R v Blackman and Walters

Regina v Jesse Graeme BLACKMAN and Clinton John WALTERS

The respondent, Blackman, pleaded guilty to one count of accessory before the fact of break, enter and steal; one count of accessory after the fact of break, enter and steal, and one count of armed robbery with a dangerous weapon. He was ordered to enter a good behaviour bond for a period of four years for counts 1 and 2. He was sentenced to two years imprisonment (suspended) for the armed robbery offence.

The respondent, Walters, pleaded guilty to one count of break, enter and steal and one count of armed robbery with a dangerous weapon. He was similarly ordered to enter into a good behaviour bond for the offence of break, enter and steal and was given a suspended sentence of two years for the armed robbery offence on the same terms as Blackman.

The Crown appeals against the sentences imposed on the grounds that (1) the sentences were manifestly lenient; (2) the sentencing Judge erred in "eliding" the two steps involved in ordering that the sentence for the armed robbery offence be suspended; (3) the objective criminality involved was such that the sentence for armed robbery should not have been suspended.

Ground 1: sentences passed were manifestly lenient The imposition of a non-custodial sentence for armed robbery is justifiable only where exceptional circumstances are shown. In each case there were powerful subjective circumstances and the sentencing Judge was entitled to find that the position of each respondent was wholly exceptional. The respondents were very much junior partners in the exercise and their complicity was attributable to their immaturity at the time of the offence. Moreover, each had achieved a remarkable level of rehabilitation. There was every reason to suppose that to send them to gaol would have been more likely to turn them towards a criminal way of life, than to maintain the degree of rehabilitation which each had, of his own efforts and initiative achieved.

The protection of the community is contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits.

Henry (1999) 46 NSWLR 346; Taylor CA Qld 20 August 1999; Edwards (1993) 67 A Crim R 487; Blocki (1991) 56 SASR 250; Blanco (1999) NSWCCA 121; Kovacevic (2000) 11 A Crim R 131; Yardley and Betts (1979) 22 SASR 108 applied.

Ground 2: Two step process Two distinctive steps are involved in sentencing; a primary determination that a sentence of imprisonment is called for; and a determination that such a term of imprisonment should be suspended. In the present case the sentencing Judge did not expressly go through the two step process. However, there was no basis to suppose that his Honour erred in looked for a soft option which allowed him to choose the maximum sentence for which suspension was permissible, instead of imposing the sentence which he considered was required.

Dinsdale (2000) 175 ALR 315; JCE (2000) NSWCCA 498 applied.

Ground 3: Whether suspension of sentence was inappropriate In exercising discretion to suspend a sentence, it is proper to have regard to the factors pointing towards rehabilitation, however, it is also necessary to give consideration to the objective seriousness and matters of aggravation of the offence. It was not inappropriate in this case for the sentences to be suspended.

Dinsdale (2000) 175 ALR 315; JCE (2000) NSWCCA 498 applied.

TUESDAY 8TH MAY 2001 Regina v Jesse Graeme BLACKMAN and

JUDGMENT 1 STEIN JA: I agree in every respect with the judgment of Wood CJ at CL, which I have had the benefit of reading in draft. 2 WOOD CJ at CL: The Crown appeals against the leniency of the sentences imposed by Kirkham DCJ, in the District Court at Tamworth, on 13 October 2000, in respect of the respondents Jesse Graeme Blackman and Clinton John Walters. 3 In the case of Blackman, there were pleas of guilty entered to one count of accessory before the fact of break enter and steal, for which the maximum available sentence was fourteen years imprisonment; to one count of accessory after the fact of break enter and steal, for which the maximum sentence was five years imprisonment; and to one count of armed robbery with a dangerous weapon, for which the maximum available sentence was twenty-five years imprisonment. For the first and second of those offences the respondent was ordered to enter into a good behaviour bond for a period of four years. For the offence of armed robbery with a dangerous weapon, a sentence of imprisonment for two years was passed, which was suspended upon condition that he enter into a good behaviour bond. 4 In the case of Walters, he pleaded guilty to one count of break, enter and steal and to one count of armed robbery with a dangerous weapon. He was similarly ordered to enter into a good behaviour bond for the offence of break, enter and steal which also carried a maximum available sentence of imprisonment for fourteen years; and given a suspended sentence of the same duration, and upon the same terms as that applicable to Blackman for the offence of armed robbery with a dangerous weapon. 5 In the case of each respondent an intention to plead guilty to the relevant charges had been made clear from at least 14 August 2000, and possibly from as early as 13 June 2000.

