Appeal Against Sentence for Reckless Wounding Dismissed

The Court of Criminal Appeal dismissed an appeal against a sentence for reckless wounding, finding the sentence appropriate given the sustained attack and lasting consequences for the victim.

[ADDRESS] of Criminal Appeal

CITATION: [NAME] v R [2010] NSWCCA 148

HEARING DATE(S): 5/7/10

JUDGMENT DATE: 19 July 2010

JUDGMENT OF: Beazley JA at 1; [NAME] at 2; [NAME] at 53

DECISION: 1. Leave to appeal granted. 2. The appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - convicted of reckless wounding - relevance of restitution to remorse - [NAME] living in shared accommodation with [NAME] - stabbing took place within apartment - whether matter of aggravation s 21A(2)(eb) - no reference to standard non parole period or nature of offending in relation to mid range offence - error - whether sentence excessive - s 6(3) Criminal Appeal Act - sustained violence and stabbing - sentence less severe not warranted.

Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912

CATEGORY: Principal judgment

R v [NAME]; R v [NAME] [2006] NSWCCA 381; (2006) 167 A Crim R 159 [NAME] v The Queen [2010] NSWCCA 1 [NAME] v R [2009] NSWCCA 187 CASES CITED : R v McEvoy [2010] NSWCCA 110 Phan v R [2010] NSWCCA 8 Corby v R [2010] NSWCCA 146 R v [NAME]; R v Biuvanua [2007] NSWCCA 283; (2007) 176 A Crim R 338 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704

PARTIES: [NAME] (Appl) Regina (Resp/[NAME])

FILE NUMBER(S): CCA 2009/73613

COUNSEL: [redacted] [NAME] (Resp/[NAME])

SOLICITORS: [redacted] [NAME] (Resp/[NAME])

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/73613

LOWER COURT JUDICIAL OFFICER: [NAME] OF DECISION: 19/2/10

IN THE COURT OF CRIMINAL APPEAL CCA 2009/73613

BEAZLEY JA [NAME] 19 July 2010 [NAME] v REGINA Judgment 1 BEAZLEY JA: I agree with [NAME]. 2 [NAME]: [NAME] (the applicant) seeks leave to appeal against a sentence imposed by [NAME] on 19 February 2010. He pleaded guilty to having, on 13 May 2009, recklessly wounded [NAME], an offence under s 35(4) of the Crimes Act 1900. The maximum penalty in respect of that offence is 7 years imprisonment. Under the Crimes (Sentencing Procedure) Act 1999, a standard non parole period of 3 years imprisonment is specified. He was sentenced to 1 1/2 years imprisonment (13.5.09 to 12.11.10), with an additional term of 1 year (expiring on 11.11.11). 3 Before going to the Notice of Appeal, I should describe the incident and the background of the applicant.

The incident. 4 [NAME] was born in [DATE]. At the time of the incident he was 28 years old. He arrived in Australia in November 2007 and in May 2009 was living in an apartment in [ADDRESS] in the city. There were ten others living in the same apartment. 5 [NAME] also came from South Korea. He was about four years younger. He arrived in Sydney a day or so before the incident. He took up residence in the same apartment. 6 The applicant offered to show [NAME] around Sydney. According to an Agreed Statement of Facts, each purchased a six pack of beer, which they then consumed in the apartment. Having done so, they went to a hotel and continued drinking. In the course of the evening, [NAME] mentioned an older woman whom he had met whilst travelling in the Philippines. He said that she was in Sydney and that he had spent the day with her. The applicant expressed interest in the woman and asked to be introduced to her. [NAME], however, refused. 7 At about 1.00 a.m. (on 13 May 2009), they returned to the apartment. [NAME] decided to have a shower. He emptied his pockets, leaving the contents on a desk which was next to a bed used by [NAME]. The contents included his mobile phone. 8 When [NAME] returned from his shower, he noticed that the mobile phone had been moved. A conversation then occurred, which was in these terms: ([NAME]): "Did you touch my phone?"

(Applicant): "Yes, I touched it. I'd like to get to know your older woman friend, the one you know from Philippines."

([NAME]): "It's my privacy, why did you touch, you must erase that number."

The applicant then erased the phone number from his mobile phone. [NAME], he said:

"OK, they are deleted, are you satisfied?"

