7 It is trite that the present applicants, if they are to succeed, must succeed by demonstrating an error of law on the part of the sentencing Judge. It is equally trite that the applicants must establish, given that they can demonstrate some such error of law as would justify the intervention of this Court, that this Court itself should come to a conclusion, as contemplated by s 6 of the Criminal Appeal Act that some other and more lenient sentence is "warranted in law" in the case of each applicant.
8 The applicants point to two matters which they say demonstrate in the requisite sense an error of law on the part of the sentencing Judge.
9 His Honour says in his remarks on sentence and, in terms, that "It is not a mitigating feature that they were alcohol-affected at the time". It has been submitted that this is a manifest error of law in the sense that relevant authority, and particularly the decision in R v Coleman (1990) 47 A Crim R 306, requires intoxication to be treated upon the basis that it is always, at least to some extent, "a mitigating feature".
10 I have read the remarks on sentence; and my impression is that what the learned sentencing Judge was intending to convey by that single sentence, embedded in the way it is in the overall context of the remarks on sentence, was no more than was said by McInerney J in R v Fletcher-Jones (1994) 75 A Crim R 381 at 387, that: "Whilst being affected by alcohol may explain why an offence occurred, it is not a licence to commit crimes".
11 The learned sentencing Judge, in the sentence that precedes immediately the sentence now criticised in the submissions put for the applicants, says: "The offences against Mr Bottero were brazen and outrageous." I entirely agree, and I think that it needs to be spelt out firmly and clearly that alcohol "is not a licence to commit crimes" of any kind, let alone crimes correctly described as "brazen and outrageous".
12 I am not persuaded that the point taken in connection with his Honour's comments about intoxication has been made good.
13 The second point argued for the applicants is that his Honour's discretion miscarried in the approach his Honour took to the gravity of the kidnapping, if I may describe it in that comprehensive way. His Honour referred to it as a matter of "grave aggravation". The submission is put that the description "grave" connotes a level of aggravation far exceeding what could reasonably be found as the fact in the context of the present matters. I think that the short answer to that submission is to read the entirety of the remarks on sentence in a level-headed kind of way that takes account of the fact that the sentencing Judge was dealing on country circuit with these particular matters as part of what I imagine was a not inconsiderable District Court list.
14 It is not, I think, to the point to take such remarks on sentence and subject them to that kind of semantic analysis in the hope of finding somewhere or other a word here or there, or a phrase here or there, that might have been more happily put. There is authority extending back seventy years and more in the Court of Criminal Appeal that sets the face of that Court firmly against that kind of approach: see R v Johnson [1917] 17 SR (NSW) 481 at 482-4; and R v Sorlie [1925] 25 SR(NSW) 532 at 539,.
15 I would understand his Honour to have meant by the word "grave", understood sensibly in the context in which it appears, that in his Honour's perception the kidnapping was in a real, substantial and significant sense an aggravating feature overall in the conduct of the applicants on the occasion in question. With that perception expressed in those terms I, at least, would entirely agree. I do not think that the second particular point of attack on the remarks on sentence has been made good.
16 Even had I been of the contrary view, I would nevertheless not have been persuaded that some other, and lesser, sentence is "warranted in law".
17 The learned sentencing Judge reviewed in terms which were faithful to the evidence, and with which I respectfully agree, the relevant subjective features proffered in the case of each individual applicant. It has to be borne carefully in mind that, at the time that the instant offences were committed, one of the applicants was on parole, and the other was on a bond. No doubt those facts are not determinative in the sense that they are to be looked at in a vacuum and disassociated from all the other relevant evidence, objective and subjective.
18 It is trite law that a person who offends while on a bond, or while on parole, or while subject to a recognizance, or indeed while having been offered the benefit of any deliberate leniency from another Court, cannot complain justly if his later offences, committed in breach of his relevant undertaking, are regarded as being, by reason of the breach of the undertaking, proportionately more serious than they might otherwise have been. People who are given a bond, people who are released on parole, cannot be heard to say that they do not understand at least the basics of what is involved in each of those cases. Those basics embrace the principal proposition that, while at liberty on parole or subject to the bond, there are to be no breaches of the law, and certainly no breaches of the comparative gravity of the offences that were committed on the occasion of which I have been speaking in connection with the present case.
19 It is said that the sentence imposed on count 1, which has to be understood, of course, as expressing the primary Judge's final perception of the overall criminality of what was involved on the occasion in question, is a severe sentence. It is a severe sentence, and for myself I do not see that it is open to any fair criticism on that account. These were serious offences. A citizen going about his lawful affairs was set upon by two adults, forced into his motor vehicle at knifepoint, robbed at knifepoint, detained at knifepoint for some measurable time. These are not schoolboy pranks or larks, or things that have no real significance. They are a serious infraction of public order, and that is how they are to be seen; and when properly detected and brought to justice, that is how they are to be punished.
20 I would grant in each case leave to appeal because of the seriousness of what is involved to each of the applicants; but for myself I would dismiss in each case the substantive appeal against the sentence.
21 BELL J: I agree.
22 SULLY J: Before leaving the matters, the Court should take note of the affidavits which were made by each of the applicants and which were received by the Court this morning. Each applicant sets out in his affidavit a brief but clear description of what he has attempted to do while in present custody. There is a suggestion in each affidavit that there have been, from time to time at least, some impediments in the path of each applicant's opportunity to take part in particular, and it might be thought useful, rehabilitative courses. I think that it should be brought to the attention of the relevant authorities, and I so direct the Registrar, that the Court has taken note of what is said in the affidavits, and recommends in strong terms that the applicants be given every opportunity, consistent with proper prison administration and discipline, to take part in any course that might contribute in a real sense to their eventual rehabilitation. I propose, accordingly, that this recommendation be appended to the orders of the Court.
23 BELL J: I agree.
24 SULLY J: They will be the orders of the Court.