R v Dunlop

IN THE COURT OF CRIMINAL APPEAL 60253/01 WOOD CJ AT CL STUDDERT J BELL J

FRIDAY 16 NOVEMBER 2001 REGINA v Henry Kendall DUNLOP

Judgment 1 WOOD CJ AT CL: this is an appeal by the Director of Public Prosecutions pursuant to S 5D of the Criminal Appeal Act 1912 in respect of a sentence imposed by his Honour Justice Blanch CJ of the District Court upon the respondent on 11 April 2001, following his pleas of guilty to one count of dangerous driving causing death, and to one count of dangerous driving causing grievous bodily harm, in both cases at a time when he was under the influence of intoxicating liquor. Those pleas had been offered in the Local Court, and they were accepted as having been made at the earliest practical opportunity. 2 The sentence imposed in respect of each count was one of imprisonment for three years from 11 April 2001, with non-parole periods in each case of twelve months to date from the same date. Such sentences were directed to be served by way of periodic detention commencing on Friday 20 April 2001. The statutory ratio between the non-parole period and the head sentence, was varied, his Honour said, because in the ordinary course of events, were the respondent to serve that sentence on a full-time basis, he would need extra supervision and support, coming from the background that he did, and going into a prison situation that he would have to go into. 3 To that reason I will return, since I have some difficulty in understanding how it could logically have provided the basis for a finding of special circumstances where the sentence imposed was not one involving full time detention. 4 The facts giving rise to the offences were the subject of an agreed statement which was accepted by his Honour, and which was in the following terms: "Both charges arose from a motor vehicle collision which occurred at approximately 9.20am on Sunday 25 June 2000 on the Jugiong Road via Harden. The prisoner is twenty-one years of age (DOB 15/6/79) and has no prior criminal history. At the time of the collision he was living and working as a horse trainer at the Garangula Polo Club which is located 19 kilometres south of Harden. During the evening and night of Saturday/Sunday 24 and 25 June 2000, the prisoner was drinking alcohol with friends at the Harden Rugby club, a local hotel and finally at the home of Mr. Jamie Parker. He was awake until approximately 3.00-3.30am and was described as being 'drunk but not blind drunk'. He had previously made arrangements for his motor vehicle (a white Holden Commodore utility registration number VDX238) to be left at the home of Mr Christopher Johnson which ensured that he would not be driving after he finished drinking. The prisoner slept at the home of Mr Parker for approximately five to six hours during which time he awoke and had a brief meal. Sometime prior to 9.20 am the prisoner was driven by Mr John Parker to pick up his vehicle from Mr. Johnson's home. At Mr. Johnson's home he ate an apple and then, after driving Mr. Parker to his home, drove to work. He was described at this time as appearing to be 'allright'. The total distance to be travelled by the prisoner that morning was approximately 20 kilometres. At about 9.20am the prisoner was driving south on the Jugiong Road some 3.6 kilometres from Harden approaching four mile creek bridge. There was a down hill gradient and a slight left curve. The prisoner's vehicle drifted into the northbound lane. At that time Luke Weston, with a passenger Zain Pearce (the deceased), was driving a red Holden Kingswood utility (registration number NSY288) in a northerly direction. Mr. Weston attempted to avoid a collision by swerving into the southbound lane whereupon Mr Dunlop swerved back into that lane. There was a collision between the front and front near side of both vehicles. The point of impact was about one meter from the centre lane in the southbound lane. It is probable that the prisoner fell asleep causing his vehicle to drift into the northbound lane. At the time of the collision visibility was good, the road was dry and in good condition and the traffic was very light. There is no evidence to suggest that prior to the collision the prisoner (i) was driving at an excessive speed or in an erratic manner; (ii) had any warning of falling asleep; (iii) ignored any warning; (iv) was engaged in competitive driving or showing off, or (v) had abandoned responsibility for his conduct. The prisoner was seriously injured in the accident and has no memory of the events immediately prior to or after the collision. The prisoner was however observed, in an injured state, to be doing all within his power to rescue and assist the occupants of the other vehicle. He sustained additional injuries during the rescue attempts The prisoner was taken by ambulance to Harden hospital and transferred to Woden hospital in Canberra. At 12.45pm a blood sample was taken which when analysed revealed 0.119 grams of ethyl alcohol per 100 millilitres of blood. At the time of the collision it is estimated that the alcohol level would have been not less than 0.126 grams per 100 millilitres of blood." 5 It may be noted that the passenger who lost his life and who was trapped in Mr. Weston's vehicle was an eleven-year-old boy, and that Mr. Weston suffered significant injuries in the accident, including a fractured sternum and a fractured pelvis. 6 The respondent also suffered several injuries including a fractured sternum, severe bruising from the seat belt, and lacerations to his face, knee, forehead, eyebrow and chin, as well as burns to his left hand and wrist sustained when attempting to extinguish the fire in the vehicle of Mr. Weston. 7 In sentencing the respondent, his Honour made reference to his prior clear record (save for some minor traffic matters) and to the significant number of references from his family and from people in the community who knew and worked with him, which had been tendered and which established that he was a person of excellent character. His Honour concluded, and the Crown does not seek to contravert this finding, that his subjective features were "as good as they could be". 8 The respondent was in fact twenty-one years of age at the time of the offences, and came from a respectable farming family with whom he had a good relationship. He had worked as a stockman in Northern Queensland and was employed, at the time of the offence, as a horse trainer at a polo club near Harden. He had been assessed as very remorseful for the offences, and to not have had a problem with alcohol or drugs, the offence on this occasion involving an over indulgence on a social occasion, which was not usual for him. 9 As a result of the destruction of the two vehicles involved in the accident, the respondent accepted a liability to repay to the financier of his vehicle and to the insurer of the other vehicle, a sum in the order of $28,000. Additionally, he was disqualified from driving for three years. 10 The Crown submitted that, having regard to the guideline judgment in R v Jurisic 45 NSWLR 19 and subsequent decisions, the sentences imposed were manifestly lenient. In particular, it submitted that:

a) his Honour's assessment of the objective criminality of the respondent was "inappropriately benign" in that it strained credulity to suggest that a person whose blood alcohol concentration was over twice the limit could be unaware that he was not in a fit state to drive.

b) the sentences did not reflect the objective seriousness of offences involving the death of one person, and the serious injury of another;

c) the sentences did not convey the element of general deterrence which is of considerable importance in relation to the subject offences;

d) his Honour gave undue weight to the subjective features of the respondent, and

e) the direction that the sentences be served by way of periodic detention was inappropriate, by reason of the leniency built into such a direction. 11 In reply the respondent submitted that:

a) his Honour did not overlook the need for the sentences to have a deterrent effect, or the need to denounce the antisocial conduct involved in driving a vehicle while under the influence, each having been expressly mentioned his Honour;

b) the suggestion that there had been an abandonment of responsibility by the respondent was contradicted by the concession in the agreed statement of facts, and by the evidence showing that the respondent had earlier in the evening parked his car elsewhere, to ensure that he would not drive, had ceased drinking by about 3am, and had thereafter consumed a meal and slept for five to six hours, before returning to his car. Rather, it was submitted, his error was one of misjudgement as to whether or not he was still affected, and in a fit state to drive;

c) the wider sentencing discretion available to his Honour, in a case where there had not been present an abandonment of responsibility, did not miscarry, having regard to the respondent's very favourable subjective circumstances and to the fact that he was required to serve a sentence involving periodic detention, and had otherwise suffered a personal financial penalty;

