/

/

Wilson v R [2007] ACTCA 25 | Case summary | Zoe

ACTACTCA

Wilson v R [2007] ACTCA 25

[2007] ACTCA 25

Court of Appeal (ACT)|2007-12-17|Before: Higgins CJ, Besanko JJ

View on the ACT Courts

At a glance

Source facts

Court

Court of Appeal (ACT)

Decision date

2007-12-17

Before

Higgins CJ, Besanko JJ

Source

Original judgment source is linked above.

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

PETER WILSON v THE QUEEN

[2007] ACTCA 25 (17 DECEMBER 2007)

APPEAL – appeal against sentence – no error in not providing reasons to show consideration of alternatives to full time custody.

SENTENCING – the requirement to record reasons where the court departs from a recommendation contained in a pre-sentence report dependent upon the court making a determination on eligibility of the offender – periodic detention not raised at sentencing – custodial sentence inevitable.

Wong v The Queen (2001) 207 CLR 584

GAS v The Queen (2004) 217 CLR 198

R v Olbrich (1999) 1999 CLR 270

The Queen v Perre (1986) 41 SASR 105

Crimes (Sentencing) Act 2005 (ACT), s 6, s 7, 10, s 11, s 12, s 16, s 33, s 34, s 40A, s 41, s 42, s 75, s 76, s 77, s 78, s 79, s 88, s 89, s 97, s 103, s 117, s 129, Chapter 4, Part 4.2, Part 5.4

Crimes (Sentencing Administration) Act 2005 (ACT), Chapter 5

Corrections Management Act 2007 (ACT), Schedule 1 Part 1.2

Criminal Code 2002 (ACT), s 312

Legislation Act 2001 (ACT), s 126, s 127

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 18–2007

No. SCC 227 of 2006

Judges: Higgins CJ, Gray and Besanko JJ

Court of Appeal of the Australian Capital Territory

Date: 17 December 2007

IN THE SUPREME COURT OF THE ) No. ACTCA 18-2007

) No. SCC 227 of 2006

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: PETER WILSON

Appellant

AND: THE QUEEN

Respondent

ORDER

Judges: Higgins CJ, Gray and Besanko JJ

Date: 17 December 2007

Place: Canberra

THE COURT ORDERS THAT:

The appeal be dismissed.
The appellant surrender himself to the Chief Executive ACT Corrective Services within 48 hours from today.

