R v Koster[2012] QCA 302

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  I agree with Holmes JA.

[2] HOLMES JA:  The applicant pleaded guilty to 10 counts of indecent treatment of a boy under 14 years, the offences having been committed on five separate occasions between 25 January 1983 and 30 June 1983.  The maximum penalty applicable for those offences was seven years imprisonment.  He was sentenced on all counts to 15 months imprisonment suspended after five months with an operational period of two years.  He seeks leave to appeal that sentence on the ground that it is manifestly excessive.

The applicant’s history of offending

[3] At the time the offences were committed, the applicant was a teacher and boarding master at a denominational school.  He was 31 years old then, and was 60 when he came to sentence.  The complainant, who was aged between nine and 10 years at the relevant time, boarded at the school.  The first four counts concerned two occasions when, while they were watching films, the complainant, with the encouragement of the applicant, put his hand on the latter’s penis and the applicant put his hand on the boy’s penis.  On the first occasion, he touched the child outside his clothing, and on the second, inside his clothing.  In two later encounters, the applicant fondled the complainant’s genitals and then performed oral sex on him.  On the final occasion, the applicant performed oral sex on the complainant and, at the applicant’s request, the boy performed oral sex on him. 

[4] The matter was complicated by the fact that in 2003 the applicant had been sentenced on pleas of guilty to six counts of indecent treatment of a boy under 16,[1] which arose from his dealings in 1984 with a 10 year old boarder at the same school.  The conduct similarly entailed a progression from touching to mutual fellatio.  It seems that in both cases there was a complaint made to the principal of the school; in 1984 the applicant was confronted with the allegations and made full admissions to them.  He was dismissed, but nothing further was done until 2003, when he was charged with the 1984 offences against the other child.  He was then sentenced to three years imprisonment, suspended after nine months.  The sentencing judge took into account the long delay since the applicant’s admission of his conduct and that he had pleaded guilty on an ex officio indictment.

[5] In late 2008 or early 2009, the complainant in the present case, who was by then receiving counselling for various difficulties, made a complaint to the police, but it was not until November 2011 that charges were brought.  The matter was dealt with by way of a full hand-up committal and the applicant pleaded guilty promptly upon the presentation of the indictment.

The sentence hearing

[6] The applicant’s counsel gave some history of what the applicant had been doing over the decades since the offences occurred.  After being dismissed from his position in 1984, he continued to work as a teacher until 1992.  He married and had children.  When he gave up teaching he studied theology, social science and journalism and then worked as a bookkeeper.  After he was released from prison at the end of 2003, he obtained various clerical jobs and then found work making trophies.  He had been listed on the sex offenders’ register since 2003 and had met the associated reporting requirements.  His letter of apology for his conduct was tendered, as well as references from friends who had known him for several years and spoke well of him as a member of the community.  He had no criminal history apart from the offences for which he was dealt with in 2003.

[7] The totality principle, discussed in Mill v The Queen[2], was pertinent in this case, given the 2003 sentence.  Counsel for the Crown below pointed out that had the applicant been sentenced for all offences in 2003, the picture before the court would have been of a protracted course of conduct against two complainants over two years, involving a very significant breach of trust against young and vulnerable complainants.  On that scenario, a head sentence in the order of five years could have been expected.  Given that background, counsel contended for a head sentence of two years for the present set of charges, with a period of actual custody in the order of six to eight months.  Defence counsel at first instance submitted, however, that the sentence was unlikely to have been significantly different had all charges been before the court in 2003.  The appropriate sentence for the 10 charges now being dealt with was a head sentence of 12 months imprisonment with immediate suspension.

