assault. 8. After some time Ms. Sprowle managed to open her door and she fell out of the car. As she lay on the ground she could see that the driver side door was still open. She saw the offender climb across into the driver's seat, close the door and drive off a short distance. She then saw her car being driven rapidly in reverse towards her. She jumped over a small brick fence to avoid being struck by the vehicle. The vehicle mounted the kerb and crossed the nature strip and the rear of the vehicle struck Ms. Sprowle's arm. The vehicle came to a stop and the offender got out and came up to Ms. Sprowle, she was screaming for help. He began to hit her again. He grabbed her by the hair and dragged her towards the car. During the course of this assault and previously Ms. Sprowle was on the telephone ringing triple-0. Ms. Sprowle yelled, "Help, help somebody help" and said to the offender, "Please stop, please just leave me alone". 9. The offender began to drag Ms. Sprowle towards the vehicle for a short distance before leaving her on the ground. He got back into the vehicle and moved it onto the roadway on the corner of Whitehaven Road and Windsor Road, Northmead. He got out and again approached Ms. Sprowle. She got off the ground and went to the passenger side of the vehicle and attempted to lock herself in the vehicle. The offender put his hand through the open passenger side window and opened the door. He grabbed her by the neck and hair and dragged her out of the vehicle. He kneed Ms. Sprowle in the stomach, winding her and causing her to fall to the ground. The offender then kicked Ms. Sprowle to her ribs and buttocks. Ms. Sprowle screamed, "You're killing me". The offender said, "Oh yeah". He kicked at her again. Ms. Sprowle begged the offender not to touch her. He yelled at her, I'll fucking, I'll kill you, I'll fucking kill you, I swear I'll kill you. I don't give a fuck, you fuck it up, you think I fucking care about you, I don't fucking care, you don't fucking love me, you don't fucking love me." The offender took hold of Ms. Sprowle's hair and dragged her over to the passenger side of the vehicle where the front passenger door was still open. The offender forced her into the front passenger seat. 10. It is clear on my view of the evidence that the offence for which the offender pleaded guilty on indictment commences at this particular time, although the assault occasioning actual bodily harm was certainly before. The offender picked Ms. Sprowle up and attempted to force her body into the foot space of the passenger side of the vehicle. She was stuck in the corner of the foot space with her leg still hanging out of the vehicle. The offender pulled around to the driver's side of the vehicle and got into the driver's seat. He started driving the vehicle and Ms. Sprowle pulled herself inside the vehicle and closed the door. Ms. Sprowle had occasioned bruising to her side, back and buttocks and minor lacerations to her feet as a consequence of the assault. The offender drove in a northerly direction upon Windsor Road at high speed. Ms. Sprowle said, "Please stop the car". The offender said, "No, I'm going to crash it." Ms. Sprowle said, "Slow down, you're going to kill us". The offender said, "Good, I will kill you". Ms. Sprowle said, "Please slow down, please stop the car you're going to kill us both." The offender said, "Good, I have nothing to lose." The offender continued to repeat the words, "I'm going to kill you, I'm going to crash the car, I don't care about you or anything." 11. As the car was about a hundred metres south of the intersection of the M2 Motorway, the vehicle nearly collided with a Holden sedan travelling lane two. The offender continued driving at high speed until he reached the intersection of Cook Street where he turned right at high speed. The rear of the vehicle lost control and slid towards a telegraph pole on the western kerb of Cook Street narrowly missing it. The offender continued driving at high speed until he reached the intersection of James Street, Baulkham Hills. The offender at that time lived in James Street. He attempted to turn left but was travelling too fast and collided with a keep left sign on the median strip in the middle of James Street. The offender continued driving to the top of James Street, Baulkham Hills where he pulled to the right side of the roadway, stopped the vehicle outside a unit complex near the intersection of Railway Street Baulkham Hills. Ms. Sprowle heard sirens and got out of the vehicle. 12. The offender drove the vehicle into the underground car park of the unit complex where he stayed for a short time. The offender walked up the driveway towards Ms. Sprowle from the underground car park. He approached Ms. Sprowle and started pushing her. The offender said, "Come inside, let's talk". At this time Ms. Sprowle noticed that the offender had her mobile phone in his hand. She attempted to get her phone from the offender but was unable to. The offender walked back into the unit complex. A male person asked the offender to return Ms. Sprowle's phone. The male returned with the phone and handed it to Ms. Sprowle. The offender came up to Ms. Sprowle and saw that she was on the phone and he started screaming at her and tried to take the phone off her. The offender managed to take the phone from her and threw it against a nearby brick wall causing it to break into pieces. The offender was shortly after that arrested. 13. So far as the offence on the indictment, which is shortly known as kidnapping, it is quite clear that the offending started at the intersection of Whitehaven Road and Windsor Road and the offending was whilst Ms. Sprowle was taken into the motor car, the motor car was then driven very quickly up the street, as I have just said. It is quite clear in my view that the length of time that Ms. Sprowle was detained was a matter of some minutes rather than longer. It is quite clear from the material before me, that it was in the course of travel from the intersection to where the vehicle stopped that the detention took place. That, as I understand it, is something in the region of about two kilometres. 214I observe that no medical or psychiatric evidence was tendered quantifying the nature and extent of the actual bodily harm suffered by the victim. But in her Victim Impact Statement, the victim spoke of her physical injuries, including scars which were then "still visible", and of the emotional consequences, which must be real enough. 215As the infliction of actual bodily harm is an ingredient of the offence, I interpolate that it is important that care be brought to bear so as not to double count this consideration contrary to s. 21A (2) Sentencing Act. But, I will proceed on the basis that the injury and emotional harm caused by the offence to the victim were not insubstantial. 216The additional offences on the Form 1 are: first, the initial assaults occasioning actual bodily harm the subject of [7] of his Honour's reasons; secondly, reversing the car at her in [8], averred as using "an offensive implement... with intent to commit an indictable offence"; thirdly, intentional damaging her the mobile phone by throwing it against the wall; and fourthly, taking and driving the victim's car without her permission. 217The manner of the applicant's driving during the period the victim was detained may well have been without regard for public safety, but as this is the related summary offence, again care must be taken to avoid double punishment. This factor cannot both increase the objective seriousness of the principal offending, and at the same time attract significant independent punishment. 218Given the previous domestic relationship, it may be said that the respondent abused his position of trust in relation to the victim. However, the relationship had previously degenerated and the victim had formed a new relationship with another person. Accordingly, the principles discussed in R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 at 195 [86] may not be strictly apposite, even though the present offence is one that meets the definition of "serious personal violence offence" in s.21A(6) Sentencing Act. Trust between them must have dissolved already. 