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[2026] ACTCA 7
appellant. The Court admitted Anna Dixie’s affidavit affirmed on 7 October 2025 as further evidence, allowed the appeal, set aside the sentences imposed on 29 September 2025, and remitted the proceedings to...
The Court of Appeal allowed Whittaker’s appeal because the sentencing judge imposed sentences requiring full-time custody without first indicating that she might reject the prosecutor’s position that the imprisonment could be served by intensive correction in the community. The appellant had reasonably proceeded on the footing that the concession would be acted on and lost the chance to present further evidence about his family circumstances. The Court admitted that evidence, set aside the sentences, and sent the matter back to the Supreme Court for resentencing.
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2,517 words · generated 07/10/2026
Whittaker v DPP (No 2) concerned procedural fairness at sentencing, rather than a final determination of what sentence Whittaker should receive. The ACT Court of Appeal considered whether the sentencing process was fair after the prosecutor supported an intensive correction order, the judge gave no indication during the hearing that she might reject that position, and the judge ultimately imposed sentences requiring a period of full-time custody.
3 cited instruments linked from this judgment.
Whittaker had been committed to the Supreme Court for sentence for dishonestly driving a motor vehicle without consent, an offence under s 318(2) of the Criminal Code 2002 (ACT). Four summary offences were also transferred to the Supreme Court. The offending placed him in breach of two good behaviour orders, which were to be dealt with at the same time [1]. The appellant accepted at sentence that imprisonment was the only appropriate penalty. The contested question was whether that sentence could be served in the community through an intensive correction order [2].
The prosecution supported that outcome. At the start of the sentencing hearing, the judge checked whether the prosecutor opposed an intensive correction order. The prosecutor confirmed that he did not, noting the appellant’s “admirable progress” [10]. The prosecutor later repeated the concession, submitting that the appellant could properly serve imprisonment by intensive correction in the community and would benefit from such an order [13].
The appellant’s counsel acknowledged his client’s history, including breaches of earlier orders, but argued that there had been significant recent progress and that Whittaker had a strong subjective case [11]-[12]. His partner worked and studied, while Whittaker was the full-time carer for his 13-year-old autistic son [11]. Whittaker had completed residential rehabilitation and remained sober. He had been assessed as unsuitable for a Drug and Alcohol Treatment Order because his circumstances did not show a sufficient drug addiction to warrant that order’s supports and supervision, but he had been assessed as suitable for an intensive correction order [9].
The sentencing judge did not indicate during the hearing that she might reject the prosecution’s concession. At the end, she said she was “not likely to impose a custodial sentence, in terms of full-time” and was likely to impose imprisonment served through intensive correction [14]. However, in the sentencing decision on 29 September 2025, the judge concluded that there was no alternative to imprisonment and imposed sentences totalling 10 months and 5 days, suspended after three months upon Whittaker entering an eight-month good behaviour order [3]. The Court noted that s 28(1)(b) of the Crimes (Sentencing) Act 2005 (ACT) meant the suspended sentence foreclosed an intensive correction order [17].
The Director of Public Prosecutions later conceded the appeal ground alleging denial of procedural fairness. The Court nevertheless considered the appeal as a three-judge Court of Appeal, rather than having a single judge make consent orders. The parties agreed to a determination on the papers [6]-[7]. The Court admitted the partner’s affidavit, allowed the appeal, set aside the sentences, and remitted the matter to the Supreme Court for allocation of the earliest available sentencing date [30].
The Court’s core concern was that the sentencing process had changed in a way that mattered to the appellant without giving him notice or a chance to respond. It accepted that a sentencing judge is not bound by the parties’ agreement or a prosecutor’s concession about the appropriate sentence. The public interest in sentencing means that a judge remains responsible for imposing an appropriate sentence [23]. The procedural-fairness issue was therefore not whether the judge was legally required to follow the prosecution’s position. It was whether, having been minded not to follow it, she needed to tell the appellant and allow him to address that possibility.
