R v Lutze - [2010] SASCFC 45

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LUTZE
[2010] SASCFC 45
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice White and The Honourable Justice Kourakis)
2 November 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - OTHER MATTERS
Appellant found guilty by jury verdict in District Court of five offences: serious criminal trespass, aggravated serious criminal trespass, and three counts of theft - trial Judge sentenced the appellant to the one term of imprisonment of three years and 10 months pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) - non-parole period of one year and 10 months fixed - sentence not suspended - whether term of imprisonment was, in all the circumstances, manifestly excessive - whether Judge erred in failing to suspend the sentence.
Held: appeal allowed - sentence of imprisonment of three years and six months imposed - non-parole period of one year and eight months fixed - good reason to suspend term of imprisonment.
(Gray J): Judge proceeded on a misunderstanding of three matters - these three matters support the view that the Judge did not have adequate regard to the appellant's prospects of rehabilitation - would impose a sentence of imprisonment of two years and six months, with a non-parole period of 15 months.
(White J): error in antecedent report significant - open to the Judge to conclude that the character references were of limited assistance - open to Judge to reject submission that the appellant had no memory of the offending - the error in the antecedent report and the Judge’s erroneous belief that the appellant had not acknowledged his offending warrants this Court revisiting the sentence.
(Kourakis J): no error of substance identified with respect to Judge’s approach to character references - case for suspension of the sentence was a very strong one, but no need to decide if Judge in error in this respect, as error in antecedent report sufficient basis to reconsider the exercise of the sentencing discretion.
Criminal Law (Sentencing) Act 1988 (SA) s 18A; Criminal Law Consolidation Act 1935 (SA) s 6, s 134, s 169(1), s 248 and s 353(4), referred to.
Cameron v The Queen (2002) 209 CLR 339; Siganto v The Queen (1998) 194 CLR 656; R v Symonds [1999] SASC 217; R v Nylander (2003) 228 LSJS 24; R v van der Horst [2006] SASC 243; R v Jason [2002] SASC 201; R v Elliott (2001) 121 A Crim R 254; R v Major (1998) 70 SASR 488; R v Gale (1999) 74 SASR 235; R v Tu (2001) 216 LSJS 297; R v Waugh [2005] SASC 470; R v Markarian (2005) 228 CLR 357; R v Ainsworth (2008) 100 SASR 238; Ryan v The Queen (2001) 206 CLR 267; R v Benbrika (2009) 222 FLR 433; R v Petroulias (No 36) [2008] NSWSC 626; R v D’Arcy (2001) 122 A Crim R 268; R v Blocki (1991) 56 SASR 250, considered.

R v LUTZE
[2010] SASCFC 45
Court of Criminal Appeal Gray, White and Kourakis JJ
GRAY J.

This is an appeal against sentence.
Following a trial in the District Court, the defendant and appellant, Shane Dylan Lutze, was found guilty by jury verdict of five offences committed in 2008, namely serious criminal trespass (non-residential)[1] between 3 and 14 September; theft[2] between 3 and 14 September; aggravated serious criminal trespass (non-residential)[3] between 21 and 24 September; and finally, two counts of theft[4] between 21 and 24 September.
[1] Contrary to section 169(1) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for this offence is imprisonment for 10 years.
[2] Contrary to section 134 of the Criminal Law Consolidation Act1935 (SA). The maximum penalty for this offence is imprisonment for 10 years.
[3] Contrary to section 169(1) of the Criminal Law Consolidation Act1935 (SA) (the aggravating feature was that the offence was committed in company). The maximum penalty for this offence is imprisonment for 20 years.
[4] Contrary to section 134 of the Criminal Law Consolidation Act1935 (SA). The maximum penalty for these two offences is imprisonment for 10 years on each count.
The trial Judge sentenced the defendant pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to the one term of imprisonment with respect to all offending. He imposed a head sentence of three years and 10 months and fixed a non-parole period of one year and 10 months. The Judge declined to exercise his discretion to suspend the sentence.
On the hearing of the appeal it was submitted that the term of imprisonment imposed was manifestly excessive. It was further complained that the sentence should have been suspended.
Between 3 and 14 September 2008, the defendant broke into a shed at Ardrossan and stole three shark jaws. Those jaws found their way into the possession of a third party, who subsequently dealt with them in Port Lincoln. Between 21 and 24 September 2008 the defendant with two others broke into the same premises with the intention of taking further shark jaws. However, on entry it was discovered that the shark jaws had already been removed. On that occasion other items of property were taken from the shed including tools and boating and fishing equipment.
Prior to his trial with respect to the subject offending, the defendant had been convicted on his plea of guilty to the offence of threatening a person to influence the outcome of judicial proceedings.[5] The defendant was sentenced for that offending on 21 December 2009. The circumstances of that offending had an indirect relation to the present offending. The offence of threatening a person was committed in February 2009, being a date subsequent to the offending the subject of the present appeal. The defendant was sentenced in the District Court to a term of 15 months imprisonment reduced to six months on account of his plea of guilty, time spent in custody and time spent on home detention bail. The sentence of six months imprisonment was suspended on the defendant’s entry into a two-year good behaviour bond.
[5] Contrary to section 248 of the Criminal Law Consolidation Act 1935 (SA).
One matter at the forefront of the defendant’s submission on this appeal was that the present sentence, if allowed to stand, would undermine the sentence imposed for the other offending. It is apparent that the District Court Judge sentencing the defendant in December 2009 was aware that the defendant faced a trial in respect of the offending the subject of the present appeal. However, neither the defendant nor the Director sought the standing over of sentencing until the conclusion of that trial, then listed for April 2010.