d) in the event of the Court being satisfied that his Honour erred, then it should not, in the exercise of its discretion, intervene by reason of the concession made by the Crown, in the agreed facts, that this was not a case involving an abandonment of responsibility, and by reason of the fact that the respondent has now served almost half of the non-parole period to which his sentence was subject, having progressed to the second stage of the periodic detention programme. 12 The maximum available sentences for the offences here involved were imprisonment for ten years and seven years respectively (s 52A(1)(a) and s 52A(3)(a) Crimes Act (NSW) 1900. 13 In Jurisic Spigelman CJ promulgated the following guidelines for an offence against s 52A of the Crimes Act: "1. A non-custodial sentence for an offence against s 52A should be exceptional and almost invariably confined to cases involving momentary inattention or mis-judgment. 2. With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional. 14 The factors to be taken into account in determining the appropriate sentence, his Honour observed, included the following: "(i) extent and nature of the injuries inflicted; (ii) number of people put at risk; (iii) degree of speed; (iv) degree of intoxication or of substance abuse; (v) erratic driving; (vi) Length of the journey during which others were exposed to risk; (viii) Ignoring of warnings; (x) Escaping police pursuit." 15 His honour added, in relation to the guideline, that: "The period of three or two years, once the threshold of abandoning responsibility has been reached, is a starting point. The presence of additional aggravating factors, or their increased intensity, will determine the actual sentence". 16 Earlier in the course of his judgment Spigelman CJ cited with approval the comments of Hunt CJ at CL in R v Musemici NSW CCA 30 October 1997 (at 4-5) as follows: "This Court has held that a number of considerations which had to be taken into account when sentencing for culpable driving must also be taken into account when sentencing for this new offence of dangerous driving. 1. The legislature has always placed a premium upon human life, and the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness. 2. The real substance of the offence is not just the dangerous driving; it is the dangerous driving in association with the taking of a human life. 3. Such is the need for public deterrence in this type of case, the youth of any offender is given less weight as a subjective matter than in other types of cases. 4. The courts must tread warily in showing leniency for good character in such cases. 5. So for youthful offenders of good character, who are guilty of dangerous driving, therefore, the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime, and persuasive subjective circumstances must not lead to inadequate weight being given to those objective circumstances. 6. Periodic detention has a strong element of leniency built into it and, as presently administered, it is usually no more punitive than a community service order. 7. The statement made by this Court in relation to the previous offence of culpable driving - that it cannot be said that a full-time custodial sentence is required in every case - continues to apply in relation to the new offence of dangerous driving. As that offence is committed even though the offender has had no more than a momentary or casual lapse of attention, there must always be room for a non-custodial sentence (although that does not mean that a non-custodial sentence is ordinarily appropriate in such a case) but the case in which a sentence other than one involving full-time custody is appropriate must be rarer for this new offence." 17 Spigelman CJ added that: "Although said in the context of dangerous driving causing death, his Honour's comments can be readily adapted to the cognate offence of dangerous driving causing grievous bodily harm." 18 In R v Pyritz NSW CCA 23 November 1998, and in R v Davies (2000) NSWCCA 84, this Court similarly confirmed that non-custodial sentences, in the present context, are almost invariably to be confined to cases involving momentary attention or misjudgement. The consistent approval of the proposition is not to be diluted or circumvented by the presence of strong subjective circumstances, or otherwise. 19 Unfortunately, it is the case that serious motoring offences, which result in death or serious bodily injury to others, are very often committed by young males with impeccable subjective circumstances, and for whom the consequences psychologically and otherwise, are extreme. That was a circumstance recognized both in Jurisic and Musemici. 