Facts 6 The offences of the two respondents arose in the following circumstances. Between 23 and 28 December 1997, they, and one Darren Taylor, went to premises at 231 Manilla Road Tamworth, which were owned by Mr. Reid, the president of the local gun club, but which were unoccupied at the time. They gained entry, but after an inspection, left. 7 A day or so later Blackman was contacted by both Walters and Taylor and informed that these two offenders had been back to the premises and had stolen the floor safe which contained a number of handguns, a quantity of ammunition, and some personal items. The safe was said to be at Walters home. 8 Blackman went straight over to Walter's home where he saw the safe sitting on a tarpaulin. A fourth person attended with grinding disks which Walters, Blackman and Taylor then used, in conjunction with an angle grinder, to open the safe. After it was opened its contents were removed, and it was then dumped at the local tip. 9 When Mr. Reid returned to his home he found the safe to be stolen and reported that fact to police. His next door neighbour was Taylor's mother, with whom Mr. Reid had left a key to the rear door, so that she could look after the premises and feed his pets. Taylor was living with his mother at the time, and obviously knew that the premises were vulnerable. 10 Armed with some of the weapons obtained from the safe, and also with a softball bat and a cricket bat, Blackman, Walters and Taylor made their way, at about midnight on 1 January 1997, to premises at 28 Melissa Avenue, Tamworth, where they expected to find a hydroponic cannabis installation, as well as cash. Each was disguised. Blackman and Taylor, it would seem, entered the premises, while Walters, it would seem, remained outside. 11 There were five occupants of this house including MG, his two adult sons RG and JG, and two females AG (the partner of JG) and a teenager CB. There was no evidence to suggest that the information or belief which took the offenders to the premises had any substance to it. 12 The accounts of the victims, which his Honour accepted as more reliable than the version of events given by the respondents to police, painted a very frightening picture of a home invasion in which demands were made, and weapons were used in a threatening way. 13 RG said that the offenders arrived while he was watching television. A knock at the front door was heard. GB went to the door and it was pushed open. She saw two and possibly three men outside, one of whom, Taylor, the sentencing Judge found, was carrying a handgun and wearing a balaclava and a dark trench coat. The second person, who his Honour found was Blackman, was similarly dressed in dark clothing. CB screamed and ran from the doorway, but tripped and fell to the ground. She later saw JG lying face down on the hallway with a pistol pressed to his head by a man who yelled out "where's the hydro?". 14 Upon hearing CB's scream, RG said that he also went to the front door. He saw a tall man with a black balaclava come through that door, carrying a firearm which was about half a meter in length. He tried to retreat but was struck on the back and knocked to the ground. He heard a male voice say "where's your hyde (sic) and where's your money?". He responded "my wallet's on the table, just take it and go". When he turned around he saw another shorter man, whose face was covered by a bandanna, and who was carrying a pistol. 15 JG and AG said that they had already gone to bed. When JG heard CB's scream, he opened their bedroom door, from which position he saw CB crouched on the floor of the hallway, and two males standing nearby. The nearest of these to him lifted his hand, pointed a gun at him, and instructed him to get down on the floor. He noticed that his partner AG was, at that point, lying in a foetal position up against a wardrobe in his father's room, crying and shaking. He heard persistent demands being made for the hydroponic system and drugs. In the meantime, the male, who his Honour found was Taylor, stood over him with the barrel of the gun up against the back of his head. The second male questioned him as to the ownership of the house and as to the presence of "hydro" and drugs. 