I have reached the conclusion that this appeal against sentence should be allowed. I consider that the Judge proceeded on an incorrect understanding of three matters, namely, an incorrect understanding of a factual matter relating to character references, a misapprehension of the defendant’s acknowledgment of guilt and an incorrect assertion that the defendant went beyond simply putting the Crown to proof in his presentation of the defence case. These matters support my view that the Judge did not have adequate regard to the defendant’s prospects of rehabilitation. I also note that an erroneous entry on the defendant’s antecedent report before the sentencing Judge, is another reason why it is appropriate for this Court to reconsider the exercise of the sentencing discretion in this matter. I have reached the conclusion that it was appropriate to impose a sentence of imprisonment, but that in the circumstances the sentence should have been suspended. My reasons follow.
In the course of the Judge’s sentencing remarks, he referred to good character references that spoke highly of the defendant.
I have read many references from persons who know you and your family, they speak highly of you. The offending which brings you before the court is inconsistent with the picture painted by the references. Unfortunately some of the statements made by the referees are clearly wrong. For example, one referee has expressed the opinion that the position which you were in is due to you having been coerced by outside influences. I do not accept that. Such references are of limited assistance.
A complaint was made about the Judge’s conclusion that “some of the statements made by the referees are clearly wrong”. It was said that at best, the example given by his Honour was the only reference which could be said to be possibly incorrect. Counsel for the Director conceded that no other reference contained any error or could be described as clearly wrong. Counsel accepted that this aspect of the sentencing remarks was factually incorrect.
The Judge was correct to describe the references as speaking highly of the defendant. The references came from persons who had known the defendant both in regard to his employment and within his family. It is evident from the references that he held a good reputation as a hard working young man who was polite and well-mannered, and who was a responsible, caring husband and father. The references confirmed that the defendant had, following a period of trouble with drugs, turned his life around.
The particular reference that the Judge exampled as being clearly wrong came from a resident of Ardrossan who had known the defendant for two and a half years. In that reference the following statement appeared:
In the past 18 months I have seen a lot of stress and concern both to Shane and his family. Since he has been through the court system and home detention, I have found that he has become a quieter and more controlled person. Back then, he appeared to be influenced by others to the point where he could be co-erced into actions that may not have been of his normal self.
In my view the Judge read too much into the above statement. It was the defendant’s case that he had been exposed to the use of amphetamines and other substance abuse and to the influence of others and that this led to his acting in a way which was out of character. It is commonly understood that persons involved with drugs do become subject to the influence of others and that this may lead them to act out of character. I would read this reference as asserting nothing more.
It is to be noted that the failure by the Judge to give any or adequate weight to the character references in all probability led the Judge to “down play” the defendant’s prospects for rehabilitation. I will return to this topic later in these reasons.
The second matter relates to the Judge’s treatment of the defendant’s acknowledgment of guilt and contrition. During the course of sentencing the Judge remarked:
The Crown oppose suspension of the sentence. I am unable to find good reason to suspend the sentence. The offences are serious. You have never really acknowledged your offending and have never demonstrated any real contrition.
In the course of sentencing submissions, in an exchange between the sentencing Judge and counsel for the defendant, the question of acknowledgement of the offending arose:
HIS HONOUR:    Does your client acknowledge the offending…?
[COUNSEL]: He does; he instructs me he does not have a strong memory of it, which is why it was contested. From taking instructions last night, he is remorseful and sorry for his actions.
HIS HONOUR:    That’s a change from his previous position.
[COUNSEL]: He now accepts he has committed this crime. He has no recollection of it because of the drug haze he was in at the time but he knows, now that he’s no longer affected by drugs, that it was very wrong behaviour. He would like to apologise to [the property owner] in relation to it.
HIS HONOUR:    Do you really expect me to accept that he has no recollection of the offending because of a drug haze?
[COUNSEL]:      That’s basically my instructions.
HIS HONOUR:    I don’t accept that.
[COUNSEL]: He doesn’t have no recollection, but a very limited recollection of what occurred in that moment.
I would still ask your Honour to consider a suspended sentence. He has a good work background, he has full-time employment in two industries. He is the father of two children. He has a partner. He has picked himself up and got over his addiction. He plans to finish renovating his home and take over the family business.
In essence, I submit he is a good man who went through a bad period. I submit a suspended sentence could be granted, however, if your Honour was not minded of that –
HIS HONOUR:    It’s taken him a long time to acknowledge his wrongdoing. He hasn’t been in a drug haze for the whole of that period.
A review of this passage of the transcript allows the conclusion that the defendant plainly and unequivocally acknowledged his guilt. He further apologised for his actions. The submission that he had limited memory of the events did not find favour with the Judge. This may be understood, however the position remains that the defendant accepted that he committed the crimes, acknowledged his offending and accepted the jury verdicts. In my view, the Judge, in treating this as not a genuine or fulsome acknowledgement of offending, misunderstood the position. Again, this is a matter that led the judge to “down play” the defendant’s prospects for rehabilitation.
The third matter relates to the following comment of the Judge in the course of his sentencing remarks:
Your defence at trial went beyond simply putting the Crown to proof.
The defendant did not give evidence in his defence and called no other evidence to support the defence case. During his final submission to the jury, counsel for the defendant reviewed what he described as the three crucial witnesses in the trial. Critically, he summarised the defence position as follows:
You see, the question you have to determine with respect to counts 1 and 2 is firstly was [the defendant] a trespasser? Did he participate in an entrance on to those premises? It’s not enough if someone arrived at the house with a set of shark jaws and that he had some connection with them. You can’t reason simply that there are shark jaws at his premises at 8 o’clock in the morning or 9.30 that he was the trespasser. You have to be satisfied beyond any reasonable doubt that he was a party to the trespassing. The only evidence I would suggest is the evidence of Mr Turner where Mr Turner says that the conversation was that he had obtained them from an unlocked shed.
