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R v Cooper [2012] ACTCA 9 | Case summary | Zoe

ACTACTCA

R v Cooper [2012] ACTCA 9

[2012] ACTCA 9

Court of Appeal (ACT)|2012-12-21

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Court

Court of Appeal (ACT)

Decision date

2012-12-21

Source

Original judgment source is linked above.

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

R v MICHAEL COOPER

[2012] ACTCA 9 (21 December 2012)

APPEAL – Crown appeal against sentence – manifest inadequacy – general principles

CRIMINAL LAW – Sentencing – child pornography offences – objective seriousness – general deterrence as ‘paramount consideration’

CRIMINAL LAW – Sentencing – child pornography offences – good character – weighting depends on circumstances of offending

Crimes Act 1900 (ACT), s 65

Commonwealth Criminal Code 1995 (Cth), s 474.19

R v Oliver and Ors [2003] 2 Cr App R (S) 15

R v TW (2011) 6 ACTLR 18

R v Jurisic (1998) 45 NSWLR 209

R v Moon (2000) 117 A Crim R 497

R v Mas Rivadavia (2004) 61 NSWLR 63

Kardoulias and Andres v R (2005) 159 A Crim R 252

R v Wall [2002] NSWCCA 42

R v Eisenach [2011] ACTCA 2

Veen v The Queen (1979) 143 CLR 458

Veen v The Queen (No 2) (1988) 164 CLR 465

Hoare v The Queen (1989) 167 CLR 348

Markarian v The Queen (2005) 228 CLR 357

R v Henry (1999) 46 NSWLR 346

Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370

Lodhi v The Queen (2007) 179 A Crim R 470

R v Booth [2009] NSWCCA 89

R v Gent (2005) 162 A Crim R 29

R v Leroy (1984) 2 NSWLR 441

R v Rivkin [2004] NSWCCA 7

Ryan v R (2001) 206 CLR 267

R v Oliver [2003] 1 Cr App R 28

Mouscas v R [2008] NSWCCA 181

Director of Public Prosecutions (Cth) v D’Alessandro [2010] VSCA 60

Minehan v R [2010] NSWCCA 140

R v Elliot [2008] NSWDC 238

Police v Power [2007] NSWLC 1

R v Ireland (1987) 49 NTR 10

R v Fowler [2007] ACTCA 4

Hartman v R [2011] NSWCCA 261

R v Wright (1997) 93 A Crim R 48

R v Verdins (2007) 16 VR 269

R v Thomson; R v Houlton (2000) 49 NSWLR 383

Siganto v The Queen (1998) 194 CLR 656

Tyler v Regina; Regina v Chalmers (2007) 173 A Crim R 458

R v Stroempl 105 CCC (3d) 187

The appellant claims that the sentence imposed upon the respondent on the ACT offence is manifestly inadequate and submits that the sentence should be served by a full term of imprisonment rather than by periodic detention. No challenge is made to the sentence imposed in respect of the Commonwealth offence.
In support of the Notice of Appeal, the appellant submits that the sentencing judge (a) failed, inter alia, to take into account and to give appropriate weight to the need for general deterrence and the objective seriousness of the offence; (b) incorrectly found that the offending conduct was at the middle of the range of objective seriousness for offences of this kind; and (c) misstated and failed to properly understand the evidence before him relating to the volume of child pornography material seized.
The appellant also submits that his Honour erred in making the sentence imposed in the Commonwealth offence significantly concurrent with the ACT offence and failed to give appropriate weight to the consideration to the manner in which the sentences should be served.
On 13 February 2012, the Court upheld the appeal and increased the period of imprisonment that the respondent had to serve by periodic detention. These are our reasons. SENTENCING JUDGE’S OBSERVATIONS
The sentencing judge observed that the respondent, who was an electronics repairman, was 54 years old and that he had an unremarkable childhood.
His Honour noted that a pre-sentence report stated that at the beginning of the period of downloading child pornography, the respondent found the images sexually arousing, but as time went on he became less aroused and was increasingly obsessed with collecting full sets of images. The respondent acknowledged that demand for child pornography contributed to the harms of child pornography, but justified his downloading of images on the basis that the images were already in existence and he did not record the material or upload them.