219The offence was certainly not planned, but rather occurred in a spontaneous and opportunistic way. 220An element of the offence is the intent to obtain an advantage. Here, the Crown relied upon psychological gratification as advantage. 221The only criminal offence on the respondents record at the time of the commission of the subject offence was a conviction for affray, for which he was dealt with by the Downing Centre Local Court on 25th November 2006 with a $500 fine. This particular offence did not trouble the sentencing judge greatly. Of more concern were convictions recorded subsequently to the 5th July 2009. These offences were related to the disintegration of his relationship with the victim, and to the formation of her new relationship (a matter to which I will return below). 222A few days before 5th July 2009, the victim had introduced the respondent to her new partner. As is not unknown in the annals of human affairs, an altercation developed between the two young men. No complaint was made about the respondent's conduct on this occasion until after the events of 5th July 2009, when the respondent was charged with common assault. The matter was dealt with by the imposition of a fine on the 8th February 2010. 223It is necessary to record that other offences relating to the victim, to which the respondent pleaded guilty, occurred on 10th July 2009 and were dealt with in the Parramatta Local Court on the 18thFebruary 2010 by the imposition of a community service order of 100 hours duration. These were offences of contravention of an apprehended domestic violence order by approaching the residence of the victim, and breaking into the residence with the intention of committing an indictable offence. 224At the time he was charged with the instant offence, an apprehended violence order was made in favour of the victim, including the usual condition restraining the respondent from approaching her home. 225The circumstances of the subsequent offences were that a very short time before 5th July 2009, perhaps surprisingly, given the altercation which occurred when the two young men met, the victim showed the respondent the home she shared with her new partner. He noticed some garden lamps that he and the victim had purchased during their cohabitation. He formed the intention to reclaim possession of them. Accordingly, on 10th July 2009, the respondent drove to the victim's home, broke in and took the lamps. He was soon apprehended and charged. 226At the time he was charged with the instant offence, he was also charged with an offence of refusing to submit to a breath analysis in accordance with the directions of a police officer contrary to s15(4) Road Transport (Safety and Traffic Management) Act 1999 (NSW). In the exercise of the power under s.205 Road Transport (General) Act 2005 (NSW), the police officer gave the applicant a notice suspending his driver's licence. Driving to the victim's home contravened the police suspension. The Parramatta Local Court dealt with this offence at the same time as the other two. For the driving offence he was fined $1,000 and disqualified for 12 months commencing on 22nd July 2009. There is no doubt that the police suspension was validly issued under the relevant legislation. Such a suspension inures until a court determines the charge in respect of which it is given, or the charge is withdrawn. In the present case, the charge was withdrawn on the 6thJune 2010, I infer from the information provided to the Court by the Crown Particulars of Trial. 227The respondent's traffic record is very poor. He had incurred a number of traffic infringement notices for speeding matters. He had also been subject to a number of suspensions of his licence by administrative action because of his record, and due to default in paying some fines. Prior to the 18th February 2010, it had never been necessary for a court to deal with him for a traffic matter. 228The respondent was also dealt with at North Sydney Local Court on 31st May 2011 on a charge of driving when his licence was cancelled on 28th December 2010. The circumstances of this were that when the disqualification imposed at Parramatta Local Court on 10th February 2010 expired on 22nd July 2010 (it had been backdated), the respondent neglected to reapply for his licence, being ignorant of the necessity so to do. Ignorance of the law is, of course, no excuse, as all are bound by it. The respondent apparently remedied this omission and when he was dealt with on the 31st May 2011, he received the benefit of a twelve-month good behaviour bond under s.10 Sentencing Act. These complexities in relation to the applicant's criminal and driving record were referred to and taken into account by the sentencing judge.

The respondent's subjective case 229The respondent was born on 30th December 1982. Accordingly, he was aged 26 years and 8 months at the date of the offence, and 29 years and 7 months when he was sentenced. 230The respondent grew up in Sydney and enjoyed a happy and uneventful childhood and adolescence. His father is a company director, and his mother a registered nurse, now retired. His home background was stable until his parents separated when he was 23 years old. 231He was educated at a private school, where he had friends and a good relationship with his teachers. Although said to be an above average scholar, he did not attend university. 232From the time he left school he has worked in the financial industry in an administrative capacity. 233He has had a creditable employment history since leaving school, except for a period of some months around the time of the occurrence of the subject offence, when he was unemployed. 234There were a number of relevant psychological and emotional issues dealt with by Dr. Westmore in his psychiatric report of 11th April 2011 (Exhibit 1). The trial judge accepted Dr. Westmore's views. 235Dr. Westmore diagnosed the respondent as suffering from a number of mental disorders including a post traumatic stress disorder, an alcohol abuse disorder and a depressive illness. The respondent does not suffer a significant personality disorder, and in particular does not have an antisocial personality disorder (the serious nature of the offences notwithstanding). 236The origin of the post-traumatic stress disorder is an armed hold-up in August 2001, when the respondent was working in a part-time job whilst still at school. At the time, he had "limited treatment" extending only to some counselling. The post-traumatic stress disorder was reignited when he and his victim suffered injury in a motor vehicle accident in May 2006. 237The victim miscarried their child in September 2006 and in December 2006 the respondent was very distressed by his parents' separation. 238Stilnox was prescribed as treatment following the motor vehicle accident and the respondent continued its use up until the time of the offending. 239The respondent and the victim met in 2001 and fell in love. They formed a close relationship, and commenced living together initially in the victim's parents' house. The relationship suffered significant stress relating to the death of the victim's father, the motor vehicle accident and the tragic miscarriage. Following the miscarriage their relationship started to fall apart, and they separated in 2007 for more than a year. It seems that during the period of separation the victim met her new partner, which development was apparently unknown to the respondent until just before the offending. 