…
What I’m suggesting to you about the evidence here is that you might think that the prosecution has not excluded the possibility having regard to what Deone MacGregor has said that [the defendant] was not involved in the trespass that [the others involved] say he was. There is no forensic evidence, there is no scientific evidence, there is nothing of what I could call objective and solid evidence to establish as a circumstance, a real link between [the defendant] and either of these trespassers.
…
This is a case where you might think that at the end of the day it is a flimsy case. The prosecution haven’t excluded the possibility that [the defendant] was not a participant in these trespasses. You might think that indeed he might well be innocent of these things because of the obvious friction that appears to be flowing around the Ardrossan – a number of people within the Ardrossan/Petersville/Maitland community. We haven’t heard a great deal of evidence about that, but certainly between the participants here, there is a great deal of friction.
As far as [one of the trespassers] is concerned, it would be really stretching it to believe anything he says. There is one thing that you can believe what his father says; that is, that he could lie through his teeth. I suggest his father is also like that; lying through his teeth. Changing his story, tap dancing as I said to protect his interests and interests of his son or people who he is connected with when it suits him. Those are matters that you will have to consider.
The defendant was entitled to plead not guilty and High Court authority confirms that a person is not to be penalised for pleading not guilty.\[6]The defendant was entitled to put the prosecution to proof and to defend the charge without penalty. The absence of a plea of guilty may be relevant for other reasons. It may go to negative contrition and remorse and generally it will exclude any reduction as a consequence of willingness to facilitate the course of justice.
[6] See Cameron v The Queen (2002) 209 CLR 339 at [12] where Gaudron, Gummow & Callinan JJ cited the authority of Siganto v The Queen (1998) 194 CLR 656 at [22] (Gleeson CJ, Gummow, Hayne and Callinan JJ) when they observed: “Although a plea of guilty may be taken into account in mitigation, a convicted person may not be penalised for having insisted on his or her right to trial.”
In my view, the manner in which the defence was conducted, as illustrated by the excerpted address of counsel for the defendant, did not go beyond putting the prosecution to proof. Counsel for the defendant in the above excerpts did no more than test the prosecution case. No positive defence case was put. The Judge’s assertion was incorrect.
In any event, the defendant received no reduction on account of any willingness to assist the administration of justice and it appears that the Judge had little regard to the suggested contrition and remorse. The Judge’s incorrect understanding of the conduct of the defence case at trial was underscored by his treatment of the acknowledgement of offending as being illusory. As earlier noted, in my view the Judge misapprehended the true effect of the acknowledgement of guilt. That acknowledgement was made by counsel in open Court and was accompanied by an apology. Both were made without any equivocation.
A final matter concerns the question of the defendant’s rehabilitation. In the course of his sentencing remarks the Judge did not expressly address the question of rehabilitation. This may be a result of his rejection of the character evidence and his apparent conclusion that the defendant’s acknowledgement of guilt was illusory. However, rehabilitation was an important matter to be addressed. This was particularly so having regard to the defendant’s circumstances including the support from his family and the wider community, his strong work ethic and his recovery from substance abuse. The Judge’s failure to address the question of the defendant’s rehabilitation further indicates that error occurred in the sentencing process.
Having regard to the foregoing, it is apparent that the Judge’s sentencing discretion miscarried.
Reconsideration
Section 353(4) of the Criminal Law Consolidation Act 1935 (SA) addresses this Court’s powers on an appeal against sentence:
Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a)     if it thinks that a different sentence should have been passed—
(i)    quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)     quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b)     in any other case—dismiss the appeal.
The defendant’s offending was serious. There were two separate trespasses on the victim’s property. They occurred about a week apart and the second trespass was committed in company. Items of value were stolen. The defendant appears to have committed the thefts to raise money to fund a drug habit.

The defendant had a criminal antecedent history, including a number of driving and traffic offences and convictions for disorderly behaviour. Of particular relevance is a prior offence for dishonesty. However, on review that offence can be described as minor as the defendant was discharged without penalty.
The defendant’s personal antecedents were addressed by the sentencing Judge. The defendant had an involvement with drug use and this led him into criminal activity including the present offending. There was evidence before the Court however that he had ceased any involvement in illicit drugs by early 2009. It was said that he had significantly changed his behaviour and recognised the dangers of any involvement in drug use.
There was psychological evidence before the Court that the defendant was a person with limited intellectual abilities and functioned around the third percentile of the age equivalent population. His problem solving skills were said to be the developmental equivalent of those of an eight year old.
Notwithstanding his limited intellectual abilities, the defendant has an excellent work record and appears to have the ability to cope well within a small rural community. He is now aged 28 years, has a partner and two young children. Evidence before the Court suggested that the defendant had good prospects for rehabilitation. His stable relationship, wider family support, community support and good work record confirm the psychological opinion with respect to his rehabilitation. The references to his good character, coming from a wide cross-section of the rural community are testament to that community support.
Having regard to the circumstances of the defendant’s offending and his criminal and personal antecedents it was appropriate for the defendant to be sentenced to a term of imprisonment. This is a suitable case for imposing the one penalty for all offending pursuant to section 18A of the Sentencing Act.[7] I would make an allowance of two months on account of the time spent in custody and on home detention prior to sentencing in the District Court. I would make a further allowance of four months on account of time spent in custody since sentencing. I would impose a head sentence of two years and six months. I would fix a non-parole period of 15 months.
