9 Testing of the blood sample had disclosed the presence of indications of prior cannabis use, but the relevant expert evidence was that any amount of cannabis in the blood would have been insignificant, and could not fairly be regarded as having been in any sense a major contributing factor to the tragic events that I have been describing.
10 The applicant was born on 14 June 1993. He was aged, therefore, twenty-five years and some five months at the date of the offence; almost twenty-six when he stood for sentence; and he is now aged twenty-six years and some eight months. He has entries on his record, but the primary sentencing Judge took the view, correctly in my respectful opinion, that they were of no particular practical significance in his Honour's sentencing exercise. They are, in my opinion, of no practical significance in the different sentencing exercise upon which this Court is now embarked.
11 The applicant is the youngest of three sons. The family history concerning all three brothers is, as matters now stand, a very sad and dispiriting one. The middle brother died of cancer after, it would seem, a long and painful struggle with that terrible illness. The eldest of the three brothers was the passenger who died in the accident previously described. The present applicant, the sole surviving brother, carries, as must be obvious, a terrible burden in connection with the death of his oldest brother; and, being the sole survivor of the three, carries, and will carry, a heavy burden in giving what familial comfort and support he can to his parents while they remain alive.
12 There were before his Honour the usual pre-sentence reports. It is not necessary, I think, to canvass their fine detail. It is sufficient to understand that they paint of the present applicant a picture of a kind with which the Court is not unfamiliar in the case of young men of this age and background. There is I think nothing to suggest that, this one very bad criminal offence apart, the applicant is to be regarded as a person set, as it were, in the ways of crime, or set in any other sense into a pattern of breaches of the criminal law.
13 There were, in the overall picture, significant subjective and personal matters to be brought to account and, subject to one matter to which I shall come presently, it seems to me that the learned sentencing Judge was seized of them and correctly brought them to account. The one qualification to what I have just said stems from his Honour's approach to the question of "special circumstances" of the kind contemplated by s.5 of the Sentencing Act 1989.
14 Undoubtedly, as it seems to me, there were present in the applicant's case matters capable of being regarded correctly according to law as "special circumstances". His age; his comparative lack of criminal antecedents; his prompt plea of guilty; his obvious and understandable remorse; his need for careful supervision after release from any full-time custody; are what I would see as the most salient of such "special circumstances".
15 If it be the case that there are such special circumstances properly available to be found, then the relevant law as I understand it entails that a sentencing Judge has to ask, in a considered way, whether those "special circumstances" might be thought to warrant reasonably the view that the proper supervision and assistance of the particular offender upon release from full-time custody requires a longer additional term than an additional term that is a bare one-third of the proposed minimum term.
16 The answer to that question requires at least some reasoned application on the part of whoever it is who is considering the particular sentence.
17 In the present case the learned primary Judge approached the matter in a way which his Honour states succinctly as follows:
"I have considered whether there should be any special circumstances and I have decided that in the course of what has been said in Jurisic there really are no special circumstances to be taken into account."
18 I have noted that passage in the form in which appears at p.8 in his Honour's published remarks on sentence. I apprehend that the words "in the course of" are really intended to read "because of". It seems to me that that statement, as it stands, suggests error on the part of the learned primary Judge. It is true that Jurisic establishes clearly guideline principles by which primary sentencing Judges are bound, and which they must take properly into account in the particular cases coming before them.
19 It is true that the emphasis in the decision in Jurisic is upon the imperative need, in the interest of the proper and relevant protection of the public, to prevent incidents of drunken driving on public streets; and that means any incident of drunken driving on any public street.
20 For myself, I do not understand, however, that the decision in Jurisic simply blots out, as it were, the availability in a proper case, of a finding that "special circumstances" in the statutory sense exist. Nor do I understand the decision to blot out, as it were, the giving of any proper effect, according to clear and well established principle correctly applied, to the setting, by reason of "special circumstances" properly so found, of an additional term exceeding a term that isa bare one-third of the minimum term.
21 In other words, I think that upon that one point only there has been demonstrated an error in the primary sentencing process. The question then is whether this Court should interfere upon the basis that some other sentence is, in the words of s.6(3) of the Criminal Appeal Act 1912 "warranted in law".
22 I have come to the view that, albeit it within narrow limits, a different sentence is "warranted in law".
23 I would say at once that for my own part I would not interfere with the total sentence of imprisonment for five years. This particular case was, on any reasoned and sensible view of the available facts, a very serious offence. To interfere with the total sentence would, in my view, cut across those basic sentencing principles which are now part of the sentencing law of this State in the wake of the decision in Jurisic.
24 Where I think that there is proper room for some intervention by this Court is on the question of how that sentence is properly to be apportioned as between minimum and additional terms. If it were accepted, as I think must be done on any sensible view of the available material, that this applicant will need a longer, rather than a shorter, time of careful and sensitive supervision after his release from full-time custody, then a case has been made for some adjustment of the minimum and additional terms as set by the primary sentencing Judge.
25 That exercise must be carried out, of course, with care to ensure that the resulting re-apportionment does not yield a minimum term that is itself disproportionately lenient in the circumstances of the particular case. That consideration entails, in my view, that there is simply no room within a sentence of five years for any massive re-apportionment of the minimum and additional terms; but, as I have said, I think that there is some room for proper movement.
26 I am of the view that justice would be done in this case if the sentence of five years were to be re-apportioned between a minimum term of three years and an additional term of two years. To that end I would propose the following orders:
1. That the application for leave to appeal be granted.
2. That the appeal be allowed and the sentence in the form passed in the Court below be quashed.
3. That the applicant be re-sentenced to imprisonment for five years, divided between a minimum term of three years and an additional term of two years. The minimum term is to commence on 21 May 1999 and is to expire on 20 May 2002; the additional term is to commence on 21 May 2002.
27 I will propose orders accordingly.
28 CARRUTHERS AJ: I agree.
29 SULLY J: The orders of the Court will be as I have proposed.