His Honour noted that the respondent had no substance abuse problems. The respondent was diagnosed with Schizoid Personality Disorder, but the assessing psychologists were of the view that the disorder did not cause his offending. His Honour stated in his sentencing remarks at [20]-[22]: On 16 January 2010 Police, armed with a search warrant, attended at the offender’s home and searched it. During the search of the home, Police found and seized eight computers and associated computer equipment, 683 computer disks, about 100 DVDs and two A4 size folders containing pages of printed material. Police examined the computers and computer equipment seized at the offender’s home and found that the total of computer files was 9,403,418. Police found approximately 104,879 images of child pornography on the computers and other computer equipment, approximately 578,553 images and 1,061 videos of child pornography on the 683 computer disks, and approximately 1,138 images of child pornography on pages within the two A4 folders. None of the about 100 DVDs had any images of child pornography.
His Honour also observed at [26]-[28]: Of the 683 computer disks seized by Police, 53 of them were examined by Police. These disks showed 44,471 images of child pornography which fell into level 1 of the Oliver scale and two videos which fell into level 4 of the Oliver scale. Of the 44,471 images of child pornography which fell into level 1 of the Oliver scale, the images showed children posing in sequences of between 60 and 100 images. The sequence showed a child posing fully clothed, which is not an image of child pornography, then taking off an article of clothing until posing naked, which is an image of child pornography. Of the other 630 computer disks seized by Police, portions of 384 of them were examined by Police, who estimated that those disks contained 534,061 images of child pornography and 1,059 videos of child pornography. Although most of the images of child pornography on the disks and videos fell into level 1 of the Oliver scale, some of them fell into level 2, which is sexual activity between children, and some of them fell into level 3, which is sexual activity between adults and children. Of the “hard copy printouts” in the two A4 folders, Police found 1,138 images of child pornography, being 451 images which fell into level 1 of the Oliver scale, 289 images which fell into level 2 of the scale, 120 images which fell into level 3 of the scale, 230 images which fell into level 4 of the scale and 48 images which fell into level 5 of the scale. It must be noted, however, that of everything on the pages within the two A4 pages, only 0.16 per cent of it was images of child pornography. Thus, it must have been that there were a lot of other things on the pages within the folders.
The majority of the pornography found was Level 1 on the Oliver Scale (images of erotic posing by children without sexual activity). However there were images and video ranging across the scale from Level 1 to Level 5 (images of sadism and bestiality). For the Oliver scale, see R v Oliver and Ors [2003] 2 Cr App R (S) 15. It is regularly used in this Territory in proceedings involving child pornography: R v TW (2011) 6 ACTLR 18 at 22-23; [24]-[25].
The sentencing judge viewed some of the images and found them to contain images of appalling abuse of children. The children viewed appeared to be aged between babyhood and mid-teens. The images and videos analysed by police depicted children between the ages of 2 and 16.
His Honour said at [38]: I accept that the offender became obsessed with collecting sets or sequences of images of children; that he was more interested in collecting the set or sequence than he was in possessing the images. This seems to have been his only interest… although this does not excuse what he did it puts into perspective the vast number of images that he had in his possession.
His Honour found that the respondent did not intend to sell or otherwise profit from the images and that he co-operated with police, which were mitigating factors in sentencing. The respondent pleaded guilty and this was reflected in a sentence discount of 20 per cent. His Honour found that the respondent was remorseful and ashamed of his actions.
His Honour observed at [44], [50] and [54]: I must take deterrence into account. I see personal deterrence to be less important in this case than it might be in another case because I consider that the offender is unlikely to reoffend. However, I see general deterrence to be very important. It cannot be undervalued. Others who may think of doing what the offender did and what he did is easy to do and it is difficult to detect, must be deterred by sentences imposed upon offenders like this offenders from doing so. The prevalence and ready availability of images of child pornography via the internet means that general deterrence is very important.

The respondent was assessed by two clinical psychologists: Dr Tom Sutton and Dr Mike Barry.
Dr Sutton’s report dated 7 June 2010 indicates that the respondent has a Schizoid Personality Disorder. In Dr Sutton’s opinion the respondent was not in danger of becoming a predatory paedophile as he was incapable of the social interaction that such behaviour would necessitate. Dr Sutton considered that the respondent was excessively socially isolated and that the respondent truly believed he is normal despite his objectively isolated lifestyle and long-term fixation on pornography (of any and all forms). Dr Sutton held the opinion that he did not believe any current ‘evidence-based’ treatment approaches would be useful for the respondent. The only treatment approach suggested was group therapy in which the patient is forced to interact with others.
Dr Barry provided two reports. The first, dated 16 December 2010, stated his opinion also that the respondent was suffering from a Schizoid Personality Disorder. Dr Barry observed: [The Schizoid Personality Disorder] is likely to have contributed to [the Respondent] becoming socially isolated, failing to develop an appropriate level of empathy, avoiding relationships… not ‘outgrowing’ a young man’s interest in pornography, and not developing an appropriate awareness of social norms and expectations.
The report stated the respondent is a hoarder and does not have an appropriate awareness of social norms and expectations. Significantly the report also stated that the respondent was not a risk of becoming a predatory paedophile because of his inability to develop the interpersonal skills required to engage in the type of ‘grooming’ in which paedophiles typically engage.
With respect to the respondent’s prognosis for rehabilitation, Dr Barry opined that the respondent would benefit from group therapy. However his first report stated: ‘There is limited evidence for successful treatment of Schizoid Personality Disorder and [the respondent] has limited insight into the criminal nature of his offences’.
In his second report dated 2 May 2011, Dr Barry was more optimistic for the respondent’s progress in treatment. The fact that the respondent recognised that his behaviour had been contrary to accepted social norms and expectations indicated that ‘he is a good prospect for rehabilitation’. Dr Barry recommended group therapy as the preferred means of treatment. APPELLANT’S SUBMISSIONS
The essential complaint of the appellant is that the sentence, insofar as it was to be served by periodic detention rather than a full term of imprisonment, was inadequate and that the sentencing judge failed to give adequate consideration to the objective seriousness of the offences.
The appellant submits that the sentencing judge failed to give due weight to the number of pornographic images which were classified at the upper end of the Oliver Scale and should have recognised that although there were a large number of images at the lower end of the scale, this fact did not detract from the seriousness of the offences. It is submitted that his Honour should have considered the enormous quantity of images that were present at the lower end of the scale. The appellant also relies upon the fact that there was dissemination of the material on the internet.
Further, the appellant submits that these circumstances should have been treated as being one of the most serious instances of child pornography before this Court and that fact should have warranted a full-time custodial sentence. The appellant submits that the prior good character of the respondent does not justify in the circumstances any substantial reduction in penalty.
The appellant also submits the sentencing judge erred by placing too much emphasis on the fact that the majority of the respondent’s collection was on the lowest end on the Oliver Scale. Accordingly, the appellant submits that periodic detention is manifestly inadequate, referring the Court to R v Jurisic (1998) 45 NSWLR 209. RESPONDENT’S SUBMISSIONS
The respondent submits that there was no error by the sentencing judge nor were the sentences imposed upon the respondent manifestly inadequate. The respondent submits that, whilst there are few sentencing authorities in the Australian Capital Territory involving child pornography, the sentencing judge nevertheless followed the consistent principles referred to by Howie J in R v Moon (2000) 117 A Crim R 497.
The respondent refers to the fact that the sentencing judge had regard to the offences in accordance with the Oliver Scale as well as the degree of organisation and the objective seriousness of the offence. The respondent submits that the sentencing judge took into account general deterrence, the existence of the respondent’s mental disorder, the previous good character of the respondent and the early plea of guilty together with remorse shown by the respondent. Lastly, it is submitted that the sentencing judge took into consideration the risk of re-offending by the respondent. RELEVANT PRINCIPLES IN SENTENCING
The Court will state the principles relevant to sentencing in respect of this appeal, including principles relating to general deterrence and good character.
R v Mas Rivadavia (2004) 61 NSWLR 63 (Court of Criminal appeal) at [63]-[64] Wood CJ at CL said: In order to make the appeal good, it is necessary for the Crown to show that the sentences were so lenient as to demonstrate latent error, that is, to bring the appeal within the exceptional category of case that was referred to by Gaudron and Gummow JJ in Dinsdale v The Queen (2000) 202 CLR 321 at [22]; and by Spigelman CJ in R v Baker [2000] NSWCCA 85 at [19]; see also R v Tait (1979) 46 FLR 386 at 387-389, and Everett v The Queen (1994) 181 CLR 295 at 299.
In Kardoulias and Andres v R (2005) 159 A Crim R 252, the NSWCCA at [80] the NSW Court of Criminal Appeal confirmed such principles.
In R v Wall [2002] NSWCCA 42 at [70], Wood CJ at CL considered the ambit of the discretion inherent when considering Crown appeals, namely that clear error must be demonstrated. This Court has confirmed those principles in respect of Crown appeals against sentence in R v Eisenach [2011] ACTCA 2 at [8]-[11].
The objective gravity and seriousness of the offences marks the boundaries of the upper and lower limits of the proportionate punishment: see Veen v The Queen (1979) 143 CLR 458 at 468; Veen v The Queen (No 2) (1988) 164 CLR 465 at 472; 485-486; 490-491; 496; see also Hoare v The Queen (1989) 167 CLR 348 at 354. As was stated in Veen (No 2) at 486 per Wilson J, ‘… the punishment must fit the crime’.
A sentence can only be interfered with if there is some significant departure from fairness such that it could be said that the penalty was manifestly excessive or manifestly inadequate. In Markarian v The Queen (2005) 228 CLR 357 at [25] the High Court said: As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as 'manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
In R v Henry (1999) 46 NSWLR 346 at 352, Spigelman CJ said: Subject to any relevant statutory requirements, the sentencing task involves the exercise of a broad discretion which, centuries of practical experience strongly indicate, is best conferred on trial judges.