[8] The learned sentencing judge noted the great delay in bringing the matter to court.  He expressed himself satisfied that the applicant had demonstrated rehabilitation and carried on life in a responsible way, with a family and job.  He noted the content of the complainant’s victim impact statement, which made it clear that he had had considerable difficulty coming to terms with what had happened to him and in forming adult relationships.  In the ordinary course, his Honour said, he would have sentenced the applicant to three years imprisonment and, given the plea of guilty and demonstrated rehabilitation, would have considered suspending the sentence after nine months.  Adverting to the totality principle, he rejected the defence submission that had all of the matters been before the sentencing judge in 2003 the sentence would have been effectively the same.  Instead, it was more likely that a sentence of the order of four and a half years would have been imposed, so that the proper sentence now to be imposed was of the order of 18 months.  Allowing for the further delay and the applicant’s rehabilitation, his Honour arrived at the head sentence of 15 months.  He suspended it at the one-third point, remarking that he did not consider the circumstances to be exceptional so as to warrant a sentence without actual imprisonment.

Comparative sentences relied on here and below

[9] The sentencing judge was referred to a number of decisions which were also the subject of submissions here:  R v Wright[3]; R v KP; ex parte A-G (Qld)[4]; R v Kay[5]; R v Craig; ex parte A-G (Qld)[6]; R v Tracey[7]; and R v Wharton; ex parte A-G (Qld)[8]. 

[10] As the present case does, Wright involved offences committed many years earlier.  The applicant was a parish priest convicted of 17 counts of indecency, 16 of them with children.  Most of the offences had been committed 25 years before he was sentenced; the last was 20 years earlier.  Three of the counts involved an altar boy who was made to masturbate the applicant, while 13 of them involved girls who on some occasions were made to masturbate the applicant and on other occasions were fondled by him.  The last count involved an 18 year old girl, with whom he simulated intercourse without actual penetration.  The applicant was sentenced to three years imprisonment without any recommendation for parole, despite his plea of guilty.  It was accepted that he had shown genuine remorse and had undergone counselling and treatment before the matters were reported to the police. 

[11] The application for leave to appeal against sentence in Wright was focussed on the failure to make a recommendation for parole.  The majority in this court refused leave to appeal, McPherson JA observing that although the sentence was three years imprisonment against a maximum penalty of five years when the offences took place, the number and kind of the offences, the number of different complainants involved and their ages, the period over which the offences were committed, their lasting effects on the victims and the applicant’s betrayal of trust meant that it was “fairly within the range”[9].  Pincus JA agreed, although he did not think any higher sentence would have been warranted.  Ambrose J dissented, considering that, having regard to the applicant’s rehabilitation, remorse and co-operation, a recommendation for parole after nine months should have been made.

[12] In R v KP, the applicant had been convicted after a trial of 34 counts of indecent dealing and was sentenced to concurrent sentences, the longest of which was three years.  He was successful in an appeal against seven of the convictions.  The counts on which the convictions stood involved his dealings with a boy whose music teacher he was.  The child was 12 years old when the offences began in the early 1980’s.  They principally involved mutual masturbation of increasing seriousness but also included intoxicating the boy with drugs and alcohol, causing him to kiss the applicant’s penis, ejaculating on him and digitally penetrating him.  The maximum penalty was seven years imprisonment for those offences committed while the complainant was under 14 years.

[13] In the period between the offences and the trial, the applicant in KP had been sentenced in the Northern Territory to imprisonment for eight years, with a non‑parole period of three years, in respect of offences committed there.  In custody, he had completed a sexual offenders’ treatment program and had not re-offended since his release from custody some eight years before he came to sentence in Queensland.  Given his apparent rehabilitation and the fact that his appeal against conviction was, in part, allowed, so that there was only one complainant, the Attorney-General’s appeal was dismissed, the sentence being held to be within a proper range.  For the same reason, the applicant was refused an extension of time for leave to appeal against sentence. 