240They met again by chance. At that time the respondent was employed in a bank. He had received the proceeds of his motor accident compensation claim and had purchased his own home, subject to a mortgage. He and the victim rekindled their relationship and after a period he resigned his employment so he could spend more time with her. Although they were living in his house, at times the victim would absent herself telling the applicant, perhaps falsely, that she was going to stay with her mother. 241It later came to light that during her absences the victim was seeing her new partner. In fact, she and her new partner purchased a house together. A love-triangle seems to have developed where both young men were vying for the affection of the victim. After the respondent found out, the victim had promised to end the relationship with her new partner. And she may have done so for a period. 242Sometime before 5th July 2009, the victim made up her mind in favour of the new partner and recommenced cohabiting with him. This is borne out by the altercation between the respondent and the new partner, and the victim - for reasons unexplained by the evidence - showing the respondent their new home. 243The respondent was unemployed, depressed, requiring Stilnox to sleep and abusing alcohol. Although the respondent gave evidence that he and the victim were residing together, this seems clearly to be incorrect. For his evidence was that he had learnt about the new relationship two weeks before the offence. He gave evidence about meeting his rival and being shown their new home. He gave evidence of his emotional hurt and of the altercation between him and his rival. The circumstance that the victim ignored his earlier text messages is evidence that they were not then cohabiting. 244The respondent's father gave supportive evidence about the acrimonious nature of his separation from the respondent's mother, and the lack of support he had been giving his son during the time leading up to the commission of the offences. In particular he had been unaware of his son's emotional issues, and he had been critical of his son's inability to cope financially during the period of unemployment. 245On the night of the offending, the respondent had ingested the prescription drug Stilnox as part of his treatment for his post-traumatic stress disorder, to get to sleep. After taking the drug, he was called by some friends to socialise, which, unwisely to say the least, he did. In the course of this socialising he imbibed a significant amount of alcohol in the form of vodka drinks. During this period he became aware of the victim's text message seeking assistance. 246A considerable amount of evidence was led about the affect of Stilnox in combination with alcohol. Prof. Starmer, the pharmacologist, said a number of relevant things. First, Stilnox should not be prescribed for a period in excess of 4 weeks, as long term use may give rise to significant side effects including agitation, irritability, aggressiveness, rages and inappropriate behaviour. He confirmed the amnesic affect of the combination, and stated that a warning to this effect had only recently been included in the patient information provided with the drug. He also expressed the view that: It is likely that a combination of alcohol abuse and Stilnox ... led to pathological intoxication and contributed to the assault, which occurred against the background of a dysfunctional relationship. 247I interpolate that, this evidence notwithstanding, the sentencing judge did not treat the ingestion of this combination as a mitigating factor. Rather, he treated it as providing an explanation for conduct that was out of character: reasons p17 [32]. This approach is unexceptionable being consistent with the approach taken to intoxication by illicit drugs: see for example R. v. Henry [1999] NSWCCA 111; 46 NSWLR 346 at 382 [178]; 396 [275]; 409 [331]; 413 [348] - [349]. 248The respondent took full advantage of the opportunity provided to him by the delay in the legal process, which delay was not due to the conduct of the prosecution, to demonstrate reform, rehabilitation and correction. He again sought medical treatment for his mental health problems, eliminated Stilnox from his treatment, and reduced his alcohol consumption from abuse to occasional social drinking only. 249He formed a new relationship which is loving and supportive. Importantly, soon after the incident he recommenced fulltime employment. A reference from his initial supervisor spoke highly of him, praising his attitude, productivity and achievement. She described him as "a very positive, reliable and hard worker". A subsequent supervisor described him as "a very valuable team player". She praised his reliability, punctuality, trustworthiness and diligence. His employer's quality assurance manager described him as "conscientious, dependable, reliable and honest". She spoke highly of his "interpersonal skills". 250In a letter, his father expressed his view that the offence was completely out of character. He confirmed the changes in the respondent since the offending. A person who worked in the same industry, who knew of the offending, also expressed the view that the respondent's behaviour was completely out of character. He said that he had never seen the respondent act in a way that was unlawful or could ever be considered a danger to anyone. He said that the respondent had expressed his remorsefulness on numerous occasions. 251The respondent gave evidence in writing and orally about his contrition and remorse. The sentencing judge set out this evidence in his reasons. He found that the respondent had "shown deep contrition and remorse". (Reasons p14 [31]). 252The sentencing judge had before him three reports prepared by the Probation and Parole Service dated 17th December 2010, 29th April 2011 and 8th June 2012. The first two were pre-sentence reports and the third the intensive correction order assessment. These reports: confirmed that the respondent completed his community service order satisfactorily and without incident; confirmed his full time employment; gave a consistent history of the radical reduction in his consumption of alcohol; and confirmed the apparent genuineness of his contrition and remorsefulness. 253The author of the report dated 29th April 2011 concluded: [The respondent] appears to be a young man who achieved well as an adolescent but whose life came undone with a period of immaturity, poor decision-making and irresponsibility combined with some adverse circumstances. He has used the remand period to regain purpose and direction by finding and advancing his employment, seeking the guidance of counselling and reconnection with the support of his parents and friends. He is reportedly improving his financial position also. 254The author of the intensive correction order assessment report confirmed the respondent's ongoing full time employment, his satisfactory completion of the earlier community service order, and his acknowledgment of responsibility by acknowledging the link between his offending behaviour and his alcohol abuse. 255The author assessed the respondent as being at a low risk of re-offending. The crinogenic needs related to alcohol consumption and emotional issues, which the respondent, in the author's opinion, seemed to be addressing. The author stated: [The respondent] appeared to demonstrate his ability to abstain from alcohol and illicit substances as all results from random breath tests and urine analysis conducted during the assessment period reported negative results. Additionally, [the respondent] expressed his willingness to engage in treatment to address his alcohol issues if deemed necessary. The author was satisfied that the respondent was in a positive relationship and had demonstrated an ability to maintain such relationships. After conducting a full review, the author was satisfied that "there appears to be no factor that would impact negatively on the offender's ability to comply with the requirements of an intensive correction order". The respondent was assessed as suitable and signed the required undertaking.