[7] See the discussion with respect to the use of section 18A of the Criminal Law (Sentencing) Act 1988 (SA) in R v Major (1998) 70 SASR 488; cf R v Symonds [1999] SASC 217 at [22] (Doyle CJ, with whom Perry and Mullighan JJ agreed); see also R v Nylander (2003) 228 LSJS 24 at [78]-[85] (Bleby J); R v van der Horst [2006] SASC 243 at [54]-[57]; see also R v Jason [2002] SASC 201 at [20]-[22] (Gray J with whom Doyle CJ and Williams J agreed); R v Elliott (2001) 121 A Crim R 254 at [74]-[84] (Nyland J agreeing).
I now turn to the question of whether there is good reason to suspend the term of imprisonment imposed. When sentenced with respect to the charge of threatening a person to influence the outcome of judicial proceedings in December of 2009, the sentencing Judge accepted the psychological evidence then before the Court and exercised his discretion to impose a suspended term of imprisonment. A term of the suspended sentence bond was that the defendant be supervised by a community corrections officer for 12 months and undertake such treatment and counselling as directed and in particular treatment and counselling for drug and alcohol abuse. The defendant complied with the terms of his bond from December 2009 until he was sentenced for the present offending in July 2010.
It is also relevant to note that the defendant has spent a period of about four months in custody with respect to the offences the subject of the within appeal, since the date of sentencing on 5 July 2010. This has no doubt had a salutary effect on the defendant.
In my view the overall circumstances, and in particular the prospect for rehabilitation referred to above, provide good reason for the suspension of the term of imprisonment on entry by the defendant into a good behaviour bond of two years and six months to be supervised for 18 months.[8]
[8] Section 38 of the Criminal Law (Sentencing) Act 1988 (SA).
Conclusion
I would allow the appeal. I would sentence the defendant to a term of imprisonment of two years and six months. I would fix a non-parole period of 15 months. I would suspend the sentence of imprisonment on the defendant entering into a good behaviour bond of two years and six months to be supervised for 18 months.
WHITE J. Between 3 and 14 September 2008, the appellant broke into a shed at Ardrossan and stole some valuable shark jaws. About two weeks later, between 21 and 24 September 2008, in company with others, he broke into the same shed, intending to steal further shark jaws. However, the owner had moved the remaining shark jaws to a safer location, so the appellant and his companions instead stole a quantity of fishing and boating equipment, and a quantity of electrical tools.
As a result of the first incident, the appellant was charged with serious criminal trespass (non-residential), contrary to s 169(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) and with theft, contrary to s 134 of the CLCA. As a result of the second incident, the appellant was charged with aggravated serious criminal trespass (non-residential) and with two counts of theft.
The appellant was convicted by a jury of each offence. The same jury found one of the appellant’s co-accused guilty of the two thefts arising from the second incident but not guilty of the aggravated serious criminal trespass charge. A third co-offender had earlier pleaded guilty to all three charges arising out of the second incident, and he was sentenced separately.
Acting under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA), the Judge imposed one sentence on the appellant for all offences of three years and 10 months, and fixed a non-parole period of one year and 10 months. He refused to suspend that sentence. Had it not been for the periods which the appellant had spent in custody and on home detention bail before being sentenced, the Judge said that he would have imposed a head sentence of four years imprisonment and a non-parole period of two years.
The appellant appeals against the sentence, contending that it is manifestly excessive. He submits in the alternative that the Judge made a number of specific errors in reaching his sentence and, further, that the Judge erred by not suspending the sentence.
The Appellant’s Personal Circumstances
The appellant was 26 years of age when he committed the offences, and 28 years of age at the time of sentence. The Judge had evidence that he came from a good hard-working family on the Yorke Peninsula and that he had a good employment history. In addition, there was evidence from a psychiatrist that the appellant was of borderline intelligence and that he had experienced some psychological disturbance in his past. The appellant was educated to Year 9 level and had been expelled from school at age 16.
The appellant did have an antecedent history, but most of his previous offences were traffic offences or public nuisance offences, such as disorderly behaviour. He did have one previous conviction for dishonestly taking another’s property, but that does not appear to have been a serious offence, as, apart from the recording of the conviction, no further penalty was imposed.
The evidence before the Judge indicated that in 2007 and 2008, the appellant had made substantial use of illicit drugs, including amphetamines. His offending in September 2008 was associated with such drug use. However, the Judge also had material indicating that the appellant had abstained from drug use since the offending in September 2008. This was evidenced, amongst other things, by the fact that the random drug tests taken as part of his home detention bail regime had returned negative results. On the other hand, the appellant did commit a breach of bail on 23 October 2008, which, as I understand it, did result from his use of illicit drugs.
Approximately five months after the subject offending, on 8 February 2009, the appellant committed a further offence, namely, the offence of threatening harm to a prospective witness in criminal proceedings involving a friend of his. The appellant was sentenced by another judge in the District Court for this offence on 21 December 2009, that is, just over six months before the sentence giving rise to the present appeal. That judge imposed a sentence of imprisonment for six months, but suspended the sentence upon the appellant entering into a bond requiring him to be of good behaviour for two years, and to comply with other conditions including being subject to supervision for a period of 12 months.
The appellant was remanded in custody for the subject offences, or the offence committed on 8 February 2009, for various periods, but since 11 June 2009 had been on bail, including home detention bail. The materials put before the Judge indicated that since that time the appellant’s life had become more stable and that he was exercising greater maturity. The appellant was working at two jobs: a day time labouring job and at his father’s roadhouse at Ardrossan in the evenings. In addition, the appellant had developed a stable relationship with his partner and had commenced the purchase of his own home.
The Judge’s Sentencing Remarks
The Judge referred to the matters which I have just summarised, to the serious impact of the offending on the victim, and to other matters which I will mention when addressing the appellant’s specific complaints. He emphasised the importance of deterrence, both personal and general, in the sentencing of the appellant.