[14] In R v Kay, another case involving totality considerations, the applicant had been convicted on four separate occasions, two after a plea of guilty and two after a trial, of some 12 counts of indecent dealing and indecent treatment.  The offences involved a number of boys under the age of 12; most involved touching of the boys on their genitals, with the exception of one offence in which the applicant rubbed his penis against a sleeping boy’s anus and another in which he kissed a boy.  The relevant maximum penalty was 10 years imprisonment.  The offences were committed in the applicant’s roles as a teacher and scout leader.  He was 56 years old at sentence and had no other criminal history.  Some of the sentences were imposed cumulatively and others concurrently; they ranged from community service to terms of imprisonment.  The sentence appealed (fifteen months imprisonment, to be served cumulatively) was imposed for five incidents in which the applicant touched boys under 12 (who were his pupils) on the genitals through their clothing.  The end result, after imposition of the sentence appealed  was that he was to serve three years imprisonment without a recommendation for parole.  This court held that the fifteen month sentence, having regard to the overall effect, was not manifestly excessive.

[15] R v Craig was an Attorney-General’s appeal.  The respondent was the principal of a small school and had pleaded guilty on an ex officio indictment to two counts of permitting himself to be indecently dealt with by a child, one count of indecently dealing with a child and one count of exposing a child to an indecent act, in each case with the aggravating circumstance that the child was under 12 and was under his care.  The most serious of the charges involved the complainant (an 11 year old pupil) moving her hand on his penis for a short time.  The maximum penalty was 14 years imprisonment; he was sentenced to 18 months imprisonment, suspended after four months.  This court took the view that there were extraordinary circumstances – the respondent had gone to the police, confessed and pleaded guilty on an ex officio indictment - justifying suspension after that relatively short period.

[16] In R v Tracey, the applicant, a man in his late 50s, was convicted, after pleas of guilty, of 31 counts of indecent treatment of children and was sentenced to concurrent terms of imprisonment, the highest of which was five years, with parole eligibility fixed after 18 months.  He was liable to a maximum of 20 years imprisonment.  The offences were committed against four young girls visiting the applicant’s house and involved his caressing and kissing their genitals, exposing his penis to them and permitting them to touch it.  By the time his appeal was decided, he had already served almost four months beyond his parole eligibility date and had still not been able to participate in any sexual offenders’ program, making his prospects of parole dim.  This court took into account the fact that the applicant had already spent more time in custody than the primary judge had anticipated and that without adjustment of his sentence, he was at risk of serving all or a substantial part of the five year term.  For that reason, it reduced the five year head sentence to three years.

[17] R v Wharton was an Attorney-General’s appeal against a sentence of two years imprisonment, suspended after 114 days already served, in respect of eight counts against the respondent of indecent dealing, exposing a child to an indecent act and permitting himself to be indecently dealt with by a child.  Some of the offences were committed while the respondent was on bail.  The complainants were three boys whom the respondent took on camping trips.  Five of the offences involved his inducing the boys to inject his penis with erectile dysfunction medication.  Another count was based on his simulating sex while naked with one of the boys, who was inside a sleeping bag.  The remaining counts involved his fondling one of the boys and approaching another while naked, seeking to lie down with him.  Those offences were committed over a period of about two and a half years, and the respondent was charged relatively soon afterwards.  One of the boys was aged 11.  The age of the others is not given in the reasons, but it seems likely that they were teenagers, so that the maximum penalty applicable would have been 14 years imprisonment.

[18] However, before the respondent was dealt with for those offences, he pleaded guilty to three counts of indecent treatment, some 20 years previously, of a boy whose genitals he had fondled.  On those counts he was sentenced to three years imprisonment, suspended after six months, the sentencing judge taking the view that he had not committed any further offences and had been rehabilitated.  (As the second group of charges demonstrated, that was mistaken.)  The respondent would have been released, having served the six months, but for the fact that he was remanded in respect of the later group of charges.  This court did not accept the appellant’s submission that a head sentence of two years imprisonment, concurrent with the earlier sentence, for the second group of charges was inadequate, but did regard the total period of actual imprisonment entailed in both sentences, nine and a half months, as insufficient.  The sentences appealed were varied by suspending them after eight months was served.