The Court relied on the principle stated in DL v R, quoted at [23]: where a sentencing judge is minded not to act on a prosecution concession, failure to put the offender on notice and provide an opportunity to respond by evidence or submissions will ordinarily be a miscarriage of justice. The Court also discussed the practical focus of procedural fairness. It referred to Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam for the proposition that the law’s concern is to avoid practical injustice [24].
The facts made that concern concrete. The prosecution’s concession related to the central, practically significant question for Whittaker: whether he would have to serve time in full-time custody. The Court observed that this is often the issue of acute interest to an offender [25]. The appellant’s representative said that, if the judge had indicated that she might impose full-time custody, he would have presented further evidence from Whittaker’s partner about her circumstances and the family’s need for Whittaker to provide full-time care for his son [25].
The partner’s affidavit was later filed in support of the appeal. The Court accepted that it was of a sensitive nature and that it was understandable that a solicitor might not bring it forward if led to believe it would not be necessary [25]. The Court did not find that the evidence dictated a particular sentence. Rather, because the question of full-time custody was “so finely tuned”, the evidence was capable of tipping the balance [26]. That potential significance linked the lack of notice to a real lost opportunity, not merely a technical departure from procedure.
The Court therefore agreed with the prosecution’s concession that procedural fairness had been denied [19]. It allowed the appeal [27]. This conclusion was limited: the Court did not decide that an intensive correction order had to be imposed. It decided that the appellant’s sentencing process had been unfair because he had not been given an opportunity to address the possibility that the concession would not be followed.
The judgment applies, rather than purports to replace, existing principles about procedural fairness in sentencing. The Court noted that procedural fairness applies in sentencing proceedings and referred to Weir v R [2011] NSWCCA 123 [20]. It then examined the High Court’s decision in Pantorno v The Queen [1989] HCA 18; 166 CLR 466. The Court described Pantorno as treating procedural fairness not as a general obligation to advise a party about the law or how to present a case, but as a requirement that a person not be taken by surprise and be given a fair opportunity to meet a case that has not already been put for answer [21]-[22].
The Court preferred to characterise that requirement as a predicate to the exercise of the sentencing power, rather than simply as an offender’s entitlement [21]. That is a characterisation of the principle, not a new test replacing the authorities discussed. The reasons then adopt the more specific guidance from DL v R: the judge is not bound by an agreement or concession, but ordinarily must give notice and an opportunity to respond if minded not to act on it [23].
The case’s contribution is its application of that principle to a sentencing hearing where the prosecutor expressly supported a community-based way of serving imprisonment, the judge gave no indication of a contrary inclination, and the eventual sentence required a period of full-time custody. The Court connected the failure to give notice with the particular evidence the appellant said he would have presented. Its reasoning thus emphasises the practical consequence of the omission, including whether evidence or submissions could have mattered to a finely balanced sentencing question [25]-[26].
The decision does not establish that every judicial departure from a prosecution concession automatically invalidates a sentence. The cited principle itself is framed in terms of the judge being minded not to act on a concession and the failure to give notice and an opportunity to respond ordinarily resulting in a miscarriage of justice [23]. The Court’s analysis also relied on the particular circumstances, including the evident focus on whether Whittaker would go to gaol and the further evidence said to be available [25]-[26].
Nor does the judgment change the court’s responsibility to sentence according to the public interest. It expressly records that a sentencing judge is not constrained by party agreement or a prosecutor’s concession [23]. The procedural safeguard operates alongside that responsibility: it permits the judge to reject the concession, while giving the offender a fair opportunity to address the resulting issue.
At [23], the Court quoted DL v R: “Where, however, the judge ... is minded not to act on a concession made by the prosecution, the failure to put the offender on notice ... and give him or her an opportunity to deal with the matter by evidence or submissions will ordinarily be a miscarriage of justice.” In plain English, the judge can disagree with the prosecutor, but should ordinarily make that possibility clear before deciding, so the offender can respond.