The background to these circumstances is that the appellant and his family had been subjected over some time to offensive telephone calls. The appellant took the view that an offensive telephone call, received the evening before this offence was committed, had emanated from a certain young woman’s telephone. In fact, though the telephone had been the source of the call, that young woman had neither made nor instigated it.
The appellant, in company with a work associate, entered premises occupied by that young woman who was 21 years of age and was present with her 17 year old sister and a young man who was her sister’s boyfriend. The young woman was a long-time friend of the appellant’s daughter. The appellant and his associate were both armed with baseball bats. They forced their way in through the front door. They struck furniture and other objects with the bats. A glass was smashed with a baseball bat and the work associate struck the young man on the lower back. The young man was also cornered by the appellant and pushed against a glass sliding door. In order to defuse the situation, the young woman gave a fictitious name purporting to identify the person who made the call. The appellant threatened to return with others unless she provided the telephone number relating to that person to the appellant within an hour. The appellant and his associate then left. A follow-up threat was made later by SMS message from the appellant to the young woman’s mobile phone.
The sentencing judge took into account the circumstances preceding the commission of this offence of there having been a series of anonymous telephone calls. The most recent call received on this occasion was undoubtedly obscene and offensive. It precipitated this event. It is also material, and could properly be taken into account, that the appellant had no previous convictions related to assault or other offences of violence directed to any person.
It appears that the appellant’s perceptions and actions were heavily influenced by his consumption of alcohol. That explains, but does not justify, his commission of a serious criminal offence in invading the home of a person even if he considered that person to be the source of offensive telephone calls to himself or his family. The seriousness of this offence is marked by the fact that the legislature has set a maximum penalty of 20 years imprisonment. Nor was it suggested by Mr Sharman, who appeared for the appellant, that the sentence imposed in this case could be characterised as manifestly excessive. The appropriateness of imprisonment
In deciding this matter, the sentencing judge was required to be satisfied that a sentence of imprisonment is the appropriate sentence for the offence under consideration having regard to the circumstances of the offence and the antecedents of the offender. Indeed, s 10(2) of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) requires that the court be satisfied, having considered possible alternatives, that no other penalty is appropriate. That is not in issue in this case. It is apparent that the nature of the offence and its seriousness call for no other response. Periodic detention as an alternative to imprisonment
The issue in this case is whether the sentencing judge failed to properly consider the option of imposing periodic detention as the mode by which the sentence of imprisonment should be served.
Section 11(2) of the Sentencing Act provides that: The court may, in the order sentencing the offender to imprisonment, set a period of the sentence of imprisonment (a periodic detention period) to be served by periodic detention.
Further, s 11(3) provides that: The periodic detention period— (a) may be for all or part of the offender’s sentence of imprisonment; but (b) must be for a period of at least 3 months and not longer than 2 years.
Periodic detention involves the service of a sentence of imprisonment by way of reporting to and carrying out the activities or work required of the offender at the place fixed and for the period required on a weekly basis in accordance with Chapter 5 of the Crimes (Sentencing Administration) Act 2005 (ACT).
In the present case, s 11 of the Sentencing Act clearly provides that it is an available sentencing option to order the offender to serve the 18 months sentence which the sentencing judge imposed by way of periodic detention. However, it is important to note that neither the prosecution nor the defence raised, at sentencing, the question of whether this was, in fact, an appropriate case for the court to impose a periodic detention order.
A pre-sentence report had been ordered. The authority for doing so was s 41 of the Sentencing Act. At the time of sentencing, that section provided: 41 Pre-sentence reports—order (1) Before sentencing the offender, a court may— (a) by order (a pre-sentence report order) direct the chief executive to prepare a report under this part (a pre-sentence report) for the offender; and (b) adjourn the proceeding for the report to be prepared. Note If a form is approved under the Court Procedures Act 2004 for a pre‑sentence report order, the form must be used (see that Act, s 8 (2)). (2) The court may, in the pre-sentence report order, direct that the pre‑sentence report deal with any of the following: (a) only with the pre-sentence matters under section 42(3) stated in the order; (b) the offender’s suitability under this Act for a deferred sentence order; (c) the offender’s suitability under this Act to serve a sentence (or a part of a sentence) in a stated way, including any of the following: (i) by periodic detention; (ii) by performing community service work; (iii) by taking part in a stated rehabilitation program; (d) anything else stated in the direction. (3) The chief executive must arrange for an assessor to prepare a pre‑sentence report for the offender. (4) In this part: assessor means a person to whom the chief executive has, under the Public Sector Management Act 1994, delegated the chief executive’s function under this part to prepare the pre-sentence report. Note For the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.
At the time of sentencing, s 42 of the Sentencing Act contained a detailed description of what was required as to the contents of the pre-sentence report.
As from 1 August 2007, ss 41 and 42 of the Sentencing Act have been replaced by ss 40A, 41 and 42 as a consequence of the amendment made by and set out in Schedule 1 Part 1.2 of the Corrections Management Act 2007 (ACT). Of relevance, for the purposes of this matter, s 41(2)and (3) set out above have been replaced by the following: 41 (2) However, the court must order the chief executive to prepare a pre‑sentence report before sentencing the offender to serve all or any part of a sentence by— (a) periodic detention; or (b) community service work under a good behaviour order; or (c) undertaking a rehabilitation program under a good behaviour order. (3) The court order for the preparation of a pre-sentence report may state 1 or more pre-sentence report matters, or any other matter, that the report must address.
Although s 41 in its original form called upon the court to direct that the pre-sentence report address particular suitability of the offender for the specified sentencing options, the amended s 41 only requires a report to be ordered before the court sentences an offender in respect of the specified sentencing option. Accordingly, there is little utility in pursuing the point that might have been taken in this case that any recommendation in the pre-sentence report as to suitability for the sentence to be served by periodic detention was not made consequential upon a direction of the court. In any event, the pre-sentence report in this case was responding to a general order directing a report under the authorising section. Even without an authorising direction, the fact is the pre-sentence report in the present case contained what can be construed as a recommendation of suitability for periodic detention.
As far as the contents of the pre-sentence report are concerned in reference to periodic detention, s 42(1)(c) of the Sentencing Act, at the time of sentencing, provided: 42 Pre-sentence reports—contents (1) In preparing the pre-sentence report for the offender, the assessor must include the following in the report: … (c) if the pre-sentence report order includes a direction under section 41 (2) (c)—the assessor’s recommendation about the offender’s suitability to serve a sentence (or a part of a sentence) in the way (or ways) stated in the direction; … There was also an example for paragraph (c) which provided: 1 If the direction relates to periodic detention, the assessor may indicate the kind of conditions that might be recommended under section 11 (5). Section 11(5) of the Sentencing Act that is referred to in the example provides: (5) The court may also recommend any condition, not inconsistent with this Act or the Crimes (Sentence Administration) Act 2005, that the court considers appropriate for the offender’s periodic detention.
The provision in s 42(1)(c) has now been replaced with s 42(3) which provides: (3) If a court order directs that a pre-sentence report deal with an offender’s suitability for serving all or any part of a sentence by periodic detention, the report must also— (a) address the matters mentioned in section 79 (Periodic detention—pre-sentence report matters); and (b) include the assessor’s recommendation about— (i) the offender’s suitability for serving all or any part of a sentence by periodic detention; and (ii) any condition that might be appropriate for the offender’s periodic detention.
In the pre-sentence report compiled before the amending sections, the matters referred to in s 79 of the Sentencing Act were to be addressed in the report. That section, with what was provided in the former section in square bracket parenthesis, now provides: 79 Periodic detention—pre-sentence report matters For section 42 (3) (Pre-sentence reports by assessors) [formerly section 42(3)(ii) (Pre-Sentence reports – contents)], the matters for assessing the offender’s suitability to serve a sentence (or a part of a sentence) by periodic detention are the matters mentioned in table 79, column 2. Table 79 Assessment of suitability—periodic detention column 1 item column 2 matter column 3 indication of unsuitability