The applicant’s submission

[19] The applicant’s counsel here contended that the decisions cited demonstrated a range for the combination of the applicant’s 1983 and 1984 offending of between three and four years which, on a plea of guilty, would ordinarily mean that he would serve between 12 and 15 months imprisonment.  There were exceptional features to the case in the form of delay, the applicant’s demonstrated rehabilitation and totality considerations which meant that he should have been sentenced to a term of 12 months imprisonment wholly suspended, with an operational period of 12 months.

The head sentence

[20] The learned judge was right, in my view, in rejecting the applicant’s submission that the 2003 sentence was unlikely to have been different had all offences been before the sentencing judge then.  The offences committed against the present complainant added a significant dimension to the offending.  It was not merely that there was an additional complainant or that the conduct was considerably more protracted than originally thought; the current charges gave the applicant’s conduct a more predatory complexion.

[21] Nonetheless, a good deal of what the applicant says here has force.  The Crown’s notional sentence of five years imprisonment for the combination of offences, those dealt with in 2003 and those currently appealed, was too high as, perhaps, was the four and a half years referred to by the sentencing judge.  That is particularly so given that the maximum penalty applicable was seven years.  The comparative sentences referred to suggest that a range between three to four years would have been more accurate, so that the suggested head sentence of 12 months would have been a proper result.  But I do not think it possible to say that the head sentence actually arrived at by the learned sentencing judge, of 15 months imprisonment, was beyond a proper exercise of his sentencing discretion.

The requirement of actual imprisonment

[22] The real question is whether the learned sentencing judge erred in his approach to requiring the applicant to serve actual imprisonment.  His Honour said this:

“The act as it presently is worded requires a sentence of actual imprisonment except in extraordinary, exceptional circumstances where the offences [are] of a sexual nature like yours are. In any case I am quite settled that a sentence of further imprisonment is required.”

[23] It is apparent from that passage that the learned sentencing judge regarded s 9(5)(b) of the Penalties and Sentences Act 1992 as applicable.  The provision reads:

“(5)Also, in sentencing an offender for any offence of a sexual nature committed in relation to a child under 16 years—

...

(b)the offender must serve an actual term of imprisonment, unless there are exceptional circumstances.”

That section was inserted into the Act by s 5 of the Penalties and Sentences (Sentencing Advisory Council) Amendment Act 2010, taking effect on 26 November 2010.  Invited to make submissions on whether it had application in this case, counsel for the respondent provided a helpful outline of authorities on the point.  She argued that R v Truong,[10] R v Carlton[11] and R v Pham[12] all pointed to the conclusion that s 9(5)(b) was to be applied.

[24] It is, in my view, necessary to begin consideration of this question with an earlier decision, R v Mason & Saunders.[13]  The appellants there had been declared serious violent offenders under part 9A of the Penalties and Sentences Act, which had come into operation after their offences were committed.  The court concluded that part 9A did not apply to offences committed before its commencement.  In doing so, it had regard to s 204(1) of the Penalties and Sentences Act which then, as now, provided:

“204General transitional provisions

(1)This Act applies to any sentence imposed after the commencement of this section, irrespective of when the offence was committed.”

and to s 14H(1) of the Acts Interpretation Act 1954 which was (and is) as follows:

“14H References taken to be included in reference to law

(1)In an Act, a reference to a law (including the Act) includes a reference to the following—

(a)the law as originally made, and as amended from time to time since it was originally made…”

[25] On one view, the court noted, s 14H had the effect of making s 204 (1) as amended from time to time apply to all sentences after its commencement.  But the application of s 14H(1) could be displaced, by virtue of s 4 of the Acts Interpretation Act, by a contrary intention.  Section 204(1) was a transitional provision to ensure that once the Act came into effect it applied as enacted to all offences, whether or not they were committed before its commencement, but it was not intended to apply any future amendments to all sentences subsequently imposed. 

[26] Two other provisions were regarded as particularly significant.  Section 11(2) of the Criminal Code 1899 provides:

“11Effect of changes in law

...