General deterrence has been recognised as an important general principle in sentencing and it must be taken into consideration: see Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370; Lodhi v The Queen (2007) 179 A Crim R 470 at [87] per Spigelman CJ.
It has been recognised that possession of child pornography is a crime for which the application of general deterrence in sentencing is of critical importance: see R v Booth [2009] NSWCCA 89 at [40]-[44] per Simpson J. General deterrence has been described as the ‘paramount consideration’ in respect of crimes involving child pornography: see R v Gent (2005) 162 A Crim R 29 at [64] and [100] per McClellan CJ at CL, Adams and Johnson JJ.
In R v Gent the offender was convicted of importation of child pornography. In his decision Johnson J observed that courts have previously declared that the imperative of general deterrence can outweigh the need to give an offender credit for their good character in sentencing, for example: drug couriers (R v Leroy (1984) 2 NSWLR 441 at 446-447), white collar offenders (R v Rivkin [2004] NSWCCA 7 at 410) and those who commit child sexual offences (Ryan v R (2001) 206 CLR 267 at 278). His Honour also cited R v Oliver [2003] 1 Cr App R 28 as authority for the point that child pornography offences may be another instance where the need for general deterrence diminishes the credit given to an offender’s good character. Johnson J stated at [64]: There is a foundation for the approach that less weight should be attached to evidence of prior good character on sentence for offences of importing child pornography. It appears that such offences are committed frequently by persons of otherwise good character. General deterrence has been referred to as the “paramount consideration” on sentence for this class of offence. The fact that the offence is, in a sense, committed in secret is also relevant to this issue.
This approach was cited with approval by Price J in Mouscas v R [2008] NSWCCA 181 at [37], by Harper JA in Director of Public Prosecutions (Cth) v D’Alessandro [2010] VSCA 60 at [21] and by Hulme J in Minehan v R [2010] NSWCCA 140 at [96] – [101]. See also R v Elliot [2008] NSWDC 238 at [57]; and in Police v Power [2007] NSWLC 1.
In Minehan v R at [94] the NSW Court of Criminal Appeal stated 13 factors to be considered when assessing the seriousness of an offence involving child pornography including possessing, disseminating and transmitting such material. Those considerations are as follows: 1. Whether actual children were used in the creation of the material. 2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed. 3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material. 4. The number of images or items of material – in a case of possession, the significance lying more in the number of different children depicted. 5. In a case of possession, the offender’s purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383. 6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted. 7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission. 8. The proximity of the offender’s activities to those responsible for bringing the material into existence. 9. The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material. 10. Whether the offender acted alone or in a collaborative network of like-minded persons. 11. Any risk of the material being seen or acquired by vulnerable persons, particularly children. 12. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted. 13. Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act (for State offences) or s 16A Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence. We respectfully adopt that approach. Good Character
Since the respondent has raised the issue of good character, the Court states the relevant principles with regard to offences generally.
In Ryan v R (2001) 206 CLR 267, McHugh J stated at 275: It is necessary to distinguish between the two logically distinct stages concerning the use of character in the sentencing process. First, it is necessary to determine whether the offender is of otherwise of good character. When considering this issue, the sentencing judge must not consider the offences for which the prisoner is being sentenced.