20 It was a theme also taken up by Spigelman CJ in Howland (1999) 104 A Crim R 273, where (at 279) his Honour observed that there had been error in the part of the sentencing Judge in two respects: "First, by failing to give appropriate weight to the objective seriousness of the offence as reflected in the maximum penalty; secondly, by failing to give weight to the need for general deterrence - the deterrence to others from engaging in irresponsible conduct that so often results in death or serious injury. As to the first error, the community has indicated that it wishes to denounce this conduct in the strongest terms. The premium on human life which our society accepts as a fundamental value is such that culpable conduct which kills must be treated as a serious crime. By the increases in the maximum sentences, the community, acting through the Parliament, has indicated that this is a crime, which it wishes to denounce and deter. It is the duty of the judges to reflect this community concern. The second factor is the need to deter others from engaging in the conduct, which might lead to the commission of this offence. Judge Job made no express reference to this factor. There is, and has been for many years, a debate as to the deterrence value of imprisonment. Judges will differ in their opinions with respect to this matter. It is perfectly appropriate for sentencing to vary, within reasonable bounds, to reflect such differences of opinion, being differences which judges share with members of the community as a whole The emphasis, however, is on the reasonable bounds. Sentencing has always been based on the acceptance of the proposition that condign punishment of offenders will have a deterrent effect on others. In order to have this deterrent effect, sentencing practice of the Courts must reflect a consistency in approach. That is what this Court sought to achieve in Jurisic . This is an offence most often committed by young men. Young men in our community must understand that if you drive dangerously and kill someone, you will go to gaol. In my opinion, a period of imprisonment was the only appropriate penalty for this offence." 21 That was a case in which the dangerous conduct involved the respondent driving a truck deliberately through a red light as a result of which he struck and killed a motorcyclist, and in which a sentence of periodic detention for eighteen months was held to have been "outside any reasonable exercise of the sentencing discretion" available to the sentencing Judge. It was found not to be a case of momentary inattention or misjudgement. As a result the appeal was allowed and a sentence comprising a minimum term of nine months and an additional term of nine months was substituted. It may be observed additionally that it was a case where the respondent was denied the benefit of a plea of guilty, but it was also one where, consistently with the double jeopardy principle noted in Rose NSWCCA 23 May 1996, the substituted sentence was one which the court considered was "the least sentence that could properly have been imposed at first instance." 22 As Spigelman CJ anticipated in Jurisic at 231, the formulation of the guideline which, in individual cases, was likely to hinge on the question whether there had been an abandonment by the offender of responsibility for his or her conduct, introduced "an element of judgment on which reasonable minds may differ". So it has been the case that sentencing Judges, and this Court, have had to deal with that question on a regular basis. 23 The present case was somewhat unique having regard to the concessions which had been made in the agreed statement, which tended to ameliorate the significance of the single aggravating factor of alcohol that was present. It was upon the basis of this point that the Crown appeal substantially turned, in that, upon its case the high alcohol level still in the respondent's blood on the morning of the accident, meant that this circumstance of aggravation should have been found to have been present, to a material extent. 24 Upon the respondent's case, however, it was suggested that so far as the Crown sought to argue this point at trial, he had been lulled into a false sense of security, which was shared by the trial judge, in assuming that there was no point in him giving evidence. Had he done so then, although it cannot now be known with any certainty what he would have said, it is likely, in view of his earlier responsible behaviour, and the evidence of the person whom he had driven home, and who said that he "seemed fine", that he would have a similar assessment of his condition. 25 Whatever be the case, there was no obvious reason for him to give evidence as to how he felt, or to explain what his understanding was, if any, as to the time needed for his blood/alcohol level to reduce to a point where it was safe to drive. This is particularly so having regard to the fact that at one point, there was a discussion between his Counsel and Blanch J, which resulted in an apparent consensus that there was little to be achieved by calling him as a witness. 26 I am not persuaded in the very special circumstances outlined, that this Court should come to any view different from his Honour in relation to the question whether or not there was an abandonment of responsibility. It is true that a sentencing Judge is bound to find the facts for himself, and is not necessarily bound to any concession contained, in an agreed statement of facts. However, the existence of such a concession is not to be ignored, since a person facing sentence is entitled to take it into account when electing whether or not to call evidence. Moreover, it may be assumed that when the facts are placed before a Sentencing Court by the Crown, care will have been taken to ensure that they are correct. Unless it is shown on appeal that any concession by the Crown and any finding of the Sentencing Judge based upon it, was not something that was open upon the evidence, then this Court