(2)If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender can not be punished to any greater extent than was authorised by the former law, or to any greater extent than is authorised by the latter law.”

Section 20C of the Acts Interpretation Act provides:

“20C Creation of offences and changes in penalties

(1)In this section—

Act includes a provision of an Act.

...

(3)If an Act increases the maximum or minimum penalty, or the penalty, for an offence, the increase applies only to an offence committed after the Act commences.”

[27] The court did not refer to s 180(1) of the Penalties and Sentences Act, but it is in similar vein:

“180Effect of alterations in sentences

(1)If a provision of this or another Act increases the sentence, or the maximum or minimum sentence, for an offence, the increase applies only to offences committed after the commencement of the provision.”

The Explanatory Notes to the Penalties and Sentences Bill 1992 describe s 180 as “[b]ased on the principle underlying section 11 of The Criminal Code…”

[28] The court in Mason & Saunders noted that the effect of applying part 9A was that an offender would not be eligible for release on parole until he had served 80 per cent of the term of imprisonment imposed.  The removal of the prospect of parole, the court said, punished offenders to a greater extent than was “authorised by the former law” within the meaning of s 11(2), and increased the penalty for the offence within the meaning of s 20C(3).  The court went on to summarise its view of the combined effect of the sections:

“In our respectful opinion the real effect of Part 9A is, at least prima facie, to ensure that, in respect of sentences to which it applies, the offender will serve a greater proportion of his or her sentence in actual custody.  In our view neither s 11(2) nor s 20C(3) should be given a narrow technical construction.  The purpose of each would be contravened if Part 9A were to apply to offences committed before it commenced.”[14]

[29] In R v Truong,[15] the question was whether the applicant should have been sentenced according to the principles in s 9 of the Penalties and Sentences Act as it stood when he committed the offence or as it stood when he was sentenced.  The relevance of the issue was that if the former were the case, the applicant, as a young offender not previously convicted, was entitled to the benefit of s 9(4) of the Act, which effectively contained a presumption against imprisonment.  The court accepted the submission that the factors in s 9 set out the way in which the judge was to approach the facts and the manner in which to proceed in passing sentence, so that the section was, in consequence, a purely procedural provision.  Nothing in s 11 of the Code or s 20C of the Acts Interpretation Act applied to entitle the applicant to be sentenced according to the earlier version of s 9. 

[30] Considering R v Mason & Saunders, the court in Truong observed that it was “arguable” whether the introduction of part 9A of the Act indeed did increase penalty, although it subjected offenders to a regime requiring them to serve a greater part of their sentences.  In Mason & Saunders, the court had acted “upon a broad consideration of what amount[ed] to an increase of punishment”.[16]  However, the members of the court in Truong went on to say that they would not “at this stage” be prepared to depart from that view in relation to part 9A.

[31] R v Pierpont[17] is a case with some similarities to the present one.  There, the question was whether the sentencing judge had jurisdiction, having sentenced the applicant to 18 months imprisonment, to make a recommendation for eligibility for parole after six months.  The issue arose because s 157(2) of the Penalties and Sentences Act had been amended after the date of the offence, but before sentence, to preclude the making of such a recommendation in respect of a sentence of imprisonment of less than two years.  The court adverted to s 20C(3) of the Acts Interpretation Act and s 180 of the Penalties and Sentences Act and concluded that the effect of the amended section, in constraining the sentencing judge’s capacity to make a recommendation for eligibility for parole, was to increase the maximum penalty for the offence by putting it beyond the judge’s power to ameliorate the sentence.  Consequently, the amended provision should be regarded as having application only with respect to offences committed after it became operative.

[32] The judgments in R v Carlton and R v Pham were delivered on the same day.  Both concerned whether s 9(6A) and 9(6B) of the Penalties and Sentences Act, which had been inserted with effect from 1 December 2008, applied in sentencing for offences committed before that date.  Those provisions applied to offences of distributing and possessing child exploitation material; they rendered ss 9(2)(a)(i) of the Act, which made imprisonment a last resort, inapplicable and listed a number of factors to which the court was to have regard in sentencing.  Chesterman JA, in each case, was in the majority.  He wrote two lengthy judgments, which, unsurprisingly given that the same issues were involved, were largely identical.

