I gave serious consideration to imposing a sentence of full-time custody upon the [applicant]. However, I will not do so. The [applicant's] good work history and his lack of serious earlier offending are the two features which have persuaded me not to impose a sentence of full-time custody. But the [applicant] should consider himself very lucky at the sentence I will shortly impose. I have got no doubt that some would regard the sentence I am about to announce as being lenient in light of the [applicant's] attitude towards the offence itself."
46 The applicant's criminal record, to which his Honour adverted in the passage just quoted, includes two charges of assault occasioning actual bodily harm on 29 October 2003. Ms Talbot was the victim of these offences. The applicant was fined $1400 and $1200 respectively, and was placed upon bonds for periods of 2 years and 18 months, subject in each case to the supervision of the New South Wales Probation Service for as long as considered necessary. He was directed to obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation. In addition, the applicant was charged with a third offence of malicious destruction or damage to property of a value greater than $2000 but less than $5000 for which he was placed upon a bond for 18 months, subject to the same conditions. His Honour noted in his remarks on sentence that the circumstances of the offences for which he was being sentenced were aggravated by the fact that the applicant was on a bond at the time, although he observed that supervision under that bond had been terminated only a relatively short time before the applicant reoffended.
47 His Honour appears to have regarded the applicant's criminal record, which included, but was not limited to, these earlier offences, as amounting to a "lack of serious earlier offending". Although this Court was not provided with details of the earlier offences, it can be assumed with some confidence that they involved not insignificant assaults. They are in any event particularly significant for present purposes given that Ms Talbot was the victim of these offences. His Honour's remarks offer some clear insight, however, into the view that he formed about the seriousness of the principal offence committed by the applicant in the present case. He was undoubtedly influenced by the applicant's lack of candour, and his Honour's impression that the applicant would lie when it suited him.
48 With one exception, however, I do not think that this led his Honour to have insufficient regard to other matters favourable to the applicant, such as his emotional state or the effect of his medication. That exception, it seems to me, is the imposition of a sentence of 6 months imprisonment for stealing a leather jacket. Whether viewed in isolation or in combination with the principal offence, I consider that, with respect to his Honour, he may erroneously have permitted his unfavourable view of the applicant unduly to guide his sentencing discretion.
49 In my opinion, the sentence imposed by his Honour in respect of the principal offence was not manifestly excessive. It is not a sentence that should attract the intervention of this Court. I have a different view of the larceny offence. Some other sentence for that offence was warranted in law and should have been passed.
50 The applicant is presently 36 years of age. He was 34 years of age at the time of the offences. It is submitted on his behalf that he has a close and supportive relationship with his immediate family, is in full time employment as an electrician and has been involved in community volunteer work. At the time of the commission of the offences the applicant was subject to a two-year good behaviour bond that was due to expire on 1 July 2006. Probation and Parole supervision was a condition of the bond although such supervision had been terminated in December 2005 due to the applicant's satisfactory performance. The applicant had never served any form of custodial sentence.
51 As the applicant's relevant criminal history (including the present offences) reveals, all of his convictions have arisen out of or are related to circumstances involving Ms Talbot. The applicant suffers from a psychiatric condition that was being treated by medication at the time he committed the present offences. (Notwithstanding these matters, Ms Talbot was prepared to give evidence on behalf of the applicant when he was sentenced in the Court below). Whereas his Honour properly emphasised punishment, retribution and deterrence when dealing with the principal offence, these factors do not apply with equal force when considering the larceny offence. In my opinion, that offence was in truth little more than an unfortunate, spontaneous, impetuous and immature act. As already mentioned, his Honour accurately observed that the applicant was, "not to put too fine a point on it, jealous". It is not without significance to note that the leather jacket belonged to a man that would appear to have replaced the applicant in Ms Talbot's affections.
52 Finally, in the course of his remarks on sentence his Honour agreed with counsel appearing for the applicant that the s 562AB offence was one which could have been dealt with summarily, and that his Honour foreshadowed in that circumstance that he would not impose a sentence which extended beyond the jurisdictional limit of the Local Court. Later in his remarks on sentence his Honour noted that the applicant had pleaded guilty to this offence at an early stage and that he proposed to discount the sentence he would otherwise have imposed by 25% to reflect that fact. In the events that occurred, however, the 2 year head sentence imposed by his Honour, with a 25% discount applied, represents an undiscounted term of 2 years and 8 months. That exceeded the jurisdictional limit of the Local Court by 8 months.
53 Counsel for the applicant submitted that this amounted to an error. The Crown conceded that his Honour made an error but that it was not such as would provoke this Court to interfere with the sentence that was imposed. I am uncertain that that concession is accurate, but in any event I agree that it is not something that would warrant any interference by this Court. In the absence of a suggestion that somehow the course taken by counsel for the applicant below was altered or was otherwise adversely influenced by a disappointed reliance upon his Honour's remarks - and no such submission is made - the statement by his Honour achieves no importance in this case.
Orders
54 I would make the following orders: -
(1) Leave to appeal is granted.
(2) Appeal allowed in part.
(3) Confirm the sentence imposed for the offence under s 562AB of the Crimes Act 1900 .
(4) Quash the sentence imposed for the offence under s 117 of the Crimes Act 1900 and in lieu thereof dismiss the charge under s 10 of the Crimes (Sentencing Procedure) Act 1999 .