16 AG similarly described being in bed with JG when she heard CB scream. When JG opened their bedroom doors she saw a man standing there carrying a long firearm and wearing a long khaki coloured coat. He yelled "put your head down, put your head down". She saw the man leaning over JG, with a gun at his head, asking "where's the hydro set up, where's the money?" 17 MG, who was visiting the premises, had similarly gone to bed before the others. When he opened his eyes, after hearing CB scream, he saw a tall male wearing a balaclava and greatcoat standing in the doorway of his room with a pistol pointed at him. He got up and saw JG lying on the hallway floor, with the man who had come into his bedroom bending over him, with a pistol against his head, asking for drugs and money. A second man came to the bedroom doorway and looked in. He was wearing a scarf or bandanna over his face and was carrying a shortened rifle or shotgun. 18 When interviewed by police, Blackman said that while he had a gun with him, it remained in his pocket, as he did not feel comfortable pointing it at anyone. He acknowledged that he did carry a softball bat. Walters said that he had a cricket bat as well as a firearm, and that Blackman had a pistol. It was his account that Taylor, who was carrying a few firearms, had the responsibility of rounding up the occupants, that Blackman was to search the premises, and that he, Walters, was to stand by the door. He said that soon after Blackman and Taylor entered the house, he told Taylor that he was leaving, realising that it was all a horrible mistake. Taylor castigated him for addressing him by his first name. He returned to their vehicle where, a short time later, he was joined by Taylor. They left and picked up Blackman later. 19 Blackman gave a slightly different version, which his Honour described as "rather confused". It was his account that it was Taylor and Walters who first entered the premises, and that it was Walters who was forcefully making inquiries about the hydroponically grown cannabis. 20 His Honour accepted the evidence of the victims in finding that it was Taylor and Blackman who were inside the premises, menacing the occupants. He found, however, that there had been a joint criminal enterprise between all three men, the ringleader of which was Taylor. These offences he said had to be viewed in a "very serious light". This was an entirely appropriate description of what amounted to a home invasion in the middle of the night, in which law abiding and innocent victims were each subjected to an experience that could only have been absolutely terrifying. 21 As his Honour observed, the premises had been targeted in mistake, there being no reason to suppose that drugs were being grown or held there. Even had the contrary been the case, that would not have provided any excuse for a violent invasion of domestic premises of the kind which here occurred. Nor would it have provided any basis for mitigation of the seriousness of the conduct of the three offenders. 22 The significant degree of criminality involved was recognised by his Honour. However, in the case of each offender, he found that there were impressive subjective features present to a degree which justified a departure from the sentences which might otherwise have been expected. 23 In part, they depended upon the circumstance that although the offences occurred in December 1997, and the respondents came under suspicion as the result of a call, possibly from an unidentified and uncharged co-offender, to Crime Stoppers in May 1998, they were not arrested until May and June 2000. No explanation was provided to the sentencing Judge, or to this Court, for the delay in the investigation of the very serious offences involved.

24 In the case of Walters, the relevant subjective circumstances were as follows:

a) he was twenty years of age at the time of the offences, and twenty-three years old when he appeared for sentence;

b) he had no prior criminal convictions, had never been under previous adverse police notice and had not reoffended;

c) his involvement in the offences was said to be attributable to some financial difficulty that he was experiencing;

e) he did not use drugs but was mistakenly led to believe that, since the armed robbery offence was to be directed against a person who supposedly was a drug dealer, its seriousness was diminished;

f) he admitted his involvement in all offences immediately when confronted by police;

g) he offered to assist the authorities in bringing Taylor and another man to justice, and thereafter provided significant assistance in accordance with the contents of sealed documents, notwithstanding subsequent serious threats to his person on the part of Taylor;

h) he pleaded guilty to the charges at the earliest opportunity;

i) by reason of his assistance and his undertaking to give evidence against Taylor, he would need to serve his sentence in protective custody, with all of the hardships and loss of opportunity for progression through the classification system and access to programs, that such circumstance would entail;

j) without his confession, it is improbable that the authorities would have been able to prove his guilt - a matter of considerable importance, for the reasons explained in Ellis (1986) 6 NSWLR 603.

k) he had demonstrated considerable remorse for his offending, and had written an apology to the victims;

l) he had remained crime free since the offences, and in fact had established an extremely creditable record of service as a soldier in the Regular Army, a circumstance attested to by a most impressive, and extensive volume of references from both commissioned and non commissioned officers with whom he has served;

m) his father gave evidence that after having joined the army, he had matured significantly, having overcome the effects of the teasing as a child that had been attributed to his height, and the drowning of sister which had had a long term effect upon him. 25 In the case of Blackman, the relevant subjective circumstances were as follows:

a) he was seventeen years of age at the time of the offence, and twenty years old when he appeared for sentence;

b) he similarly had no prior convictions and had hitherto not come under adverse police notice;

c) his family background had been difficult, so far as his mother had become depressive and suicidal after the breakdown of her marriage, with the consequence that the family environment had become unstable;

d) he had returned to school to complete his Higher School Certificate;

e) when confronted by police, he also immediately admitted his complicity, without which the authorities may not have been able to prove his guilt;

f) his plea was offered at the first available opportunity;

g) he too had given assistance and had offered to give evidence against Taylor, although this assistance was assessed as being of a lesser value than that offered by Walters;

h) his remorse was genuine, and like Walters, he had experienced considerable misgivings soon after entering the premises;

k) he had secured employment as an assistant chef and had an opportunity to complete an apprenticeship in that field;

m) there was available character evidence from family friends that was entirely favourable and held out the expectation that if, given the chance, he would become a law abiding member of the society. 26 In his case, he was a child, within the meaning of the Children's (Criminal Proceedings) Act 1987, to whom S6 and the special principles recognised in GDP (1991) 53 A Crim R 112 were, accordingly, applicable. 27 It was by reference to those circumstances that his Honour imposed the sentences, and made the orders previously mentioned, recognising that they were particularly lenient, but pointing out to each offender that this was the one chance in life that they were likely to receive with these sorts of offences, and that they were being given an "opportunity in very rare circumstances, exceptional circumstances to make good." 28 The Crown in pursuing these appeals recognises that there were present, in the case of each respondent, very powerful subjective circumstances. Nevertheless, it submitted that:

b) his Honour erred in "eliding" the two steps involved in ordering that the sentence for the S 97(2) offence be suspended; and that

c) the objective criminality involved was such that the sentence for the S 97(2) offence should not have been suspended.

