Case: Kovac v The Queen (1977) 15 ALR 637 
Outcome: applied
was submitted that these procedural errors are significant and that their intrinsic part in the sentencing process has the result that the discretion exercised by the sentencing court has miscarried, is unsound or unreasonable in its exercise, and this is reflected in the severity of the sentence actually handed down. The appellant asks that the sentence the subject of appeal be set aside and that this Court substitute its own sentence in lieu: Kovac v The Queen (1977) 15 ALR 637. The balance of the appellant's submissions were directed to (1) The circumstances that do not justify full-time custody: three key matters that are to be considered under s 16A of the Crimes Act: (a) the need to ensure that the person is adequately punished for the offence; (b) the deterrent effect that any sentence or order under consideration may have on the person; (c) the prospect of rehabilitation of the person. (2) A just and appropriate sentence to be substituted in lieu such as community service, as was recommended to Liverpool Local Court by the Probation and Parole Officer's Pre-Sentence Report of 22 June 2006. Dealing with each of the matters in turn, the appellant submitted that the time in full-time custody already spent (five days), together with a community service order, lengthy if need be, would be adequate punishment, and that any greater level of punishment meted by the Court would exceed that which is just and appropriate with respect to the objective features of the offence committed. In this regard, the appellant relies on sentencing statistics published by the Judicial Commission of New South Wales in 2007 and annexed to her written submissions which illustrate that over the period October 2002 to September 2006 in the case of 90 offenders convicted of breaching s 132 of the Copyright Act and in respect of 102 offenders convicted of breaching s 148 of the Trade Marks Act , none were imprisoned. Any that were given a custodial sentence were immediately released pursuant to s 20(1(b) of the Crimes Act . This, the appellant submits, provides a measure for this Court to assess the objective criminality of the offence and thus a guide as to what level of punishment is adequate. In Kovac , a Full Court of this Court said (at 642, 643): "In Harris v R [1954] HCA 51 ; (1954) 90 CLR 652, the High Court considered an appeal against sentence under s 64(1) of the Papua New Guinea Act 1949 to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Court of the Territory. The court held that it would not interfere with a sentence of imprisonment imposed unless it was satisfied that the discretion exercised by the court imposing the sentence miscarried or was unsound or unreasonable in its exercise. In a joint judgment, Dixon CJ, Fullagar, Kitto and Taylor JJ cited with approval a passage from the decision of the High Court in Cranssen v R [1936] HCA 42 ; (1936) 55 CLR 509. In the latter case, after pointing out that an appeal against sentence is an appeal from a discretionary act of the court responsible for the sentence, Dixon, Evatt and McTiernan JJ (at 519) said: 'The jurisdiction to revise such a discretion must be exercised in accordance with recognized principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court's authority;' Following this citation their Honours (at p 656) in Harris' Case added: 'It is not enough in applying those principles that the judges of this court should regard the sentence as greater than they themselves would have imposed'."