Part 5.4 of the Sentencing Act sets out what is required of a court in considering whether to set a periodic detention period for an offence. Section 77 of that Act provides: 77 Periodic detention—eligibility (1) The court must not set a periodic detention period for the offender unless satisfied that— (a) periodic detention is suitable for the offender (see section 78); and (b) it is appropriate for the offender to serve all or part of the sentence by periodic detention; and (c) there are appropriate facilities available at a correctional centre for the offender to serve any period of periodic detention set by the court; and (d) the offender has signed an undertaking to comply with the offender’s periodic detention obligations under the Crimes (Sentence Administration) Act 2005. (2) The court may decline to set a periodic detention period for the offender if— (a) the court asks the offender to undergo a medical examination by a doctor, as directed by the court; and (b) the offender does not undergo the examination in accordance with the direction.
Section 78 provides: 78 Periodic detention—suitability (1) The court must not set a periodic detention period for the offender unless a pre-sentence report is given to the court about the offender’s suitability to serve a sentence (or a part of a sentence) by periodic detention. (2) In deciding whether to set a periodic detention period for the offender, the court must consider the following: (a) the pre-sentence report; (b) any medical report about the offender given to the court; (c) any evidence given by the person who prepared the pre-sentence report; (d) any evidence given by a corrections officer about the offender. (3) Subsection (2) does not limit the matters that the court may consider. (4) In considering the pre-sentence report, the court must consider any indicators of unsuitability mentioned in table 79, column 3 that are stated in the report to apply to the offender. (5) The court may set, or decline to set, a periodic detention period for the offender despite— (a) any recommendation in the pre-sentence report about the offender’s suitability to serve a sentence (or a part of a sentence) by periodic detention; or (b) any evidence given by the person who prepared the pre‑sentence report or a corrections officer. (6) The court must record reasons for its decision to set, or decline to set, a periodic detention period for the offender if— (a) the pre-sentence report recommends that the offender is suitable but the court decides not to set a periodic detention period for the offender; or (b) the pre-sentence report recommends that the offender is not suitable but the court decides to set a periodic detention period for the offender. (7) Failure to comply with subsection (6) does not invalidate the periodic detention order. The appellant’s submission
The pre-sentence report in the present case addressed the issue of periodic detention in this way: Periodic Detention Mr Wilson has signed an undertaking to comply with the offender’s periodic detention obligations under the Crimes (Sentence Administration) Act 2005 and has been assessed as suitable.
Mr Sharman placed at the forefront of his submission this comment in the pre-sentence report. It was put that, there being a recommendation of suitability in the pre-sentence report, s 78(6)(a) of the Sentencing Act obliges a court to record its reasons for not setting a periodic detention period. No reasons were, in fact, recorded in the present case. Although it is not directly put that the sentence of imprisonment that was imposed was invalid as a consequence, it was put that it was an error not to record the reasons and that was indicative of a failure to consider or properly consider the sentencing option of periodic detention. Recording of reasons under the Sentencing Act
There are a number of provisions in the Sentencing Act requiring the court to record the reasons for particular decisions taken by the court. A common corresponding provision is that failure to record such a reason does not invalidate the order made.
That is so in respect of recording the reasons for a sentence of imprisonment (s 10(4) which requires the reasons to be recorded and s 10(5) which provides that failure to comply does not invalidate the decision). Likewise, the failure to give notice of a procedural nature in respect of an order does not invalidate the order in the case of a suspended sentence order (s 12(4) and (5)), driver licence disqualification order (s 16(4) and (5)), record of consecutive or partly consecutive sentences (s 75(1) and (2)), written record of explanation of imprisonment (s 83(1) and (2)), notice of a good behaviour order (s 103(1) and (3)) or an amendment order of the conditions of a deferred sentence order (s 129(5) and (6)).
It may be noted that the formula used for reasons to be given for the decision to set or include or decline to set or include a periodic detention period, community service condition or a rehabilitation condition is not followed in respect of the decision “to make” a deferred sentence order. It does, however, seem clear that such a record is required if a decision is not made and “any pre-sentence report recommends that the offender is suitable” (see s 117(4)(a)). The words “or decline to make” can easily be read into the provision and in view of s 117(4)(a), that should be done. As with the other provisions mentioned above, failure to record reasons does not invalidate the deferred sentence order (s 117(5)).