Inadequacy of Sentence 29 The S 97(2) offence here involved was a particularly aggravated form of the offence having regard to the nature and degree of the violence threatened, and also having regard to the fact that it involved a home invasion of a very frightening nature. 30 Of particular relevance in this regard were the observations in Broxham NSWCCA 3 April 1986, cited with approval in Bavadra (2000) NSWCCA 292: "The prevalence of the offence in respect of which the applicant was sentenced is matter of grave social concern … It is now well recognised that the victims of such armed robberies or attempted armed robberies may suffer devastating psychological damage consequent upon the trauma necessarily involved with the commission of such offences. In these circumstances sentencing judges will be recreant to the trust which the community places in them, were they not to impose sentences consistent with the seriousness and prevalence of such offences." 31 Equally relevant was the warning given by Abadee J in Li NSWCCA 9 July 1997 (a break enter and steal case) at pp 7 and 8, and similarly that given by Lee CJ at CL in Cue Thanh Pham and Ly (1991) 55 A Crim R 128, in relation to the strong stand that this Court expects to be taken in relation to home invasion offences. In the latter decision, Lee CJ at CL said (at 135): "The crimes, on any view, were of great gravity; they are crimes for which the legislature has prescribed heavy penalties. They are crimes which are becoming all too frequent. Day and night people live in fear and terror of being assaulted and robbed in their own homes. Frequently this class of offence along with robberies of commercial premises are committed by persons who have barely entered upon manhood. Whilst the early background of each respondent merits sympathy and understanding it can not be used to cloak or disguise the fact that the actions of the respondents and the other men involved can only properly be described as the actions of a gang of thugs and armed thugs at that, violently invading the home of the victims and rendering them helpless." 32 The criminality involved in an offence of armed robbery is such that, consistently with a long line of sentencing principle laid down in cases such as: Ellis (1993) 68 A Crim R 449; Maddocks NSWCCA 25 November 1993; Roberts (1994) 73 A Crim R 306; Atonio (1999) NSWCCA 266 ; Webster (1999) NSWCCA 313; Doorey (2000) NSWCCA 456; and Readman (1990) 47 A Crim R 181, significant sentences of imprisonment, of a full time nature, might in fact and law reasonably have been expected here in the case of each offender. 33 As was reaffirmed in Henry (1999) 46 NSWLR 346 at para 113, the imposition of a non custodial sentence for such offences is justifiable only where most exceptional circumstances are shown. Moreover, that sentence might have been expected to have been one in excess of the four to five year guideline there laid down for the lesser S 97(1) offence, since there were here present circumstances of the kind which Spigelman CJ recognised, at para 170, as potentially aggravating. They related to the number of offenders, the number and nature of the weapons carried, the vulnerability of the victims who were entitled to feel secure in their home, the obvious planning involved, and the intensity of the threats. The need also for a proportionate increase in the guideline to reflect the aggravated version of the offence charged would have the support of his Honour's observations in McKinney (1999) NSWCCA 51 at para 14. 34 Additionally, there was the circumstance compounding the total criminality, that each offender had been involved in the serious break, enter and steal offences also charged, a matter that normally would attract some additional punishment: Wheeler (2000) NSWCCA 34 per Sully J, at paras 36 to 37. 35 Latent error of law, it was submitted, was demonstrated in these circumstances, when the sentencing orders were compared with the maximum available penalties and with the guideline. This, it was submitted, may have been related to an element of double counting when giving each applicant top of the range allowances of 50% for assistance, and of 25% for the pleas, notwithstanding the cautions expressed in this regard in S (2000) 111 A Crim R 225 at 228, and Gallagher (1991) 23 NSWLR 220 per Gleeson CJ at 227 to 228. 36 Further, it was submitted, his Honour may have allowed the subjective circumstances of the case to overwhelm his primary duty of giving appropriate weight to the objective circumstances of the crimes involved. The consequence, it was put, meant that he failed to ensure that the sentences accorded with the general moral sense of the community, or to ensure that they provided a sufficient deterrent to the respondents and others minded to engage in similar criminality: Rushby (1977) 1 NSWLR 594 at 598 and Dodd (1999) 57 A Crim R 349 at 354. 37 These are submissions of very considerable weight, as is the related submission that, while special consideration needed to be given when sentencing young offenders, since the interests of punishment and deterrence in such cases generally weigh less heavily than that of rehabilitation: (See S6 Children's (Criminal Proceedings) Act 1987, and GDP (1991) 53 A Crim R 112 at 116, which were applicable to Blackman; as well as C, S & T NSW CCA 12 October 1989, Wilkie NSW CCA 2 July 1992, and XYJ NSWCCA 15 June 1992); nevertheless these principles have less weight in the case of offenders approaching the age of adulthood, particularly when they behave as adults Tran (1999) NSWCCA 109 at para 10 and 12, Nguyen NSWCCA 14 April 1994; and SDM NSW CCA 4 August 1997. 38 In Pham and Ly Lee CJ at CL said: "It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes. It is appropriate to refer to the decision of Williscroft [1975] VR 292 at 299, where the majority of the Full Court of Victoria expressed the view that, notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment, ie coercive action is fundamental to correctional treatment in our society."