The Judge did not give any explanation of the way in which he reached his starting point for a single sentence under s 18A of imprisonment for four years. In my opinion, the Judge was in error in failing to do so. The authorities indicate that when s 18A of the CLSA is applied, it is usually desirable for the sentencing court to identify the notional individual sentences which are appropriate for each offence, then to identify whether those sentences should be wholly or partly cumulative or concurrent, and then to determine the single sentence.[9] However, there are cases in which the identification of notional individual sentences is inappropriate or unnecessary. Doyle CJ described such circumstances in R v Symonds:[10]
The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outlined in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major. Subject to that, however, I adhere to what I said in Major and to the desirability, as a general rule, of relating a single sentence to be imposed to the individual sentences that would otherwise be imposed.[11]
[9] R v Major [1998] SASC 6569; (1998) 70 SASR 488 at 490, 497; R v Gale [1999] SASC 309 at [18]-[19], (1999) 74 SASR 235 at 238; R v Tu [2001] SASC 395 at [16]; (2001) 216 LSJS 297 at 300; R v Waugh [2005] SASC 470 at [42].
[10] [1999] SASC 217.
[11] Ibid at [22].
In my respectful opinion, none of the circumstances described by Doyle CJ in Symonds applied in this case. In the absence of s 18A, a sentencing court could properly have decided that concurrent (or substantially concurrent) sentences should be imposed for the first two offences and that concurrent (or substantially concurrent) sentences be imposed for the remaining offences. It would not have been difficult for a sentencing court to determine an appropriate sentence in that way.
Even in those cases in which a sentencing judge considers it unnecessary or inappropriate to follow the general rule of identifying the notional individual sentences, an adequate explanation of the way in which the single sentence is reached should be given. This can be done, for example, by identifying appropriate individual sentences for the more serious offences for which the sentence is imposed, then by identifying whether the judge considers that they should be served cumulatively or concurrently, or partly cumulatively and partly concurrently. Alternatively, a judge may state a sufficient number of individual sentences and then indicate that the identification of further individual sentences is unnecessary.[12] In this way, some indication is given to offenders, and to victims, as to the way in which the criminality of the conduct is reflected in the single sentence, and the task of this Court on appeal is greatly facilitated.
[12] R v Waugh [2005] SASC 470 at [43].
The Approach of an Appellate Court
The circumstances in which an appellate court may interfere with a sentence are well known. In Markarian v The Queen[13] Gleeson CJ, Gummow, Hayne and Callinan JJ described those circumstances as follows:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.[14]
(Citation omitted)
[13] [2005] HCA 25: (2005) 228 CLR 357.
[14] Ibid at [25], 370-1.
As noted at the outset, the present appellant contends that the sentencing Judge made some specific errors and further, imposed a sentence which is manifestly excessive.
Section 353(4) of the CLCA imposes a further constraint on this Court in relation to appeals against sentence. The effect of s 353(4) is that this Court may quash the sentence appealed against only if it is first satisfied that some other order should have been made. Otherwise the Court must dismiss the appeal.[15]
[15] R v Ainsworth [2008] SASC 67 at [68]; (2008) 100 SASR 238 at 256.
The Appellant’s Specific Complaints
The appellant submitted that the Judge’s reasons disclose a number of specific errors. It is convenient to address those in turn.
Error in List of Antecedents
At the hearing of the appeal, the appellant raised, for the first time, an error in the list of his antecedents provided to the Judge. The list showed that he had been sentenced in the Port Pirie Magistrates Court on 15 December 2009 for two offences: dishonestly receiving property without the owner’s consent, committed on 8 September 2008; and failing to comply with his bail agreement, committed on 23 October 2008. Counsel for the Director undertook to check the position. Following the hearing of the appeal, he informed the Court, with the consent of the appellant, that the offence of dishonestly receiving property without the owner’s consent said to have been committed on 8 September 2008 had been included in the appellant’s list of antecedents in error, and should be ignored. Further, the appellant had appeared in the Kadina Magistrates Court, and not the Port Pirie Magistrates Court, on 15 December 2009 in relation only to the offence of failing to comply with his bail agreement.
In my opinion, the error in the list of antecedents is significant. It suggested that the appellant had committed another offence of dishonesty at about the same time that he committed the first two offences giving rise to this appeal. Although the sentencing Judge did not refer specifically to this particular antecedent, he did note that the appellant had “many prior convictions”. It is likely therefore that it is a matter which the Judge took into account in determining that personal deterrence was particularly important in the appellant’s case.
Accordingly, I am satisfied that the submission concerning this specific error has been made good, but I emphasise that the error in the list of antecedents was raised for the first time on the hearing of the appeal, and that the sentencing Judge’s attention was not drawn to it.
The Use of the Character References
The appellant provided several character references to the Judge. They spoke highly of him and, in addition to addressing his character, provided some insights into his family and social circumstances.
In relation to the character references, the Judge said:
I have read many references from persons who know you and your family, they speak highly of you. The offending which brings you before the court is inconsistent with the picture painted by the references. Unfortunately some of the statements made by the referees are clearly wrong. For example, one referee has expressed the opinion that the position which you were in is due to you having been coerced by outside influences. I do not accept that. Such references are of limited assistance.
The appellant submitted that the Judge’s conclusion that some of the statements made by the referees were “clearly wrong” was itself an error. The Judge gave only one example of error by a referee and, it was submitted, when that particular reference was properly understood it was not wrong. The appellant also submitted that the Judge was wrong to have regarded his character references as being of “limited assistance”.
