In giving his reasons for upholding Prakash's appeal, Howie J (with whom Simpson J agreed) said:
"…but it seems to me to be disparate with other sentences imposed, particularly as some of those sentences were suspended. For example, I am unable to see why there should be such a discrepancy between the sentences imposed upon this applicant and those imposed upon Mr Lelei. Their criminality and subjective circumstances are not significantly different except that Mr Lelei had some minor record and the applicant was of prior good with character. Further Mr Macfarlane received the same sentence for seven cheques totalling $89447 yet the sentence in his case was suspended. Even taking into account the difference in their ages, I can understand that the applicant would have a justifiable sense of grievance that he was required to serve the substantial part of his sentence in full time custody".
16 That passage reveals that to some extent the shorter term of sixteen months imposed on Lelei was used as a benchmark to determine that the sentence imposed on Prakash was excessive. After that, to use Prakash's sentence as a benchmark according to which Lelei's sentence should be reduced creates a somewhat ridiculous cycle. If this applicant should succeed, would it then be open to Prakash to come back to the court and argue that the term of his (suspended) sentence should be reduced? The absurdity is obvious.
17 If regard were had only to the term of the sentences imposed, then there was nothing which could be said to give rise to a justifiable sense of grievance such as would justify intervention by this Court in respect of Lelei. The complaint which was made derived such substance as it may be thought to have only from the fact in the cases of Macfarlane and Prakash (after appeal) the sentences initially imposed were suspended (so too, although the point was not made in the course of this appeal, the sentences on Milford and Isaia).
18 It appeared to us that the submission paid insufficient attention to the real punitive nature of a suspended sentence. This Court recently discussed that question in Regina v Michael Foster (NSWCCA (unreported) 28 May 2001 Giles JA James J and Badgery-Parker AJ). It is convenient to repeat what was stated there:
"Obviously, the imposition of a sentence of imprisonment which is then suspended for the whole of its term is a significantly more lenient sentencing order than the imposition of the like sentence not so suspended. Nevertheless, Australian courts have rejected the idea that a suspended sentence is really no punishment at all. In Elliot v Harris (1976) 13 SASR 516 at 527, Bray CJ commented upon that view-
'It reveals an entirely mistaken and wrong headed approach to the question of suspended sentences. So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such as sentence involved on the defendant's record and his future, and it is one which can be called dramatically into effect on the slightest breach of the terms of the bond during its currency.'
Those remarks were cited with approval by a full bench of the Federal Court in Regina v P (1992) 64 A Crim R 381; by Winneke P in Regina v Carter (1997) 91 A Crim R 222 at 229; and again by a full bench of the Federal Court in Regina v Gillan (1991) 54 A Crim R 475 at 480."
19 In Dinsdale v The Queen (2000) 175 ALR 351, Kirby J stressed that the exercise of the discretion to suspend a sentence of imprisonment was not to be limited "by reference wholly, mainly or specially, to the effect which suspension would have on the offender". The same considerations as are relevant for the imposition of the term of imprisonment "must be revisited in determining whether to suspend that term. This means that it is necessary to think again about the matters relevant to the circumstances of the offence as well as those personal to the offender".
20 Nevertheless, in most cases it is the circumstances individual to the offender which will carry the most weight in determining whether a sentence should be suspended. Particularly where similar sentences are imposed upon a series of co-offenders, the subjective circumstances of one may dictate that his sentence should be suspended, whereas in the case of another the subjective circumstances do not necessarily lead to the same outcome.
21 It was appropriate for this Court to look more closely at the circumstances of the applicant Lelei than was perhaps necessary for the court in the earlier appeal. There are some significant differences between the situation of Prakash and the situation of Lelei which the sentencing judge might reasonably have regarded as justifying a different approach.
22 Prakash was described by the judge as having at the time of the offences "unfortunate family and personal circumstances" relating to the premature birth of his son, and the associated $19000 medical bill, received by him at a time when he was on compensation because of an injury which he had himself sustained. His offending was at least in part prompted by what was thought to be necessity whereas, on the other hand, the applicant dissipated the money which he received on personal pleasure.
23 Praskash gave evidence in court as to the involvement of Krishnan and Iese Milford in the fraudulent scheme, whereas, in contrast, the appellant stated in his police interview that he received each of the AMP cheques through an unknown source, an assertion which, as noted above, his Honour found to be false. Not only did he lie about his involvement, but he offered no assistance at all to the authorities.
24 Finally, Prakash had made immediate restitution of a substantial sum which he retained out of the money which he received and had by the time of sentencing entered into a deed to repay $15000 to the insurer. I have noted earlier the position in that regard in relation to this applicant.
25 In the circumstances we were not persuaded that the parity argument is made good and were that the only ground of appeal, we would have dismissed the appeal.
26 The judge at no time referred to the question whether there were special circumstances which would justify a departure from the prima facie rule that the non-parole period should be not less than three quarters of the total term. We accepted the applicant's submission that there was in this case material requiring consideration of the question of special circumstances in particular that the applicant had not previously served a prison sentence, and his Honour's express finding that " this young man has …good prospects of rehabilitation". The absence of any reference whatsoever to special circumstances, in the light of the existence of those matters to which we have just referred, strongly suggested that the judge erred in not turning his mind to the question of whether the proportion should be varied (Regina v Boo Too NSWCCA, unreported 16 July 1992). In our view, in that regard alone, error was shown, such that this Court should intervene, but only to the extent of making an appropriate adjustment to the length of the non-parole period.
27 We were informed at the hearing of the application for leave to appeal that the applicant had been released on bail pending the appeal on 23 March 2001, by which date he had served few days over nine months of the sentence. In the circumstances, we were of the opinion that it was appropriate to deal with the matter as follows: