[Back]


The Queen v Lane [2005] NTCCA 16

 

PARTIES: THE QUEEN

v

CLIVE LANE

TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: CA 21 of 2005 (20504387)

DELIVERED: 22 November 2005

HEARING DATES: 9 and 10 November 2005

JUDGMENT OF: MILDREN, RILEY & SOUTHWOOD JJ

CATCHWORDS:

CRIMINAL LAW – APPEAL – SENTENCE

Dangerous act causing death – offender drove at excessive speed whilst intoxicated – offender’s young son killed – whether suspension of sentence after six months imprisonment manifestly inadequate – weight to be given to the death of the offender’s son – weight to be given to such tragic consequences a matter of fact and degree in each case – the circumstances of the offender considered in light of the offending permitted leniency.

Whether sentencing judge erred in specifying an operational period less than the suspended balance of the head sentence – an offence committed after the expiration of the operational period would not constitute a breach – the court would lose control of the situation – appeal allowed.

Sentencing Act (NT) ss 40, 43 and 107; Criminal Code (NT) ss 154(1), 154(3) and 154(4); Traffic Act (NT) s 31.

Ireland (1987) 29 A Crim R 353, applied
Raggett, Douglas & Miller (1990) 50 A Crim R 41 at 47, applied
The Queen v Brusch (1986) 11 FCR 582 at 590, applied
The Queen v Tait (1979) 46 FLR 386 at 388, applied
Baumer v The Queen (1987) 27 A Crim R 143, considered
R v Boswell [1984] 1 WLR 1047; 3 All ER 353, considered
R v Johnston (1985) 38 SASR 582, considered
R v Everett (1999) 31 MVR 19, considered
R v Yalim (2000) 31 MVR 377 at 381, considered
The Queen v Osenkowski (1982) 30 SASR 212 at 212-213, cited

REPRESENTATION:

Counsel:
Appellant: W.J. Karczewski QC
Respondent: G. Dooley

Solicitors:
Appellant: Office of the Director of Public Prosecutions
Respondent: Katherine Region Aboriginal Legal Aid Service

Judgment category classification: B
Judgment ID Number: ril0530
Number of pages: 21

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Lane [2005] NTCCA 16
No CA 21 of 2005 (20504387)

BETWEEN:

THE QUEEN
Appellant

AND:

CLIVE LANE
Respondent

CORAM: MILDREN, RILEY and SOUTHWOOD JJ

REASONS FOR JUDGMENT

(Delivered 22 November 2005)

Mildren J:

[1] This is a Crown appeal against the inadequacy of sentence.

[2] On 8 August 2005, the respondent pleaded guilty to one count of doing a dangerous act with two circumstances of aggravation, namely (a) causing death and (b) being under the influence of alcohol at the time, contrary to s 154(1), s 154(3) and s 154(4) of the Criminal Code. The maximum penalty for that offence with those circumstances of aggravation is 14 years imprisonment.

[3] Pursuant to s 107 of the Sentencing Act, nine other offences were taken into account on sentence, the most significant of which was that the respondent was guilty of driving disqualified contrary to s 31 of the Traffic Act. The maximum penalty for that offence is imprisonment for 12 months.

[4] On 8 August 2005, the respondent was sentenced to imprisonment for three years and six months. His Honour ordered that the sentence be suspended after six months. An operational period of 18 months from the date of release was fixed. It was further ordered that the sentence commence as from 15 June 2005. His Honour also disqualified the respondent from holding or obtaining a driver’s licence for a period of seven years as from 8 August 2005.

[5] The grounds of appeal are as follows:

“That in all the circumstances of the case the sentence imposed by the learned sentencing judge was manifestly inadequate.

(1) The learned sentencing judge failed to have any, or any adequate regard to the principles of general deterrence.

(2) The learned sentencing judge was in error in treating the circumstance that the victim was his son was (sic) a mitigating factor, when in fact by reason of the age of his son and his inability to refuse getting into the respondent’s vehicle it ought to have been treated as an aggravating factor.

(3) The learned sentencing judge was in error in failing to give any or any significant weight to the driving record of the respondent.

(4) The learned sentencing judge erred in specifying an operational period less than the balance of the head sentence.”

[6] The respondent is Aboriginal, aged somewhere around 43 years at the time of the offence. He grew up at Barunga and has had a traditional upbringing. He speaks four languages including some English, but needed the assistance of an interpreter at the plea hearing. He has had little formal education and has only a limited ability to read and write in the English language.

