38. In my view, the short answer to the applicant's argument is that if s 17(3) of the Act mandates a term of imprisonment, when a fine alone is not appropriate and thus displaces s 7(c) of the Sentencing Act so that s 17(3) has, at that point, imprisonment as its only penalty, then, at that point, the offence becomes a "custodial offence" within the meaning of s 12 of the Sentencing Act. That is so because the offence is then one which can be properly described in the terms of s 12 as an offence that is created under an enactment and has imprisonment as its only penalty. As such, a court is empowered by s 12, if it is of the view that the justice of the case will be better met by a non-custodial sentence than by imprisonment, to make any other sentencing order that it could have made in respect of the offender had the offence not been a custodial offence. Section 12 provides that is so "notwithstanding the penalty provided for the offence" in the other Act. I accept the submission of counsel for the respondent, Mr Brimfield, on this point.
39. It would make a mockery of the egregiously clear objective of mitigation of imprisonment promoted by s 12 of the Sentencing Act, and indeed by s 7(c) of that Act as well, if an offence such as that which is the subject of this motion to review, could not be characterised as a "custodial offence" merely because some other less serious example of the offence, but not the offence under consideration, might attract the lesser penalty of a fine. It is important to note that s 12 defines a "custodial offence" as one that has imprisonment as its only penalty. It does not state that the enactment must be one that specifies or provides for imprisonment as the only penalty in any instance of the offence. The word has is ambulatory.
40. It is unnecessary and would be unduly restrictive of the explicit objective in s 12 and s 7(c) of the Sent encing Act to mitigate imprisonment, to construe the word "offence" in the definition of "custodial offence" in s 12 as meaning every example of the offence created by the enactment concerned, and not just those cases under s 17(3) of the Act meriting imprisonment and not a fine.