Reasons for sentence 256From the outset, his Honour acknowledged that non-custodial sentences would generally not be appropriate for an offence under s.86 Crimes Act, especially for an offence in this aggravated form, correctly relying upon R. v. Anforth [2003] NSWCCA 222 as authority for this proposition. His Honour acknowledged that the domestic context did not lessen the gravity of the offence: Heine v R [2008] NSWCCA 61 at [40]. 257The sentencing judge acknowledged by reference to R. v. Chaplin [2006] NSWCCA 40; 160 A Crim R 85 at [31] that the punishment must be sufficient to both punish and deter the respondent from repeating the offence. 258In terms of assessing the objective seriousness of the offence, the sentencing judge directed himself by reference to the judgment of Roden J in R v Collett (Unreported, 07/06/1979 NSWCCA; applied in Wiliams v The Queen [2006] NSWCCA 33 and R v Newell [2004] NSWCCA 183). By reference to these authorities, his Honour set out what he regarded as seven relevant criteria arising relevant to assessment of the objective seriousness of the offending. (I will not repeat them). But clearly he had the importance of this consideration at the forefront of his mind. In this regard his Honour emphasised that the period of detention was short and the place of detention was the victim's motor vehicle, which was being driven in a general direction towards the respondent's home, previously shared with the victim. 259His Honour then turned to the subjective case and set out the details I have referred to already. In so far as the respondent's record was concerned, leaving aside the traffic record, his Honour considered that his criminal history did not other than "marginally disentitle" the respondent to leniency. As I have said, he regarded the combination of Stilnox and alcohol not as mitigating the offence, but only as helping to explain it. 260His Honour referred to the statement of principle of McClellan CJ at CL in Director of Public Prosecutions (Cth) v. De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at 43 [177] summarising the principles to be applied when sentencing a person suffering from a mental illness. For the same purpose his Honour referred to Muldrock v. The Queen [2011] HCA 39; 244 CLR 120 at 137 [50] - 193 [55]. Although he found that the offender "has had substantial psychological and psychiatric difficulties", which in my view was open, as I read his reasons, he did not over-emphasise their significance as factors capable of pointing in the direction of leniency. 261At the very outset of his reasons, his Honour had referred to the additional offences on the Form 1, and directed himself correctly in relation to the significance of these matters by reference to Attorney General's Application [2002] NSWCCA 518; 56 NSWLR 146 at 159 [42] per Spigelman CJ. His Honour said that the additional offences may require an appropriate increase in the sentence otherwise applicable to either a significant, or marginal, extent: (Reasons [3]). 262The sentencing judge also took into account the guilty plea entered on the first day of the trial following, "it seems", negotiation. His Honour allowed a discount on the sentence otherwise to be imposed of 15 per cent: (reasons p2 [4]). The learned Crown Prosecutor, who appeared on sentencing, but not on appeal, conceded the appropriateness of that measure of discount: (15/12/11 20.40 - 21.10T; 08/06/12 2.35 - 45T). The learned Crown Prosecutor who appeared on the appeal argued this was "generous", not as a ground of appeal but as a makeweight, apparently. His Honour then concluded as follows (ROS 43 - 46): 43. In this matter taking into account the circumstances of the offending, the offender's personal circumstances and his progress so far as rehabilitation is concerned, in my view this is a matter, which must necessarily result in a custodial sentence. I have determined that the sentence is appropriate for Mr. Ball to serve it by way of an intensive corrections order. 44. My reasons for that are first of all the cases that I have spoken of in relation to the range of offending that comes within s86 and the facts as I have found them. Secondly, I accept that Mr. Ball has taken steps towards his rehabilitation beyond which a court usually sees. In particular I am impressed with the reports of Dr. Bernardi and Mr. San Giovanni and also the intensive correction report in this regard. It seems that Mr. Ball very shortly after his arrest commenced his rehabilitation course. In my view, it is substantial and it is quite clear that he intends to continue with it. I accept that in this case it would not be in the public interest to interfere with that rehabilitation program. The other reason is, I am impressed with Mr. Ball's genuine remorse and his insight and the steps that he has taken to deal with what was obviously a personal problem producing serious criminal behaviour. When he gave evidence before me he impressed me with his intentions. 45. I propose to impose a sentence of two years, to be served by an intensive correction order. Mr Ball will you please stand? Mr Ball you are sentenced to imprisonment for a period of two years to be served by an intensive correction order. You have been assessed by officers of the Department. I have a report prepared on 4 June 2012. I am satisfied the report addresses the matters required by cl 14 of the Crimes (Sentencing Procedure) Act 1999. The report states that you are suitable to serve your sentence by an intensive correction order. You are convicted of the offence of taking Vanessa Sprowle without her consent with the intent to obtain an advantage, namely to intimidate her and to have physical control over her and at the time and immediately before the taking, actual bodily harm was occasioned to her. I sentence you to a period of imprisonment of two years. 46. Pursuant to s7(2) of the Crimes (Sentencing Procedure) Act 1999 I order that the sentence is to be served by way of an intensive correction order in the community. Pursuant to s71(2) of the Act I order that the sentence is to commence on 22 June 2012. As required by s81 of the Administration Act, his Honour imposed the mandatory conditions stipulated by Clause 175 Administration Regulation. 263His Honour made it clear that in imposing the sentence for the principal offence, he had taken into account "the matters on the Form 1". 264He then moved on to deal with the related summary offence on the s.166 certificate. He did not give a separate exposition of reasons for that matter but dealt with it in the course of discussion with counsel. When the matter had been before the sentencing judge on 15th December 2011 (16.40 - 17.10 T), the learned Crown prosecutor agreed that if the driving offence had been dealt with summarily in the Local Court, a person of the respondent's age, even with his traffic record, would not "get a gaol sentence". 265When the matter was dealt with on 13th June 2012, the Crown position was put to the sentencing judge this way (29.5 T): [Crown Prosecutor]: While he is sentenced as a person who has no previous offence on a minimum period of disqualification in that situation of 12 months. It's a 3 year automatic with 12 months minimum. His Honour: 12 months minimum? [Crown Prosecutor]: Yes. His Honour: Do you agree with that (counsel). [Defence Counsel]: I do. His Honour, acting under s.10A Sentencing Act, convicted the respondent of the s.166 matter, but imposed no other penalty, and reduced the period of disqualification to the statutory minimum of 12 months.