At 278 his Honour said: Sentencing is not a mathematical process. Various factors have to be weighed. The otherwise good character of the prisoner is one of them... But the nature and circumstances of the offences for which he or she is being sentenced is a countervailing factor of the utmost importance.
The importance of a sentencing judge being mindful of the circumstances of the offence was referred to by Nader J in R v Ireland (1987) 49 NTR 10 at 23, where His Honour said: The fact that a particular class of offence is prevalent and especially inimical to the well-being of society may call for deterrence to others and may have the effect of reducing the operation of factors that would otherwise have earned a greater measure of leniency. It might not be possible, for example, to give such weight to good character as might otherwise have been given in a case where the need to deter is strong.
The Director submitted that, in R v Fowler [2007] ACTCA 4, this Court had rejected the proposition that prior good character was of limited relevance in sentencing for cases involving the possession of child pornography. He referred to a number of decisions of State intermediate courts of appeal which has reaffirmed the proposition that good character has limited weight in such cases: R v Gent (2005) 162 A Crim R 29. In Director of Public Prosecutions (Cth) v D’Alessandro [2010] VSCA 60 Haydon JA, with whom Redlich JA and Williams AJA agreed, pointed out at 483; [21], that there was unanimous support across the Australian jurisdictions for a number of propositions in respect of the sentencing for child pornography offences, including the limited weight must be given to an offender’s prior good character. In Minehan v R [2010] NSWCCA 140 the approach in Fowler was doubted.
The Director thus invited the Court to clarify its position in relation to the mitigating effect of good character in sentencing those convicted of child pornography offences. To that end, it should be made clear that Fowler must not be understood as allowing good character to be given greater effect in respect of such offences than that which it has uniformly been afforded by other intermediate appellate courts throughout Australia. Indeed, Fowler merely affirms the uncontroversial proposition that, insofar as it exists, good character is always a relevant factor that must be taken into account by a sentencing court. The weight to be attached to an offender’s good character will depend, of course, on the circumstances of the offending. However, as the decisions referred to above make clear, in cases involving the possession of child pornography, the need for general deterrence will frequently operate as a strong, and indeed sometimes overwhelming, countervailing factor, and thereby render nugatory any submission as to prior good character, or, at least, of limited weight. Fowler should not be understood to stand for any different proposition. CONSIDERATION
The respondent has been diagnosed with a Schizoid Personality Disorder. It has been recognised that where an offender is suffering from a mental disorder, general deterrence should be given little weight. In Hartman v R [2011] NSWCCA 261, the Court of Criminal Appeal (NSW) at [84] observed that such rationale is the fact that ‘such an offender could not be regarded as an appropriate medium for making an example to others’: see also Hunt CJ at CL in R v Wright (1997) 93 A Crim R 48 at 50 and the detailed consideration of this issue by the Victorian Court of Appeal in R v Verdins (2007) 16 VR 269, especially at 276; [32].
In the present appeal the sentencing judge was well aware of the importance of the element of general deterrence. He did not overlook this important factor, but necessarily discounted such a consideration. His Honour specifically referred to the mental disability of the respondent and of the fact that the respondent had an unblemished record.
His Honour correctly made the appropriate allowance for the early plea of guilty, the amount of 20 per cent discount being within the recognised range: see R v Thomson; R v Houlton (2000) 49 NSWLR 383 per Spigelman CJ at [160]; Siganto v The Queen (1998) 194 CLR 656; Tyler v Regina; Regina v Chalmers (2007) 173 A Crim R 458.