[7] The respondent married his present partner in about 1999. There are two children of the marriage, one of whom died as a result of the road accident which is the subject of the count in the indictment. The respondent’s wife was expecting a third child in about a month after the date upon which sentence was passed.

[8] On the day preceding the offence the respondent, his wife and children travelled by motor vehicle from Jabiru to Beswick. The following day the respondent intended to go to the shops in order to get some food and to visit his father. Whilst in Beswick the respondent and his family were staying at his sister’s house. On the morning of the offending, the respondent met an old friend who lived just across the road. He went over to his friend’s home and commenced to drink with him over the next couple of hours, sharing a cask of moselle. Later the respondent realised that he had still to go to the shop and although he was told by his friends that he ought not to drive, he felt that he was able to drive even though he felt “half-shot” but “talking good and not slurring”. The respondent drove to the store with his young son, then aged two years, and on the return journey gave a lift to three family members who asked him to drive them back to where they were living in a new subdivision at Beswick. This subdivision had been constructed during the respondent’s absence from Beswick and he was not familiar with the roads in that part of the community. Whilst driving to his relatives’ place of abode, the respondent’s two-year-old son was sitting on the console. He could have been sitting in the back seat with a seat belt on. He drove too quickly and lost control on a corner. The car skidded on the roadway and collided with a power pole. The respondent picked up his unconscious child, gave him to another person and requested that he be taken to the clinic for treatment. After this, the respondent fled the scene by walking into bushland. The respondent conceded that the accident was caused by his speed and by the fact that he was driving whilst intoxicated.

[9] The following morning the respondent walked back to the community where he was informed by his mother that his son had passed away. Later that day his brother in law contacted the police. An arrangement was made whereby the police met the respondent at the health clinic where he was arrested and taken to Katherine and where he participated in an electronic record of interview.

[10] During the record of interview, the respondent admitted that he was the driver and that he was drunk and silly. He said that he went around the corner too fast and could not control the car because he was drunk and feeling dizzy.

[11] In addition to the death of his son, three other of his passengers all required some medical treatment at the Katherine Hospital, although the extent of their injuries is not known.

[12] At the time of the offence, the respondent drove whilst his licence had been disqualified as the result of a court order made only 23 days previously as the result of a conviction for driving with a blood alcohol level of 0.187 per cent. The respondent had also a previous conviction for driving with a blood alcohol reading of 0.224 per cent in late 2001. At that time, he had also been convicted of assault causing bodily harm as a result of an offence committed in 1998 for which he received a sentence of eight months imprisonment suspended after two months.

[13] Apart from those convictions, the respondent’s record was otherwise unremarkable with only minor offending mostly in the 1980s.

[14] Evidence was given before the learned sentencing judge that since the offending the respondent had ceased drinking and had been attending church nearly every night. There is no suggestion of any payback. As a result of the accident, the respondent and his wife have separated. The learned sentencing judge accepted that the respondent was deeply ashamed of his behaviour and was so grief-stricken about the death of his son that he was unable to talk about it or put his feelings into words.

[15] The respondent had a good work record. He commenced employment as a stockman at the age of 15 and worked on a number of cattle stations in the Katherine district. For the majority of his adult years he was also employed as a slaughterman at the Oenpelli abattoirs and he has worked at Beswick, Bajaminy and Jabiru communities doing CDEP work. At the sentencing hearing, his counsel emphasised the respondent’s remorse and that the respondent had very strong prospects of rehabilitation. The learned sentencing judge accepted that the respondent had reasonable prospects for his rehabilitation, but observed that it was obvious that he still had a long way to go.

[16] In sentencing the respondent, the learned sentencing judge clearly gave weight to the effect on the respondent of the loss of his child. His Honour observed that this was the greatest penalty that the respondent was going to have to bear. It was submitted that the learned sentencing judge gave too much weight to this factor. Reference was made by Mr Karczewski QC to the observations of the Court of Criminal Appeal of New South Wales in Everett v The Queen (2000) 31 MVR 19 at 16-17 where Carruthers AJ said:

“[16] It must be remembered that compassionate as judges may wish to be and as touched as they may be by some of the tragic situations that are presented to them in the discharge of their difficult responsibilities, a sentencing judge has a responsibility to the community at large to ensure that offenders are appropriately punished as a deterrent to others who might be minded to commit the offence in question.

[17] Time after time this Court has said that objective circumstances must be generally subservient to the imposition of deterrent sentences for offences such as the subject one.”