Grounds 1, 2 and 3 266The Crown, argued these grounds together as I have earlier pointed out. Essentially the learned Crown Prosecutor, by reference to Dodd at 351 and 354, and R v Wright (1997) 93 A Crim R 48 at [54], argued that the sentencing judge had allowed the respondent's subjective features to so far outweigh the objective gravity of the offending that there was no reasonable proportionality between the sentence and the circumstances of the crime. It was said that only a full time sentence of imprisonment would reflect the objective seriousness of the offence, and that even a period of full-time imprisonment of two years would have been inadequate. Permitting the respondent to serve the sentence by way of an intensive correction order, given the degree of leniency reflected by such an order, only compounded the error. Moreover, the nature of the offending was "brutal, cowardly and inexcusable" and the domestic context was an aggravating factor calling for strong denunciation. Additionally, the offences on the Form 1 should have led to a period of full time imprisonment substantially greater that otherwise would be appropriate. Reliance in this regard was placed upon the judgment of Johnson J in R. v. Speechley [2012] NSWCCA 130. 267Ms. J.S. Manuell SC, who appeared for the respondent, argued by reference to Collett and Robson that: the duration of the detention was short; she acknowledged that during that period the victim would have been terrified which terror would have been exacerbated by the respondent's demeanour and words; there was no rational purpose for the detention other than perhaps psychological gratification in having the opportunity to take the victim to their former home to talk; no other person connected with the victim was otherwise aware of the events so no third party was subject to ordeal or anguish; there was an absence of pre-meditation or planning; allowing for acceptance of the Victim Impact Statement, there was no expert evidence supporting a conclusion that the injuries, physical or emotional, were substantial and requiring any ongoing treatment; so far as the domestic context was concerned, whilst it was questionable whether there was an ongoing relationship at the time of the offending, there was no evidence of any previous violence in the relationship, and there was no real violation of trust given the complete breakdown of trust between both of them having regard to the victim's new relationship. Learned Senior Counsel argued that the objective gravity of the offending was limited by its spontaneity, it's short duration and the relatively minor injuries. 268Ms. Manuell dealt with Ground 2 in conjunction with Grounds 4 and 7. However, she stressed that an intensive correction order is a sentence of imprisonment, and in accordance with the established jurisprudence, itself of some significance. It could not be said, as a matter of law, that it was never appropriate in respect of a s.86 (2)(b) offence. 269In relation to Ground 3, Ms. Manuell argued that the principal offence and the additional offences were all part and parcel of the same episode of criminality and the principle of totality applied. She argued, with some force, that offences 1 and 2 on the Form 1 were hard to separate from the other assault matters which formed the basis of the element of aggravation of the principal offence. In truth, offences 3 and 4, damaging the mobile phone, and driving the vehicle without permission, were of significantly lesser importance, and would ordinarily have been dealt with in the Local Court by the imposition of a non-custodial sentence.

Resolution 270I am satisfied that his Honour did not fall into error in any of the respects complained of by the Crown. From the analysis of his reasons on sentence as set out above, I find that he correctly identified the importance of the assessment of the objective seriousness of the offending in performance of the sentencing task. He correctly directed himself by reference to relevant authority. Likewise, he took into account the additional offences on the Form 1, and reminded himself that the operation of s.33(2) Sentencing Act will very commonly lead to an increase in the appropriate sentence for the principal offence. The effect of taking the additional offences into account may result in the imposition of a substantially longer sentence, but it need not. Sometimes "the additional penalty" (Attorney General's Application) at 155 [18] will be small. It is fundamental to bear in mind that the Court is sentencing for the principal offence, and not the additional offence. It is rarely appropriate for a sentencing judge to attempt to quantify the effect on the sentence (Attorney General's Application 159 [44]) and the matters of principle which may lead to the imposition of a more severe sentence are subject to the principle of totality. (159 [42]). 271As McHugh, Hayne and Callinan JJ said in Pearce v The Queen [1998] HCA 57; 194 CLR 610 at 623 [40]. To the extent to which two offences of which an offender stands convicted contain common elements, it will be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries would be drawn in a way that means the offences overlap. To punish an offender twice if the conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts. 272However, notwithstanding that the additional offences, on the one hand, and the principal offence, on the other, each may have been incidents in an overall episode of criminality, they represent, nonetheless, separate offences: R. v. Merrin [2007] NSWCCA 255; 174 A Crim R 100 [38] - [43]; R. v. XX [2009] NSWCCA 115; 195 A Crim. R. 38 at [52] (especially sub-par. (11)). To that extent, there must be a tendency for the sentence to be somewhat more severe: R. v. Harris [2007] NSWCCA 130; 171 A Crim R 267 at 274 [32]. Even so, as Ms. Manuell argued, items 3 and 4 in the Form 1 of themselves did not fall into a category of criminality likely to have attracted a custodial sentence. Items 1 and 2 were offences against the person very similar in type to the matters which constituted the aggravating element in the principal offence. Indeed, given their temporal proximity to the occurrence of the aggravating element, they could readily have been encompassed by that element of the principal offence. Ultimately, that is a matter for prosecutorial discretion, and not for the judiciary: Jimmy v. The Queen [2010] NSWCCA 60; 77 NSWLR 540 at 230; 596 [247]; and 599 [267]. But the effect that taking these additional offences into account had on the sentence for the principal offence was within the discretionary consideration of the sentencing judge. In my judgment his Honour has not been shown to have fallen into error in this regard. 273It is one thing to say that a s 86(2) offence ought to attract a sentence of imprisonment (the sentencing judge thought so too) and quite another to say a sentence of two years is manifestly inadequate. Like the sentencing judge, one may accept the major premise, whilst rejecting the minor. A consideration of two cases will illustrate this. Much reliance was placed upon Speechley where the principles of law referred to by the sentencing judge below were summarised by Johnson J at [51] - [58] (McClellan CJ at CL and Hammerschlag J agreeing). At [116] Johnson J observed "that a non-custodial sentence, or suspended sentence, would generally not be appropriate for a s 86(2) offence". His Honour referred to R. v. Anforth, the authority referred to by the sentencing judge in this context. Johnson J added "in most exceptional circumstances involving misguided motives and the commission of a s 86(3) (sic) offence by a person with no prior convictions where cultural mores played a part, it was accepted that all of the objectives of sentencing could be met by the imposition of a suspended term of imprisonment: R v Davis [2004] NSWCCA 310 at [26]". 