There is some ambiguity in this passage of the sentencing remarks concerning the character references. It is not clear whether the Judge meant that all of the character references were of limited assistance, or only those which contained errors. Not without some hesitation, I consider that the Judge meant the former.
An offender’s good character is a mitigatory factor which a sentencing court is bound to consider.[16] The weight which can be given to an offender’s otherwise good character will vary greatly according to the circumstances of the particular case.[17] Documented good character may indicate that the offences which brought the offender before the court were “out of character” and may suggest that the person is unlikely to re-offend.[18]
[16] Ryan v The Queen [2001] HCA 21 at [25], [33]; (2001) 206 CLR 267 at 275, 278.
[17] Ibid at [25], 275.
[18] Ibid at [29], 276.
Strictly speaking, a written character reference should be confined in the same way as is oral evidence of character to the person’s general reputation. However, it is not uncommon for sentencing courts to receive written material going beyond this narrow ambit. That is because sentencing courts are not bound by the rules of evidence and can receive material of this kind.[19]
[19] CLSA, s 6.
Bongiorno J referred to the use which can be made of written character references in the course of his sentencing remarks in R v Benbrika.[20]His Honour said:
A number of articulate and impressive testimonials were submitted on Joud’s behalf. They were from friends and family who knew him and obviously thought very well of him as a brother, cousin or friend. They attested to his kindness, friendliness, concern for others and many other admirable qualities. Of course, as with all testimonials tendered on plea hearings, they are intensely partisan and are hardly objective. However they do demonstrate that Joud could expect to receive significant support from family and friends when he is released.
The Crown submitted that this material should be given little weight. Counsel for Joud, Mr Wraight, submitted that as the material was uncontradicted it should be accepted. In sentencing Joud these testimonials will be given such weight in his favour as is appropriate having regard to their content and subject to their obvious limitations.[21]
[20] [2009] VSC 21; (2009) 222 FLR 433.
[21] Ibid at [92]-[93], 450.

A number of factors affect the weight which a sentencing court can give to character references. These include the source and content of the references; the identity of their authors; the extent to which the referees are partisan; the knowledge of the referees of the appellant’s criminal history and of the offences which presently bring the offender before the Court; and the extent to which the references are inconsistent with other material before the Court. This point was made by Johnson J in R v Petroulias (No 36):[22]
The references demonstrate the intelligence and capacity of the Offender, who has obtained substantial tertiary qualifications which he has utilised in professional work which he has undertaken. A number of the referees spoke of the pressures upon the Offender since his arrest in 2000 and whilst the criminal proceedings have been on foot. The references speak, in positive terms of the Offender’s character. Some referees purport to express views concerning the period between 1997 and 1999 when the offences occurred. I do not consider that this material is of particular assistance for the purpose of fact finding on sentence. A real difficulty with many of the references is that the authors are not objective commentators on the Offender. Several portray him as a victim and not an offender. These referees do not appear to have grappled with the powerful body of incriminating evidence to which reference has been made earlier in these reasons. Several are clearly allies of the Offender in business and other activities. All of this affects the weight to be given to this evidence. To the extent that some referees speak of a change in attitude by the Offender since about 2005, this does not sit comfortably with the Offender's statement to the Probation and Parole Officer in early 2008 referred to earlier.[23]
(Emphasis added)
[22] [2008] NSWSC 626.
[23] Ibid at [142]. See also R v D’Arcy [2001] QCA 325 at [133]-[134]; (2001) 122 A Crim R 268 at 292‑3.
In the present case, the Judge was provided with eight character references. Only three appear to have been prepared in relation to the sentencing before the Judge. The others appear to have been prepared in relation to the sentencing of the appellant on 21 December 2009 for the offence of threatening a prospective witness in criminal proceedings and make no reference to the appellant’s offending in September 2008. For written character references to be useful, their author should at least indicate, on the face of the reference, their awareness of the general nature of the offences bringing the offender before the Court.
The references prepared in 2010 in relation to the appellant’s present offences were provided by his grandmother, his mother-in-law and a resident of Ardrossan. Not surprisingly, there was an element of partisanship in the references from the appellant’s grandmother and mother-in-law, and this limited the weight which could be given to them. The reference from the Ardrossan resident included the statement:
Back then, he appeared to be influenced by others to the point where he could be coerced into actions which may not have been of his normal self.
This appears to have been the statement which the Judge considered to be clearly in error.
In my opinion, the Judge may have read this sentence in the reference too literally. I consider that the referee was saying no more than that she considered that the appellant had been exposed to bad influences which helped explain his wrongful conduct. The same referee went on to describe changes which she had observed in the appellant, which were consistent with his rehabilitation.
The Judge did not say that he regarded the character references as being of no assistance at all, only that they were of “limited assistance”. Although the Judge may have misunderstood the effect of the statement made by the Ardrossan resident to which I have referred, I do not consider that his overall conclusion about the use to which the references could be put was wrong. I consider that it was open to the Judge to conclude that the references were of limited assistance having regard to the fact that many had been prepared in relation to previous offending and not the current offending, to the fact that the authors did not disclose any knowledge at all of the appellant’s current offending, and to the obviously partisan nature of several of the references.
In my opinion, this ground of appeal is not made out.
Appellant’s Memory of the Offences
The Judge rejected the submission of the appellant’s then counsel that the appellant had no recollection of his offending because he had been in a “drug haze”. It is implicit in the Judge’s reasons that he considered that the appellant’s claim of limited memory of his offending tended to detract from the submission that he accepted fully responsibility for his conduct.
The appellant submitted that the Judge’s rejection of his claim of no memory was wrong.