[17] In that case, the offender aged 24 years was convicted of two counts of dangerous driving occasioning death as a result of which her husband and her two year old son from a previous relationship were killed.

[18] We were also referred to the observations of the Victorian Court of Appeal in R v Yalim (2000) 31 MVR 377. In that case, the appellant was charged with two counts of culpable driving causing death. The offender lost control of the car and collided with a pole at the side of the road and as a result, his wife and child died of injuries. Hedigan AJA said at [21]:

“There is no reason to suppose his Honour did not take into account the personal circumstances of the applicant and the devastating effect of his conduct and his guilt on him. In human terms, these consequences attract compassion for the continuing grief and guilt, but they cannot play a significant or major role in the sentencing process, having regard to the circumstances of this case.”

[19] In my opinion, neither principle nor authority requires this Court to determine that it is a sentencing error for a sentencing judge to give significant weight to the remorse, feelings of guilt and devastating effect of the loss of life of a near relative as a result of the bad driving of the defendant. In Baumer v The Queen (1987) 27 A Crim R 143 Maurice J quoted with approval the remarks of Lord Lane CJ in the case of R v Boswell [1984] 1 WLR 1047; 3 All ER 353 (at 1051 to 1053; 356-357). In that case, Lord Lane CJ set out a number of matters which tend to aggravate the offence as well as a number of factors which tend to mitigate. Amongst those factors, which were recognised as mitigating, was the effect on the defendant “if he is genuinely remorseful, if he is genuinely shocked. That sometimes coupled with the final matter which we wish to mention as being a possible mitigating factor, namely where the victim was either a close relative of the defendant or a close friend and the consequent emotional shock is likely to be great”.

[20] I note also that no submission was made to the contrary by counsel before the learned sentencing judge.

[21] In all the circumstances, I am not persuaded that, with the exception of the fixing of the operational period for less than the balance of the head sentence, that there was any error in the approach taken by the learned sentencing judge. As was pointed out by King CJ in the R v Osenkowski (1982) 30 SASR 212 at 212-213:

“It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that the leniency at that particular stage of the offender’s life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.”

[22] In my opinion, there were facts and circumstances in this case enabling the course to be taken of suspending all but six months of the sentence. I do not consider that such a sentence was so manifestly inadequate having regard to all of the circumstances of the offence and the offender as to be plainly unjust. It must be remembered also that s 154 of the Code is not specifically aimed at dangerous driving and casts a wide net of dangerous conduct, so the maximum of 14 years is to be seen in that light: Baumer v The Queen (1988) 166 CLR 51 at 55. As King CJ said in R v Johnston (1985) 38 SASR 582 at 586:

“The typical dangerous driver is not a hardened criminal. The thought of prison is as frightening to him as it is to almost all citizens who are not hardened offenders. The deterrent to such a person is the threat of imprisonment rather than the duration of the threatened imprisonment. If a driver is not deterred from a dangerous course of driving by the threat of imprisonment for eighteen months or two years, is it realistic to suppose that he will be deterred by the prospect of two and a half or three and half years imprisonment? The truth is that in the great majority of cases, he simply does not expect to be involved in a serious accident.”

[23] In this case, there was no evidence that the respondent’s driving was such as to cause him to wander all over the road; nor was there any evidence as to his actual speed or level of intoxication apart from what the respondent himself said. On the facts, the respondent may not have been heavily inebriated, as he had not been drinking for more than a couple of hours. Part of the explanation for the accident was the respondent’s unfamiliarity with the area – although this should have required him to drive more cautiously. There was no evidence as to the amount of damage to the vehicle. In these circumstances, it is difficult to draw any solid conclusions as to the extent to which the respondent’s driving offended against the section.

[24] It is also important to bear in mind that the learned sentencing judge imposed a very heavy period of licence disqualification. His Honour, in imposing a period of disqualification of seven years, was misled by both counsel into believing that the provisions of the Traffic Act required a minimum period of disqualification of five years, when in fact there was no minimum required. No complaint is now made by either party about the period of disqualification imposed, but it is a lengthy period and one likely to impose a heavy burden on the respondent, particularly as he resides in rural communities where there is no public transport.