There are groups of provisions to a similar effect to s 78(5) and (6) of the Sentencing Act (set out in [21] above) in making provision for recording reasons to set or decline to set a periodic detention period. Those other provisions are concerned with including or declining to include a community service condition in a good behaviour order (s 89(6) and (7)), including or declining to include a rehabilitation program condition in a good behaviour order (s 97(5) and (6)) and, as I have just observed, in making a deferred sentence order (s 117(4) and (5)).
The provisions for setting or including or declining to set or include the particular matters similar to ss 77 and 78 are all structured in the same way. As with s 77, there is a corresponding section dealing with eligibility and as with s 78, a corresponding provision dealing with suitability.
The point is that in each case the requirement to record reasons is necessary when there is a departure from the recommendation in the pre-sentence report as to the offender’s suitability but the requirement for reasons is directed specifically to this aspect. In each case, as well as suitability, the eligibility provision provides for additional requirements to be satisfied before the court makes the particular order.
In other words, the eligibility provision sets out criteria for the court to consider. One of the criteria is suitability. The consideration of suitability is governed by the suitability provisions in the next succeeding provision. It is only in respect of the aspect of suitability that the court must record its reasons for dissent from a recommendation in the pre-sentence report.
It cannot have been the intention of the legislature that if the court were not to be satisfied that the additional eligibility criterion or criteria were met, it must nonetheless record reasons why a recommendation as to suitability in the pre-sentence report was not followed.
It may also be noted that in the present case, the pre-sentence report also assessed the appellant “as suitable for community service work”.
If Mr Sharman’s submission is right, then the sentencing judge in this case would have been also obliged to record reasons why the community service work condition for which the pre-sentence report assessed the appellant as suitable was not included in the good behaviour order that was made when twelve months of the appellant’s sentence was suspended. In fact, the eligibility provision for a community service condition in the good behaviour order requires the court to determine whether “it is appropriate that the offender be required to perform community service work” (s 88(1)(b)). In the present case, the sentencing judge plainly determined that community service work was not appropriate and that meant that no record of reasons is required to address the suitability recommendation for a good behaviour order that the pre-sentence report may be taken to have recommended. It is when the court considers that it is appropriate that an offender perform community service work but imposes, or does not impose, such a condition in the face of a recommendation in the pre-sentence report that is contrary to the disposition that the court proposes, that a record of reasons is required. Conclusion
The short answer to Mr Sharman’s contention is that the requirement to record reasons in each of the matters where the court departs from a recommendation of suitability or unsuitability in the pre-sentence report is subject to the court determining that the offender is otherwise eligible for the particular order that the court might make.
In the present case, not only was there no issue raised that an order for periodic detention was appropriate in the circumstances of this case, but also the sentencing judge did not consider it to be so in the circumstances. In his sentencing remarks, he recognised that a custodial sentence, which may be taken to refer to full-time detention at a correctional centre, was inevitable. No error has been demonstrated in him coming to that conclusion.
The appeal must be dismissed. The appellant was sentenced to imprisonment on 15 June 2007 and has been on bail since 6 July 2007. In other words, 21 days of his sentence has been served. He is required to surrender himself to the Chief Executive ACT Corrective Services within 48 hours from today. His sentence is to date from the date he surrenders. The term of six months imprisonment is to be reduced to five months and seven days from his date of surrender and the balance of the term of 18 months imprisonment is to be reduced to 17 months and seven days. The good behaviour order for a period of two years is confirmed from the date of his surrender. I certify that the preceding numbered paragraphs two (2) to thirty-eight (38) are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