In my opinion, this submission should be rejected. The Judge was well placed to make an assessment of the overall circumstances of the offending as he had heard the evidence in the trial. In his sentencing remarks, the Judge said that he considered that the commission of two separate and planned offences, committed two weeks apart, and involving conscious and deliberate trips to the victim’s shed was inconsistent with the claimed lack of memory. In my opinion, that conclusion is quite understandable and has not been shown to be wrong.
Furthermore, the Judge informed counsel at the time that the submission was made that he did not accept it. There was no subsequent attempt to adduce any evidence to support the submission.
This ground of appeal fails.
Conclusion on Appeal Against the Head Sentence and the Non-parole Period
In my opinion, the appellant has made good one of his complaints concerning the head sentence and the non-parole period. That means that this Court should reconsider at least the head sentence and the non-parole period.
Should the Sentence Have Been Suspended?
The Judge refused to suspend the sentence and gave the following reasons:
The Crown oppose suspension of the sentence. I am unable to find good reason to suspend the sentence. The offences are serious. You have never really acknowledged your offending and have never demonstrated any real contrition.
Your defence at trial went beyond simply putting the Crown to proof.
Your counsel said that he would raise the question of restitution with you. I raised that matter on the last occasion with Ms Lambden. Notwithstanding the fact that you have two jobs at the moment, no offer of restitution has been made. As I indicated on the last occasion, I regard restitution as an important matter.
It can be seen that the Judge gave three separate reasons why good reason for suspension did not exist. The first was the absence of acknowledgment of the offending or of contrition.
The Judge’s belief that the appellant had not acknowledged his offending was in error. During the course of the sentencing submissions, the following interchange occurred between the Judge and counsel:
His Honour:               Does your client acknowledge the offending Ms Lambden?
Ms Lambden:     He does; he instructs me he does not have a strong memory of it, which is why it was contested. From taking instructions last night, he is remorseful and sorry for his actions.
His Honour:       That’s a change from his previous position.
Ms Lambden:     He now accepts he has committed this crime. He has no recollection of it because of the drug haze he was in at the time but he knows, now that he is no longer affected by the drugs, that it was very wrong behaviour. He would like to apologise to [the victim] in relation to it.
Even in the absence of the error as to the appellant’s antecedents identified earlier, this error warrants this Court revisiting the question of suspension, and makes it unnecessary to consider the remaining criticisms of this aspect of the Judge’s reasons.
Re-sentence
The identified errors in the Judge’s approach to sentencing indicate that this Court should exercise the sentencing discretion afresh.
If separate sentences were imposed instead of s 18A being invoked, the sentences for the second three offences (which could themselves be substantially concurrent) should be cumulative upon the sentences for the first two offences (which could also themselves be substantially concurrent). A single sentence of just under two years imprisonment would be appropriate for the first two offences, and a single sentence of just over two years would be appropriate for the next three offences. Viewed in that way, a starting point of four years imprisonment for the two sets of offending (the same that was adopted by the Judge) is appropriate.
From this starting point, a reduction of two months should be made for the time which the appellant had served in custody and on home detention bail. This reduces the starting point to three years and 10 months. However, before finalising the head sentence and the non-parole period, it is appropriate to address the issue of suspension.
In my opinion, there is good reason to suspend the sentence in this case. The particular matters indicating the good reason to suspend are as follows.
First, apart from the sentence imposed on 21 December 2009 for the offence committed after the subject offending (which sentence was suspended), this is the first time the appellant has been sentenced to imprisonment. Secondly, since committing these offences, the appellant has had the experience of imprisonment. He spent a total of two months and 17 days in custody from 27 April 2009 to 11 June 2009. This time in custody was taken into account in the sentence for the offence of threatening harm to a prospective witness imposed on 21 December 2009. The appellant cannot receive credit for that period in custody a second time. However, the fact that he has experienced imprisonment since committing these offences is a relevant consideration. It is now less necessary for the appellant to serve time in custody in order to understand the serious consequences of his offending.
More significantly, the appellant has been in custody since being sentenced by the Judge on 5 July 2010, a period of about four months. This too must have brought home to him the serious consequences of his offending.
Thirdly, before being sentenced for these offences, the appellant had demonstrated that the process of rehabilitation was under way. Apart from complying with the conditions of the bond into which he entered on 21 December 2009, there are the indications to which I referred earlier, that the appellant is settling down and beginning to exercise greater self-responsibility. In addition, he is working at two jobs and is assuming family responsibilities. Until released from custody, it will be difficult for the appellant to commence reparations to the victim.
Finally, it is evident that the appellant has the support of his family in and about Ardrossan.
For these reasons I would suspend the sentence.
This means that it is not possible to impose the same sentence as did the Judge. That is because it is not possible to suspend part of the sentence of three years and 10 months.
Accordingly, to give the appellant credit for the time served in custody since 5 July 2010, I would sentence the appellant to imprisonment for three years and six months. In order to maintain a non-parole period of approximately the same proportion of the head sentence as was imposed by the Judge, I would fix a non-parole period of one year and eight months.
Conclusion
I would allow the appeal and set aside the sentence of the District Court. I would sentence the appellant to imprisonment for three years and six months and fix a non-parole period of one year and eight months.
I would suspend that sentence upon the appellant entering into a bond in the sum of $500 requiring him to be of good behaviour for a period of two years and six months, to be under the supervision of a Community Corrections Officer for a period of 18 months and to comply with the reasonable directions of the Community Corrections Officer assigned to him.
KOURAKIS J:
The criminal jurisdiction of the District Court extends to all major indictable offences except for murder. Its judges carry a heavy sentencing workload. The Court and its individual judges have accumulated much experience in sentencing for the many and varied offences with which they deal on a daily basis. The very volume of their caseload necessarily endows District Court judges with a ready appreciation of the relative seriousness of those offences and the relation which the sentences they impose should bear to each other.