At [24], the Court referred to the statement from ex parte Lam that “the concern of the law is to avoid practical injustice.” The point is that procedural fairness is concerned with what happened in practice. Here, the alleged problem was not simply that the judge had not announced her thinking. It was that the appellant was left without the opportunity to present material relevant to whether he would serve full-time custody.
At [25], the Court explained that the “practical injustice” arose because the prosecutor had made a concession that would see the offender avoid full-time custody, but the judge gave no indication that she might not act on it. The Court accepted that a lawyer might reasonably not introduce sensitive evidence if the hearing gave no reason to think that evidence would be needed.
At [26], the Court said the partner’s evidence was “certainly capable of tipping the balance” because the question of full-time custody was finely balanced. In plain English, the appellate court did not need to decide what weight the sentencing judge would ultimately give the evidence. It was enough that the lost opportunity could have mattered.
At [29], the Court explained why it remitted the matter. It recognised that an appellate court could hear further evidence and resentence, but that doing so would require an oral appeal hearing and significantly delay sentencing. Given those circumstances, it considered remittal to be in the interests of justice.
The decision is most directly relevant where a sentencing judge may depart from a prosecution concession about an important sentencing issue, and the offender has no fair warning that the concession may not be accepted. The critical elements here were an express concession, no indication from the judge during the hearing of an inclination to reject it, and a later sentence with a materially different practical consequence [10], [13]-[15].
The concession concerned the manner of serving imprisonment, not whether imprisonment was required. Whittaker accepted that imprisonment was the only appropriate penalty, but the parties’ central issue was whether an intensive correction order could allow it to be served in the community [2]. The judgment therefore speaks to the fairness of the process when the judge may depart from a concession about the form or manner of a sentence, as well as to concessions about a sentence’s range in the terms quoted from DL v R [23].
The significance of the issue to the offender also mattered. The Court said that whether an offender will go to gaol is often an issue of acute interest [25]. In this case, there was a specific claim that further evidence about caring responsibilities would have been presented if full-time custody had been raised as a possibility [25]. The affidavit was relevant because the question was finely balanced and the evidence was capable of affecting the outcome [26].
The decision does not, on its face, require a judge to disclose every tentative view or provide general advice to a party. The Court referred to Pantorno’s qualification that courts are not under a general duty to tell parties what the law is or how to present their cases [22]. Its focus was the risk of unfair surprise where a party may reasonably understand that a concession will be acted upon, and the unraised issue may call for evidence or submissions.
The supplied judgment does not identify any later decisions applying, distinguishing, or otherwise treating Whittaker v DPP (No 2). It was decided on 27 February 2026, and the material provided contains only this judgment and the authorities it cites. It is therefore not possible, on this source material, to describe subsequent treatment.
The judgment itself situates its reasoning in earlier authority. It cites Weir v R for the application of procedural fairness to sentence proceedings [20], discusses Pantorno’s account of avoiding surprise and allowing a fair opportunity to answer [21]-[22], and quotes the more specific rule from DL v R concerning a judge who is minded not to act on a prosecution concession [23]. It also refers to ex parte Lam on practical injustice [24]. Those are the authorities identified in the reasons as informing the Court’s approach; they should not be confused with later treatment of this decision.
The appeal was allowed on a concession by the Director of Public Prosecutions, but the Court gave reasons and made orders as a three-judge Court of Appeal [7], [19], [30]. The judgment may therefore be read for its stated reasoning and its application of the cited authorities, while the source provided does not establish how any later court has interpreted it.
The judgment does not decide whether the sentencing judge would have imposed an intensive correction order if the further evidence had been presented. The Court set aside the sentences and remitted the proceedings for resentencing; it did not substitute a sentence or direct a particular outcome [29]-[30].
It also does not provide a prescriptive formula for what notice must look like. The Court records that the content of the opportunity to be afforded is not prescriptive and that the concern is practical injustice [24]. The reasons do not set out a comprehensive threshold for when a judge must disclose a possible departure from a concession in other types of sentencing dispute.