This is an appeal against sentence. The appellant pleaded guilty to an offence of aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT). The maximum penalty for that offence is 2000 penalty units, imprisonment for 20 years or both. On 15 June 2007, the appellant was convicted and sentenced to imprisonment for a term of 18 months, suspended after 6 months upon entry into a good behaviour order. The terms of the good behaviour order are not relevant for present purposes.
There is one ground of appeal and it is that the sentencing judge erred in failing to give adequate consideration to alternatives to full-time custody. As the argument was developed by the appellant it was that the sentencing judge failed to give adequate consideration to a sentence of periodic detention. The appellant also submitted that the sentencing judge erred in failing to record reasons for his decision to decline to set a periodic detention period in circumstances in which the authors of a pre-sentence report put before the judge assessed the appellant as suitable for periodic detention.
The circumstances surrounding the offending are set out in the reasons for judgment of Gray J and I will not repeat them.
The appellant pleaded guilty to the offence on his arraignment on 10 April 2007. At that time, the Court made an order in general terms requiring the chief executive to prepare a pre-sentence report.
That was done under s 41 of the Crimes (Sentencing) Act 2005 (ACT) (“the Sentencing Act”) which at that time provided: 41 Pre-sentence reports—order (1) Before sentencing the offender, a court may— (a) by order (a pre-sentence report order) direct the chief executive to prepare a report under this part (a pre-sentence report) for the offender; and (b) adjourn the proceeding for the report to be prepared. Note If a form is approved under the Court Procedures Act 2004 for a pre‑sentence report order, the form must be used (see that Act, s 8 (2)). (2) The court may, in the pre-sentence report order, direct that the pre-sentence report deal with any of the following: (a) only with the pre-sentence matters under section 42 (3) stated in the order; (b) the offender’s suitability under this Act for a deferred sentence order; (c) the offender’s suitability under this Act to serve a sentence (or a part of a sentence) in a stated way, including any of the following: (i) by periodic detention; (ii) by performing community service work; (iii) by taking part in a stated rehabilitation program; (d) anything else stated in the direction. (3) The chief executive must arrange for an assessor to prepare a pre-sentence report for the offender. (4) In this part: assessor means a person to whom the chief executive has, under the Public Sector Management Act 1994, delegated the chief executive’s function under this part to prepare the pre-sentence report. Note For the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.
Section 42 provided as follows: 42 Pre-sentence reports—contents (1) In preparing the pre-sentence report for the offender, the assessor must include the following in the report: (a) as far as practicable, details of— (i) each of the pre-sentence matters that, on investigation, appears to be relevant; or (ii) if the pre-sentence report order includes a direction under section 41(2)(a)—each of the pre-sentence matters stated in the order; (b) if the pre-sentence report order includes a direction under section 41(2)(b)—the assessor’s recommendation about the offender’s suitability for a deferred sentence order; (c) if the pre-sentence report order includes a direction under section 41(2)(c)—the assessor’s recommendation about the offender’s suitability to serve a sentence (or a part of a sentence) in the way (or ways) stated in the direction; (d) if the pre-sentence report order includes a direction under section 41(2)(d)—as far as practicable, the matters stated in the direction. Examples for par (c) 1 If the direction relates to periodic detention, the assessor may indicate the kind of conditions that might be recommended under section 11(5). 2 If the direction relates to taking part in a rehabilitation program, the assessor may indicate the kinds of conditions (in addition to the rehabilitation program condition) that might be included under section 13(3). Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132). (2) The assessor may also include in the pre-sentence report— (a) if the pre-sentence report order includes a direction under section 41(2)(b)—an indication of the kind of conditions that would be appropriate for the court to include in a deferred sentence order; and (b) if the pre-sentence report order includes a direction under section 41(2)(c)—an indication of the kind of conditions that would be appropriate for the court to recommend for a sentence (or a part of a sentence) to be served in the way (or ways) stated in the direction; and (c) details of anything else the assessor considers relevant. (3) For this section, the pre-sentence matters are— (a) the core matters (see subsection (4)); and (b) if the pre-sentence report order includes a direction under section 41(2)(b)—the matters mentioned in section 116(1) (Deferred sentence orders—eligibility); and (c) if the pre-sentence report order includes a direction under section 41(2)(c) about the offender’s suitability to serve a sentence (or a part of a sentence) by— (i) periodic detention—the matters mentioned in section 79 (Periodic detention—pre-sentence report matters); and (ii) performing community service work—the matters mentioned in section 90 (Community service—pre sentence report matters); and (iii) taking part in a stated rehabilitation program—the matters mentioned in section 98 (Rehabilitation programs—pre-sentence report matters). (4) For subsection (3)(a), the following are the core matters: (a) the offender’s age; (b) the offender’s social history and background (including cultural background); (c) the offender’s medical and psychiatric history; (d) the offender’s educational background; (e) the offender’s employment history; (f) the extent to which the offender is complying, or has complied, with any sentence; (g) the offender’s financial circumstances; (h) any special needs of the offender; (i) any courses, programs, treatment, therapy or other assistance that is available to the offender and from which the offender may benefit; (j) any risk assessments made of the likelihood that the offender will commit further offences or of things (including circumstances) that may make the offender more likely to commit further offences; (k) the assessor’s opinion, and the basis for the opinion, about— (i) the offender’s attitude to the offence; and (ii) the need to protect victims of the offence from violence or harassment by the offender; and (iii) anything that may make the offender more likely to commit further offences; and Examples 1 dependence on alcohol or a controlled drug 2 a gambling addiction 3 association with particular people