[25] In relation to ground 5 of the appeal, I agree with Riley J for the reasons which he has given that the learned sentencing judge erred in specifying an operational period less than the suspended balance of the head sentence. I agree that in the circumstances of this case the appeal should allowed on this limited ground and that the sentence should be amended in the manner proposed by his Honour but that otherwise the appeal should be dismissed.
Riley J:

[26] On 8 August 2005 the respondent pleaded guilty to having done a dangerous act, namely that he drove a motor vehicle at an excessive speed resulting in the vehicle colliding with a power pole, and thereby causing serious actual danger to the life of Billy Lane. He further pleaded guilty to two circumstances of aggravation being that the death of Billy Lane resulted from the dangerous act and that, at the time of the offending, he was under the influence of alcohol. The maximum penalty for the offence is imprisonment for 14 years. On that day he was sentenced to imprisonment for a period of three years and six months and it was ordered that the sentence be suspended after he had served a period of imprisonment of six months. Pursuant to the provisions of the Sentencing Act an operational period of 18 months from the date of release was fixed and the sentence was backdated to commence on 15 June 2005. Further, the respondent was disqualified from holding a driver’s licence for a period of seven years from the date of sentence. In sentencing the respondent the learned sentencing judge expressly took into account another nine offences arising out of the same accident. He did so pursuant to the provisions of s 107 of the Sentencing Act.

The facts and circumstances

[27] The circumstances of the offending were not in dispute. On 19 February 2005 the respondent was at Beswick where he commenced drinking alcohol in the early morning and, by 9.30 am, was intoxicated. He was described in the sentencing remarks as being “very significantly intoxicated”. The respondent drove to the local store in his intoxicated condition in order to purchase some cigarettes and foodstuffs. He took with him his 2-year old son who was the victim in this matter. Prior to driving to the store he was told by friends that he should not drive, however he felt that he was “okay to drive” and said in his subsequent record of interview that he was “talking good but not slurring”. When he had completed his business with the store he offered three family members a lift and on the way to drop those family members off he drove the vehicle at an excessive speed and, whilst negotiating a corner, lost control of the vehicle and it hit the power pole. The 2-year old son of the respondent was sitting on the centre console of the vehicle and was unrestrained. This was so notwithstanding that there was a spare seat in the back of the vehicle with a seatbelt which was available for the use of the child. The cause of the accident was said to be a combination of speed and the intoxication of the driver.

[28] The death of the child had a significant impact upon the respondent and, of course, his wife and the extended family. His wife spoke of feeling “lots of sadness” and feeling depressed. She sought assistance from her local minister and from a counsellor. She expressed the wish that the respondent would seek help “to stop drinking alcohol”.

[29] Of significance for sentencing purposes was the driving history of the respondent. At the time of the accident he was driving in breach of a court order made just three weeks earlier, on 27 January 2005, pursuant to which he had been disqualified from driving for a period of 18 months. The offending that gave rise to the disqualification was a drink driving offence where he had a blood alcohol reading of 0.187 per cent. It is disturbing to note that the offending on the occasion now the subject of appeal involved him driving whilst disqualified and also whilst intoxicated.

[30] The submissions made on behalf of the respondent, which were unchallenged and were accepted by the learned sentencing judge, were to the effect that as a result of the tragedy the respondent had demonstrated a strong desire to change his lifestyle. He had ceased drinking alcohol completely and he had turned to the church. He experienced true and deep remorse. He had been co-operative with the police and the authorities. He entered into a fully inculpatory record of interview in which he accepted responsibility for his conduct. He was arrested on the following day and did not seek bail. The matter proceeded by way of a handup committal on 15 April 2005 and, thereafter, he was granted bail to enable him to attend the funeral of his son. He indicated a plea of guilty to the offence at an early time. As a consequence of his offending he, of course, lost his son and the relationship with his wife came to an end.

[31] Further, in mitigation, it was put and accepted that the respondent had a commendable work history, he was addressing his problems with alcohol by way of abstinence and he had the strong support of his extended family. His family had plans to assist the respondent upon his release from prison. His prospects for effective rehabilitation would seem to have been at their highest at the time of sentencing. His Honour described them as reasonable whilst observing that the respondent had “a long way to go”.

The appeal

[32] The appellant made no complaint regarding the head sentence imposed upon the respondent but submitted that the suspension of the sentence after the respondent had served a period of imprisonment of six months was manifestly inadequate, failed to accord sufficient weight to the principles of general deterrence and failed to give sufficient weight to the driving record of the respondent. Further, it was submitted that the learned sentencing judge gave too much weight to the fact that the actions of the respondent had resulted in the death of his young son.