The Court’s conclusion was tied to the record before it: an express prosecution concession, no indication during the hearing that the concession might not be accepted, an issue central to whether the offender would serve full-time custody, and further evidence said to bear on that issue [10], [13], [25]-[26]. The judgment does not determine how the principle applies where a concession is qualified, ambiguous, or not maintained, or where no additional evidence or submissions could realistically address the point.
Finally, the Court did not resolve the appeal’s remaining grounds. The parties agreed that, once the procedural-fairness error was established, it was unnecessary to consider the grounds not conceded by the Director [28]. Those grounds therefore remain outside the decision’s determination.
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Whittaker v DPP (No 2) Citation: [2026] ACTCA 7 Hearing Date: On the papers Decision Date: 27 February 2026 Before: McCallum CJ, Mossop and Baker JJ Decision: (1) Pursuant to s 37N(3)(b) of the Supreme Court Act, admit the affidavit of Anna Dixie affirmed on 7 October 2025 as further evidence. (2) Allow the appeal. (3) Set aside the sentences imposed by McWilliam J on 29 September 2025. (4) Remit the proceedings to the Supreme Court for the allocation of the earliest available sentencing date Catchwords: CRIMINAL LAW – SENTENCING – Procedural fairness – where sentence of imprisonment was the only appropriate sentence – where prosecutor conceded that an order that the sentence be served by intensive correction in the community was warranted – where sentencing judge gave no indication of inclination not to act on prosecutor’s concession but later imposed sentences requiring period of full-time custody APPEAL – CRIMINAL LAW – Disposal of appeal by consent – where prosecution concedes ground of appeal – whether appropriate for single judge to make consent orders Legislation Cited: Crimes (Sentencing) Act 2005 (ACT) ss 10, 28(1)(b) Criminal Code 2002 (ACT) s 318(2) Magistrates Court Act 1930 (ACT) s 90B Supreme Court Act 1933 (ACT) ss 37J(1)(g), 37N(3)(b) Cases Cited: DL v R [2018] HCA 32; 265 CLR 215 Pantorno v The Queen [1989] HCA 18; 166 CLR 466 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; 214 CLR 1 Weir v R [2011] NSWCCA 123 Whittaker v DPP [2025] ACTCA 42 Parties: Shane Jeffrey James Whittaker (Appellant) Director of Public Prosecutions (Respondent) Representation: Counsel P Edmonds (Appellant) K McCann (Respondent) Solicitors Paul Edmonds & Associates (Appellant) ACT Director of Public Prosecutions (Respondent) File Number: ACTCA 44 of 2025 Decision Under Appeal: Court: ACT Supreme Court Before: McWilliam J Date of Decision: 29 September 2025 Case Title: DPP v Whittaker Citation: [2025] ACTSC 441 Court File Numbers: SCC 250 of 2024 SCC 251 of 2024 THE COURT: Introduction
Shane Whittaker was committed to the Supreme Court to be sentenced for an offence of dishonestly driving a motor vehicle without consent, contrary to s 318(2) of the Criminal Code 2002 (ACT). Four charges for summary offences were also transferred to the Court, as contemplated by s 90B of the Magistrates Court Act 1930 (ACT). The commission of the offences put the offender in breach of two good behaviour orders, for which he was to be dealt with at the same time.
The proceedings came before McWilliam J (the sentencing judge) on 16 September 2025. The offender conceded that no penalty other than imprisonment was appropriate: s 10(2) of the Crimes (Sentencing) Act 2005 (ACT). The central issue was whether there should be an order permitting him to serve that sentence in the community by force of an intensive correction order. The prosecution conceded that such an order was warranted. There was no indication from the sentencing judge during the hearing that her Honour was not minded to act on that concession. At the conclusion of the sentence hearing, her Honour reserved her decision and stated that she was not likely to impose a full-time custodial sentence.
After reserving her decision, the sentencing judge came to a different view. On 29 September 2025, her Honour imposed sentences of imprisonment totalling 10 months and 5 days, to be suspended after three months upon the offender entering an eight-month good behaviour order.