He added, in a manner which [NAME] thought to be rude: "Sorry." 9 According to the Agreed Statement, that comment sparked a confrontation, which was as follows: ([NAME]): "How can you act like that, please apologise to me in a sincere manner."

([NAME]): "Do you want to die?"

([NAME]): "You just apologise."

([NAME]): "Do you really want to die?"

([NAME]): "Apologise." 10 The applicant then jumped up from his bed and, using one hand, held [NAME] by the throat. [NAME] found it difficult to breathe. Nonetheless, he was able to push the applicant away. The applicant then attacked him again. This time he used both hands, taking hold of [NAME]'s throat. Again, [NAME] found it difficult to breathe. He kicked the applicant, causing him to let go of him. 11 [NAME] then ran towards the bathroom, down a hallway, passing a kitchen. The door to the bathroom, however, would not open. The applicant, meanwhile, went to the kitchen and obtained what was described as "a fruit knife" (T 12) (19.2.10). [NAME], being unable to get into the bathroom, turned and faced the applicant. He saw that he was holding a knife. According to the Agreed Statement, the knife was held with the blade turned towards [NAME]. The Agreed Statement described what then happened in these words: (at p 2) "[NAME], fearing for his life, has turned towards [NAME] in an attempt to stop him from harming him with the knife. [NAME] has continued towards [NAME] with the knife in his hand and has struck [NAME] in the stomach with the knife, causing the knife to penetrate his stomach." 12 [NAME] provided a statement, which formed part of the material placed before the sentencing Judge. It included the following: "He stabbed me in the stomach near the belly button with a knife. The moment he stabbed me, I felt burning pain and thought I was going to die on the spot." 13 The Agreed Statement described what then happened, in these words: (at p 2) "[NAME] removed the knife from [NAME]'s stomach and held it in his hand. [NAME] grabbed hold of the knife and kept a firm grip, enabling him to remove the knife from [NAME]. [NAME] said, 'Please don't kill me'. [NAME] said, 'First give me the knife and then we talk'. [NAME] again said, 'Please don't kill me'. [NAME] smiled at [NAME]. Due to [NAME] continuously begging [NAME] not to kill him, an occupant of the master bedroom opened the door. [NAME] threw the knife inside this bedroom and began to attempt to gain access to the [NAME]." 14 One of the occupants of the bedroom became frightened and attempted to close the door. [NAME] pushed against the door and gained entry. He began crying and locked himself in the ensuite bathroom. 15 An ambulance was called and [NAME] was taken to St Vincent's Hospital. Fortunately, his internal organs had not been damaged. He underwent surgery to repair the wound. Approximately 30 staples were placed in the wound. [NAME]'s statement to the Court said this: "As a result of the surgery, I sustained a scar of about 20 cm in length reaching down to my pubic bone. I still suffer pain around the scar tissue. For about two or three months after the incident, I could not leave home out of fear. I could not trust anyone else other than my own family. I was (scared) of the darkness and I was suffering from insomnia. What I saw at the time of the incident was ingrained in my memory ..." 16 He added: "I was told that time will heal, but I find it difficult to believe because I still suffer mentally, physically and emotionally." 17 [NAME] was arrested by the police. He was interviewed with the assistance of a Korean interpreter. He admitted having the knife, but said that [NAME] "ran into the knife".

The applicant's subjective case. 18 [NAME] was brought up in South Korea. His father is the manager of a [COMPANY]. His mother owns a restaurant. He had what was described as "a good upbringing". He still enjoys the support of his family, who remain in Korea. 19 [NAME] attended university in Seoul. He studied film making and hoped to become a film director. Indeed, he came to Australia to further his career. He attended a summer school in film at the University of Melbourne. In a letter addressed to the Court, placed before the sentencing Judge, he said this: "I ... have aspirations to become a successful film director. In all modesty, I have been interviewed on national Korean radio and have been featured in magazines representing film as one of Korea's up and coming talents. I had plans to create greater films and wished to gain experience and broaden my mind in Australia." 20 The letter to the Court also said that he was "truly remorseful". His letter included these words: "Everyday I have been praying and reading the Bible helping me to acknowledge my wrongdoings and praying for forgiveness. ... I acknowledge my sins as a prisoner and am genuinely remorseful." 21 When giving evidence on sentence, [NAME] elaborated, as I will describe when dealing with one of the grounds of appeal.