274His Honour went on to find that the offence in Speechley was one of "significant objective gravity, well above the lower end of the scale". Moreover, the offender who had obtained the benefit of a suspended sentence of 1 year and 11 months at first instance had been "less than enthusiastic in complying with the terms of her bond". More significant to Johnson J's way of thinking was a capacity of the offender "to provide self-serving and misleading accounts concerning [the] action she had taken" with regard to rehabilitation. Taking into account these considerations, his Honour thought it appropriate to lift the suspension and to convert the sentence into one of full-time custody with a non-parole period of twelve months with an additional term of eleven months, backdated to the passing of the sentence appealed from. The offender was nineteen years of age at the time of the offence, but the offence involved a vigilante scenario, supposedly paying-back the victim for a sexual assault upon a friend. It was premeditated by three offenders, involved handcuffs to restrain the victim, and the use of a firearm and a knife. Verbal threats to inflict really serious personal injury were made. The victim escaped through his own sharpness of wit. 275The second case is Williams v. Regina; Saunders v. Regina [2006] NSWCCA 33. One of two offenders, Saunders, was sentenced after a jury verdict of guilty, the other, Williams, after a plea on the day of verdict, for a s.86(2)(a) offence. The sentencing judge imposed a sentence consisting of a non-parole period of two years and an additional term of two years on both, a total effective sentence for each of four years. The victim was a juvenile aged fourteen years who had attempted to steal drugs from Saunders. Williams, in company with Saunders took the victim to a remote place and forced him to dig a hole. Saunders made threats that the hole would be his bed for the night. It was not intended to inflict injury on the victim, rather the co-offenders hoped to scare him into providing information about whether anyone else was behind the attempted theft. The period of detention was two hours. Williams was not the instigator of the offence and the unlawful detention was already underway when he became involved. 276Hall J reviewed the authorities concerning the objective seriousness of s.86 (2) offences. His Honour observed at [42]: It is fortunate that offences of kidnapping are comparatively rare. That fact, of course, means that there is therefore no range or "tariff" available to guide the sentencing discretion. 277Williams was 30 years of age at the time of the offence, having been raised in a good home. He received his school certificate and had been in regular full-time employment. He was separated from his wife with whom he had had two children. His criminal record contained only minor offences which, Hall J said, "The sentencing judge correctly disregarded for the purposes of sentencing him and he, as already noted, was properly regarded as a man of good character". Hall J referred to the unplanned nature of the offence (at least from Williams point of view) and that it's commission was contrary to the character of Williams. There was no intent to injure, injury was not inflicted and Williams was unlikely to re-offend. In these circumstances, personal deterrence was not of particular importance. In Williams' case the sentence was excessive and was quashed. Williams was re-sentenced to a non-parole period of eighteen months with an additional term of twelve months. Basten JA and Howie J agreed. 278What these, albeit isolated, examples demonstrate, in contradiction of the argument advanced on behalf of the Crown, is that there is no principle to the effect that a term of imprisonment of about two years is manifestly inadequate for a s.86(2) offence. And it is of the essence of a conclusion of manifest inadequacy that the appellate court decides "that there must have been some misapplication of principle even though where and how is not apparent from the statement of reasons" (Wong v. The Queen [2001] HCA 64; 207 CLR 584 at 605 [58]. (Emphasis added). 279This, with respect, highlights a logical fallacy in the structure of the argument advanced on behalf of the Crown, which it is convenient to identify now. As I have pointed out, both in writing and orally, the argument separated grounds addressing the assessment of the objective seriousness of the offence from those dealing with considerations relevant to questions of leniency. In my view this invited a wrong approach for the reason explained by the plurality in Wong at 611 [75]: [This approach] departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say "may be" quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of all of them. This is what is meant by saying that the task is to arrive at an "instinctive synthesis". This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called upon to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features. 280Moreover, as I said at the outset, and I mean no disrespect, the casting of the grounds of appeal failed to identify appellable error for this area of discourse with precision. Rather, and at best, they represented particulars of a single ground of manifest inadequacy. Care needs to be taken in all sentence appeals to draw the grounds bearing in mind the settled principles which govern the identification of appellable error, as explained in House v The King [1936] HCA 40; 55 CLR 499. This is necessary for the purpose of better identifying why the appellant, or applicant, says the Court should form the opinion that some other sentence is warranted (s.6(3) Appeal Act), which, after all, is the necessary precondition to the successful prosecution of a sentence appeal, whether by the Crown, or an offender. 281What I have said, at [189]-[198] above, about the recent decisions of this Court concerning intensive correction orders, disposes of Ground 2. Except as the statute itself provides, there is no principle restraining the use of intensive correction orders. Moreover, the Crown's argument emphasises the aspect of leniency, but entirely overlooks the significance of the punishment imposed. The statute, itself, treats the intensive correction order as a means of service of a sentence of imprisonment. Imprisonment is the most severe form of punishment available. It may only be imposed when all other options have been considered and discarded. I repeat, it is not possible to assess, from the point of view of an appellate court, the appropriateness of the order made by the sentencing judge without considering all facts, matters and circumstances relevant to arriving at the appropriate sentence. The separation of the objective from the subjective in this area invites a court to fall into error. 282Moreover, the argument overlooks what McClellan CJ at CL and Johnson J referred to in R v Pogson at 111 as "the stringent conditions attached to an ICO". I will repeat that their Honours said that those conditions ensure that the offender "is not living a carefree existence amongst the community. An ICO deprives an offender of his or her liberty in a real and not merely fictional sense". As only one example of this, the present respondent, who has full time employment, and the usual family commitments, has an obligation to undertake 32 hours of community service each and every month of the 24 months during which he is serving his sentence. 283As I have remarked before, in assessing the sentencing judge's reasons for sentence, it is important to bear in mind that the legislation necessarily requires the adoption of a somewhat staged approach to the consideration of whether an intensive correction order is an appropriate means of service of a sentence of imprisonment. This must have an effect on the form of a sentencing judge's reasons. Having heard all the evidence, and considered at least in his or her own mind the various alternatives, an intensive correction must have arisen as a matter for serious consideration. That can only occur if the sentencing judge has in mind that no other option than imprisonment will do for the offence and the offender. Once the s. 70 assessment is received, it seems to me completely natural, and in accordance with the legislative scheme, that a certain emphasis should be laid upon what one may normally refer to as the subjective aspects of the matter in finally deciding whether a term of imprisonment to be served in the community by way of intensive correction is the single sentence appropriate to the particular circumstances of the case. One should not infer from the reasons of the sentencing judge in the present case, for that reason, that he gave undue weight to the subjective elements to the disadvantage of the objective seriousness of the offence.