The experience to which I have referred does not, of course, immunise the sentences of District Court judges from error. It does, however, establish the context in which their sentences and sentencing remarks should be examined for error by this Court. The exercise of the sentencing discretion should not be set aside for the purposes of “fine tuning” a sentence. Similarly, sentencing remarks should not be subjected to pedantic examination. Infelicity in the expression of sentencing remarks is not, of itself, a manifestation of error in the exercise of the discretion.
I acknowledge that in his sentencing remarks the Judge said that a number of character references were premised on a mistaken apprehension of the influence of others on the appellant’s offending when there was only one such reference. I agree with the Judge that that misapprehension substantially undermined the value of that reference. I am not satisfied that the Judge’s mistaken use of the plural shows that he did not have proper regard to those references which were not affected by that factual misapprehension. In short, I am satisfied that the error is one of expression and not of substance. I am also satisfied that the Judge’s observation that ‘such references are of limited assistance’ refers to references which are premised on a substantial misapprehension about the offending.
I find the question of whether the Judge erred in not suspending the sentence more difficult. When sentencing young offenders with no, or few, relevant prior convictions, a realistic risk assessment of the competing options as to suspension must be made. That assessment must be based on the Judge’s appraisal of the depth of the offender’s commitment to rehabilitation.
In R v Blocki[24] a sentence of immediate imprisonment imposed for offences of dishonesty, committed by a 28 year old female heroin addict, was set aside and the sentence suspended by the Court of Criminal Appeal. Addiction was the motivation for the offence. The offender had no prior convictions and had the care of three young children. She was showing some promise of benefiting from a treatment program which she had commenced. King CJ said:
The case is a difficult one because it is necessary to endeavour to balance the responsibility of this Court to the community to protect it from crime and in particular to protect it from crime committed by persons who have formed a self-induced drug habit on the one hand, and on the other to promote, so far as possible, the rehabilitation of an offender who may be capable of reform. The nature of these crimes certainly constitutes a very serious obstacle in the way of suspension of the sentences. Against that, there is the fact that the appellant has no prior convictions. She is not a first offender in the strict sense because on her own admission she has been a user of unlawful drugs for a considerable period of time; but this is the first time that she has been brought before a court and convicted of a crime and there is perhaps some reason to hope that that experience will stimulate her to change her way of life.[25]
[24] (1991) 56 SASR 250 (‘Blocki’).
[25] Ibid 251-2.
The basis of the decision appears to have been simply that the refusal to suspend was wrong and unreasonable in the circumstances of that case, that is, that the outcome was erroneous. No express, or process error in the nature of failing to have regard to a relevant matter, was identified.[26] I am not prepared to hold that in this case it was unreasonable to order the imprisonment to be served. However, the case for suspension was a very strong one.
[26] Ibid 252.
In the case of a young offender who does not have an entrenched habit of offending and who faces a substantial period of imprisonment, the sentencing court must confront and deal with the question identified by King CJ in the passage I have just cited. The answer to that question requires a realistic, and not a fancifully optimistic, assessment of the offender. However, there are cases where, not infrequently, it can be said that the prospect of successful rehabilitation and deterrence from further offending will be better achieved by a suspended rather than an actual term of imprisonment.
In this particular case there were substantial reasons to think that the community would be better protected by a suspended sentence. Even though the appellant had not fully accepted responsibility for his offending he had shown insight into its causes. He had managed to extricate himself from an entrenched drug dependence which had persisted for over a decade. He had established a stable family environment and committed himself to work. These changes had for some time been reinforced by a period of supervision undertaken as part of a suspended sentence imposed for other offending.
Counsel for the Director of Public Prosecutions acknowledged that these considerations strongly supported a favourable exercise of the discretion.
On the other hand, I accept that the reasons identified by the Judge for not suspending the sentence of imprisonment militated against that course. The plea of not guilty and the unlikely explanation for his offending given after the jury’s verdict indicate that his contrition was both late in coming and shallow. The appellant’s claim to post offence amnesia was, understandably, not accepted by the Judge.
The failure to pay restitution was also a serious obstacle in the way of suspension. However, from the submissions that were made before the Judge, and before this Court, I suspect that failure was due more to legal advice about the best way to respond to the victim’s inflated claims for compensation than it was to the appellant’s personal reluctance to make financial amends for his offence. For myself I see no reason why, in the face of inflated claims for compensation, an offender should not tender such compensation as he or she thinks is fair.
However, the poor prognosis suggested by the above matters was ameliorated by the positive transformation in his personal life.
The Judge did not expressly deal with, and resolve, the competing considerations, which I have just identified, in his sentencing remarks. Even though the Judge acknowledged the appellant’s progress towards rehabilitation he appears to have proceeded on the basis that the failure to pay restitution and the limited contrition were reason enough, in themselves, to deny the existence of good reason. In my view the failure to expressly evaluate the risks and benefits of the competing options suggests that the question identified by King CJ in Blocki was not addressed.
I wish to emphasise, in light of my opening remarks, that it is not the mere failure to refer to the balancing exercise described by King CJ which is suggestive of error. The failure to do so has particular significance in this case because the Judge also failed to acknowledge that the appellant’s rehabilitation reduced the relative importance of the lack of contrition. Finally, and perhaps most importantly, the failure to acknowledge the strength of the case for suspension of the sentence also suggests that the Judge failed to expressly undertake the evaluation referred to by King CJ.

I am relieved of the necessity to finally determine this question because of the acknowledged error in the antecedent report provided to the Judge; that error is a sufficient basis to reconsider the exercise of the sentencing discretion.
I would impose the sentence proposed by White J for the reasons given by him.