The Notice of Appeal. 22 A notice seeking leave to appeal was filed, identifying the following grounds: "1. [NAME] erred in finding that realistic remorse requires expression in a concrete manner.

2. The offence was committed at the home of [NAME]. In the circumstances of this case, [NAME] erred in regarding that as important. 3. [NAME] erred in failing to refer to the standard non parole period. 4. [NAME] erred in using a sentence of forty months as a starting point." 23 Let me deal with each ground in turn.

Ground 1: Error in finding that realistic remorse requires expression in a concrete manner. 24 Counsel for the applicant asserted that there were a number of comments by the sentencing Judge during the course of submissions and in his remarks on sentence, which demonstrated that he had discounted the remorse shown by [NAME] and not given him "the maximum discount". First, the following exchange took place with counsel during submissions: (T 14) "[NAME]: [NAME], would you argue against a 25% discount for the plea? ([NAME]): No, your [NAME]. [NAME]: The combined plea and remorse? ([NAME]): Yes, your [NAME]." 25 [NAME] had originally been charged with wounding with intent to cause grievous bodily harm, a more serious offence in which the maximum penalty was 25 years imprisonment (Crimes Act 1900, s 33(1)). Representations had been made to alter the charge to reckless wounding (Crimes Act 1900, s 35(4)) and to permit the matter to be dealt with summarily. The [NAME] agreed to accept a plea to the lesser charge, but insisted that the matter be dealt with on indictment. A plea was entered in the [ADDRESS] and the applicant committed for sentence in the District Court. A 25% discount for the plea was appropriate on utilitarian grounds. The reference by [NAME] to remorse, in the context of the 25%, was a "slip", which I will come back to. Counsel's reference, in his written submissions, to "maximum discount for remorse", was also apt to be misleading. There is no quantified discount for remorse (R v [NAME]; R v [NAME] [2006] NSWCCA 381; (2006) 167 A Crim R 159). Remorse is a factor to be taken into account. It may be especially important in determining prospects of rehabilitation. 26 The second matter relied upon by counsel for the applicant, said to demonstrate error, occurred during the applicant's evidence on sentence. When questioned by [NAME], the following exchange took place: (T 13) "Q. And the problem with that is it seems to have been a matter of what you regarded as your [NAME], an affront to your [NAME]? A. INTERPRETER: Yes, it was completely my fault. My wrongdoing. I drank too much and I wasn't able to control myself. I am very remorseful about it. Q. In terms of your remorse you can take it that I get people appearing before me every day saying that they are remorseful and often they are and they are genuine about it, but my question is what have they done about it. Have you or your family made any offer towards the medical expenses of this [NAME]? A. INTERPRETER: I wanted to do it but I was advised by my lawyer that contact should not be made. Q. That may well be right but was any offer made through your lawyers to [NAME] to meet the medical costs? A. INTERPRETER: No, your [NAME]. In Korea, your [NAME], if these sort of things happen then the perpetrator offers the treatment fees and other money to [NAME] -- Q. I know. A. INTERPRETER: -- but not this, my lawyer, but [NAME] said to me I must not contact [NAME] and if I contact [NAME] then that's against rule. Q. That's true, but the issue is that a contact can be made on your behalf by the lawyers through the [NAME] or through the police and I always have a limited acceptance of expression of remorse unless they are backed up by something concrete? A. (No verbal reply)." 27 There was, according to counsel for the applicant, unchallenged evidence that the applicant was remorseful. He had said so in a letter to the Court. He repeated that assertion in his evidence. He had attempted to make restitution, but had been dissuaded by his lawyers. His remorse, in these circumstances, did not need to be "perfected by a concrete manifestation" of reparations. [NAME], in these circumstances, fell into the error described by Fullerton J in [NAME] v The Queen [2010] NSWCCA 1, where the following was said: (at [21]) "21. In the absence of a finding that it was not open for [NAME] to give reduced weight to the evidence of remorse in all the circumstances, or that the exercise of the discretion involved in the assessment of the weight to be given to remorse as a mitigating factor was otherwise so unreasonable as to amount to error, it is not appropriate for the Court to intervene. ..." 