Grounds 4 and 5 284I acknowledge that it can probably be said that I have made my views about these matters fairly obvious from what I have written so far. None the less, it is important to record, however, that the learned Crown Prosecutor did not dispute that the respondent "was able to demonstrate persuasive subjective circumstances, particularly in terms of his rehabilitation". The real argument, as I have said more than once, was that the sentencing judge allowed these considerations to swamp the fundamental consideration of "the gravity of the offence viewed objectively": Dodd at 354. The Crown emphasised, as the whole Court said in Dodd, that "without this assessment the other factors requiring consideration in order to arrive at a proper sentence to be imposed cannot properly be given their place". 285The Crown acknowledged that the issue of mental health was a relevant consideration capable of reducing moral culpability and general deterrence as relevant factors to be enured in the sentence. I did not understand the Crown to complain about the correctness of the principles applied by the sentencing judge, but rather to argue by reference to Wright at [51] that it is an error to proceed as though the impact of these considerations must always lead to a lesser sentence. 286Moreover, it was argued that the sentencing judge overlooked the element of choice, or voluntariness, in the respondent combining too much alcohol with Stilnox. It was argued that the respondent's choice to combine these drugs, to the extent to which the side effects contributed to his criminal conduct, reduced the relevance of his mental illness as a mitigating factor: Cicekdag v. R [2007] NSWCCA 218 at [42] per James J (Giles JA and Hislop J agreeing). 287Ms. Manuell submitted that there was persuasive evidence that the respondent's mental illness contributed to the commission of the crime, which his Honour was entitled to accept. There was no evidence that he had committed any previous serious crime, let alone a previous crime whilst affected by the combination of Stilnox and alcohol. She, properly in my view, emphasised the strength of the subjective case. She argued that in approaching the sentencing task by application of the instinctive synthesis approach, his Honour was required to take into account all the relevant facts, matters and circumstances including the seriousness of the offending behaviour, which was ameliorated by spontaneity and shortness of duration. She argued: [T]he respondent acknowledged his guilt, expressed genuine remorse and provided an explanation as to how he came to offend. Additionally, the respondent had by the time of the sentence, made fundamental changes to his life. By the time he was sentenced he had been of good behaviour on bail for nearly three years, and reporting to the police three times per week. He was not responsible for the delay (neither was the Crown), but he had made good use of his time to address the causes of his offending behaviour and to re-establish himself as an ordinary, worthwhile member of the community. The sentencing judge accepted that he was deeply remorseful for his offending.

Resolution 288As I have already said, I do not consider that the sentencing judge treated the combination of Stilnox and alcohol as a mitigating factor. Conventionally, he treated this voluntary conduct as providing part of the explanation for why the offences were committed. Whilst the Crown is undoubtedly correct to argue that the effect of mental illness is not always to reduce the severity of the sentence which might otherwise be imposed: Veen (No. 2) v. The Queen [1988] HCA 14; 164 CLR 465 and 477; Engert v R (1995) 84 A Crim R 67; obviously it may, and often will. His Honour made no error of principle, nor did he misapprehend the facts in any relevant way. 289I accept the submission on behalf of the respondent, that the subjective case was a strong one, as the Crown properly conceded. In particular, I accept that the efforts he had made in the time allowed him before sentence were impressive, and were entitled to full consideration in the sentencing process. As I have already pointed out, his Honour found that the steps taken by the respondent towards his rehabilitation went "beyond [that] which a court usually sees". In my view, his Honour found, on the basis of evidence not challenged, that the efforts at rehabilitation were substantial and that the respondent intended to continue "with it". His Honour relied upon his advantage in seeing and hearing the respondent to form these conclusions. The sentencing judge was also impressed with the genuineness of the respondent's remorse and his insight into what caused the offending. 290These considerations, it seems to me, clearly brought into play a legitimate question for the sentencing judge about whether an intensive correction order was an appropriate means of serving a sentence of imprisonment in this case. 291As I have already stated, in R. v Pogson (at [117]), McClellan CJ at CL and Johnson J referred to the judgment of King CJ in Vartzokas at 279. I set out the full passage: The passage which I have quoted from the remarks of the learned sentencing magistrate discloses, in my opinion, an error of principle. It implies that rehabilitation or reform, as an object of sentencing, is confined to those who are in need of rehabilitation by reason of factors such as illness or being "predisposed to such behaviour by his environment or his experiences of life", that is to say, to persons subject to some personal or social disadvantage. That involves a misconception of the meaning of rehabilitation and its place in the sentencing process. Rehabilitation as an object of sentencing is aimed at the renunciation by the offender of his wrongdoing and his establishment or re-establishment as an honourable law-abiding citizen. It is not confined to those who fall into wrongdoing by reason of physical or mental infirmity or a disadvantaged background. It applies equally to those who, while not suffering such disadvantages, nevertheless lapse into wrongdoing. The object of the courts is to fashion sentencing measures designed to reclaim such individuals wherever such measures are consistent with the primary object of the criminal law which is the protection of the community. Very often a person who is not disadvantaged and whose character has been formed by a good upbringing, but who has lapsed into criminal behaviour, will be a good subject for rehabilitative measures precisely because he possesses the physical and mental qualities and, by reason of his upbringing, the potential moral fibre to provide a sound basis for rehabilitation. It would be a great mistake to put considerations of rehabilitation aside in fashioning a sentence for such a person. In my judgment, this statement of principle is directly applicable to the circumstances of the present case: s.3A (d). These considerations, in my view, once the sentencing judge decided that a term of imprisonment was the only appropriate alternative, brought s.7 directly into consideration in the particular circumstances of this case. 292I am not satisfied an error has been demonstrated in this regard.