As I understand it there was no specific direction under s 41(2)(c) requiring an assessor to address the appellant’s suitability to serve his sentence, or part of his sentence, by periodic detention.
Sections 41 and 42 have been amended since the sentence in this case was passed.
A pre-sentence report dated 12 June 2007 was prepared and sent to the court. The authors of the report set out background information, details of the appellant’s education and employment, financial situation, drug or alcohol history, medical and mental health and offending history. They also set out details surrounding the offending and they set out their assessment of the appellant and, in particular, his risk of re-offending. That assessment was that in the case of the appellant there was a low risk of re-offending. The authors of the report then made what they refer to as “sentencing comments” and these comments dealt with questions of bail, the imposition of a fine, restorative justice, the imposition of a deferred sentence, the imposition of a good behaviour bond, a rehabilitation program condition, a community service work condition, periodic detention and imprisonment. In relation to periodic detention, the authors said: Mr Wilson has signed an undertaking to comply with the offender’s periodic detention obligations under the Crimes (Sentence Administration) Act 2005 and has been assessed as suitable.
In the course of sentencing submissions on 15 June 2007 a number of documents were put before the sentencing judge. The documents were a statement of agreed facts, the prior criminal history of the accused, and the pre-sentence report. The appellant’s counsel submitted that a suspended sentence was appropriate whereas counsel for the Crown submitted that an immediate custodial sentence was the appropriate sentence. Neither party raised the possibility of a period of imprisonment being served by periodic detention. Certain statements in the pre-sentence report were referred to in the course of submissions but those statements did not relate to periodic detention.
In his sentencing remarks the Judge referred to the circumstances surrounding the offending and the appellant’s personal circumstances. He referred to counsel for the appellant’s submission and, in particular, his submission that a suspended sentence was appropriate. However, he said that he considered that a custodial sentence was “inevitable”. He did not refer to the possibility of a period of imprisonment being served by periodic detention.
The appellant does not argue that the sentence imposed is manifestly excessive. He accepts that the sentence is within an appropriate range. In those circumstances, he must show a specific error of principle in order to succeed: Wong v The Queen (2001) 207 CLR 584 at 605 per Gaudron, Gummow and Hayne JJ. The Sentencing Act
The Sentencing Act contains a statement of objects and they include the object of maximising the opportunity for imposing sentences that are constructively adapted to individual offenders and an object of promoting flexibility in sentencing: s 6. The purposes of sentencing are set out in s 7.
A sentence of imprisonment may be imposed if the Court is satisfied, having considered other possible alternatives, that no other penalty is appropriate: s 10(2). A sentence of imprisonment is to be served by full-time detention at a correctional centre unless, inter alia, the offender is released from full-time detention under the Sentencing Act by the Court setting a period of the sentence to be served by periodic detention: s 10(3).
Section 11 provides as follows: 11 Periodic detention (1) This section applies if— (a) an offender is convicted of an offence; and (b) the court sentences the offender to imprisonment for the offence. (2) The court may, in the order sentencing the offender to imprisonment, set a period of the sentence of imprisonment (a periodic detention period) to be served by periodic detention. Note A periodic detention period may be part of a combination sentence together with other sentencing options (see pt 3.6). (3) The periodic detention period— (a) may be for all or part of the offender’s sentence of imprisonment; but (b) must be for a period of at least 3 months and not longer than 2 years. (4) When the court sets the periodic detention period, the court must state— (a) when the periodic detention period starts and ends; and (b) the day the first detention period under the Crimes (Sentence Administration) Act 2005 for the offender is to start. (5) The court may also recommend any condition, not inconsistent with this Act or the Crimes (Sentence Administration) Act 2005, that the court considers appropriate for the offender’s periodic detention. Examples of conditions see the examples to section 13 (3) (g) (Good behaviour orders) Note 1 A condition recommended by the court is, under the Crimes (Sentence Administration) Act 2005, an additional condition of the offender’s periodic detention (see that Act, s 40, def additional condition, par (a)). Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132). (6) This section is subject to chapter 5 (Imprisonment). Note See, in particular, pt 5.4 about eligibility and suitability for, and other matters in relation to, periodic detention. The examples are part of the Act. The notes are not part of the Act: Legislation Act 2001 (ACT) ss 126 and 127. Chapter 5 of the Crimes (Sentence Administration) Act 2005 (ACT) contains detailed provisions dealing with periodic detention.
Section 33 of the Sentencing Act provides: (1) In deciding how an offender should be sentenced (if at all) for an offence, a Court must consider whichever of the following matters are relevant and known to the court: [there then follows a list of 26 matters]
Section 34 contains a list of matters a court should not have regard to in order to increase the severity of the sentence.
Chapter 4, Part 4.2 of the Sentencing Act deals with pre-sentence reports. I have already set out the relevant provisions in [5] and [6] above.
Chapter 5, Part 5.4 of the Sentencing Act deals with periodic detention, and ss 76, 77, 78 and 79 are relevant. Those sections are in the following terms: Part 5.4 Periodic detention 76 Application — pt 5.4 This part applies if a court is considering whether to set a periodic detention period for an offender for an offence. 77 Periodic detention—eligibility (1) The court must not set a periodic detention period for the offender unless satisfied that— (a) periodic detention is suitable for the offender (see section 78); and (b) it is appropriate for the offender to serve all or part of the sentence by periodic detention; and (c) there are appropriate facilities available at a correctional centre for the offender to serve any period of periodic detention set by the court; and (d) the offender has signed an undertaking to comply with the offender’s periodic detention obligations under the Crimes (Sentence Administration) Act 2005. (2) The court may decline to set a periodic detention period for the offender if— (a) the court asks the offender to undergo a medical examination by a doctor, as directed by the court; and (b) the offender does not undergo the examination in accordance with the direction. 78 Periodic detention—suitability (1) The court must not set a periodic detention period for the offender unless a pre-sentence report is given to the court about the offender’s suitability to serve a sentence (or a part of a sentence) by periodic detention. (2) In deciding whether to set a periodic detention period for the offender, the court must consider the following: (a) the pre-sentence report; (b) any medical report about the offender given to the court; (c) any evidence given by the person who prepared the pre-sentence report; (d) any evidence given by a corrections officer about the offender. (3) Subsection (2) does not limit the matters that the court may consider. (4) In considering the pre-sentence report, the court must consider any indicators of unsuitability mentioned in table 79, column 3 that are stated in the report to apply to the offender. (5) The court may set, or decline to set, a periodic detention period for the offender despite— (a) any recommendation in the pre-sentence report about the offender’s suitability to serve a sentence (or a part of a sentence) by periodic detention; or (b) any evidence given by the person who prepared the pre sentence report or a corrections officer. (6) The court must record reasons for its decision to set, or decline to set, a periodic detention period for the offender if— (a) the pre-sentence report recommends that the offender is suitable but the court decides not to set a periodic detention period for the offender; or (b) the pre-sentence report recommends that the offender is not suitable but the court decides to set a periodic detention period for the offender. (7) Failure to comply with subsection (6) does not invalidate the periodic detention order. 79 Periodic detention — pre-sentence report matters For section 42(3)(c)(ii) (Pre-sentence reports—contents), the matters for assessing the offender’s suitability to serve a sentence (or a part of a sentence) by periodic detention are the matters mentioned in table 79, column 2. Table 79 Assessment of suitability—periodic detention column 1 item column 2 matter column 3 indication of unsuitability