should, in my view, be slow to come to any other view. 27 His Honour accepted that the case was one where notwithstanding the precautions, which had been taken, the respondent had driven while he was still affected by the alcohol, which he had earlier consumed, and one where there had been tragic consequences. He made specific reference to R v King (2001) NSWCCA 18, where this Court had upheld a Crown appeal against periodic detention in respect of an offence of dangerous driving causing grievous bodily harm, and had substituted a sentence of imprisonment for two years with a non-parole period of one year. It was a case where the respondent had consumed a good deal of alcohol the preceding day, before going to work, and had then consumed two stubbies and two middies of beer after finishing his night shift and before driving home. His blood alcohol concentration, measured an hour after the accident was particularly high, being .273 gams of alcohol per 100 millilitres of blood. The accident had occurred when he bent down to pick up a lighted cigarette which he had dropped, while driving over a narrow bridge, resulting him striking the kerb and rebounding into the path of another vehicle. He had two prior convictions for mid range PCA offences and was aged 34 years at the time of the offence, with an otherwise good life history. He had pleaded guilty to the offence and had voluntarily undertaken a course of alcohol rehabilitation. 28 It was held that the sentencing Judge had erred in treating the case as one of momentary inattention, having regard to the amount of alcohol which the respondent had consumed and, to the fact that he had resumed drinking immediately before he set off to drive 15 kms. or so to his home, as well as to his admission that he had been feeling "fairly tired" at the time. Sheller JA with whom Grove and Kirby JJ agreed, said: "the respondent in setting out to drive home and continuing on his way with a concentration of alcohol well above the lower limit of the high range and while tired, had undertaken quite deliberately and recklessly a dangerous enterprise. 29 Although recognising that this case had some similarities, Blanch J distinguished it upon the basis of the earlier history of drink driving and the high level blood alcohol reading, which, as I have observed, was at least partly attributed by to the fact that he had resumed drinking immediately before commencing his journey home. These were, in my view, appropriately regarded as distinguishing circumstances. 30 One other decision of this Court where a sentence of periodic detention was set aside, deserves mention. That was the decision in Khatter (2000) NSWCCA 32, where the majority (Sully J and Carruthers AJ, Simpson J dissenting) considered it necessary to set aside a sentence of imprisonment for two years to be served by way of periodic detention, upon a Crown appeal, and substitutes one involving a fixed term of three months. Although Sully J considered that the sentence, which should have been imposed at first instance, was one of imprisonment for two years, the lesser sentence was imposed by reason of the constraints, relevant for Crown appeals, and by reason of the fact that the respondent had already performed, in part, the periodic detention order. 31 That case was one involving the death of a passenger in a motor vehicle driven by the respondent at a speed twenty to thirty kilometres in excess of the speed limit, at a time when his blood alcohol concentration was between 0.09 and 0.105 gms per 100 ml. The accident occurred when the respondent lost control while rounding a bend. He had an impeccable prior record, and pleaded guilty to the offence of dangerous driving causing death. It was not his usual habit to drink to excess, but this was an occasion when he had done so in the course of discussing with the deceased, the unhappiness of the latter after having immigrated to Australia. He had been prevailed upon by the deceased to drive, and had in fact missed the bend where the accident occurred, while reaching over with one arm in an effort to comfort him. 32 While Simpson J dissented from the majority judgment, she did find a number of errors in the approach taken by the sentencing Judge, including the absence of any specific reason for diverging from the sentencing range stated in Jurisic, the view which his Honour had expressed that there was no benefit to society in sentencing the respondent to a term of full time custody, his apparent reliance on pre-Jurisic statistics, and his assessment that the case leant more towards momentary inattention than it did to a sustained course of outrageous driving. It was by reference to the unusual circumstances of the respondent, including some favourable post offence circumstances, and the residual discretion, that Simpson J thought it appropriate to dismiss the appeal. 33 One observation of her Honour which was not questioned in the majority judgment is pertinent, so far as it related to the objective culpability of the respondent. It was in the following terms: "I do not accept the Crown's contention that the fact of the blood alcohol level means that this was a case in which the respondent had abandoned responsibility for his behaviour. These courts deal with human beings, with all their human weaknesses, and while the courts cannot condone any act of driving whilst there is present in the blood more than the prescribed concentration of alcohol, it is not necessary to characterise every instance of the offence as an abandonment of personal responsibility. Offences under s 52A are not divided into those of momentary inattention and those of abandonment of responsibility. Those are the two extremes. There are shades and gradations of moral culpability in different instances of the offence and it is proper for the courts to recognise a continuum, rather than a dichotomy, when assessing moral culpability. This was the approach taken by the Chief Justice in R v Howland (1999) NSWCCA 10; 104 A Crim R 273. The circumstances in which the respondent came to be driving after consuming alcohol should not be overlooked. He did not anticipate driving when he was drinking, and he initially resisted the request to drive, recognising that he should not do so. These were very unusual circumstances and very relevant to a proper evaluation of his moral culpability." 34 This passage appears to me to have a sound practical basis. It is somewhat artificial, and in a case such as the present, next to impossible to detect a distinct line between abandonment of responsibility and momentary inattention. 35 To similar effect, I believe was the assessment of Sully J, that while it would not have been fair to assess the respondent's moral culpability in terms of a "simple and comprehensive abandonment of his personal responsibility" as a motorist, nevertheless his election to drive a vehicle on a public street when he realised that he was not in a fit state do so, involved "a real degree of moral culpability". That, his Honour said, while properly attracting "sentencing distinctly towards the lower point of the relevant proper sentencing range", nevertheless required that it be of a full time custodial kind. To do otherwise, his Honour said, would give to the subjective features, real and compelling though they undoubtedly were, disproportionate weight in relation to the relevant objective facts. 36 In the present case, it appears that the immediate cause of the accident was the fact that the respondent drifted off to sleep. That cannot be divorced from the circumstance that he did so because of the alcohol he had consumed until the early hours of the morning. While taking the wheel of his vehicle did not involve a deliberate and reckless decision to drive while intoxicated, and therefore did not amount to a conscious or irresponsible abandonment of responsibility, his moral culpability remained high in driving with a significant blood alcohol range. The fact that he had earlier taken steps not to drive while drinking did not materially detract from or qualify that circumstance. 37 The primary submission of Senior Counsel for the respondent rested upon the proposition that the offences were not the result of an abandonment of responsibility and that as a consequence error had not been demonstrated. Mr. Byrnes SC properly accepted that it is not only where there is an abandonment of responsibility that a sentence of full time custody is justified. In such a case, however, he submitted, correctly in my view, that the sentencing discretion is widened. 38 This approach is consistent with that adopted in Regina v Foster (2001) NSWCCA 215. Moreover, it accords with the observations made by Spigelman CJ in clarification of the guideline, in Tadman (2001) NSWCCA 225: "The passage in Jurisic in which the guideline was set out did not distinguish between a minimum appropriate punishment, on the one hand, and aggravating factors, on the other. Indeed, it was only the presence of aggravating factors "to a material degree", which reached the level where it could be said that the offender abandoned responsibility for his or her own conduct, that the guideline indicated that a total sentence of less than three years should be regarded as exceptional. I went on to note in Jurisic at 231G, that once the threshold of abandoning responsibility had been reached, a period of three years should be regarded as a starting point but the presence of additional aggravating factors or the heightened intensity of any of the specific aggravating factors already taken into account 'will determine the actual sentence.' 39 As the decisions earlier noted make crystal clear, there are degrees of moral culpability involved in these offences, such that in a proper case a custodial sentence may still be called for, even though the case does not involve any deliberate abandonment of responsibility. 40 Of relevance in this regard, so far as the present case is concerned, is the observation in Tadman (2001) NSWCCA 225, that there is no need for the Crown to present evidence, in a case involving the consumption of drugs or alcohol, to show the offender's awareness that his driving capacity was as severely impaired as it in fact was. Spigelman CJ there observed: "… There was no need for any such evidence. When a person takes a drug like heroin, or indeed alcohol, the Court will infer that he or she understood that his or her ability to drive will be impaired. If an accused wishes to contest this obvious inference, it will be up to the accused to give evidence to that effect. See R v Comber (NSWCCA 11 November 1998 reported)." 