Ground 7 - Manifest Inadequacy 293The arguments of counsel have been addressed previously and I have already set out the substance of my views. The Crown's complaint goes both to the length of the sentence and the means by which it is to be served. 294I accept the Crown's submission that the offending involved elements of brutality and cowardice, and that these matters call for denunciation. "Inexcusable" is an unhelpful word in this context. The primary function of punishment, as King CJ said, is the protection of society. And when punishment is imposed, the law does not excuse, but condemns. The sentencing judge did not excuse the respondent's offending, he imposed a punishment for it. The sentencing judge, as I have already set out, was well aware of the importance of the protection of the community as an object of punishment, and of the significance of rehabilitation to achieve that object. 295The aspect of violence in the domestic context also called for denunciation. However, for the reasons I have expressed in dealing with the facts relating to the relationship between the respondent and the victim, this consideration in the particular circumstances of the present case may be somewhat attenuated. It seems to me they were not in a current relationship and that there was an element of mutual distrust between them. There was certainly no evidence, as I have said, that the respondent was a recidivist in this regard: see s. 21A(2)(d) Sentencing Act. 296In any event, by concluding that a term of imprisonment was necessary the sentencing judge was giving effect to the need for denunciation. By making that decision he was imposing a punishment. The choice of the mode of service by way of an intensive correctional order for the reasons already set out at too much length, whilst somewhat more lenient than a term of full-time custody, represents significant punishment. I would reject this ground of appeal.

Ground 6 - The disposal of the charge of driving in a manner dangerous 297The learned Crown Prosecutor argued that the dangerous driving offence was a serious example of offending of that type which warranted a significant penalty in it's own right. It was argued that the respondent's traffic record did not justify leniency. These considerations were not adequately reflected by dealing with the matter under s.10A Sentencing Act, even with the period of disqualification. 298Ms. Manuell argued as follows: (a)By definition, the driving matter, whilst serious arose in "substantially the same circumstances" as those of the principal offence. Accordingly there was a need to avoid double punishment especially as the detention of the victim in this case was constituted by the driving. In addition to the passage from Pearce referred to above, Senior Counsel referred to R v De Simoni [1981] HCA 31; 147 CLR 383; (b)To the extent to which the conduct put the public at risk, this occurred over a short period and short distance. The temporal and spatial risk was slight, and did not materialise; (c)The 12 month disqualification was a significant penalty given his full time employment and the obligations he had undertaken under the intensive correction order. (d)The totality principle needed to be borne in mind.

Resolution 299In my judgment, it is not open to the Crown to complain about this aspect of the sentence, given the concessions that were made at first instance, which I have fully recounted above at [264]-[265]: Everett v The Queen [1994] HCA 49; 181 CLR 295 at 300 and 302-3 per Brennan, Deane, Dawson, and Gaudron JJ. I accept also Ms. Manuell's argument that there is a particular need in dealing separately with this particular offence to avoid double punishment in the manner discussed in Pearce. 300I fully accept the force of the Crown's submissions that the respondent's traffic record did not entitle him to leniency. However, he had only been dealt with by a court once in respect of any traffic offence and that matter had the unusual feature that the charge which empowered the police officer to suspend the respondent's licence, which was the foundation of the driving whilst disqualified charge, was never proceeded with, and was in fact withdrawn. As I have already said, I am not suggesting that the police suspension was unlawful, or that the respondent was not bound by it. I am simply pointing out the circumstances relating to the prior court ordered disqualification. In the circumstances, its significance as evidence of habitual, or serious, disregard of the requirements of the traffic code was reduced. 301In all the circumstances the concessions made by the prosecution at first instance left it open to the judge to deal with this driving offence in the way he did. I would reject this ground of appeal.

Decision 302I am not of the opinion that any other sentence was warranted in law and accordingly I would dismiss the s.5D appeal; in the s.5DB appeal I would confirm the sentence below. 303Lest my opinion is wrong and the appeal ought to be allowed, I would exercise the Court's discretion to decline to interfere with the sentences below even if they are erroneously lenient: Green v. The Queen at [1] - [2]; [36]; and [112]. At 479-480 [43] the Justices constituting the majority said: Other circumstances may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent's rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to the sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual. (Emphasis added.) 304As Johnson J pointed out in Speechley at [146]: From time to time, this Court has declined to re-sentence an offender on a Crown appeal, despite error having been established, because of solid and substantial evidence of rehabilitative steps taken by the offender between the time of sentence and the hearing of the appeal (citations omitted) 305In accordance with the usual practice, the Court received additional evidence in the event that it was necessary to re-sentence the respondent. An affidavit from his current supervisor confirmed that he continues to be employed in a responsible position in the finance sector and that he is highly regarded by his superiors. His supervisor describes him as a "model employee" and otherwise speaks very highly of his personal qualities and character. In his own affidavit, the respondent confirms that he has in all respects complied with the conditions of the intensive correction order, and his undertaking. In addition to his full time employment, he performs his community service each Saturday, performing what I would infer is menial physical work in a group cleaning up Sydney's foreshores. Sometimes the work is performed on a Sunday by prior agreement with the Probation and Parole Service. An officer of the service visits his home regularly. He is subject to regular drug and alcohol checks, which he affirms he has never failed. He has remained substantially abstinent and has successfully undertaken a course of study relevant to his work and intends further study to advance himself. 306He has formed a new stable relationship and he and his partner have recently celebrated the birth of their first child. 307I would infer from this evidence that the process of correction remarked upon by the learned sentencing judge at the time of sentencing has continued and that the intensive correction order is serving its statutory purpose. I would also infer, to adapt the language of King CJ, that subsequent events have demonstrated that the respondent has proved himself to be a good subject for rehabilitative measures because "he possesses the physical and mental qualities, and by reason of his upbringing... the moral fibre to provide a sound basis for rehabilitation". 308Three years and eight months have now elapsed since the commission of the offence. This delay, though not the fault of either party, is relevant to the question under consideration. Almost, but not quite, from the time of the commission of his offences, the respondent has by his deeds demonstrated that the principal offence (and the related additional offences) was in truth an aberration in one who is otherwise of good character. In my view, it would be a great mistake to risk derailing the good that the intensive correction order has served by requiring the respondent to serve, even a short, term of full-time imprisonment. 309I would, were it necessary, exercise the residual discretion to decline to interfere with the sentence actually imposed in this case. The orders I propose are: (i)In relation to the appeal brought under s.5D Criminal Appeal Act 1912, appeal dismissed. (ii)In relation to the appeal brought under s.5DB of the said Act, sentence confirmed.

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