The appellant appeals from those sentences on several grounds including a ground alleging that he was denied procedural fairness by the sentencing judge.
On 16 October 2025, McCallum CJ heard an application by the applicant for bail pending the determination of the appeal. The application was supported by an affidavit sworn by the appellant’s partner which provided cogent evidence about the applicant’s subjective case. That evidence provided a further basis for arguing that the applicant should not be sentenced to any term of full-time imprisonment. Bail was granted and the applicant’s sentence stayed pending the determination of the appeal: Whittaker v DPP [2025] ACTCA 42.
Request to dispose of a criminal appeal by consent
Following the bail hearing, the Director of Public Prosecutions formed the view that the ground of appeal alleging denial of procedural fairness should be conceded. The parties approached the Court seeking to have the appeal allowed by consent. In the unusual circumstances of the case and to expedite the appeal process, the Director proposed that, as McCallum CJ had already considered the issue in the context of the bail application, those orders might be made in chambers by the Court of Appeal constituted by a single judge (McCallum CJ) exercising the power specified in s 37J(1)(g) of the Supreme Court Act 1933 (ACT). That section provides: The Court of Appeal may be constituted by a single judge for hearing and deciding any of the following matters (incidental matters) in relation to an appeal: … (g) a consent order disposing of the appeal (including an order for costs)…
Having regard to the broader public interests involved in the allowing of an appeal from a decision in criminal proceedings in the Supreme Court, it was not appropriate to have the appeal determined by a single judge under s 37J(1)(g). It was appropriate instead that it be determined by three judges. In the circumstances, the parties consented to have the appeal determined on the papers, without the need for an oral hearing. The parties filed written submissions addressing only the ground of appeal conceded by the prosecution.
The finely balanced question of whether full-time imprisonment was required
The offences for which the offender was sentenced were committed during a single incident. The appellant was at that time subject to two suspended sentences with good behaviour orders and had previously been dealt with for a breach of one of those orders. Counsel for the appellant conceded at the proceedings on sentence that the appellant had a history of offending that included multiple breaches of such orders. However, it was argued that the appellant was “beginning to live a prosocial life” with his partner and his 13-year-old autistic son, of whom he had full-time custody and was the main carer.
Despite his history of drug use, the appellant had before he was sentenced been assessed unsuitable for a Drug and Alcohol Treatment Order, not for any reason that reflects badly on him but because he had completed a residential rehabilitation program and had remained sober following that time. In other words, he was unsuitable because he did not have a sufficient drug addiction to warrant the comprehensive supports and intensive court supervision provided under such an order. It was in that circumstance that another judge of the Court referred him instead for assessment for an intensive correction order. He was assessed suitable for such an order.
At the outset of the sentence hearing, the sentencing judge confirmed with the prosecutor that he did not oppose the imposition of an intensive correction order. He confirmed that he did not oppose such an order, noting that “admirable progress has been made” (by the offender). The prosecutor added “so I’m not going to have too much to say”.
The sentencing judge then called on the appellant’s legal representative to make his submissions. He conceded that the appellant had had “numerous chances”, including multiple suspended sentences, but submitted that in more recent times the appellant had made “truly remarkable progress”. He submitted (apologising for the hackneyed expression) that the appellant was “at a crossroad”. He noted that no further offences had been committed for a considerable period of time and that the appellant was now in a stable, long-term relationship in which his partner both worked and studied while he was the full-time carer for his 13-year-old autistic son.
The appellant’s representative acknowledged that one of the suspended sentences of which the appellant was in breach was in fact the second suspended sentence for that offence. His ultimate submission was that, although a sentence of full-time imprisonment would be open, an intensive correction order would adequately address the objective seriousness of the offence. He proceeded to address at length the appellant’s strong subjective case, answering many questions from the sentencing judge about the appellant’s circumstances. During those exchanges, the sentencing judge remarked, “you’re fortunate in the attitude being taken by the prosecution on these offences”.