Further, in Director of Public Prosecutions (Cth) v D’Alessandro, Hayne JA also said (at 483 [21]): It is therefore worth recording that there seems to be unanimous support across the jurisdictions for a number of propositions. First, that the problem of child pornography is an international one. Secondly, that the prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration. Thirdly, that those inclined to exploit children by involving them in the production of child pornography are encouraged by the fact that there is a market for it. Fourthly, that those who make up that market cannot escape responsibility for such exploitation.
Despite the facts found in the respondent’s favour, the respondent was found in possession of some 680,000 images of child pornography and over 1000 videos of child pornography. It is acknowledged that the respondent did not pay for these images directly. However, the conclusion is inescapable that by downloading vast quantities of images and videos the respondent repeatedly involved himself in the market for child pornography. The harm caused by child pornography is not dependent upon the purpose for which the material is downloaded. The harm results from the creation of child pornography itself and its creation stems from a perception that there is a demand for it. By downloading a vast amount of this material, the respondent has contributed to the demand for child pornography. A similar point was made by Morden A.C.J.O of the Court of Appeal for Ontario in R v Stroempl 105 CCC (3d) 187 and also by Kennedy J in R v Jones (1999) 108 A Crim R 50.
The vast quantity of images, downloaded from a variety of websites over a period of approximately five years, evidences the respondent’s repeated willingness to participate in the market for child pornography. The objectively serious nature of this offence must be taken into account in the sentence, irrespective of the purpose for which the respondent downloaded the images. These offences are not victimless offences merely because the offender did not take the original photo or video.
In his sentencing remarks, the learned sentencing judge stated at [38]: I accept that the offender became obsessed with collecting sets or sequences of images in children; that he was more interested in collecting the set or sequence than he was in possessing the images. This seems to be his only interest. He seems to have regarded it as a hobby like stamp collecting. Although this does not excuse what he did it puts into perspective the vast number of images that he had in his possession.
The Court however accepts the submissions of the appellant that despite his Honour’s observations, his Honour failed to give due weight to the principle of general deterrence. There is no doubt that the vast amount of pornographic material and the quantity that was at Levels 4 and 5 of the Oliver Scale render the offences most serious. Such conduct ought to have merited a sentence of imprisonment to be served in full-time custody. In our consideration, the sentence was manifestly inadequate.
Since the respondent has already served a substantial time of the sentence imposed by the sentencing judge by periodic detention, we do not consider that it is appropriate for the Court to order now that the sentence be served by full-time custody. However, the Court will increase the period of periodic detention.
But for the fact that the respondent has already served many months of his periodic detention, the Court would have increased the sentence of penal servitude to two years and seven months with the same degree of concurrency with the Commonwealth offence, which would have resulted in a total sentence of three years imprisonment. It would have been ordered that this be served with six months in full-time custody, 12 months in periodic detention and the balance of the sentence to be suspended.
However taking into account the fact that the offender has already served the bulk of his sentence by way of periodic detention and the special considerations that apply to Crown appeals against sentence as discussed in cases such as R v Tait (1979) 24 ALR 473, 476-477, Everett v R (1994) 181 CLR 295, 299 and R v Wong (2001) 207 CLR 584, 624-625, the Court orders that 18 months of the sentence of three years be served by way of periodic detention. The remainder of the sentence is suspended on the same conditions as imposed by the sentencing judge for an extended term, namely a total of two years.
We so ordered. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.