28 The [NAME], in response, drew attention to the terms of s 21A(3) of the Crimes (Sentencing Procedure) Act 1999, which dealt with the circumstances in which remorse may be taken into account as a mitigating factor. The section is in these terms: " s21A(3) Mitigating Factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: ... (i) the remorse shown by [NAME] for the offence, but only if: (i) [NAME] has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) [NAME] has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)." 29 Hence, according to the [NAME], restitution was one way in which remorse may be demonstrated. [NAME]'s comments concerning the means by which contact on behalf of [NAME] may be made with [NAME], were somewhat similar to comments made by Fullerton J in [NAME] v The Queen (supra), where her [NAME] said this: (at [20]) "20. The applicant also submitted that if [NAME]'s criticism that the evidence of remorse was not more forthcoming was referable to the applicant's letter to [NAME] only being provided on the day of sentence, the criticism was unwarranted given that the applicant's bail conditions prohibited him from communicating with [NAME]. I accept that it would have been a breach of bail were the applicant to have forwarded an unsolicited communication directly to [NAME], and an error were [NAME] to have taken the delay in communicating his remorse to [NAME] into account when assessing the weight of the evidence of remorse in these circumstances. It would not, however, have been a breach of bail if, prior to the sentence proceedings, the applicant's [NAME] had communicated to the Director of Public Prosecutions the applicant's intention to personally express his regret and remorse in a letter to [NAME] and perhaps to make available a sealed letter for production at the hearing if necessary. ..." 30 Turning to the remarks on sentence, [NAME] included a heading "(Restitution), Contrition and Remorse". He then said this: (ROS 6) "There is no restitution proposed either by him or by his family, which is, to my certain knowledge, contrary to the Korean tradition. He says that is because of a misunderstanding based on advice he was given by a [NAME] solicitor. That, to me, is unfortunate because I think that advice is unfortunately given by legal practitioners in this State – but not other states – on the basis that there should be no contact between an [NAME] and his [NAME]. Nevertheless there are always methods of ensuring that there is realistic remorse and contrition expressed in a much more concrete way, namely by way of restitution. It is a pity that that message does not get out to put some substance behind the frequently expressed claims of remorse and contrition that are expressed in this Court. [NAME] submitted a letter written on his behalf from the Junee Correctional Centre. In that he expresses his remorse. It sets out what he has done while in Australia and the impact on him of the incident and his sorrow to the [NAME] in particular for the scars. He says that he misses his family enormously and I can imagine, having watched him while he gave his evidence, that that is the case." 31 Commenting upon this material, a number of things should be said. Restitution was clearly relevant, in the context of remorse, as s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 makes clear. It is one way, and an impressive way, in which remorse may be demonstrated. [NAME], from his remarks, clearly understood that it was not the only way. For convenience, I repeat part of what he said when the applicant gave evidence: (supra [26]) Q. ... I get people appearing before me every day saying that they are remorseful and often they are and they are genuine about it, but my question is what have they done about it. ..." (emphasis added) 32 [NAME] referred to the applicant's letter, in which he expressed remorse, and to his evidence, which he had given moments before. He did not say, in terms, that he accepted the applicant as remorseful. However, I believe that was implicit in what he did say. His reference to the advice of the solicitor as being "unfortunate" and the comments that followed, were not a criticism of the applicant. It was a general comment directed at the [NAME]. The profession ought to be aware, when giving advice to persons charged with a criminal offence, that actions speak louder than words. Restitution was a powerful way to demonstrate to the [NAME]'s remorse. 33 When [NAME] came to sentence the applicant, he simply referred to "a discount of twenty-five percent for the plea ... " (ROS 7), with no reference to remorse. In other words, he did not repeat the slip. It was clear from his findings concerning [NAME]'s subjective circumstances and his remarks in the context of special circumstances (which are extracted below), that [NAME] accepted that [NAME] had good prospects of rehabilitation. There is no reason to think that [NAME] gave less than appropriate value to [NAME]'s expressions of remorse. 34 In my view, there is no substance in Ground 1.