The sentencing judge then called on the prosecutor. True to his word, his submissions were brief. Importantly, while maintaining that the threshold for a sentence of imprisonment was crossed, he repeated his concession that any such sentence could properly be served by intensive correction in the community. Indeed, he submitted that the offender would benefit from such an order. At no point did the sentencing judge indicate that she was inclined to not accept the concession by the prosecutor that an intensive correction order was warranted.
Denial of procedural fairness
The appellant emphasised that the error relied upon is not the indication given by the sentencing judge after the conclusion of the hearing that she was not likely to impose a custodial sentence but rather the failure to give any indication during the hearing that she was not minded to act on the concession of the prosecutor. The remarks made at the conclusion of the hearing did, however, serve to endorse the mutual assumption of the parties that the prosecution’s concession would be acted on and that an intensive correction order would be made.
As already noted, the Director of Public Prosecutions concedes that the sentencing judge’s failure to indicate otherwise and to afford the appellant an opportunity to be heard amounted to a denial of procedural fairness and that the appeal should be allowed on that basis. We respectfully agree, for the following reasons.
It is established that the principles of procedural fairness apply to proceedings on sentence. The Director referred in this context to the decision of the New South Wales Court of Criminal Appeal in Weir v R [2011] NSWCCA 123 at [64] (Garling J, with whom Macfarlan JA and Johnson J agreed at [1] and [2] respectively). In the passage referred to, the principle is framed as an entitlement of the offender: It is clear that an offender is entitled to procedural fairness during criminal proceedings, including proceedings on sentence: Pantorno v The Queen (1989) 166 CLR 466 at 472-3 per Mason CJ and Brennan J, 482-483 per Deane, Toohey and Gaudron JJ; Parker v DPP (1992) 28 NSWLR 282; Baroudi v Regina [2007] NSWCCA 48; Button v Regina [2010] NSWCCA 264.
The decision of the High Court in Pantorno cited in that passage (the medium neutral citation for which is [1989] HCA 18) does not characterise the principle as an entitlement of the offender, but rather as a predicate to the exercise of the sentencing power. In our respectful opinion, that is the preferable characterisation of the principle. In the passage referred to, Mason CJ and Brennan J said at 474: Once it is accepted that the proceedings before the learned sentencing judge were conducted by the Crown and counsel for the applicant on the footing that s.73(1)(b) was the relevant provision of the statute, it follows that the judge was not entitled to sentence on the footing that s.73(1)(c) was the relevant provision without giving the applicant's counsel an opportunity to show why the applicant was not liable to the larger penalty prescribed by s.73(1)(c).
Their Honours noted that the Court is not under any “general duty” to “tell the parties what the law is” or “to advise [a party] how to present his case”: at 472. However, they continued at 473: [E]specially in the criminal court, there is a need to ensure that the accused or convicted person is not taken by surprise: he must be given a fair opportunity of meeting the case against him so far as that case has not already been put to him for answer.
Appropriate disposition
Both parties agreed that, error having been established, it was not necessary for this Court to consider the remaining grounds of appeal (which were not conceded by the Director), and that this Court should order that the proceedings be remitted to the Supreme Court for resentencing, rather than for this Court to proceed to resentence the appellant.
We agree that, in the circumstances of the present case, remittal rather than resentencing by this Court is appropriate. As outlined above, the denial of procedural fairness has resulted in the appellant having lost the opportunity to adduce evidence and to make submissions relating to the appropriate sentence to be imposed. In such a case, it is open to an appellate court to permit an appellant to adduce the further evidence and make further submissions and then to resentence in light of that further material. However, in the present case, that course would require an oral hearing of the appeal, which would significantly delay the sentencing of the appellant. In these circumstances, it is in the interests of justice for the sentencing proceedings to be remitted for resentence.
Orders
I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date:
Whittaker
DPP
(1989) 166 CLR 466
(1992) 28 NSWLR 282
The Court admitted Anna Dixie’s affidavit affirmed on 7 October 2025 as further evidence, allowed the appeal, set aside the sentences imposed on 29 September 2025, and remitted the proceedings to the Supreme Court for allocation of the earliest available sentencing date: [30].