See also Webb NSW CCA 12 September 1997, and Mastronardi (2000) NSWCCA 12, which confirm that youth cannot be used as a cloak of convenience to enable an offender to shelter from accepting proper responsibility for his or her criminal behaviour. 39 On the other hand, the decision in Henry, which in my view is of continuing relevance in relation to young offenders (I do not consider Sua 2000 NSWCCA 94 to be an authority to the contrary), does admit of the imposition of non-custodial sentences where exceptional circumstances exist, and (at para 373) notes some instances where that has occurred; see also Govinden (1999) 106 A Crim R 314 and Griggs (2000) 113 A Crim R 233. 40 It is upon the existence of exceptional circumstances that this appeal turns. As I have observed there were, in each case, powerful subjective circumstances as well as other circumstances suggesting that Blackman and Walters were very much the junior partners in the enterprise, having been unduly influenced by Taylor. There is also support for the view that their complicity was, to a considerable measure, attributable to their immaturity and was quite out of character for each of them. 41 There is precedent elsewhere for Courts of Criminal Appeal upholding similar sentencing orders where the respondent is a youthful first offender for whom there are exceptionally good prospects of rehabilitation, and where there is genuine remorse, see e.g. Taylor CA Qld 20 August 1999, Edwards (1993) 67 A Crim R 487; and see also Blocki (1991) 56 SASR 250 for an example of a case where the prospects of rehabilitation were held to justify suspension of a sentence, and in that sense to prevail over the deterrent aspects of punishment. 42 Here there is the additional circumstance of delay between offence and arrest, which each respondent used to break away from his criminal associates, and to demonstrate actual and substantial rehabilitation. Although no detriment was occasioned to either of them by reason of the delay, cf Johnson NSW CCA 16 May 1997, V NSW CCA 28 February 1998, it was nevertheless relevant, as this Court explained in Blanco (1999) NSW CCA 121, for his Honour to take into account the substantial change in each respondent in his attitude towards life, as well as their immediate response in admitting their culpability and in providing assistance (see also Gannon NSWCCA 29 August 1984, per Street CJ at p 3, and Todd (1982) 2 NSWLR 517 at 519 also per Street CJ). 43 Although expressed in the context of a social security fraud case, the South Australian Full Court, in Kovacevic (2000) 111 A Crim R 131 at 139, reiterated that while general deterrence may loom large in determining an appropriate sentence, (as it certainly must in the case of an armed robbery) nevertheless: "… there is still a need to consider all aspects of the matter, and to consider the interests of society and of the offender in the rehabilitation of the offender. Also, in an appropriate case, there may be room for the exercise of mercy and leniency…." 44 The Full Court also cited (at 147) with approval the following passage from the judgment of King CJ in Yardley v Betts (1979) 22 SASR 108 at 112-3: "The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence had the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an order to avoid offending in future, the protection of the community is to that extent enhanced. To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm…" 45 This has particular relevance for the present case. His Honour was, in my view, entitled to find that the position of each respondent was wholly exceptional, and that each had achieved a remarkable level of rehabilitation. Additionally, as I have previously noted, it was only by reason of their admissions, that their guilt could ever have been established. Moreover, if they had been sentenced to full time custody, they would have been at considerable personal risk by reason of the assistance given, which would have made their detention arduous and limited their opportunity to participate in the kinds of rehabilitation programs that would have been appropriate for young offenders. There was every reason to suppose that to send them to gaol would have been more likely to turn them towards a criminal way of life, than to maintain the degree of rehabilitation which each had, of his own effort and initiative, achieved. 46 In these circumstances, I consider that while individual judges may have exercised their sentencing discretion differently, I would not be prepared to find error of law in the approach taken. 47 As Gaudron and Gummow JJ said, in Dinsdale (2000) HCA 54 (at par 22). "… the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been 'upon the facts … unreasonable or plainly unjust [so that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court at first instance': House v The King (1936) 55 CLR 499 at 505. Was the sentence manifestly wrong?" 48 The observations of the High Court in Lowndes v The Queen (1999) 195 CLR 665 (at 671-672) are also pertinent. There it was said: "Of particular importance in the present case is the principle that a court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice." 49 For these reasons I am not persuaded that this ground has been made good. I would, however, emphasise that this is a wholly exceptional case, and that both in it, and in similar cases it is essential that sentencing judges exercise a good deal of vigilance to ensure that evidence or submissions as to rehabilitation are adequately tested and not taken at face value: Govinden (1999) NSWCCA 118. That his Honour did not fall into that trap can be seen from the very careful evaluation that was made of the evidence, and of his closing remarks in the reasons for sentence.