[33] It is the case that the learned sentencing judge referred to the death of the child as a “great tragedy” which caused the respondent both “shame” (a powerful emotion in Aboriginal society) and “distress” and observed that the respondent was entitled to sympathy on that account. However, as the appellant frankly acknowledged, his Honour went on to say:

“Mr Lane, I cannot help but feel great sympathy for you, but you must understand that I also have a duty to the community to impose a sentence which properly reflects the seriousness of your offending. A dangerous act causing death by driving a motor vehicle, particularly when drunk, is a very serious offence and I cannot allow my sympathy for you for your loss to override my duty to impose a sentence that will act, I hope, as a deterrent to others from driving while intoxicated.”

[34] It must be borne in mind that this is a Crown appeal against sentence. The principles that apply to such appeals are well understood and have been addressed in many decisions of this court. They are conveniently summarised by the Full Court of the Federal Court of Australia in The Queen v Tait (1979) 46 FLR 386 at 388 as follows:

“An appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error … .”

[35] In the case of Raggett, Douglas & Miller (1990) 50 A Crim R 41 Kearney J said (at 47) of a Crown appeal based upon the ground that the sentence was manifestly inadequate:

“In general, then, to establish the existence of the necessary (unidentified) error the Crown must show that the sentences are not just arguably inadequate but so very obviously inadequate that they are unreasonable or plainly unjust.”

[36] In The Queen v Osenkowski (1982) 30 SASR 212 at 212-213 King CJ made the following observations:

“It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.”

[37] It was the submission of the appellant that the suspension of the sentence after six months was so obviously inadequate as to be unreasonable or plainly unjust. It was submitted that the sentencing judge gave too much weight to the death of the respondent’s son in determining the appropriate sentence. Reference was made to the decision of R v Everett (2000) 31 MVR 19 and to R v Yalim (2000) 31 MVR 377. In those cases the court dealt with circumstances where tragic situations, of a kind not dissimilar from that existing in this case but involving double fatalities, presented themselves. In Everett it was pointed out that a sentencing judge has a responsibility to the community at large to ensure that offenders are appropriately punished as a deterrent to others who might be minded to commit the offence in question. In Yalim Hedigan AJA said (at 381):

“The offences, and their terrible personal consequences, were grave and without much in the way of mitigating circumstances save for the claim that the event was, as it were, devastating to the life of the appellant. The sentencing judge was bound to take into account, having regard to the continuing carnage on the roads, the urgent necessity to remind and re-remind motorists by firm sentences of the dangers to themselves, their friends and loved ones, and to other ordinary road users, of the damage created by irresponsible driving, particularly when linked to or caused by excessive consumption of alcohol. Thus in my view the sentencing judge was bound to give, as he did, notable weight to general deterrence, and surely he was right to regard personal deterrence as virtually irrelevant, given the circumstances here and the tragic consequences that fell on the appellant himself. Some special emphasis was given in argument to the severe and continuing psychological effect on the appellant of the deaths of his wife and daughter, caused, it must be said, by his irresponsibility, and the likely harmful effects on his young son of a long term of imprisonment on the father with the attendant separation. However, even on the argument advanced to us today that the non-parole period should be reduced, it is inevitable that there is going to be a substantial separation.”

[38] His Honour went on to observe (at 382) that the personal circumstances of the appellant in that case and the devastating effect of his conduct on himself attracted compassion for the continuing grief and guilt but “they cannot play a significant or major role in the sentencing process, having regard to the circumstances of this case”.

[39] I do not take the observations made in those cases as suggesting that the tragic consequences of such offending can never play a significant role in the sentencing process. In most cases the tragic consequences of the offending will be a matter to be considered. The weight to be given to such consequences must be a matter of fact and degree in each case. In many cases those consequences are likely to be fairly acknowledged as the most significant penalty that is suffered by the offender. That onerous penalty should, where appropriate, be recognised as providing real and effective personal and general deterrence. Other factors will be considered and may be accorded greater significance but the reality of the tragedy that has been occasioned should not be ignored. In the present case the learned sentencing judge regarded the tragic consequences of the offending as being of significance in determining an appropriate sentence and, in particular, in considering the prospects for rehabilitation of the respondent. They were of significance to his rehabilitation because of their impact upon him as reflected in his deep remorse and his acceptance of responsibility for his conduct. As a result he had of his own accord taken positive steps towards rehabilitation. For those reasons his Honour expressed himself as “exercising probably more leniency than others might expect would be granted”. In the circumstances of this particular matter the tragic consequences were a factor to be considered along with all other relevant matters of mitigation and aggravation in determining an appropriate sentence.