At the conclusion of the sentence hearing, there was the following exchange: Her Honour: Okay. I thank counsel for their assistance. Judgment is reserved for the reasons explained. If I can just put your client out of his misery. I’m not likely to impose a custodial sentence, in terms of full-time. I am likely to impose sentences of imprisonment. The manner in which they are to be served is likely to be through the intensive correction, and in order to [do] that, I would have to resentence on the two breaches. Mr Edmonds: Yes, your Honour. Her Honour: But, beyond that, it’s working through and working out the length of time and how to give effect to all the sentencing objectives and things like that. I just need to work through that quietly, by myself. Mr Edmonds: Certainly, your Honour. Her Honour: But, if he’s worrying about, you know, what’s going to happen to his kid --- Mr Edmonds: Yes, yes. Her Honour: I just --- Mr Edmonds: No, that’s a merciful indication from your Honour, if I can make that submission. Her Honour: Yes. …
By the time she came to pass sentence on 29 September 2025, the sentencing judge had reached a different view. In her sentencing decision, her Honour stated that there was no alternative to a term of imprisonment, the threshold in s 10 of the Crimes (Sentencing) Act having been crossed, and that the main issue was the length of the sentences and the manner in which they were to be served. Her Honour regarded the fact that the new offences put the offender in breach of two good behaviour orders for conduct of the same nature to be of high importance. She stated that, at the sentence hearing, she had not appreciated that the earlier offence of driving while disqualified (committed in January 2014) had already been the subject of re-sentence for breach on 22 September 2023. As already noted, that had in fact been disclosed by counsel for the offender, but it is understandable in the circumstances of this complex sentencing exercise that it was overlooked.
The sentencing judge concluded: “[t]here comes a point where the principled exercise of the discretion means that the court really has no other option but to now impose that sentence”: at [40].
The imposition of the suspended sentence foreclosed the possibility of an intensive correction order: s 28(1)(b) of the Crimes (Sentencing) Act.
Both parties also referred to the decision of the High Court in DL v R [2018] HCA 32; 265 CLR 215 at [39] where the Court said: Notwithstanding the adversarial nature of criminal proceedings, the public interest in the sentencing of offenders is such that the sentencing judge (or the appellate court in the case of re-sentencing) is not constrained by any agreement between the parties as to the appropriate range of sentence or by concessions made by the prosecutor. Where, however, the judge (or the appellate court in the case of re-sentencing) is minded not to act on a concession made by the prosecution, the failure to put the offender on notice of that inclination and give him or her an opportunity to deal with the matter by evidence or submissions will ordinarily be a miscarriage of justice. In the absence of such an indication, it will be reasonable for the offender to conduct his or her case upon the understanding that the concession will be accepted and acted upon by the court. (Citations omitted.)
In her written submissions, the Director noted that the content of the requirement to afford such an opportunity is not prescriptive. Rather, the “concern of the law is to avoid practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; 214 CLR 1 at [37] (Gleeson CJ).
For all the complexity of the sentencing task, the issue of acute interest to an offender in many cases is whether they will go to gaol. The practical injustice in the present case arose from the fact that, after the prosecutor made a concession that would see the offender avoid that fate, the sentencing judge gave no indication that she was minded not to act on that concession. The appellant’s legal representative contended that, had such an indication been given, he would have educed further evidence from the appellant’s partner as to her circumstances and the family’s need for the appellant to be available full-time to care for his autistic son. The evidence that would have been led was produced at the bail hearing in the form of an affidavit of the partner affirmed on 7 October 2025. As noted in the bail judgment, that evidence was of a sensitive nature. It may readily be accepted that a thoughtful solicitor would take the approach of not bringing it forward if he had been given to believe that would not be necessary.
The appellant renews his reliance on that affidavit in the appeal. In circumstances where the decision whether to impose a sentence of full-time custody on the appellant was so finely tuned, that evidence was certainly capable of tipping the balance.
For those reasons, we would allow the appeal.