[33] Reviewing a number of cases decided since Truong, Chesterman JA noted that the Mason & Saunders approach – that neither s 11(2) of the Code nor s 20C(3) of the Acts Interpretation Act should be given “a narrow technical construction” - had been consistently applied and reaffirmed.  While he did not consider the approach taken in Mason & Saunders to s 204 of the Penalties and Sentences Act – that it did not apply to future amendments - to be correct, he explained the reasoning in the case in this way: on the premise that part 9A had increased the maximum penalty, s 11(2) of the Code and s 20C(3) of the Acts Interpretation Act displaced the application of s 14H(1) of the latter Act, so that s 204 did not apply to part 9A. 

[34] There was no irreconcilable difference, Chesterman JA considered, between Mason & Saunders and Truong, the former being concerned with a part of the Penalties and Sentences Act which effectively increased punishment, whereas the latter related to amendments to s 9 which did not increase penalties but were procedural.  Truong, not Mason & Saunders was the relevant authority in the circumstances under consideration in Carlton and Pham.  A change to the factors identified in s 9 or a re-ordering of the priorities involved was not, in accordance with the reasoning in Truong, an alteration to the substantive law.  The conclusion was that ss 9(6A) and 9(6B), effecting only a procedural change, applied to sentencing after 1 December 2008. 

[35] There is a later decision from another jurisdiction which is also of relevance here.  In Olsen v Sims[18] the Northern Territory Supreme Court considered whether s 14(2) of the Criminal Code (NT), the equivalent of s 11(2) of the Queensland Code, applied in respect of an appellant charged with a domestic violence offence.  Under the law as it stood when the offence was committed, he was required to serve a minimum of seven days imprisonment because it was his second offence; but that legislation had been repealed and replaced by a later Act which provided exceptions so that, if it applied to him, imprisonment was not mandatory in his case.  The respondent argued that it was open to the magistrate to impose seven days imprisonment, or indeed any sentence he chose up to a maximum of two years imprisonment.  Section 14(2) did not apply merely because a discretion to impose a lesser penalty under the Act as it now stood had been enlivened. 

[36] Mildren J observed that the repeal of an Act and the enactment of a new provision in its place could not be described as procedural.  Nor, he said, could a law requiring a mandatory minimum sentence be said to be procedural.  He turned to examine the purpose of s 14(2), which was to ensure that a person in the appellant’s position was not to be punished more severely than to the extent that the lesser of the two laws which might be applicable would allow.  In ordinary parlance, he said, a law permitting the court to impose a sentence less than a mandatory sentence of seven days imprisonment was a law providing for a lesser punishment; or, in the words of the section, the extent of the punishment authorised by the former Act was greater than the extent of the punishment authorities by the existing law.  On that basis, he held that the appellant was entitled to be dealt with under the current law and allowed the appeal. 

[37] Southwood and Blokland JJ agreed that the appeal should be allowed, similarly characterising the specification of a mandatory minimum custodial sentence as a substantive provision.  Southwood J pointed out that s 14(2) dealt with notions of “punishment” and “authority” (as does the Queensland provision) rather than being confined to questions of maximum and minimum penalty.  Reviewing the authorities, Blokland J observed that there was little support for the proposition that s 14(2) could provide relief when the maximum penalty was changed, but not when the minimum penalty was altered.  The removal of a mandatory minimum term should be regarded as a reduction in penalty.  She endorsed an approach to the interpretation of s 14(2) that was “not overly technical and examine[d] the ‘real effect’”.[19]