Ground 2: The offence was committed at the home of [NAME]. In the circumstances of this case, [NAME] erred in regarding that as important. 35 Counsel for the applicant drew attention to the following remark by [NAME]: (ROS 5) "In terms of my overall consideration of the matter it does seem to me that these events occurred, importantly, in not only [NAME]'s own home but also [NAME]'s temporary home. [NAME] was a visitor to Australia; this was known to [NAME]. There were issues of hospitality involved. ... " 36 It was submitted that [NAME] had treated this aspect as a matter of aggravation under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999, which is in these terms: "s 21A(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (eb) The offence was committed in the home of [NAME] or any other person." 37 That section, according to the applicant, was designed to deal with a situation, such as a home invasion, where an intruder enters someone's home, where the owner is entitled to feel safe. That was not this case. The applicant and [NAME] occupied the same apartment. According to the applicant, the location of the offence was not a matter of aggravation. The section had no application to people who are living together. The dispute between them was in the nature of a domestic violence matter. 38 The [NAME] responded that [NAME] had not treated the matter as one of aggravation. No submissions were made by either party on that aspect. Rather, [NAME]'s words were descriptive of a circumstance relevant to the offending behaviour. 39 Dealing with these submissions, [NAME], when he began his sentencing remarks, did describe the offence as "domestic violence related" (ROS 1). However, in the passage relied upon, [NAME] did not say that he regarded the location (being within [NAME]'s temporary home) as a matter of aggravation. Indeed, it is noteworthy that the ground of appeal does not assert that there was error in regarding the location as a matter of aggravation. It asserted error in regarding it as "important". In my view, it was clearly a relevant circumstance. It was open to [NAME] to regard it as important. Instead of [NAME] being treated cordially in what had become his temporary home, he was subjected to violence. There was no error. 40 I should add a further comment, although it is a dispute for another day. No authority was provided which suggested that s 21A(2)(eb) was confined to the circumstances of an intruder from outside. [NAME] v R [2009] NSWCCA 187 was a case where the facts were slightly different. [NAME] was living in shared accommodation with [NAME] and a number of others. Each had his or her own bedroom. An argument developed, where [NAME] pursued [NAME] and ultimately attacked him within his own bedroom. The sentencing Judge, Mathews AJ, found as a matter of aggravation that the offence had taken place in [NAME]'s home. On appeal, the following comments were made by me (McClellan CJ at CL and [NAME] agreeing): (at [30]-[31]) "30 ... In support of the argument that it was not an aggravating factor that the crime was committed in the deceased's house, counsel drew attention to another sentencing matter involving her [NAME]. In R v [NAME] [2008] NSWSC 1359 (at para [48]), her [NAME] (adopting an agreed position by the parties) stated that, although the crime in that case was committed in [NAME]'s house, and that was "technically" a matter of aggravation, it should be given no weight, since it was the home of both [NAME] and the deceased. 31 However, the accommodation occupied by the applicant and the deceased was akin to a boarding house. Each shared facilities but had separate rooms. The murder occurred inside the deceased's bedroom. He ought to have been safe within his bedroom. Further, counsel then appearing for [NAME] on sentence did not dispute that, in the circumstances, it was an aggravating factor (ROS para [17])." 41 Let me pass to the remaining grounds of appeal, which can conveniently be dealt with together.