Finally, the Court was referred to s 138 of the Sentencing Act, which provides as follows: A failure to comply with this Act may be considered by an appeal court in any appeal against sentence even if this Act declares that the failure to comply does not invalidate the sentence. Issues on the Appeal
The first issue is whether the sentencing judge erred in failing to give adequate consideration to a period of the sentence of imprisonment being served by periodic detention. The sentencing judge was required to consider (so far as relevant and known) the matters in s 33(1) of the Sentencing Act. Those matters are factual matters, not sentencing options. Leaving aside Part 5.4 of the Sentencing Act, there is no express provision in the Sentencing Act which requires a sentencing judge to consider periodic detention in any specific case.
There are a number of general principles relevant to the sentencing function which may be noted. The High Court has made it clear that it is for the sentencing judge, alone, to decide the sentence to be imposed and that includes a responsibility for finding relevant facts and a responsibility to find and apply the relevant law. In GAS v The Queen (2004) 217 CLR 198 the Court said (at 211 [30]-[31]) (footnotes omitted): Thirdly, it is for the sentencing judge, alone, to decide the sentence to be imposed. For that purpose, the judge must find the relevant facts. In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case. The present appeal provides an example. The limitation arose from the absence of evidence as to who killed the victim, and the absence of any admission from either appellant that his involvement was more than that of an aider and abettor. Fourthly, as a corollary to the third principle, there may be an understanding, between the prosecution and the defence, as to evidence that will be led, or admissions that will be made, but that does not bind the judge, except in the practical sense that the judge’s capacity to find facts will be affected by the evidence and the admissions. In deciding the sentence, the judge must apply to the facts as found the relevant law and sentencing principles. It is for the judge, assisted by the submissions of counsel, to decide and apply the law. There may be an understanding between counsel as to the submissions of law that they will make, but that does not bind the judge in any sense. The judge's responsibility to find and apply the law is not circumscribed by the conduct of counsel.
Similar observations have been made in other cases. See, for example, R v Olbrich (1999) 1999 CLR 270; The Queen v Perre (1986) 41 SASR 105.
Leaving aside for the present the effect of Part 5.4 of the Sentencing Act, in my opinion, if the sentencing judge was obliged to consider the option of periodic detention, I think it may be inferred that he did so to the extent required by the circumstances of this particular case. I have reached that conclusion for a number of reasons. First, the sentencing judge had before him the pre-sentence report and it is reasonable to infer that he read it and considered its contents. Secondly, neither party made a submission to the sentencing judge that periodic detention would be appropriate. Thirdly, the sentencing judge had no evidence before him that the matters in s 77(1) were satisfied and it must be remembered that a sentencing judge must be satisfied of a number of matters before setting a periodic detention period of which suitability is only one. Finally, the sentencing judge plainly considered the sentence he imposed was appropriate and it is accepted by the appellant that the sentence was not manifestly excessive.
The next question is whether the provisions in Part 5.4 require a different conclusion. I do not think they do because the relevant provisions were not engaged in the circumstances of this case. It seems to me that in terms of whether to set a periodic detention period the Sentencing Act envisages two stages. First, preliminary consideration may be given to periodic detention. That will probably be at the instigation of one of the parties or possibly the Judge. An order may be made requiring a pre-sentence report to address the possibility of periodic detention. Other information addressing the matters in Part 5.4, in particular those matters in s 77, will be collected. The second stage is that the relevant material is considered by the sentencing judge and at that point the provisions in Part 5.4 are engaged. The wording of s 76 is important here. The Part applies only if the Court “is considering whether to set a periodic detention period”. In this case, the sentencing judge was never at that stage and the provisions of Part 5.4 were not engaged.
In the circumstances, it is not necessary for me to consider whether the concession by the appellant that non-compliance with s 78(6) did not lead to invalidity of the sentencing judge’s orders was correctly made. I would regard that as an open question. Section 78(7) provides that non-compliance with subs (6) does not invalidate a periodic detention order, but says nothing of a case where the court decides not to make a periodic detention order. Conclusion
In my opinion, the appeal must be dismissed. I agree with the orders proposed by Gray J. I certify that the preceding numbered paragraphs thirty-nine (39) to sixty-five (65) are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.