Two step process 50 In Dinsdale (2000) 175 ALR 315, Kirby J said, in a passage relating to the legislation in Western Australia, concerning suspended sentences, but equally of application to New South Wales: "The starting point … is the need to recognise that two distinctive steps are involved. The first is the primary determination that a sentence of imprisonment, and not some lesser sentence is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the Court. The two steps should not be elided. Unless the first is taken, the second does not arise."

To similar effect were the observations of Fitzgerald JA in JCE (2000) NSWCCA 498 at para 17. 51 His Honour did not here expressly go through a two step process. It was submitted that, had he done so, he would have reached a conclusion in the first step that sentences in excess of two years were warranted. Upon such a finding, their suspension would not have been possible, since S 12(1) of the Crimes (Sentencing Procedure) Act 1999 only permits suspension where the sentence is for a term of not more than two years. So, it was submitted, error had been shown. 52 The vice to which the observations in Dinsdale were directed appears to me to be that which can arise where, in a state of uncertainty as to the proper sentencing order, a Judge selects a suspended sentence as a 'soft option'. This submission does, however, need to be considered in the light of S 5(1) of the Act, which provides: "….a Court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is involved"

53 I am not persuaded that his Honour, as a very experienced trial Judge, was unaware of the requirements of the law in determining an appropriate sentence, or that being in doubt, he looked for a soft option and then chose the maximum sentence for which suspension was permissible. Had that been his approach then error would have been demonstrated. 54 However, even if that was the approach taken, I am not persuaded, for the reasons earlier explained, that this Court should intervene, upon this account.

Suspension inappropriate 55 Finally, it was submitted that even had sentences of two years been appropriate, his Honour erred in the exercise of the discretion to suspend them. In this regard, it was accepted that while in exercising the discretion to suspend a sentence, it is proper to have regard to factors pointing towards rehabilitation, nevertheless it remains necessary also to give consideration to the factors of objective seriousness and of aggravation of the offence: Dinsdale also per Kirby J at paras 84 to 89, and JCE per Fitzgerald JA at para 17. 56 These principles are clearly correct. Had his Honour directed his mind solely to the question of rehabilitation, when exercising the discretion, then error would have been shown. However, I am not persuaded that this was the case, in view of the care taken in finding the objective facts, and in view of the conclusion reached as to the seriousness of the offences. For the reasons already advanced, where wholly exceptional circumstances of the kind here demonstrated exist, it is appropriate for sentences to be suspended. The strength of this ground depends substantially upon the remaining grounds. In view of the conclusions which I have reached in relation to them, I do not consider that it been made good. 57 If, however, I am in error in these respects, then the case is one which, by reason of the enormous change in each respondent, and the time which has passed, I would regard as warranting an exercise of the special discretion attaching to Crown appeals, not to intervene. To do so would in my view place the progress of each respondent at serious risk: cf Kyroglou and Tsoukatos (1999) NSWCCA 106 per Simpson J at par 98, and paras 101-102; Hayes (1987) 29 A Crim R 452 per Kirby P, at 457 and 472, Crotty CCA NSW 28 February 1994 and Lattouf CCA NSW 12 December 1996. 58 I would accordingly propose that each appeal be dismissed. 59 STUDDERT J: I agree with Wood CJ at CL. **********

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