[40] In my view the learned sentencing judge did not err in the manner claimed by the appellant. This was a case in which the circumstances of the offender considered in light of the offending permitted leniency of the kind offered by his Honour. He deliberately exercised leniency in light of the whole of the surrounding circumstances. This was a lenient sentence but not one which was so disproportionate to the offending as to call for intervention.

[41] At the hearing of the appeal, and by consent, a further ground was added to the effect that the learned sentencing judge erred in specifying an operational period less than the suspended balance of the head sentence. The head sentence imposed was for a period of imprisonment of three years and six months and that sentence was to be suspended after the respondent had served a period of imprisonment of six months. The operational period imposed pursuant to s 40(6) of the Sentencing Act was for the period of 18 months from the date of the release of the respondent from prison. The operational period would therefore expire two years after the commencement of the sentence. At that time the respondent would still have one year and six months of the sentence still extant. In the case of Ireland (1987) 29 A Crim R 353 the Court of Criminal Appeal dealt with a matter in which the respondent was sentenced to imprisonment for three years, to be released after nine months upon his entering into a recognizance in the sum of $1000 to be of good behaviour for 12 months. In that case Maurice and Muirhead JJ held that when a sentence is partially suspended the period of the good behaviour bond ought not ordinarily be less than the period of the balance of the head sentence. For the exceptional case where there was to be a lesser period, the reasons for so providing should be identified. In so determining the court followed the earlier case of The Queen v Brusch (1986) 11 FCR 582 where the court (Toohey, Beaumont and Wilcox JJ) said at 590:

“Incidentally when, as in this case, conditional release is subject to the offender entering into a bond to be of good behaviour for a period less than the balance of the head sentence to be served, it would seem that once the period of the bond has passed, there is no means by which an offender may be returned to prison if he ceases to be of good behaviour during the remaining period. In our view, it is undesirable for the court to lose control of the situation in that way.”

[42] Whilst the sentencing regime discussed in those cases differed from that provided for under Division 5, Subdivision 1 of the Sentencing Act, the logic has equal application. By virtue of s 40 of the Sentencing Act a court which sentences an offender to a term of imprisonment of not more than five years may make an order suspending the sentence where it is satisfied that it is desirable to do so in the circumstances. By virtue of s 40(6) the court shall specify in the order suspending the sentence a period (“the operational period”) of not more than five years during which the offender is not to commit another offence punishable by imprisonment if the offender is to avoid being dealt with under s 43 of the Act. Section 43 then provides that where a person has, during the operational period, committed another offence against the law in force in the Territory or elsewhere that is punishable by imprisonment the matter may be brought back before the court which sentenced the offender. The section goes on to make provision for dealing with the offender and the court is given various options including, as a prima facie position, restoring the sentence or part-sentence held in suspense and ordering the offender to serve it. An offence committed after the expiration of the operational period would not constitute a breach of the suspended sentence and the court would lose control of the situation in those circumstances. In my view, and consistent with the observations in Brusch and Ireland, that is an undesirable situation. Whilst such a sentence may be appropriate in some exceptional circumstances, I see no basis for his Honour having proceeded in that way in this case. No explanation was provided. In my opinion the sentencing in this limited regard reflects error. The respondent did not contend otherwise.

[43] In the circumstances the appeal should be allowed on this limited ground. The sentence should be amended to alter the operational period which had been for the period of 18 months from the date of release of the respondent to the period of three years from the date of release. Otherwise this Court should not interfere.
Southwood J:

[44] I agree with Riley J that the appeal in this matter should be allowed on the limited ground that the operational period should extend to cover the whole of that part of the sentence of imprisonment that has been suspended. Otherwise the Court of Appeal should not interfere.

[45] The decisions of the Court of Appeal of New South Wales, to which senior counsel for the appellant referred, are not authorities that establish a principle that it is a sentencing error for a sentencing judge to give significant weight to remorse, feelings of guilt and the devastating effect of the loss of life of a near relative as a result of the bad driving of the defendant. The decisions involved appeals by offenders on the ground that the sentencing court had not given sufficient weight to such subjective factors. The decisions of the Court of Appeal of New South Wales merely establish that it is not an error for the sentencing court in an appropriate case to give more weight to the objective circumstances and to ensure that offenders are appropriately punished as a deterrent to others.

__________