Ground 3: [NAME] erred in failing to refer to the standard non parole period. Ground 4: [NAME] erred in using a sentence of forty months as a starting point. 42 Counsel for the applicant drew attention to the fact that [NAME] made no reference to the standard non parole period. The [NAME] acknowledged that omission and that it may suggest error. The argument, as it developed, involved the contention, on behalf of the applicant, that the sentence was excessive because the starting point (40 months) was too high. The [NAME] submitted that it was not too high. Further, the [NAME] argued that, were the Court to find error, it should not intervene. The applicant, according to the [NAME], could not demonstrate that some other sentence less severe than that imposed was warranted in law (Criminal Appeal Act 1912, s 6(3)). 43 I should deal with the question of error before considering the competing submissions upon intervention. The [NAME] papers tendered before [NAME] made reference to the maximum penalty and the standard non parole period. In an extempore judgment, delivered soon thereafter, [NAME] referred to the maximum sentence, but not the standard non parole period. There was no discussion during submissions as to the characterisation of the offence by reference to the standard non parole period or a mid range offence. There was, as I will shortly set out, simply a discussion of the appropriate term to be imposed, the discount for the plea and the question of special circumstances (ROS 7). Whilst inferences can be drawn from what was done as to the characterisation of the offence by [NAME], and whilst there is a need for a practical approach in assessing the remarks on sentence (R v McEvoy [2010] NSWCCA 110 at [89]; Phan v R [2010] NSWCCA 8 at [11], [16]; Corby v R [2010] NSWCCA 146 at [51]), the discipline of referring to the standard non parole period, and identifying the level of criminality by reference to the mid range, is important. As to the latter aspect, [NAME] said this in R v [NAME]; R v Biuvanua [2007] NSWCCA 283; (2007) 176 A Crim R 338: (at [39]) "39. ... Although such an assessment cannot be made with absolute precision, it must at least indicate whether the offence is assessed as below, of, or above midrange of seriousness with some indication as to the degree to which it departs from the midrange if that is the finding." 44 Here, the absence of any reference to the standard non parole period, or the place of this offence in relation to a mid range offence, does, in my view, amount to error. The question of whether the Court should intervene therefore arises. 45 Counsel for the applicant pointed to a number of features which, in his submission, suggested that the starting point was excessive, so that another sentence was warranted. The offence was not premeditated or planned. The charge was reckless stabbing. The incident erupted and was over within a very short time. The injury was serious, but no inference should be drawn from the length of the scar (20 cm). The applicant underwent surgery and, according to the applicant, one would infer that such surgery enlarged the wound, as the surgeons satisfied themselves that there was no internal damage. 46 Further, the applicant was clearly affected by alcohol. That was not an excuse for his behaviour. Nonetheless, according to the applicant's counsel, it explained why a person of otherwise good character should behave in that way. A lower starting point and a lesser sentence, in the circumstances, was appropriate. 47 Counsel for the [NAME] responded by reciting what had happened. It was a sustained attack. It caused significant injury, which has had lasting consequences. No lesser sentence was warranted. 48 Dealing with these submissions, it is instructive to examine the exchange with counsel then appearing for the applicant at the end of his sentencing remarks, just as [NAME] was about to impose sentence. Having said that the matter would normally warrant a sentence of "three to three and a half years", [NAME] continued as follows: (ROS 7) " ... A discount of twenty-five per cent for the plea would take it down to about ... if I rounded it down to forty months ... that would take it down to thirty months. A finding of special circumstances based on [NAME]'s age, the absence of prior convictions, the difficulties he will have in gaol, would mean that a finding of sixty per cent. That should be adjusted leaving a non parole period of eighteen months. Would you argue that that's not -- ([NAME]): No your [NAME], he's done nine months. [NAME]: Yes backdate it. Would you argue against that range? ([NAME]): No I wouldn't, no your [NAME]. [NAME]: What do you say [NAME]? [NAME]: An eighteen month non parole period your [NAME], I wouldn't say anything on that your [NAME]." 49 The attack by [NAME] upon [NAME] was indeed a sustained attack. It began with a threat, which he repeated: "Do you want to die?". As the confrontation developed, he took [NAME] by the throat, first with one hand, and then with both hands. [NAME] ran away down the hallway, seeking sanctuary within the bathroom. He was pursued by [NAME] who diverted to the kitchen, and obtained a knife. The [NAME] recorded that the applicant "continued towards [NAME] with the knife in his hand" and the knife then penetrated [NAME]'s stomach. Such was the terror of [NAME] that he felt constrained to take hold of the knife and throw it away, as he begged for his life. The injury inflicted was serious and has had lasting consequences. 50 In my view, the applicant was dealt with leniently. In R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704, the Chief Justice said this: (at [79]) "79. Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: 'If it is of the opinion that error has occurred in the sentencing process'. That is not the statutory formulation. By s 6(3) this Court must form a positive opinion that 'some other sentence ... is warranted in law and should have been passed'. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to 'quash the sentence and pass such other sentence in substitution therefore' is not satisfied. As the judgments in Dinsdale ((2000) 202 CLR 321) to which I have referred indicate, the exercise of the power in s 6(3) further requires the identification of error in the requisite sense." 51 Here, the objective and subjective circumstances of [NAME] do not lead me to the conclusion that "some other sentence ... is warranted in law and should have been passed" (Criminal Appeal Act 1912, s 6(3)).

Order. 52 The orders I would propose are as follows:

1. Leave to appeal granted.

2. The appeal dismissed. 53 [NAME]: I agree with [NAME]. **********

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