[38] The insertion of s 9(5)(b) in the Penalties and Sentences Act in 2010 was not accompanied by any provision making it retrospective. (Nor did the explanatory notes to the Penalties and Sentences (Sentencing Advisory Council) Amendment Bill 2010 contain any suggestion that the section was intended to have retrospective effect.) It is clear that s 9(5)(b), unlike the provisions within Truong, Carlton and Pham, is not merely procedural; it has a substantive effect, making the imposition of actual imprisonment mandatory in the ordinary case.  By doing so, it can be said (by logic similar to that in Pierpont) to increase the minimum sentence within the meaning of s 180(1) of the Penalties and Sentences Act; with the result that the increase should be taken to apply only to offences committed after s 9(5)(b) commenced.  Section 204 of the Penalties and Sentences Act has no bearing; it must yield to s 180 as the more specific provision.  Similarly, taking the broad view of s 11(2) of the Code adopted in Mason & Saunders and endorsed in Carlton, Pham and Olsen v Sims, that provision should be regarded as operating to prevent the application of s 9(5)(b) to offences committed before it commenced. 

[39] It follows that I consider that the learned sentencing judge erred in regarding the provision as applicable.[20]  However, that is not the end of the matter.  The learned judge expressed himself as satisfied that “in any case ... a sentence of further imprisonment is required”.  That statement might be taken to signify a view reached independently of the statutory requirement; but, with respect, I think it probable that his Honour’s conclusion that actual imprisonment was required was largely influenced by what he perceived to be the statutory constraint.  I consider that the learned judge erred by regarding his sentencing discretion as fettered in that way.

Re-exercise of sentencing discretion

[40] It thus falls to this court to exercise the discretion afresh and unfettered by the s 9(5)(b) requirement.  In the peculiar circumstances of this case, the sentencing range undoubtedly extended to the imposition of a short term of actual imprisonment, but a non-custodial sentence was also available.  The sentencing judge referred to the importance of general deterrence, punishment and denunciation.  Certainly personal deterrence has little role to play here, given the lapse of almost 30 years since the applicant’s offending.  The other factors identified are important, but may be met in this case without further actual imprisonment.  Denunciation may be served by the fresh conviction and head sentence of 15 months.  I do not think it could be said that general deterrence is wanting or that the applicant has escaped punishment for his conduct, given the head sentence for both sets of offending of four years and three months, and the nine months previously spent in jail for the second part of what may be seen as a continuum of offending.

[41] A powerful consideration against the imposition of further actual imprisonment is the fact that the applicant had already demonstrated his rehabilitation in the years before his first offending; had undergone a period of imprisonment; and had refashioned his life thereafter for a number of years before being sentenced again.  There is, in my view, a substantial disadvantage to society in disrupting such an extensive period of useful living and rehabilitation, with the result that still further readjustment will be required on the applicant’s release.  For the reasons given, I would have imposed a sentence which did not require the serving of actual imprisonment.

Conclusion

[42] Allowing for the reality that the applicant has already been imprisoned for over three months under the sentence imposed below, I would allow the application, allow the appeal and vary the sentence by suspending it forthwith for the balance of the existing operational period of two years.

[43] APPLEGARTH J:  I have had the advantage of reading the reasons of Holmes JA and save in one respect, I agree with them.

[44] For the reasons given by Holmes JA, the learned sentencing judge erred in regarding s 9(5)(b) of the Penalties and Sentences Act 1992 as applicable.  Immediately after referring to that provision, his Honour stated:

“In any case I am quite settled that a sentence of further imprisonment is required.”

These words signify a view reached independently of the statutory provision.  It is possible that his Honour’s conclusion that actual imprisonment was required was influenced by what he perceived to be the statutory constraint.  However, I am unable, with respect, to agree with Holmes JA that this is probably so.  His Honour’s words indicate the view he took independent of the provision, and he should be taken to have sentenced the applicant on that basis.

[45] The view reached by the learned sentencing judge was one which was open to him, applying well-established sentencing principles.[21]  The learned sentencing judge did not err in concluding that actual imprisonment was required.

[46] I would refuse the application.