41 It appears to me that his Honour read too much into the concession, and as a consequence failed to properly assess the extent of the respondent's culpability on the continuum between misjudgement and inadvertence at one end of the scale, and the point where there is abandonment of responsibility, such as to attract a guideline sentence. 42 The respondent's conduct was morally serious. It involved more than momentary inattention or misjudgement in the sense which I take the latter expression to have been used in Jurisic, ie a misjudgement in the manner in which a vehicle should be controlled or driven. It also cannot be overlooked that there were here two offences arising out of the one and the same incident, in which one young man lost his life and another was seriously injured. Despite his excellent character and strong claim to be a responsible and respected member of the community, this was a case where in my view his Honour should have maintained the strong stand in relation to general deterrence which has been emphasised time and again by this Court by imposing a sentence that had an element of full time detention although one falling short of the guideline. In my view that should have been one in the order of eighteen months imprisonment with a non-parole period of twelve months. 43 In this regard, I am persuaded that the trend of authority, and the consistency of sentencing called for in Jurisic, require the conclusion that a sentence of periodic detention in this case was not properly available, by reason of the leniency which is built into such a sentence: Hallocoglu (1992) 63 A Crim R 287. 44 To that extent, error of law has been shown, in accordance with the principles expressed by the High Court in House v The King (1936) 63 A Crim R 287. 45 Another error of law has, in my view, been shown in relation to the finding of special circumstances. That finding was made by reference to the assumption, which did not become the fact, that there would be a need for a longer period than usual for post release supervision, if the respondent was to serve a sentence involving full time custody. 46 Otherwise there was no special reason for him to be supervised or counselled, since he was not shown to have any personality problem, or difficulty with substance abuse. Moreover, he had employment to go to, as well as substantial community ties and support. 47 A result of the finding of special circumstances was to produce an inordinately lenient sentence. Since there was no basis for any such finding, the statutory direction contained in S 44(2) of the Crimes (Sentencing Procedure) Act applied, and non parole period should accordingly have been of 2 years and 3 months. Having regard to the period of community service which the respondent had performed in accordance with phase 2 of the administrative management of the periodic detention order, I am of the view that subject to any question of discretion or of double jeopardy, this Court should intervene and increase the non parole period to one of two years. 48 This brings me to the question whether the Court should in the exercise of its discretion, and by reference to the principles of double jeopardy noted in Everett v The Queen (1994) 181 CLR 295 and Dinsdale (2000) 74 ALJR 1538, intervene. 49 It also requires attention to be given to the additional material which has been provided in case the Court thinks it necessary to intervene. That material, I observe, confirms the very favourable reputation which the respondent enjoys in the community. It also establishes that he responded in an admirable fashion to periodic detention, despite the burden which he experienced in travelling to Bathurst each weekend for that purpose. And that he has similarly been highly regarded in relation to his performance of the community service component of the sentence, to which he has now progressed. 50 These circumstances, and the concession made by the Crown, which may be properly taken into account when considering this appeal, leads me to the conclusion that, in the exercise of its discretion, the Court should intervene only to the extent of restoring the correct ratio between the non parole period and the head sentence. 51 I consider that to intervene to that limited extent, in this somewhat unusual case, would underline the significant element of general deterrence that was otherwise lacking in the sentence, and provide a measure of punishment which more appropriately reflects the moral culpability of the respondent. 52 In that regard, as the Court has observed more than once, favourable subjective circumstances, and other circumstances more appropriately taken into account in fixing a head sentence, or in determining how it should be served, should not be used in the guise of special circumstances, so as to reduce the non parole period: Lett NSW CCA 27 March 1995. 53 Accordingly, I propose that the appeal be allowed but only to the extent of increasing the non parole period to one of two years to date from 11 April 2001, taking into account, in reducing this period from that of two years and three months previously mentioned, the community service which the respondent has performed. He should be released on parole at the end of the period of two years. 54 STUDDERT J: I agree with Wood CJ at CL. 55 BELL J: I agree with Wood CJ at CL. *********

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